In his complaint, Mr C stated that Mr M engaged in a pattern of bullying and harassing behaviours towards him between November 2020 and July 2021. These behaviours were reflected through a series of emails sent to Mr C and others, including members of the council, Mr C’s manager and members of the public, some of whom relied on Mr C’s advice. The complaint alleged that Mr M breached the following rules in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC):

Rule 2.3: A lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests, or occupation.

Rule 10.1: A lawyer must, when acting in a professional capacity, treat all persons with respect and courtesy.

Rule 10.2: A lawyer must not engage in conduct that tends to bring the profession into disrepute.

Rule 10.3: A lawyer must not engage in conduct that amounts to 1 or more of the following:

1. 1. 1. bullying;
         
         
      2. discrimination;
         
         
      3. harassment;
         
         
      4. racial harassment;
         
         
      5. sexual harassment;
         
         
      6. violence.

In determining liability, the Committee found that Mr M was acting as a lawyer and not as a ratepayer at the time of the correspondence. Despite Mr M’s claim that he was writing in his capacity as a ratepayer, he nevertheless acknowledged during the complaints process that he provided legal advice and representation to Mr B during the time of his emails to Mr C. Furthermore, Mr M referred to his “legal expertise” and legal experience throughout his emails in which he also stated his concern in his capacity as a ratepayer. Several of the emails also included Mr M’s professional title of “Barrister and Solicitor” in the sign off language. One of the emails also extensively discusses the issue on which Mr M provided Mr B with legal advice. In its response to Mr M’s submissions, the Committee stated:

It is challenging for the Standards Committee to reconcile Mr [M’s] repeated submission that he was acting solely as a ratepayer when sending the emails when setting this against his ongoing references to his professional expertise, use of his work address and crossover of issues on which he provided legal advice to one of the recipients (Mr [B]).

The Committee also considered the Legal Complaints Review Officer (LCRO) case of AB v AC LCRO 001/2017 on the distinction between a lawyer’s actions in their personal and professional capacity. In considering a lawyer using their professional sign off and contact details (email address or otherwise) when sending correspondence, the LCRO noted the potential for recipients to be misled about the capacity in which the lawyer was communicating:

The lawyer concerned runs that risk that he or she may be perceived, to a greater or lesser degree, to be acting as a lawyer and may be held to be acting as a lawyer. In acknowledgement of these risks the New Zealand Law Society has cautioned lawyers “not to blur the line between acting in a personal vs professional capacity, such as by using the firm letterhead.”

Beyond finding that the majority of Mr M’s emails could be reasonably read as coming from a lawyer, the Committee also noted that AB v AC confirms that regardless of whether correspondence from a lawyer was sent in the capacity of regulated services, a Standards Committee is able to reach an adverse finding on the conduct in accordance with s 12(c) of the Lawyers and Conveyancers Act 2006, governing conduct unconnected to the provision of regulated services.

After concluding that Mr M’s emails were sent in his capacity as a lawyer, the Committee found that Mr M failed to treat Mr C with the required respect and courtesy throughout the correspondence. Examples of correspondence the Committee referenced as representing an accurate sample of all emails on file and the nature of Mr M’s correspondence regarding Mr C are as follows:

• I propose no confidence in respect of the General Counsel.
• The insufficient legal advice sought and/or given by General Counsel on various matters.
• I believe you have been let down by your legal advice, both externally and internally. At the very least by not pointing these basic procedures out to you.
• Ineffective GC: For the GC that doubts or doesn’t understand the role […] There was only one nominee; the defective […] resolutions and process […] [Mr C] edges out his spine as winner.
• I have advised [Mr B] that various acts (including threatened acts) or omissions of [….] and the General Counsel (Parties) could, in the course of an independent enquiry, reasonably be expected to amount to or be characterized or seen as evidence of bias or predetermination, breaches or serious breaches of duty (statutory or contract), potentially defamatory acts with respect to […], or acts of bad faith on the part of a member or employee.
• You are being sarcastic [Mr C’s first name]. And silly.
• Suffice to say with all due respect you have not been “impartial” regarding […] all [sic] [Mr B]. And in my view you have not been competent as either a GC for all Council/Councillors and all ratepayers […] You are not impartial. You are defensive/biased in my view, wrongly.
• Do your job. For all Council. And don’t be precious.
• By his latest unhelpful assertive piece [Mr C] again is not doing his job for […] or all of you – just as he failed last year […]

The Committee recognised that communications between individuals at times can be robust when expressing concern with how matters are being handled. However, it emphasised that that these interactions should remain respectful and professional throughout. The Committee noted that Mr M’s correspondence included multiple parties who are entitled to hold the legal profession in high regard and to witness respectful communications at all times, in particular when referring to legal expertise and the role of the writer as a lawyer. The Committee was also troubled by Mr M’s repeated attacks on Mr C’s abilities as a lawyer in such widely circulated emails, including to his manager and others who relied on his advice as general counsel. It noted Mr M is entitled to express his concern with council processes, however by accompanying this with such ongoing criticism of Mr C’s skills to a wide audience the Committee considered that it is improbable that Mr M would not have considered in part the professional embarrassment caused to Mr C.

The Committee was also significantly concerned by Mr M’s lack of insight into how his communication style is perceived by his professional body and Mr C, as evidenced by Mr M’s continued insistence throughout the complaints process that he would not alter his approach or have acted differently at any time.

By a fine margin, the Committee did not consider that this reached the threshold for a specific finding on the issue of bullying or harassment. However, it determined that much of Mr M’s correspondence was for an improper purpose and lacked the necessary respect and courtesy in breach of rules 2.3 and 10.1 and constitutes unsatisfactory conduct.

As for the penalty for the unsatisfactory conduct, the Committee censured Mr M and ordered that Mr M pay a fine of $5,000 and costs of $1,500 to the New Zealand Law Society Te Kāhui Ture o Aotearoa.

The Law Society’s article on the risk of signing correspondence as a lawyer is available on page 57 of LawTalk 914 (February 2018).