Auckland Standards Committee 4 (the Committee) found a lawyer (Mr A), who is a director of a law firm (the firm), did not breach rule 2.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) on improper threats when he threatened a client with defamation proceedings if they did not remove a negative review on Google. However, the Committee nevertheless noted that Mr A’s conduct was disrespectful and that it would have made a finding against him for a breach of rule 3.1 on respect and courtesy had the Notice of Hearing referred to that rule. While the Committee took no further action against the lawyer, it considered that the complaint was justified and ordered Mr A to pay costs of $1,000 to the New Zealand Law Society Te Kāhui Ture o Aotearoa.

A consultant at the firm had assisted the client in drafting a will and sent her an invoice for the services. The client emailed the consultant expressing dissatisfaction with the fee. The consultant sent a letter addressing her concerns, after which the client paid the outstanding fees. The client later left a Google review for the firm, giving a giving a one-star rating and selecting ‘Poor value’.

The unfavourable review came to the attention of Mr A, one of the directors of the firm. Mr A emailed the client that read:

I trust you are well.

We note you have today posted a review on Google.

We take customer satisfaction very seriously and are saddened to hear of your bad experience.

[…] had this being brought to the attention of one of the directors we would have ensured something was done before escalation was necessitated.

[…] we take your concerns seriously and as gesture of good faith, but provided the comment is removed immediately, we would be willing to provide you a refund of $200 for your distress (payable by direct deposit to your account).

Please let us know if our offer is acceptable to you as soon as possible as we have other options available but wish to resolve this situation amicably.

Within 24 hours of the first email Mr A sent a further email in the following terms:

I hope you are well.

Please confirm whether you are accepting our offer.

We note, you have made defamatory comments in a public forum (which are not true) and we will be forced to issue proceedings against you for defamation if we do not hear from you in respect of our communication.

We do not tolerate mistruths and will take a firm stance on this sort of conduct.

We reiterate, you were not provided a quote, our terms of engagement specifically states that we charge on a time incurred basis.

[…]

I repeat, we will initiate proceedings if this matter is not resolved to a satisfactory outcome.

Hear from you by Monday afternoon or proceedings will be issued.

Happy to discuss but we must ensure our reputation is not slandered or defamed for something as petty as this.

The client responded advising that she had retracted her review. The client further said that she did not want the refund of $200 but that she would reach out to the Law Society. The client made a formal complaint against Mr A to the Lawyers Complaints Service of the Law Society.

In determining liability, the Committee considered whether Mr A, in threatening to bring defamation proceedings, breached rule 2.7 of the RCCC, which provides that a “lawyer must not threaten, expressly or by implication, to make any accusation against a person or to disclose something about any person for any improper purpose.”

The Committee found that Mr A’s second email did contain a threat. The threat was to bring defamation proceedings against the complainant if the complainant did not confirm, by the following Monday, that she would accept the offer of a $200 refund in exchange for removing the Google review.

The Committee also noted that the work of lawyers often occurs in a contentious and adversarial environment, and that threats, whether implied or explicit, are frequently encountered in legal practice. While threats are unpleasant to receive, the RCCC do not expressly prohibit the making of threats. Rule 2.7 of the RCCC does, however, impose limits on the use of threats. A lawyer will only be found to have breached rule 2.7 if all three of the following elements are present:

(1) There has been a threat, whether expressly or by implication;

(2) It is a threat to make an accusation against a person or to disclose something about a person; and

(3) The threat has been made for an improper purpose.

The Committee found that the first two elements were met in this case, but not the third. Rule 2.7 does not define “improper purpose”. However, the Legal Complaints Review Officer (LCRO) has, in various decisions, offered commentary on what constitutes an “improper purpose” in the circumstances. In the case of SC v JT LCRO 382/2013 (30 June 2017), the LCRO made the following observations about rules 2.7 and 2.10 (the latter concerned with using or threatening to use the complaints or disciplinary processes for an improper purpose) and the distinction between proper and improper purposes:

[78] In my view an improper purpose in threatening to make a complaint will arise when, in making the threat, a lawyer makes a connection between the threat and an unrelated strategic advantage that the lawyer is trying to accomplish.

