New Zealand Law Society - Lawyers Complaints Service: Acting for co-defendants was conflict of interest

Lawyers Complaints Service: Acting for co-defendants was conflict of interest

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It is always “potentially problematic for a lawyer to represent co-defendants (or multiple defendants),” a lawyers standards committee said when finding a barrister, E, had acted while there was a conflict of interest.

“Best practice is such that lawyers should avoid doing this. Not all co-defendant cases will involve conflicts of interest; although the potential is always present given the often organic nature of criminal proceedings,” the committee said.

E was fined $5,000 for acting while conflicted, for failing to provide client care letters and for failing to provide invoices

Mr G and Ms H were charged with criminal offending. They asserted from the start that Mr G was responsible for the offending but that Ms H was not. Eventually, the prosecutor advised them that if Mr G pleaded guilty to the charges, Ms H’s charges would be withdrawn.

Mr G and Ms H alleged that E did not advise them of this, and in fact advised them that that the charges against Ms H would be reduced, not withdrawn.

The complainants also alleged that E had demanded large sums of money (a total of about $34,500), and did not provide explanations for his charges, nor receipts. They complained they had not received, nor signed, a client care agreement. They complained that they were not advised of their rights to separate lawyers until many months later.

The committee noted that Rule 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 prohibits a lawyer from acting for more than one client on any matter where there is more than a negligible risk that the lawyer may be unable to discharge the obligations owed to one or more client.

Rule 6.1.2 requires a lawyer to immediately inform clients when there is a conflict of interest and then terminate all retainers. However, a lawyer may continue to act for one of the parties if the other clients agree after receiving independent advice and providing informed consent.

The committee determined that in this case there was nothing that appeared to indicate a conflict at the commencement of the instructions. However the committee considered that diligent counsel may have identified a conflict before E brought it to the complainants’ attention.

“Post committal and prior to trial, counsel ought to have a very clear picture of the case, including any conflicts,” the committee said.

Further, E did not comply with Rule 6.1.3 and obtain Mr G’s informed consent before continuing to act for Ms H.

It found E guilty of unsatisfactory conduct for acting while conflicted.

No client care letter could be found and the committee determined that E had failed to provide one, in breach of Rules 3.4 and 3.5. This was also unsatisfactory conduct.

R said that his failure to provide invoices or the requested breakdown of costs was due to his ill health. The committee found this failure was unsatisfactory conduct.

The committee did not uphold the allegation that E had provided misleading advice or caused unnecessary delay.

Despite E not substantively responding to the incompetence allegation, the committee did not consider there was any substance to this allegation. The committee did not consider any of the steps E took were unnecessary, misconceived, or otherwise not of the required standard.

The committee had no time records to consider whether E had overcharged for the work. However considering the interlocutory steps taken, which the committee did not find inappropriate, it determined that E’s fee was reasonable in all the circumstances.

As well as the fine, the committee ordered E to pay $1,500 costs.

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