New Zealand Law Society - Former lawyer suspended for six months for “outrageous and insulting communications”

Former lawyer suspended for six months for “outrageous and insulting communications”

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found a former lawyer, known as Mr U, guilty of personal misconduct for “outrageous and insulting” statements he made while acting for himself in Family Court proceedings. The Tribunal found the conduct was “very serious” and Mr U was not fit to practise at the time he made those statements. In terms of penalty, the Tribunal found Mr U was not currently fit to practise but was “optimistic that with further time and guidance”, he would become so. The Tribunal suspended Mr U for six months and ordered him to complete further practical training.

The Family Court proceedings between Mr U and his former wife were highly contentious. Mr U became frustrated by what he saw as significant delay and a lack of fairness in the proceedings. He considered himself the victim of bias within the system. Mr U filed a memorandum in the Family Court, which the Tribunal described as “appalling”. He referred to the Family Court as “a rotten jurisdiction” and as “the vagina court”. He made insulting and derogatory comments about a Family Court Judge and accused opposing counsel and their firm of “unscrupulous and unethical conduct”. He referred to a factual error supposedly made by the Judge and counsel as “an understandable mistake that an ignorant woman would make!” Mr U also criticised Counsel to Assist.

This memorandum was referred to Standards Committee, who arranged for Mr U to discuss the matter with a senior Law Society staff member, who put him in contact with other sources of support. Mr U then apologised for his conduct and withdrew the memorandum. Several months later, Mr U’s frustration bubbled over again and he sent an email to opposing counsel and the managing partner at the firm which involved a number of verbal attacks. The email referred to the firm as “suborning perjury” and as having “femanist (sic) staff (who have a bone to pick with men)”. Mr U ended the email suggesting that the firm should notify their insurers, but that he was open to a settlement. 

Mr U apologised for the email three days later. However, one month later he filed a further memorandum in the Family Court which attacked the firm and Police. He accepted that he had “lost all perspective in these matters”. Mr U then filed a further memorandum in which he said he was being personally attacked by opposing counsel and that he found every document they filed to be deeply offensive, as well as most judgments of the court. He made other allegations of dishonest and unethical behaviour by opposing counsel and complained they did not treat him with the respect befitting a barrister and solicitor of the High Court.

The Tribunal first considered whether Mr U was acting in a personal or professional capacity at the time he engaged in this conduct.  The Tribunal found that Mr U was “predominantly acting in the role of ex-partner and father, rather than lawyer” noting that Mr U was “conducting his own case in his personal capacity in relation to very private and intimate matters within the forum of the Family Court, which is a closed (that is, not public) forum”.

In assessing whether Mr U’s conduct met the threshold for personal misconduct, the Tribunal noted it must consider the limits to be placed on the freedom of speech of a lawyer with reference to the Bill of Rights Act 1990. It noted that “the privilege of membership of the legal profession carries with it the responsibility of maintaining certain levels of (dignified) conduct and certainly not behaving in a manner which breaches his or her obligation to uphold the rule of law and facilitate the administration of justice”. The Tribunal noted that a total of 11 people and institutions were the subject of Mr U’s insults. The Tribunal held “the sheer quantity and breadth or the outrageous and insulting communications” meant Mr U’s conduct was “very serious misconduct” and that he was not a fit and proper person at the time he made them.

In determining penalty, the Tribunal considered the fact that Mr U repeated “his egregious conduct” following intervention from the Law Society and the elements of sexism and gratuitous personal abuse in his statements were aggravating features. The Tribunal took into account the considerable stress Mr U was under in mitigation. However, it noted such circumstances are no excuse for the conduct and Mr U would expect to face very serious consequences if they were repeated.

While the Tribunal did not consider Mr U to be a direct risk to the public in the manner of his practice, it agreed that his misconduct poses indirect risk to the reputation of the profession. The Tribunal expressed concern about Mr U’s lack of insight about the harm caused by his conduct and what he saw as justification.

This lack of insight was further demonstrated in Mr U’s written submissions on penalty where he made serious allegations against counsel acting for the Committee. The tenor of Mr U’s submissions carried over an unfortunate theme from the original evidence specifically Mr U’s failure to appreciate that lawyers follow instructions and represent their client’s position.

The Tribunal found that Mr U was not fit to practise and imposed a term of suspension, noting it would provide an opportunity for reflection, rehabilitation and further education.  The Tribunal also made a practical training order and awarded costs.

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