The lawyer, acting for a client in family court proceedings, faced several concerns raised by her client including failing to sufficiently expedite matters; giving incorrect advice about “without prejudice” communications; failing to treat her client with respect and courtesy; failing to act competently by not appearing in a judicial conference and breaching client confidentiality by attaching client/solicitor emails to her affidavit in support of a rule 88(1)(c) interlocutory application for leave to withdraw as Counsel.

The Committee considered that the concern regarding the lawyer’s failure to expedite matters was not made out, having found there had been no extraordinary delay in proceedings. It also considered that the advice given to her client regarding his “without prejudice” communications, which the Committee found to be abusive and hostile, acted as a fair warning to her client and was neither inappropriate nor inaccurate. The Committee, therefore, considered no further action was necessary.

The Committee also decided to exercise its discretion to take no action in relation to the concern that the lawyer failed to treat her client with respect and courtesy. The Committee considered that, at times, lawyers need to have challenging and robust conversations with their clients and on the evidence available it could not determine to the required standard whether the lawyer’s conversations with her client crossed the threshold from being challenging and robust to being disrespectful and discourteous – in circumstances where her client described himself as “tone deaf” when it came to whether he was being abusive or aggressive.

Having inquired into the issue of the lawyer’s non-attendance at a judicial conference in May 2022, the Committee, again, determined to take no further action. Whilst it was agreed by all that she did not attend the judicial conference, the lawyer explained she had not been admitted to the virtual conference, which was corroborated by other documented evidence.

Regarding the final concern of breaching client confidentiality, this related to the lawyer attaching client/solicitor emails to her affidavit in support of a rule 88(1)(c) interlocutory application for leave to withdraw as Counsel, due to the client/solicitor relationship having irrevocably broken down. Whilst the emails did evidence the breakdown of the relationship, they also contained client instructions and other information pertaining to the ongoing court proceedings and FDR discussions, the latter of which were confidential by their very nature and which the Committee considered also amounted to legally privileged communications.

The Committee accepted that the lawyer’s client was clearly a challenging client. Nevertheless, it stated that the essence of professionalism requires a lawyer to continue to act professionally even when challenged by difficult clients.

Notwithstanding the lawyer’s acceptance of her wrongdoing and her further learning undertaken to avoid such a “knee-jerk” reaction in future, the Committee determined that the lawyer’s conduct in breaching rule 8 of the rules amounted to unsatisfactory conduct.

In terms of penalty, the Committee considered the lawyer’s disclosure of her client’s confidential information to be relatively serious that could have had serious practical consequences for her client in relation to the proceedings in which he was engaged. However, taking account of her expressed remorse, the steps taken to educate herself on the issue and her offer of an apology to her client, the Committee ordered the lawyer to pay a fine of $2,000 and costs of $1,000 to the New Zealand Law Society Te Kahui Ture o Aotearoa.

The Committee considered there to be a strong public interest in the outcome of this complaint as a reminder for lawyers of their obligation to protect clients’ confidential information even when provoked by a challenging client. It considers that a rule 88 application generally requires only a brief affidavit in support. Where a client/solicitor relationship does break down, lawyers should take care to avoid painting the client in a bad light and ensure there is no breach of confidentiality.