New Zealand Law Society - Lawyers Complaints Service: Acted for client against former client

Lawyers Complaints Service: Acted for client against former client

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A lawyer, L, who acted for a party in a criminal case involving alleged violence by that party against a former client of L’s firm has been censured, fined, ordered to apologise to the former client and to undertake an ethics course.

A lawyers standards committee has ruled that the actions of L – the sole partner of the firm – was unsatisfactory conduct.

A solicitor in L’s firm had earlier acted for a Ms C in Family Court proceedings involving alleged domestic violence by Ms C’s former partner, Mr D. Ms C recalled having “informal discussions” with L over this period about her relationship with Mr D. Ms C later uplifted her file from the firm.

Several months later, Mr D was charged with a number of offences, including some where Ms C was the complainant.

L began acting for Mr D in relation to those charges. The charges relating to Ms C were later withdrawn, but Ms C laid a complaint about L’s conduct.

In response to the complaint, L said he considered there was no conflict of interest even before the charges brought by Ms C were withdrawn.

L considered that the prosecution agencies were the other parties, not Ms C.

L was not involved in Ms C’s earlier Family Court case, although recalls speaking to her “generally in passing” on very few occasions. He did not recall reading the Family Court decision on the case but was aware of its outcome.

Conflict of interest

The committee said it considered that “there was both an actual and a perceived conflict of interest when [L] accepted instructions to defend [Mr D] on charges where [Ms C] was the complainant.

“This conflict of interest continued until those charges were withdrawn. [Ms C] would have been the main witness in any such prosecution. If the matter had proceeded to trial [Ms C] would have been subject to cross-examination by [L].

“To say that there was no conflict of interest because [Ms C] was not a ‘party’ to the criminal prosecution misses the point.

“[L] had knowledge of the issues within the relationship between [Ms C] and [Mr D], and had met [Ms C] on a number of occasions.

“There is a real possibility that [L’s] knowledge of [Ms C]’s relationship with [Mr D], and his knowledge of the Family Court proceedings, gained while [Ms C] was a client of the firm, could be used to [Mr D]’s advantage and to [Ms C]’s detriment.

“Further, [L] would have an obligation to disclose to [Mr D] all information held by himself and his firm that might be relevant in defending the charges (rule 7).

“Any such information that arose from [Ms C]’s interactions with the firm was confidential to her and disclosure to [Mr D] a breach of her right of confidentiality (rules 8 and 8.1).”

The committee said that rule 8.7.1 applied to the complaint. This 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 the lawyer or practice holds confidential information about the former client; where disclosure of that information would likely affect the former client adversely; or where there was more than a negligible risk the confidential information would be disclosed; and where the fiduciary obligation owed to the former client would be undermined.

The committee considered that L had breached rule 8.7.1 by acting for Mr D in criminal proceedings where Ms C was the complainant, and there was a more than negligible risk of disclosure of Ms C’s confidential information, and that such disclosure would adversely affect her interests.

L was censured, ordered to apologise in writing to Ms C, to pay a fine of $3,500 and costs of $1,500, to confirm to the committee that L is not holding an electronic file relating to Ms C (noting that such confirmation has been received), and to attend the next Ethics Course offered by NZLS CLE Ltd on conflict issues.

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