The censure imposed on Auckland barrister John Revans Eichelbaum has been upheld by Justice Venning in the High Court.
Mr Eichelbaum was censured by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after it found him guilty of two charges of misconduct and one charge of unsatisfactory conduct –  NZLCDT 68 and  NZLCDT 8.
The Tribunal also dismissed an application for permanent name suppression.
Mr Eichelbaum appealed to the High Court against both the substantive and penalty decision. He also sought permanent name suppression.
The lawyers standards committee also appealed the Tribunal’s decision. It appealed against dismissal of one of the charges and also against the penalty, submitting that it was inadequate and seeking a period of suspension.
In  NZHC 1896, Justice Venning dismissed Mr Eichelbaum’s appeal against the Tribunal’s decision finding him guilty of misconduct and unsatisfactory conduct. The appeal against the penalty of censure was also dismissed, as was the appeal against the Tribunal’s refusal to grant permanent name suppression.
Justice Venning also dismissed the standards committee’s cross appeal.
Mr Eichelbaum was engaged to act in litigation. The conduct which was the subject of disciplinary findings occurred following the breakdown in Mr Eichelbaum’s relationship with his client at the end of the instruction.
The unsatisfactory conduct finding resulted from his improper use of the statutory demand procedure to seek $150,000 for services performed.
One finding of misconduct was for sending the solicitors for the client a draft affidavit containing offensive and scurrilous remarks against the client. The Tribunal found that this amounted to an implicit and improper threat that, if not paid, Mr Eichelbaum would commence proceedings for his fees and attach the affidavit in support.
The other charge of misconduct related to the litigation and/or his claim for fees together with six emails or letters he sent to other lawyers which were discourteous. Two of the letters were found to contain improper threats in breach of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules) 2008.
Provision of regulated services
Fundamental to the Tribunal’s decision that Mr Eichelbaum was guilty of misconduct and unsatisfactory conduct was the Tribunal’s finding that Mr Eichelbaum’s conduct was clearly connected with the provision of legal services to the client and a company of which he was the sole shareholder, Justice Venning’s decision states.
Mr Eichelbaum’s counsel challenged that finding, submitting that Mr Eichelbaum did not have a retainer with the client and the company.
Justice Venning found that there was evidence supporting the Tribunal’s conclusion that Mr Eichelbaum did provide regulated services to the client and the company.
Mr Eichelbaum’s counsel also submitted that he was not providing regulated services at the time when the conduct complained of occurred.
“It cannot be said that the appellant’s conduct in this case, which was directed at obtaining payment for the legal (and other) work he had done for [the client and the company] was unconnected with the provision by him of legal services,” Justice Venning said.
Justice Venning said he agreed with the Tribunal’s conclusion that Mr Eichelbaum used the statutory demand procedure improperly, and that “the demand would inevitably have been set aside”.
Following withdrawal of the statutory demand, Mr Eichelbaum proposed to issue High Court proceedings against the client and the company. Before doing that, he sent an email to another law firm retained by the client, attaching a draft of the proposed proceedings, including an affidavit. The affidavit contained offensive and scurrilous remarks about the client.
“As the Tribunal noted, the inclusion of such material in the affidavit and the threat to use it was reprehensible,” Justice Venning said. “It was conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable and as such constituted misconduct.”
Mr Eichelbaum then sent a series of letters and emails which did not treat the recipients with respect and courtesy, and two of which contained improper threats.
Justice Venning said he accepted the Tribunal’s conclusion on that charge that the conduct, viewed as a whole, was at the level of contravention which constituted misconduct.
“While the appellant’s conduct is properly categorised variously as misconduct and unsatisfactory, given it is the first example of such conduct and given the provocation by the rude and intemperate correspondence from [the client] I am satisfied that censure and an order for payment of costs is sufficient penalty.
“It follows I am not able to accept [Mr Eichelbaum’s counsel’s] submission that censure and the costs were excessive in this case,” Justice Venning said.
“The conduct complained of carried on over an extended period of time for over six months … It was wilful, and directed towards advancing the appellant’s personal financial situation.”
Justice Venning noted that the Tribunal’s decision not to order permanent name suppression was a decision open to it, and that Mr Eichelbaum could not point to any error in law or principle. Nor did the Tribunal take into account irrelevant matters.
The Tribunal ordered Mr Eichelbaum to pay the Law Society costs of $31,066 and reimburse hearing costs of $19,118. Justice Venning dismissed the appeal against these costs orders.