New Zealand Law Society - Discussions of sensitive issues with potentially vulnerable clients require careful management
A Standards Committee considered that a lawyer made an error of judgement in the way he discussed intimate material with his client. The lawyer discussed the material at length with the client (who said she had previously been sexually abused) in an unscheduled phone call after he had left the office. However, the Committee concluded that that error did not warrant a disciplinary response.
The lawyer was acting for the client in relationship property and spousal maintenance matters. During the retainer, because of conduct by the client’s ex-partner, the lawyer and client discussed the possibility of the client applying for an interim protection order. The client was particularly concerned by a series of emails sent to her by her ex-partner after their breakup, such emails containing sexual content. The client provided copies of the emails to the lawyer.
The lawyer and client subsequently discussed the series of emails in a telephone call. That call was made by the lawyer on arriving home, realising he had overlooked returning a call from the client. The call lasted close to an hour and much of the conversation centred around the series of emails.
The client was upset by the call and made a complaint about the lawyer. She considered the lawyer had acted inappropriately and unprofessionally by asking extensive and unnecessary questions of an intimate nature during the call.
The Committee found that in the unscheduled call the lawyer had likely been “insensitive to the distress that the nature and content of the conversation might be having” on the client. However, it accepted that the matters discussed were relevant to the retainer in the context of the client potentially seeking an interim protection order, and in view of her providing the series of emails to the lawyer.
The Committee described how it thought the lawyer should ideally have discussed the matter, as follows:
Ideally however, those matters should have been raised and discussed in a considered and sensitive way, including by use of carefully crafted and pre-prepared questions being asked during a pre-scheduled meeting, and preferably in a face-to-face context so that he could have been responsive to any resulting discomfort. This would also have allowed [the client] to have had a support person with her.
Ultimately, while considering that the lawyer had made an error of judgment, the Committee did not consider the error warranted a disciplinary response. Nevertheless, it concluded that this anonymised summary should be published, reflecting “the public interest and educative value in alerting practitioners about issues that can arise when discussion sensitive issues with potentially vulnerable clients”.
The Committee’s decision was subsequently confirmed by the LCRO. Read here.