[79] A proper purpose would include instances where a lawyer makes a threat to complain about a colleague but does so without purpose or intent to secure advantage. For example, a request to respond to long unanswered correspondence, coupled with a threat to complain if response is not received by a particular date, is unlikely to be a threat made for an improper purpose. No transactional advantage is being sought – merely a response to correspondence. It is a threat to complain about conduct for no other reason than the conduct potentially merits it.

[…]

[87] Every case falls to be considered on its particular facts, but what a practitioner must be careful to avoid, is suggesting that the raising of [a] threat of complaint is advanced as a ploy to secure an advantage for a client.

The Committee also referenced the LCRO’s decision in NN v AE LCRO 024/2018 (23 April 2018) and its comments about purpose:

[58] The word “improper”, as used in the rule, means “unbecoming, unseemly, indecorous”. Conversely, “proper” means “conforming to recognised social standards or etiquette; seemly, decent, decorous”.

[59] The rule has no application where the lawyer’s purpose is found to have been “proper”. Whether a lawyer’s purpose was “improper” will be determined objectively on the particular facts of each matter.

[61] For example, in the context of the lawyer’s complaints process, if one lawyer (first) tells another lawyer (second) that the first lawyer intends to make a complaint about the second lawyer’s conduct, then the first lawyer must not attach to that statement a condition or demand that the second lawyer provide or do something in return.

[62] If the first lawyer reasonably considers that the second lawyer’s conduct warrants a complaint being made, that is sufficient purpose in itself without the addition of a secondary, or “ulterior” purpose.

The Committee agreed with Mr A that there was a clear link between the threat made (in this case to commence defamation proceedings) and the purpose (to persuade the complainant to remove her Google review). There was no discernible ulterior purpose nor was there any evidence that Mr A was seeking to obtain an unrelated strategic advantage. The Committee was satisfied that Mr A had not acted with an improper purpose. It followed that Mr A had not breached rule 2.7 of the RCCC.

Despite that conclusion, the Committee remained concerned about Mr A’s second email. The tone, which the Committee considered was unnecessarily aggressive, was in stark contrast to Mr A’s initial desire to reach an amicable resolution. The mood shifted from conciliatory to adversarial. The Committee acknowledged that, in the digital age, people have come to expect near instant responses. However, the complainant had not yet had an opportunity to properly consider Mr A’s offer. While Mr A may not have liked the complainant’s review, the second email was unnecessarily heavy-handed and did nothing to resolve matters. Instead, it prompted the client to complain.

While lawyers may be accustomed to receiving correspondence containing threats, lay persons are not, particularly in respect of something as commonplace as a Google review. The Committee was mindful that the complainant was a former client, and Mr A had a duty to treat her with respect and courtesy. It would have made a finding against Mr A for a breach of rule 3.1 of the RCCC on respect and courtesy, but for the fact that the Notice of Hearing referred only to rule 2.7, rather than any other rule.

The Committee commented that the dispute could have been handled more professionally by Mr A. If it had been, the complaint would likely have been avoided. It is a reality of legal practice that some clients will be dissatisfied with the services provided. Given that the firm has chosen to have a Google review page, there is always the risk that clients will leave an unfavourable review. The Committee noted that a more productive approach, if a client leaves a review which the firm does not consider justified, would be to telephone the client to better understand their concerns.

The Committee concluded that Mr A’s threat did not breach rule 2.7 of the RCCC, to the extent that it was not made for an improper purpose and decided to take no further action on the complaint. The Committee nevertheless considered that the complaint was justified and ordered Mr A to pay $1,000 to the New Zealand Law Society on account of the costs of and incidental to the hearing on the papers.