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Lawyers’ action as a client unacceptable

03 November 2017

[Names used in this article are ficticious]

A lawyer who makes a threat to gain traction in negotiations is acting in a way that is “prejudicial to the administration of justice” a lawyers standards committee has said.

The committee considered a complaint about a lawyer, Guildford, who made a threat in a personal capacity.

A law firm acted for Guildford and her mother on the purchase of a property. The property was registered in the parties’ names as tenants in common in equal shares.

It was intended that the mother would later buy the property outright. However, no property sharing agreement or other document was prepared to record the parties’ equity in the property or intentions.

A dispute arose after the law firm was instructed to act on the mother’s purchase of Guildford’s interest in the property. The mother disputed that Guildford was entitled to a half share of the net value of the property. The lawyer was referred to another law firm.

Guildford became concerned that the firm was using privileged and confidential information against her in the dispute. She wrote to the firm, advising that it was acting in a conflict of interest. Guildford said she reserved her right to inform the Law Society and that she considered she had a claim against the firm for failing to provide advice about entering into a property sharing agreement at the time of the purchase.

A lawyer with the firm responded, denying all elements of her claim. He also said that, until it had received Guildford’s letter, the firm had been acting for both parties with their knowledge and consent. On receiving the letter he had withdrawn from acting for the mother.

The threat

Guildford and her mother subsequently reached agreement. Guildford emailed the firm’s client care partner saying she would shortly advise the firm of particulars of the loss she had suffered by their actions. The email, sent on 1 July 2016, went on to state:

“Due to the pressures of time … I can allow 5 days (close of business on 6 July) for your firm or your insurer’s solicitors to make an offer as to settlement thereafter I will refer my complaint to the Law Society. I believe your firm has had sufficient time over the last few weeks to consider and respond to the complaint raised.”

The client care partner complained to the Law Society that the email breached rules 2.7 and 2.10 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, which state:

  • 2.7 A lawyer must not threaten, expressly or by implication, to make any accusation against a person or to disclose something about any person for any improper purpose.
  • 2.10 A lawyer must not use, or threaten to use, the complaints or disciplinary process for an improper purpose.

The standards committee said there was nothing in the wording of either rule that would indicate the rules were only intended to apply when a lawyer was providing regulated services.

Guildford was therefore bound to comply with both rules in her personal capacity.

“In the standards committee’s view, the fundamental purpose of rule 2.10 is to protect the integrity of the complaints process and prevent the Lawyers Complaints Service from being used for any purpose other than as a forum to consider whether lawyers have complied with their professional obligations,” the committee said.

“Rule 2.7 is aimed at ensuring that lawyers do not threaten to make an accusation or disclose information about any person for an improper purpose. The rule is concerned with maintaining the integrity of legal processes and the profession.”

It was not proper for a lawyer acting in their own financial interest to issue a threat of a complaint as a means of pressuring another lawyer to pay a sum of money. “Such conduct undermines the integrity and purpose of the complaints process,” the committee said.

The committee considered it would have been acceptable for Guildford to ask the firm for an offer provided she had stated that any offer would be taken in to account when pursuing losses in connection with any complaint and provided she made it clear that whether an offer was forthcoming was not the sole determinative factor of whether a complaint was made.

Although it found Guildford had breached rules 2.7 and 2.10, the committee accepted that she did not appreciate, at the time she sent the email, that she might be bound by the rules when she was not providing regulated services. The committee also noted that due to personal circumstances, she felt pressure to resolve the dispute as quickly as possible.

As a result, the committee was satisfied that Guildford’s conduct in sending the email did not warrant a finding of unsatisfactory conduct.

Last updated on the 3rd November 2017