Harold v Legal Complaints Review Officer

[2012] NZHC 145

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003420 [2012] NZHC 145

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an application for Judicial Review

BETWEEN  OWEN EDWIN HAROLD Plaintiff

ANDLEGAL COMPLAINTS REVIEW OFFICER

First Defendant

ANDAUCKLAND LAWYERS STANDARDS COMMITTEE

Second Defendant

Hearing:         23 November 2011

Counsel:         GM Illingworth QC and MJ Morris for Plaintiff

WC Pyke for NZLS as intervenor

Judgment:      16 February 2012

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 16 February 2012 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
GM Illingworth QC, DX CP24141, Auckland 1141. Email:  [email protected]

WC Pyke, PO Box 19271, Hamilton 3244. Email:  [email protected]

HAROLD V LEGAL COMPLAINTS REVIEW OFFICER HC AK CIV-2011-404-003420 [16 February 2012]

[1]      In this application for judicial review the plaintiff Owen Edwin Harold, a barrister  practising  in Auckland,  seeks  orders  declaring  invalid  decisions  of  the Standards Committee of the New Zealand Law Society and the Legal Complaints Review Officer that have upheld a complaint against him, and an order setting aside the decisions.

[2]      Neither of the defendants has sought to be heard on the application.  Further, the Auckland Crown Solicitor, who made the original complaint, has not sought to be heard.  No statement of defence has been filed.

[3]      The New Zealand Law Society sought leave to appear and was joined as intervener. The Court has had the benefit of submissions from Mr Illingworth QC on behalf of the plaintiff and from Mr Pyke who appeared for the New Zealand Law Society.

The history of the complaint

[4]      The complaint arises from attendances by Mr Harold in 2008 as counsel for an accused charged with an alleged assault with a weapon on his sister on 14 June

2008.  This was an indictable prosecution.  On 16 June 2008 Mr Harold had been assigned as counsel for the accused by the Legal Services Agency.

[5]      The  accused  denied  that  the  offence  occurred.     He  asserted  that  the complainant had fabricated the facts she put forward to support her allegation.

[6]      A preliminary depositions hearing was scheduled.   Prior to this Mr Harold was in Court on 9 July 2008.   The relevant events of that day were set out in an affidavit by Mr Harold and are not contested.

[7]      The accused approached Mr Harold while he was in Court and told him that the complainant was coming to the courthouse that day and was to speak with him. Mr Harold knew what she looked like from earlier meetings on unrelated matters.

[8]      Mr Harold saw the complainant later that day.  The accused was not present. He went up to her and asked if she wished to speak with him.  She replied that she did and he took her to an interview room and asked her what she wanted to say.  She told him that what she had said to the Police about the accused’s actions and the alleged assault was false.  She said that the events in question had never happened. She stated that she was angry with him on the day of the complaint for spending too much money and for getting the wrong memorial headstone for a grave.  They had had cross words about the incident but that was all that had happened.

[9]      Mr Harold asked her why she had told the Police “something different”.  She

said that she did so because she was angry with the accused.

[10]     Mr Harold thanked her for coming forward and being honest with him and said to her that it would be a good idea for her to obtain her own legal advice.  The complainant then went on her way.  Mr Harold later passed on to the accused what he had been told by the complainant.

[11]     At the first scheduled depositions hearing the case was not reached and the matter was adjourned again.  In the meantime the complainant died.  A draft of her brief of evidence had been provided, but this was not a signed brief.

[12]     When the matter was then scheduled to be called for depositions the Police had filed an application to have the complainant’s statement to the Police admitted into evidence in her absence.  Mr Harold took the view that he was now a potential witness and that the depositions could not proceed on the day in question.  He sought leave to withdraw and that leave was granted.

[13]     The Police then applied for a ruling that the complainant’s signed statement to the Police was admissible as evidence.   That application was opposed by the accused.    A voir  dire  hearing  proceeded  in  the  District  Court  at  Waitakere  on

20 March 2009.  In the course of the hearing Mr Harold was called to give evidence for the defence.  His evidence was for the purpose of showing that the statement was unreliable and should not be admitted.

[14]     In a reserved decision of 12 May 2009 the District Court Judge ruled that the complainant’s hearsay statement was admissible.  In the course of her decision she fully reviewed Mr Harold’s affidavit evidence about what had occurred at the Court. She accepted his account of the exchange as correct.  However, she went on to note that it was the accused who had indicated that the complainant would be coming to see Mr Harold, and that in such circumstances there can always be an issue as to whether it is family pressure or intimidation that has led to the retraction of the statement.  While noting that complaints can also be retracted because they are false, she suggested that “a more appropriate and safer practice” would have been for Mr Harold to advise the complainant that he would not talk to her and that she should  receive  independent  legal  advice.    She noted that  Mr Harold, while not detecting any matter showing pressure on the complainant, did not make inquiry in

that regard.  She observed:1

As an aside I note that in this District Court (and in an ever-increasing number of other District Courts around the country) there has been a long standing  ‘Family  Violence  Protocol’ in  place.    While  the  rights  of  the defendant are to be protected, an holistic, effective and prompt response to

‘family violence’ cases is sought.  A tenet of the protocol is that the Court objects to contact between complainants and defence counsel except through

the victim advisor or community victim service providers who are, as indicated, freely available.

