New Zealand Law Society - Lawyers Complaints Service: Acting for clients against former client 'unsatisfactory'

Lawyers Complaints Service: Acting for clients against former client 'unsatisfactory'

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A lawyer, E, acted for a client from 2008 in relation to Family Court proceedings about the client’s contact with his daughter. The client’s parents had some considerable involvement in the proceedings in support of their son.

Then in 2011, E ceased acting for the client, and referred him to a new solicitor. E commenced acting for the parents. The parents filed applications relating to the guardianship and care of their granddaughter, which their son opposed.

The son complained that E should not have acted for his parents in those matters because there was a “major conflict of interest”.

A lawyers standards committee considered the complaint and determined that E’s actions constituted unsatisfactory conduct.

The committee fined E $1,500, ordered him to apologise in writing to the complainant and ordered that he cease acting for the complainant’s parents.

“It is clear to the committee that a conflict of interest arose at the time [E] ceased acting for [the complainant] and continued acting for his parents,” the committee said.

“The committee considers that acting for [the complainant’s] parents was, and continues to be, a clear breach of rule 6.1.2” of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

Rule 6.1.2 says a lawyer must terminate retainers with all clients if, when acting for more than one client, it becomes apparent that the lawyer will no longer be able to discharge the obligations owed to all of the clients.

“[E] should cease acting for the [complainant’s] parents immediately.

“Rule 8.7.1 is also relevant, particularly because of the nature and subject matter of the proceedings in which [E] has acted for both parties are substantially the same,” the committee said.

Rule 8.7.1 states that: “A lawyer must not act for a client against a former client of the lawyer or of any other member of the lawyer’s practice where —

a) the practice or a lawyer in the practice holds information confidential to the former client; and

b) disclosure of the confidential information would be likely to affect the interests of the former client adversely; and

c) there is a more than negligible risk of disclosure of the confidential information; and

d) the fiduciary obligation owed to the former client would be undermined.”

The son had also complained that E had not forwarded his complete file to the new lawyer.

The committee noted that E had, in a letter, acknowledged he had overlooked forwarding the file in the mistaken belief he had already done so, and advised that on realisation he immediately delivered the file and apologised for the oversight.

As well as the $1,500 fine, the order to apologise and the order to cease acting for the complainant’s parents, the committee ordered that E attend the next Ethics Seminar/Webinar which includes conflict issues, and provides the committee with evidence that he has enrolled and attended the course. This is to be completed within 12 months.

E was also ordered to pay the Law Society $500 costs.

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