Mr Whitlock allowed his client to send out letters of demand on his firm’s letterhead, stating that the client had instructed Mr Whitlock to recover the money.  In fact, when the letters were sent by the client, Mr Whitlock had no knowledge of the particular file, he did not see the letters before they were sent and he had not received instructions to act in the specific matter. 

A complaint was made by a person who received one of the letters from the client.

Mr Whitlock advised that he had a retainer with the client to provide general legal services.  He admitted that he had not sent the letter to the complainant.  He advised that he prepared template documents for client staff and allowed them to generate what he called “pre-authorised” letters of demand on his firm’s letterhead and with his name at the foot. 

Mr Whitlock asserted that he had some level of control over the letters, saying three specific people at the client had to have checked the file and that those people were part of a team that operated under his supervision.   However, the Committee did not consider that to be adequate.  The Committee found that the particular letter complained about,

…had been sent without Mr Whitlock’s direct knowledge, supervision or control, and in circumstances where Mr Whitlock did not hold specific instructions from [the client] to act in the matter.

On that basis, the Committee was satisfied that the particular letter was misleading and deceptive. 

While Mr Whitlock said there had been no intent to deceive (but ultimately conceded the letter created a “false impression), the Committee disagreed.  It said the letters were,

clearly intended to mislead and deceive recipients as to the involvement of a law firm…in their respective matters.

The Committee concluded that Mr Whitlock breached what is now rule 10.9 of the Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008 and that that amounted to unsatisfactory conduct.  Rule 10.9 provides that a lawyer must not engage in conduct that is misleading or deceptive or likely to mislead or deceive anyone on any aspect of their practice.

In considering penalties, the Committee noted that Mr Whitlock had a previous finding of unsatisfactory conduct involving substantially similar conduct. That matter also related to use of a template letter and involved the same client.  The Committee was dissatisfied with Mr Whitlock’s assertion that he had forgotten that previous finding, made several years earlier.  In view of this disciplinary history, the Standards Committee ordered Mr Whitlock to pay a $10,000 fine. He was also censured to reflect “the gravity of his conduct”.

Subsequently, after receiving prior approval of the Board of the New Zealand Law Society | Te Kāhui Ture o Aotearoa, the Committee directed that a summary of its determination, including Mr Whitlock’s identity, be published.