New Zealand Law Society - Lawyer’s conduct towards partner’s ex-wife misguided and unprofessional

Lawyer’s conduct towards partner’s ex-wife misguided and unprofessional

An employed lawyer was in a close personal relationship with one of the firm’s clients, who was in the process of divorcing his wife.  A Standards Committee determined that the lawyer’s “unwise decision making, poor judgment and inappropriate actions” in that context were unprofessional and risked damaging the reputation of the legal profession.  The Committee censured the lawyer, ordered her to apologise to the client’s ex-wife and fined her $1,500.

The ex-wife (Ms B) of the client (Mr B) complained about the lawyer (Ms A) in a range of circumstances revolving around the divorce.  Ms A did not act for Mr B in the relationship property dispute, a partner of the firm did.  However, Ms B’s complaint related to wider circumstances, which Ms A argued were unrelated to the provision of regulated services.

One complaint was that Ms A served Mr B’s dissolution papers on Ms B at her workplace, causing her distress and embarrassment. While Ms A argued that she did so in her personal capacity, the Committee considered that it was nevertheless inappropriate and unprofessional for her to have served the papers herself.  It concluded that “[t]o those who were aware she was a lawyer and of her relationship with [Mr B] this would be seen as…a breach of Rule 2.3…of the [Conduct and Client Care Rules]”.

Ms B also complained that Ms A was recorded as the vendor’s lawyer (that is, the lawyer for both Mr B and Ms B) on an agreement to sell the family home and that Ms A opened a client and matter file for the sale.  In response, Ms A pointed out that she had not put her name on the agreement herself (Mr B had) and  said that Ms A had initially agreed by text message to Mr B that she could act for them in the sale of the house. Nevertheless, and even though Ms A did not in the event act on the sale, the Committee concluded that Ms A had gone too far without confirming Ms B’s consent to her actions.

Ms A had sent a letter of engagement to Mr B and, because she did not have contact details for Ms B, she simply asked Mr B to forward the letter on. The Committee considered that, given the circumstances, “a prudent lawyer…would have realised that she may not have (yet) had instructions from [Ms B]”.  In terms of opening a file on the firm’s system for the sale by Mr B and Ms B, the Committee said:

“… in the circumstances where the lawyer knows that the joint parties are estranged and particularly where the lawyer is in a close personal relationship with one of the joint parties…it was inappropriate and unprofessional for Ms A to open the joint client matter before being absolutely sure that [Ms B] wanted to instruct [Ms A].”

Further, the Committee noted that at even earlier time, Ms A had contacted the vendors’ lawyer stating that she was acting for Mr B and Ms B.  A that time, she did not have confirmation that the firm acted for both parties and nor had she sent the letter of engagement (to Mr B or Ms B).  The Committee determined that in doing so Ms A had breached Rule 11.1 of the Conduct and Client Care Rules (as that rule stood at the time).[1]

Ms B also complained that Ms A drew up an agreement for the sale of disputed relationship property, completed the sale and held the proceeds in the firm’s trust account, all without the consent of Ms B. 

In fact, Ms B undertook the sale personally as an appointed attorney for Mr B.  The Committee concluded that there was nothing technically or legally wrong with that but it was nevertheless, “in the circumstances…another misguided decision by [Ms B] that could be considered unacceptable conduct…by a lawyer”.

In terms of receipting the proceeds of the sale into the trust account, the Committee accepted that Ms A had receipted those in the parties’ joint names as opposed to Mr B’s name only.  However, the Committee considered that Ms A’s conduct was inappropriate given she knew Ms B did not consent to Ms A acting for her.

When considering the conduct as a whole, the Committee accepted that some of Ms A’s actions may not have been while she was providing regulated services but said, “many of them were”.  It concluded that Ms A had breached Rules 10 (professionalism) and 11 (proper professional practice), as those rules stood at the time.[2]  It determined that Ms A’s actions “in their totality” amounted to unsatisfactory conduct under s 12(a)(b) and/or(c) of the Lawyers and Conveyancers Act 2006.

When deciding penalty, the Committee noted that Ms A was a relatively inexperienced lawyer at the time and that she could have benefited from closer supervision.  It censured her and ordered her to apologise to Ms B, pay a fine of $1,500 and costs of $1,000.

[1] In the version of the Conduct and Client Care Rules as at 1 July 2016.

[2] See n 1 above.