New Zealand Law Society - Lawyers Complaints Service: Suspended for breach of privilege and acting in conflicted position

Lawyers Complaints Service: Suspended for breach of privilege and acting in conflicted position

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Christopher Michael Clews has been suspended for four months beginning on 1 October 2014 after he was found guilty of two charges of misconduct.

“The first charge involved a breach of client privilege in circumstances which could have had very serious consequences for the client,” the Tribunal noted in its penalty decision, [2014] NZLCDT 49.

“The second charge arose when Mr Clews approached a former client in prison, obtained his authority to uplift his files from the current lawyer when he had just been found guilty of unsatisfactory conduct in respect of that client.

“Thus he acted where there was a conflict between his interests and that of the client, who was the same client in respect of whom he had breached privilege.”

The charges were “serious”, the Tribunal said.

Mr Clews had represented Mr E at a criminal trial, following which Mr E was convicted of rape and doing an indecent act upon a young person, the Tribunal noted in its decision on the charges, [2014] NZLCDT 19.

Mr E appealed and was represented by another lawyer.

One of the appeal grounds related to Mr Clews’s conduct during the trial. The Court of Appeal ultimately upheld two grounds of the appeal, namely a complaint concerning Mr Clews’s closing address and a further ground relating to the Judge’s direction as to identification evidence. However, the Court of Appeal applied the proviso and dismissed Mr E’s appeal.

Leading up to the hearing of the appeal there was a trail of correspondence between Mr Clews and Mr E’s new counsel. It concerned whether Mr E was required and prepared to waive privilege in respect of his communications with Mr Clews. Ultimately the Court of Appeal found that he did not have to waive privilege and indeed Mr E at no stage confirmed privilege had been waived.

Despite this, Mr Clews volunteered a considerable amount of information to the Crown, thus breaching Mr E’s privilege.

Mr Clews was aware that Mr E’s new lawyer was discussing with the Crown the possibility of reaching some accommodations in relation to privilege, the Tribunal noted. However, Mr Clews did not wait for notification of any agreement or authority from E before providing information to the Crown.

The second charge arose out of two visits Mr Clews paid Mr E in prison on 31 October 2011 and 8 December 2011.

In his evidence to the Tribunal, Mr Clews said: “The purpose of each visit was to see if I could help Mr E with any steps he may be considering to have his case further reviewed after the Court of Appeal decisions. I did not have any intention or wish to be instructed by him on anything.”

He recounted that he and Mr E talked about an application to the Governor-General for a pardon. Mr Clews had with him, on both visits, an authority to uplift files and waiver of privilege already completed and Mr E signed both authorities.

Mr Clews’s evidence was that he simply wanted to help Mr E with his pardon application, although not as his lawyer. This was for a number of reasons, including that he had no experience in the area. His evidence was that he had simply been in Wellington on other business and had chosen to travel up to visit his former client out of kindness.

Under cross-examination, further information emerged which was not always consistent with the affidavit evidence. The Tribunal noted: “The authorities to uplift files were set out on the practitioner’s letterhead. He booked his prison visits as a lawyer.

“Finally the practitioner conceded that retrieving his own file from [Mr E’s new lawyer] assisted him in dealing with the Legal Services Agency over certain matters relating to payment for his attendances.

“Exacerbating the behaviour, in our view, shortly before visiting Mr E the practitioner had been found guilty of unsatisfactory conduct by a [lawyers] standards committee in relation to his conduct of Mr E’s trial,” the Tribunal said.

In its penalty decision, the Tribunal said that “both counsel were agreed that the offending under consideration in this case was very serious.

“Lawyer-client privilege is one of the fundamental concepts of legal practice and members of the public would be dismayed to think that its breach could be treated other than very firmly.

“It was described by the Supreme Court of Western Australia as ‘a cardinal sin’” (Legal Practitioners Complaints Committee v Walton [2006] WASC 213).

“In relation to the second charge, we found that Mr Clews had recklessly contravened rule 5 and 5.4 and was in a position of irremediable conflict,” the Tribunal said.

Rule 5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 says that a lawyer must be independent and free from compromising influences or loyalties when providing services to his or her clients.

Rule 5.4 says that a lawyer must not act or continue to act if there is a conflict or a risk of a conflict between the interests of the lawyer and the interests of a client for whom the lawyer is acting or proposing to act.

The Tribunal said that its “obligation to uphold high professional standards and thereby maintain public confidence in the provision of legal services require us to mark this particular conduct with a period of suspension.

“Given the practitioner’s long history of service to clients and to the profession, we consider he is entitled to some credit and therefore rather than impose a period of six to nine months which we would otherwise consider to be the proper penalty, [we] will impose a period of four months’ suspension.”

As well as the suspension, the Tribunal censured Mr Clews and ordered him to undertake training on privilege and confidentiality with a practitioner identified by the New Zealand Law Society. Mr Clews was also ordered to pay the Law Society $18,954 standards committee costs and $6,979 Tribunal costs.

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