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Published on 29 November 2019
[All names used in this article are fictitious.]
Advising a lawyer that one’s clients were considering making a complaint to the New Zealand Law Society, and their decision may depend on “how much longer it takes to bring matters to a close”, was unsatisfactory conduct, a lawyers standards committee has determined.
The committee was considering a complaint from a lawyer, Mr Sussex, about another lawyer, Leicester.
Mr Sussex was acting for the plaintiffs in proceedings and Leicester was acting for the third and fourth defendants. In the course of the proceedings, Mr Sussex was instructed to file an amended statement of claim, in which it was pleaded that there had been fraudulent conduct on the part of Leicester’s clients.
Leicester’s clients considered that such allegations were baseless and an attempt by the plaintiffs to circumvent a potential limitation problem with their claim. Leicester subsequently filed, and then withdrew, an application to strike out the amended statement of claim.
The plaintiffs discontinued the action against the fourth defendant at a judicial conference. Mr Sussex and Leicester were negotiating on the plaintiffs discontinuing action against the third defendant, and the position regarding costs.
Mr Sussex complained to the Law Society that the second of two emails Leicester sent him was a threat that comprised blackmail in terms of s 237 of the Crimes Act 1961. Mr Sussex was of the view that Leicester could not use the threat of making a complaint to attempt to obtain an advantage for his clients.
The committee noted Mr Sussex’s emphasis on the alleged threat amounting to blackmail, rather than being a breach of rule 2.10 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, which provides: “A lawyer must not use, or threaten to use, the complaints or disciplinary process for an improper purpose.”
The committee said it was of the view it was not required to answer the question about whether the email amounted to blackmail, as it was not its role to investigate alleged criminal action. Mr Sussex “could lodge a complaint with the New Zealand Police if he wished to pursue this matter further.”
Looking at rule 2.10, the committee said its view was that Leicester’s email “was effectively a threat to use the complaints process to assist in negotiations and that was an improper purpose”.
“While the committee accepts that the email was not advising [Mr Sussex] that a complaint would be made, it was clearly intended to influence [Mr Sussex] and his client.”
Leicester’s email said that his clients were considering making a complaint to the Law Society, and “their decision may depend on how much longer it takes to bring matters to a close (inclusive of resolving costs), coupled with the additional costs they are forced to incur”.
The committee said that in its view Leicester’s email was “intended for the improper purpose of influencing the negotiations between the lawyers’ clients and to achieve a more desirable outcome for his client”.
Leicester asserted he was drawing the attention of a lawyer in a collegial way to a possible breach of the rules, and that was not done for an ulterior purpose.
“In fact [Leicester] had already pointed out the fact that he believed the actions of Mr [Sussex] breached the rules by alleging fraud where there was no basis for such. His second email took that further,” the committee said.
As well as finding unsatisfactory conduct by Leicester, the committee ordered Leicester to pay $250 costs.