Unsatisfactory conduct. Withdrawal of criminal complaint to settle dispute
This is a summary of a decision by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 753.
A lawyer was found guilty of unsatisfactory conduct by a Standards Committee after attempting to use the withdrawal of a criminal complaint as a means of settling a civil dispute. The lawyer was ordered to pay costs.
The complaint to the New Zealand Law Society had been made by the Police. This stated that on behalf of her client the lawyer had made an offer to her client’s former partner, through his lawyers, that their relationship property dispute could be settled by payment of a certain sum to her client. The lawyer had indicated that if the payment were made, her client would withdraw an assault complaint she had made against her ex-partner, and would refuse to give evidence against him.
In response to the complaint, the lawyer had immediately and appropriately accepted responsibility for her actions, the Standards Committee said, and recognised the seriousness of the matter.
The Standards Committee found that the lawyer had breached Rule 2 of the Rules of Conduct and Client Care, which requires lawyers to uphold the rule of law and to facilitate the administration of justice, and Rule 2.2, which prohibits lawyers from attempting to obstruct, prevent, pervert or defeat the course of justice. These are fundamental rules of professional conduct, the Standards Committee said, and it is well known that lawyers must exercise extreme care in settling civil disputes that also involve criminal complaints.
Rule 7.05 of the former Rules of Professional Conduct had specifically identified as a professional breach any attempt to resolve civil matters by withdrawing a criminal complaint. Although the current Rules do not have a similar provision, they do not change the relevant professional obligation, the Standards Committee said.
In deciding to find the lawyer guilty not of misconduct but rather of unsatisfactory conduct in the form of conduct unbecoming, the Standards Committee took into account that this was an isolated incident involving a momentary lapse in judgement. It accepted that the lawyer had not intended to obstruct, prevent, pervert or defeat the course of justice. The Standards Committee also noted that the criminal complaint could have affected the value of the relationship property, as a prison sentence would have affected the other party’s business interests. Further, the discussions between the parties’ lawyers had accepted that the Police would not necessarily withdraw an assault charge if the complaint were withdrawn.
The Standards Committee ordered the lawyer to pay $500 in costs to the Law Society, but imposed no further penalty.