A lawyer met with journalists to discuss a court proceeding. During this meeting the lawyer told the journalists about a standards committee decision relating to the complainant. A complaint was made after the story was published. The Committee found a breach of the confidentiality restrictions that apply to standards committee decisions. The committee fined the lawyer $4,000 and ordered him to pay to the New Zealand Law Society Te Kāhui Ture o Aotearoa an amount of $1,000 in respect of costs and expenses.

The complainant and the lawyer in question are both barristers and solicitors who specialised in litigation. Mr L’s law firm issued proceedings in the High Court against Mr Q and another company. Before the proceedings had been served, Mr L met with journalists to discuss the claims made in the proceedings. During this meeting Mr L made comments to the journalists about a standards committee decision in respect of a complaint to the Law Society about Mr Q by one of his former clients. Mr L had said that he understood “the Law Society issued a decision [previously] upholding [a] complaint, but Mr Q then appealed to the Legal Complaints Review Office (the LCRO) where I understand the matter may still be [progressing]”.

The journalists published a story about the litigation. Mr Q then lodged a complaint alleging that Mr L was the likely source of the journalist’s information about the court proceedings, and the Law Society investigation concerning Mr Q.

The Committee found that the proceedings were a matter of public record, and that Mr L was not prohibited from discussing them with journalists and was not under any obligation to tell Mr Q about them prior to these discussions.

However, regulation 31 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (the CSSC), provides that a decision of a standards committee “must remain confidential” unless the committee directs publication of its decision under section 142(2) of the Act or regulation 30(1) of the CSSC.

On the issue of whether Mr L disclosed any confidential decisions of a standards committee to any person, including the journalist, the Committee noted that the previous committee considering the former client’s complaint did not make a direction as to publication of that decision under section 142(2) of the Act or regulation 30(1) of the CSSC. Therefore, the committee’s decision in that matter must remain confidential.

The Committee found that Mr L had acknowledged disclosing certain details of a confidential decision of a standards committee to the journalists, including that the Standards Committee had made an adverse finding against Mr Q.

The Committee considered that the complaints process is essentially intended to be a confidential one, and therefore decisions of standards committees are confidential by default. It is for a standards committee to decide if its decision on a particular complaint, or any information about it, should be published.

While it was argued by Mr L that regulation 31 was only intended to cover the disclosure of written decisions, this notion was rejected.

“The Committee considers that it would undermine the purpose of regulation 31 and the integrity of the complaints process if regulation 31 were to be interpreted in such a way as to permit an individual practitioner to make verbal disclosures to journalists about a Standards Committee’s adverse finding in respect of a fellow practitioner.”

The Committee considered that Mr L’s disclosure of the standards committee decision breached the confidentiality of that decision, and Mr L may have  voluntarily provided the journalists with more information than they already had. The Committee further noted that limited disclosures about outcomes alone had the potential to be misleading.

The Committee also did not accept that it was permissible for Mr L to discuss the decision with journalists on the grounds that the journalists had agreed to keep the discussions “confidential”. The onus was on Mr L to observe the confidentiality of the previous standards committee decision. Mr L’s own disclosures had breached the confidentiality of the decision when the appropriate action when asked by the journalists would have been to bat the question away, instead of electing to volunteer information.

When a standards committee has decided that its decision should remain confidential, it is not for an individual lawyer to usurp the role of that committee by deciding that the decision should instead be discussed with journalists. Practitioners should uphold the integrity of the complaints process.

The Committee determined that Mr L had breached regulation 31 of the CSSC in his discussion of the standards committee decision with the journalists. Pursuant to section 152(2)(b) of the Act, the Committee further determined that Mr L’s conduct constituted unsatisfactory conduct pursuant to section 12(c) of the Act.

In relation to the finding of unsatisfactory conduct, the committee ordered Mr L to pay a fine of $4000 to the Law Society pursuant to section 156(1)(i) of the Lawyers and Conveyancers Act 2006 (the Act), and $1000 to the Law Society, pursuant to section 156(1)(n) of the Act in respect of the costs of the inquiry and hearing.