New Zealand Law Society - Lawyer “lost all professional objectivity”

Lawyer “lost all professional objectivity”

Published on 12 June 2020

Yoon Lee has been censured and fined $9,000 after a lawyers standards committee found he initiated judicial review proceedings that were an “impermissible attempt to mount a collateral attack” on a High Court judgment.

“Mr Lee ought to have been aware that the application for judicial review was clearly an abuse of process,” the committee said.

“A lawyer has an overriding duty as an officer of the court, and Mr Lee’s conduct constituted a serious dereliction of his duty to the court.”

The committee conducted an own motion investigation into Mr Lee’s conduct after it considered the High Court costs judgment in [2017] NZHC 1481 relating to the judicial review proceedings.

In that judgment, the Judge was “extraordinarily critical of the applicant’s lawyer, Yoon Lee,” the committee noted.

As two examples, the Judge said:

  • “it would have been obvious to any reasonably competent practitioner that there was absolutely no prospect of this court granting relief”, and
  • “Mr Lee lost all professional objectivity in this matter long ago and he ought to have ceased acting”.

The judgment came towards the end of a litigation history of some seven years.

Five unsatisfactory conduct findings

The committee made five findings of unsatisfactory conduct against Mr Lee.

It considered that the initiation of the judicial review proceedings was in bad faith. It concluded that Mr Lee used the judicial review process for an improper purpose. This was a breach of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“the rules”) and unsatisfactory conduct.

The Judge in [2017] NZHC 1481 said that the application for a review was a “serious dereliction of the duty owed to this court”.

The Judge also called the application “frivolous and vexatious and an abuse of the process of the court”.

The committee said it agreed with the court and determined that was both a breach of the rules and conduct that would be regarded by lawyers of good standing as being unacceptable, and therefore unsatisfactory conduct on the part of Mr Lee.

Noting that the High Court Judge had also said the application had “no prospect of success”, the committee concluded that in bringing the application for judicial review, Mr Lee’s conduct did not meet the required minimum standard of competence and diligence.

“He should have appreciated that the application had no prospect of success,” the committee said in finding unsatisfactory conduct by Mr Lee.

The committee also found that in the absence of any contradictory evidence (and Mr Lee did not respond to the committee’s provisional view on the matter) it was more likely than not that Mr Lee failed to obtain properly informed instructions from his client. “It seemed very unlikely that, had Mr Lee properly informed [his client] of the prospects of success, [his client] would have instructed him to proceed.”

That was also a breach of the rules and unsatisfactory conduct.

Failure to exercise independent judgement

The committee also said it agreed with the Judge that Mr Lee had lost his objectivity in the matter. He had failed to comply with the rules relating to exercising independent judgement.

“A particularly obvious example of this was the fact that Mr Lee’s application for review included [the Judge’s] minute referring Mr Lee to the New Zealand Law Society.

“There is no conceivable reason why [Mr Lee’s client] would be interested in a review of that ‘decision’,” the committee said.

That was also a breach of the rules and unsatisfactory conduct.

As well as the censure and fine, the committee ordered Mr Lee to undergo practical training or education and to pay $2,000 costs.

When ordering publication of Mr Lee’s name, the committee noted the seriousness of the offending.

The committee also noted a “consistent failure to engage reasonably with the standards committee, as well as the repetitive nature of the behaviour in conjunction with an apparent lack of objectivity, insight and self-moderation on Mr Lee’s part.”