Lawyer contacted person known to be separately legally represented

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 768, 25 March 2011.

A lawyer was censured and fined after contacting a person he knew was separately legally represented.

A lawyer acting in a matter must not communicate directly with a person whom the lawyer knows is represented by another lawyer (Rule 10.2 of the Rules of Conduct and Client Care). Direct contact is allowed in limited circumstances, for example where the matter is urgent and it is not possible to contact that person’s lawyer (Rule 10.2.1).

The Standards Committee did not accept that the contact complained of fell within the limited circumstances exception. The Committee did accept that the lawyer may have been aware of the unavailability of counsel for the complainant but considered it reasonable that the lawyer should have made an attempt to contact the instructing solicitor.

The lawyer induced the person contacted into writing a letter setting out an agreement that was attached to an affidavit as an exhibit and was later used in court proceedings. When a lawyer contacts a person due to urgency, they must ensure that they act fairly towards the other lawyer’s client and promptly notify the other lawyer of details of the communication (Rule 10.2.1).

The lawyer was censured and ordered to pay a fine of $1,250 and $500 towards the costs of the investigation.

© New Zealand Law Society 2008