Published on 4 May 2018

[Names used in this article are fictitious]

A lawyer who made a threat for an improper purpose was guilty of unsatisfactory conduct, despite maintaining that he had done nothing wrong.

The Legal Complaints Review Officer (LCRO) made this finding in LCRO 8/2014  (16 October 2017)  and fined the lawyer, Harmon, $1,000. This reversed a decision of a lawyers standards committee to take no further action on a complaint.

Harmon acted for an entity, D, which had invested around $300,000 to buy rights to foreign television shows.

Harmon sent a letter to an internet service provider, IP. The letter identified several TV channels over which D claimed copyright and set out its concerns about one of IP’s users operating a website which provided free streaming without D’s approval.

Harmon asked IP to immediately disable the website, immediately cease operating the website and confirm its intention to do so if it was indirectly involved as defined in the Copyright Act.

The threat

Harmon’s letter concluded with the following paragraph, later described by IP in its complaint as a threat made for an improper purpose:

“Our client demands that you undertake the above actions by [x date] and send us confirmation to that effect with the signed agreement on or before that date. If we do not receive a notification on or before such date, our client instructed  us to report this matter to the police commissioner who will immediately cooperate with us to bring this case to justice with maximum effect. Our client may also simultaneously, without any further notice, take an action against you for civil proceedings to obtain compensation for the damages our client suffered due to all your illegal actions in breach of the Act.”

Ms Neckett, IP’s office manager, wrote to Harmon expressing IP’s belief that Harmon had contravened rule 2.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

Ms Neckett requested a formal written apology and payment of $3,920 compensation for stress and worry caused and for legal costs incurred.

Harmon replied saying he was no longer acting for D and that the intention of the first letter had been to inform IP about the possible legal issues. In the letter, Harmon apologised if the letter had been taken as a threat.

When Harmon did not pay, Ms Neckett complained to the Law Society on behalf of IP.

The decisions

A lawyers standards committee considered the complaint. It said it was “concerned to note the tone … at the penultimate paragraph,” and recorded that the committee “takes [a] stern view on such issues”.

However, it noted that Harmon’s second letter clarified that the primary intention was not to make a threat. The committee decided to take no further action on the complaint.

The LCRO found, however, that Harmon “threatened to allege to police that [IP] was guilty of a criminal offence. That is conduct of a type envisaged by r 2.7 of the Rules.”

Harmon made the threat in order to overbear IP’s free will, and that was threatening for an improper purpose.

“I disagree with the committee’s view, which is inconsistent with the strict view it says it takes. The fact that [Harmon] later apologised and explained does not necessarily mean his conduct was excusable. In my view the committee should at least have addressed [Harmon]’s conduct in the context of whether it was a contravention of r 2.7.”

Harmon’s conduct was, however “well short of the most serious of its kind,” the LCRO said in reversing the standards committee decision and fining Harmon $1,000. The LCRO also ordered Harmon to pay $1,200 costs.