The unnamed lawyer included client emails in an application to withdraw as counsel
A lawyer has been fined a total of $3,000 for breaking confidentiality when she included client emails in an application to withdraw as counsel, reported the New Zealand Law Society.
A Standards Committee also ordered the lawyer to pay costs following the ruling of unsatisfactory conduct. The confidentiality requirement is set forth in rule 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
In the course of representing a client in family court proceedings, the lawyer was confronted with several issues raised by the client, including not progressing the case swiftly enough, providing inaccurate advice regarding "without prejudice" communications, displaying a lack of respect and courtesy, showing incompetence by missing a judicial conference, and infringing on confidentiality by incorporating client/solicitor emails into an affidavit for a rule 88(1)(c) interlocutory application to withdraw as counsel.
The committee determined that the issue concerning delays in the matter on the lawyer’s part was not made out, noting there were no significant postponements in proceedings. It also regarded the lawyer's advice on "without prejudice" communications as fair warning; thus, it was not inappropriate or inaccurate. The committee also determined that the client’s communications were abusive and hostile.
Moreover, the committee decided not to take action on the allegations of disrespect and lack of courtesy on the lawyer’s part, understanding that lawyers might need to engage in tough discussions with their clients. Based on the evidence, the committee could not conclusively determine if the lawyer's behaviour was disrespectful or discourteous, especially when the client admitted to being "tone deaf" to his own abusive or aggressive behaviour.
Regarding the lawyer's failure to attend a judicial conference in May 2022, the committee found no need for further action after it was revealed that the lawyer had been unable to access the virtual meeting, a fact supported by other evidence.
The lawyer violated the confidentiality rule when she made the rule 88(1)(c) interlocutory application to withdraw as counsel, indicating the irrevocable breakdown of the client-lawyer relationship. The emails did highlight the deteriorated relationship, but also included client instructions and information about the ongoing court proceedings and family dispute resolution discussions, which were inherently confidential and considered by the committee as legally privileged communications.
The committee recognised the lawyer's client as particularly challenging but stressed that the lawyer needed to keep acting professionally even when faced with a challenging client.
The committee considered the seriousness of the confidentiality breach and its potential impact on the client's legal proceedings, but it also took into account the lawyer's remorse, apology and initiative to be educated on the issue. Thus, the committee ruled that the lawyer should pay a fine of $2,000 and costs of $1,000 to the New Zealand Law Society | Te Kahui Ture o Aotearoa.
The committee underscored the public interest in this case as a reminder to lawyers about their responsibility to safeguard client confidentiality, even under challenging circumstances. It advised that a rule 88 application should usually require only a concise affidavit, cautioning lawyers to refrain from depicting clients negatively and ensuring confidentiality is not breached.
