Background 

Mr B was instructed by Ms H to provide advice on the prospects of a complex and novel litigation matter. A fixed fee was agreed to cover Mr B’s opinion on the legal options available to Ms H and the preparation of a strategy. Ms H was sent an invoice, with financing to be secured in stages.   

The matter required engagement with overseas lawyers. Mr B contacted a variety of lawyers as part of the preparation for his advice and provided Ms H with details of the legal and consulting team he had put together.  

After approximately six months, Mr B contacted Ms H to express concerns about having not received any further instructions or funding. After this prompt, Ms H made a payment which covered a portion of the fixed fee. No further funding was provided to Mr B. Ms H later wrote to Mr B, requesting a refund of her payment. She asserted that Mr B had undertaken significant legal work without instructions to do so and questioned the reasonableness of his fees.  

Ms H complained to the Law Society te Kāhui Ture o Aotearoa, claiming that she had not been provided with an invoice or letter of engagement and that no work had been prepared. Sometime after the complaint was lodged, Mr B spoke with the media and shared details about the retainer. Ms H made a further allegation that Mr B had breached his duty of confidentiality.  

No further action 

The Committee took no further action on all aspects of the complaint other than the breach of confidentiality. It noted that Mr B provided Ms H with an invoice for his services and letter of engagement on the same day. While Ms H did not sign the letter of engagement, the Committee was satisfied that Ms H had continued to instruct him over the months that followed and that a lawyer-client relationship existed. It did not consider that Mr B had been inappropriate in requesting payment and found it was unreasonable for Ms H to expect Mr B to continue to act when she had not made any contributions towards the invoice.  

The Committee disagreed with the assertion that no work had been done by Mr B, noting that, from his files, he was “clearly undertaking work on [Ms H’s] instructions.” It acknowledged that no time sheets were kept but accepted that this may have been due to Mr B charging a fixed fee versus charging on a time and attendance basis. Despite the lack of time records, the Committee was satisfied that “quite a lot of work” had been done. It did not agree that Mr B had misled Ms H about the international team of lawyers he had assembled and found that he had, in fact, contacted various lawyers with the view to include them in the litigation team.  

Breach of confidentiality 

The Committee turned its attention to whether Mr B had breached Ms H’s confidentiality by speaking with the media about the retainer. It noted that, under rule 8 of the RCCC, Mr B had an indefinite duty to protect and hold in strict confidence all information concerning Ms H and the litigation matter. This applied even though the lawyer-client relationship had come to an end and Ms H had made media appearances herself.  

The Committee was satisfied that the information shared by Mr B went beyond the details that Ms H had already provided to the media. It did not consider that the grounds to allow disclosure of information under rule 8.2 or rule 8.4 of the RCCC applied to this case. In any event, the disclosure was not made to an “appropriate person or entity,” as required by rules 8.3 and 8.5 of the RCCC. The Committee found that there was “no possible justification for the disclosure made.”  

The Committee was satisfied that Mr B’s disclosure to the media would be considered information “concerning a client, the retainer, and the client’s business and affairs.” It concluded that Mr B should have declined to provide any information on the basis that doing so would be a breach of his duties under rule 8 of the RCCC. The Committee did not consider this obligation was “diluted” by the fact that Ms H had previously made statements to the media and determined that Mr B had engaged in unsatisfactory conduct. 

Penalty 

The Committee took into account Mr B’s disciplinary history but noted that none of the previous decisions concerned a breach of confidentiality. It considered it appropriate to order a fine of $2,500 and costs of $1,000.  

The Committee commented that “breaches of confidentiality erode public confidence in the profession” and that publication of the determination “serves as a reminder that a lawyer’s duty of confidence continues indefinitely, surviving the end of the lawyer-client relationship.”