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Published on 5 July 2019
[All names used in this article are fictitious]
A lawyer, Casby, has been fined $500 for threatening to use the complaints process for an improper purpose.
Casby represented Ms Hawdon, who had complained about another lawyer, Merdle. Ms Hawdon alleged that Merdle had registered a caveat against her property on behalf of her brother when she was a client of Merdle’s firm, and that Merdle had thereby acted in a conflict of interest situation.
When responding to the complaint, Merdle drew the committee’s attention to Casby’s letter to him, which stated: “Our client requests that you withdraw the caveat immediately or she will lodge a complaint with the New Zealand Law Society.”
Rule 2.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 states: “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”.
Rule 2.10 states: “A lawyer must not use, or threaten to use, the complaints or disciplinary process for an improper purpose”.
Casby told the committee that his statement asking Merdle to withdraw the caveat was not a threat. Instead, Casby said that he was pointing out to Merdle that he had made an error which had caused harm to a client and that he should put the matter right and reinstate her to her previous position.
However, the committee considered that Casby had improperly used the threat of a complaint as leverage to secure a collateral advantage for his client, that being the removal of the caveat.
“The proper process for removal of the caveat was to either apply to the Court for an order removing the caveat, or to take steps to have the caveat lapse,” the committee said.
“[Casby] was trying to circumvent the process by using the threat of a complaint to the Lawyers Complaints Service as leverage to improperly pressure the lawyer to withdraw the caveat of his own accord.
“The caveat had been lodged to protect an alleged interest in the property by the lawyer’s client … Had the lawyer withdrawn the caveat, he would have been undermining [his client]’s position, and preferring his own interests to those of his client. That in itself would have raised conduct issues on the part of the lawyer.”
“Either there was or was not a conflict of interest. Removing the caveat would not have removed any conflict of interest,” the committee said.
The committee found Casby had breached rules 2.7 and 2.10 and made one finding of unsatisfactory conduct.
However, the committee said it accepted that Casby had not intentionally breached the rules concerned, and that in the circumstances, a modest fine would be appropriate.
As well as the $500 fine, the committee ordered Casby to pay $500 costs.