All names used in this article are fictitious
A lawyer who made a threat for an improper purpose has been censured and fined $5,000 by a lawyers standards committee.
The lawyer, Maylie, was engaged by Traddles, in relation to a personal grievance she had raised against her former employer and Nupkins, a lawyer at her former employer. The parties subsequently engaged in correspondence and entered into settlement negotiations.
However, during these negotiations, Maylie wrote and advised the former employer’s solicitors that the situation was “likely to receive media publicity”. The correspondence also said that “if the above settlement figures are provided then [Traddles] will agree not to proactively contact the media about the situation”.
In further correspondence four days later, Maylie wrote “I act for [a media organisation]. I have discussed this situation with them in very general terms. They are very interested in learning the identity of the respondents and of the specific facts involved in this matter. If matters are not resolved, then it seems almost certain that this matter will attract publicity.” The correspondence also set out Traddles’ intent to complain about both the former employer and Nupkins if certain conditions were not agreed to. A settlement was agreed later that same day.
Nupkins subsequently complained to the Lawyers Complaints Service that Maylie had threatened him for an improper purpose in breach of Rule 2.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC), and had also threatened to use the complaints service for an improper purpose in breach of Rule 2.10 of the RCCC.
Nupkins claimed that Maylie threatened (impliedly if not expressly) to disclose details of Traddles’ personal grievance to the media in order to improperly pressure both the former employer and Nupkins to reach a settlement with Traddles.
“There will be situations where representatives clarify that if a particular demand is not met then lawful options available to a party can and will be progressed”, the committee said. In this context, the committee considered that [Maylie] could have said that if the settlement terms he proposed on behalf of his client were not met then his client would pursue personal grievance procedures through the Employment Relations Authority, which has the statutory jurisdiction to determine personal grievances in an employment context.
While noting that it was open for Maylie’s client to contact the media, the committee concluded that Maylie’s repeated reference to the possibility of the matter attracting media interest was a threat made for an improper purpose.
The improper purpose was Maylie’s ulterior motive to achieve a swifter and better settlement for his client by using as leverage the threat that he might disclose details of his client’s personal grievance to the media. The committee considered that this was a breach of Rule 2.7 of the RCCC and was sufficiently serious to amount to unsatisfactory conduct. In addition to the censure and fine, the committee ordered Maylie to pay $1,500 costs.
On review, the Legal Complaints Review Officer (LCRO) confirmed the committee’s determination in LCRO 171/2018. However, the LCRO considered that Maylie had also breached Rule 2.10 of the RCCC and made a further finding of unsatisfactory conduct.
While the committee had primarily addressed Rule 2.7 of the RCCC, the LCRO considered that “a threat to make a complaint to a regulatory body takes on an element of improper purpose if the threat is invoked as leverage to achieve a particular outcome.”
It is difficult, the LCRO said, to escape the conclusion that [Maylie] is utilising a threat of making further complaints (against the former employer) to incentivise the former employer to adopt his client's preferred approach for the advancing of a complaint against Nupkins.
“If the threat to raise concerns in the disciplinary forum is conditional upon the party being potentially complained about complying with a demand made by [Maylie], there is a real possibility of the threat being considered improper.”
“In my view, the issuing of a threat to engage the disciplinary process is done with collateral purpose,” the LCRO said.
In addition to confirming the committee’s determination and adding a second finding of unsatisfactory conduct, the LCRO also ordered Maylie to pay $1,200 costs.