Lawyers who attached two lawyers standards committee decisions to a memorandum filed in court breached the confidentiality of the decisions, a standards committee has found.

It would be prudent for a lawyer faced with a similar situation to raise the issue of confidentiality directly with the court, the committee said.

A party could “seek a formal direction from the relevant court” requiring the Lawyers Complaints Service to produce the decision under s 188(2)(h) of the Lawyers and Conveyancers Act 2006 (LCA).

The LCA and its associated regulations “prohibit the publication of a standards committee decision unless a relevant publication order has been made”.

No publication order had been made in relation to the two decisions annexed to the court document.

The complaint

A lawyer from the firm instructed a barrister to act for the complainant in litigation. When the complainant did not pay fees, the firm brought proceedings to recover the fees.

The complainant then lodged complaints about the service provided and the fees charged by the instructing lawyer and the barrister. Those complaints were dealt with by a standards committee that resolved they were unfounded.

In the meantime, proceedings to recover fees had been adjourned. When the firm returned to court to progress the adjourned proceedings, it filed a memorandum with the two standards committee decisions annexed.

The complainant then complained of a breach of the confidentiality direction which appears at the end of each decision. That direction reads:

“Decisions of the standards committee must remain confidential between the parties unless the standards committee directs otherwise. The standards committee in this case made no directions.”

The committee concluded that the lawyers had technically breached the confidentiality provisions in the LCA regulations. It then went on to consider whether an adverse finding should be made in the circumstances.

No adverse finding

In deciding not to make an adverse finding against the lawyers involved, the committee noted the Court of Appeal in ASG v Hayne [2016] 3 NZLR 289. The Court of Appeal confirmed (at [43]) that a name suppression order constrains publication in the form of dissemination to the public at large, not publication to persons with a genuine interest in conveying or receiving the information.

“The standards committee considered it could take guidance from ASG v Hayne in relation to the present matter in which the standards committee was essentially being asked to take disciplinary action on the basis of a disclosure to genuinely interested and necessarily involved parties, the presiding judge and the court,” the committee said.

The committee, therefore, decided to take no further action on the complaint.

The Legal Complaints Review Officer confirmed the standards committee decision in LCRO 5/2017.