[15]     She went on to observe that the situation had given rise to a discussion amongst  some  Judges  about  the  desirability  of  having  a  “special  category”  of counsel assigned to appear in regard to family violence cases.   She expressed her surprise at Mr Harold’s actions and suggested that a better practice would be to refer such a witness to an independent solicitor.  But she did not state that there had been any breach on his part of his duty to the Court.

[16]     The Judge had reservations about the family background that had led to the complainant’s statement of retraction to Mr Harold and the credibility of the reason that  she  gave  as  to  why she  made  a false  allegation.    She  also  noted  that  the

complainant did not retract when she later went through her brief with a constable.

1      Police v Rahman [2009] DCR 614 at [59].

The complaint and the decisions

[17] On 27 August 2009 the Crown Solicitor at Auckland wrote a letter of complaint to the New Zealand Law Society asserting his view that Mr Harold’s conduct was unsatisfactory in terms of the definition of that phrase in s 12 of the Lawyers and Conveyancers Act 2006. That complaint fully set out the background to the complainant’s discussion with Mr Harold. The complaint referred to the Family Violence Courts National Operating Guidelines, and it was observed:

It also appears Mr Harold is not aware of, or chose not to follow, the long standing convention amongst criminal practitioners that if counsel wish to speak with a prosecution witness, counsel should first contact Crown or Police.  Equally, if Crown or Police wish to speak with a defence witness that courtesy is observed.  There are obvious and important reasons why this convention exists.   Witnesses, especially complainants, must be protected from intimidation.  In matters involving allegations of violence, the Police must  be  involved  to  ensure  the  safety  of  the  witnesses  and  in  turn  the integrity of Court process.  These steps also protect counsel from the risk of becoming a witness to the proceeding.

Mr Harold’s conduct is unsatisfactory and demonstrates a lack of competence and diligence which members of the public are entitled to expect of a reasonably competent lawyer pursuant to section 12(a) of the Lawyers and Conveyancers Act 2006. Rules 2, 11 and 13, in particular 13.2 and

13.2.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client

Care) Rules 2008 are also pertinent.

(Emphasis added.)

[18] The complaint was considered by the Standards Committee under Part 7 of the Lawyers and Conveyancers Act 2006. However, it was common ground that the relevant rules were not the New Zealand Law Society Conduct and Client Care Rules 2008 (“the Rules of Conduct and Client Care”), which were made under s 95 of that Act. Rather, the seventh edition of the Rules of Professional Conduct for Barristers and Solicitors (“the Rules of Professional Conduct”) that were adopted by the New Zealand Law Society on 28 July 1989 under the Law Practitioners Act 1982 were the rules that applied in July 2008.

[19]     Mr Harold defended the complaint.  He filed an affidavit deposing that there was no protocol or rule prohibiting a discussion with a Crown witness.  He observed that there was nothing to indicate that there was any pressure on the complainant or that there had been any dishonesty in the accused’s conduct.

[20]     The  Standards  Committee  determined  in  a  written  decision  delivered  on

2 February 2010 that there was a “well established convention that applied to Crown and Police witnesses”.  It stated:2

In the view of the Committee, the rule is clear.  Once defence counsel knows that someone is a police or Crown witness, they are obliged to notify the police or the Crown before they interview such a witness.

(Emphasis added.)

[21]     The  Standards  Committee  determined  that  the  rule  applied  to  summary defended hearings.   It held that r 10.08 of the Rules of Professional Conduct and r 13.10  of  the  Rules  of  Conduct  and  Client  Care  should  be  read  against  this background.

[22]     The Committee while observing that the Police or Crown prosecutor does not need to be present at the interview  and that the interview does not need to be arranged through them, stated:3

To prevent any suspicion of witness tampering in the event that an earlier statement  is  retracted,  it  is  advisable  that  defence  lawyers  interview witnesses in the presence of either their instructing solicitor (in the case of barristers) or some other reputable person.

[23] It upheld the complaint, holding that there had been “unsatisfactory conduct in the form of conduct unbecoming” by Mr Harold under s 152(2) of the Lawyers and Conveyancers Act. Mr Harold was censured and ordered to pay $500 to the New Zealand Law Society in respect of costs and expenses.

[24] Mr Harold applied to review that decision under s 193 of the Lawyers and Conveyancers Act. In a decision delivered on 21 April 2011 the Legal Complaints Review Officer (“the Officer”) confirmed the decision of the Standards Committee and ordered Mr Harold to pay costs. In the course of her decision the Officer extensively reviewed the background and considered the Waitakere District Court family violence protocols. She did not herself attempt to define a convention but

appeared to accept the finding of the Standards Committee.  She observed:4

2      At 4.

3      Ibid.

4 LCRO 28/2010, 21 April 2011 at [31].

By definition a convention would not exist if it was neither widely known nor generally observed.   In this case the Standards Committee recognised that there was such a practice, and its decision reflected the prevalence of its application being such that practice could be considered a ‘convention’.  My understanding reflects that of the Committee, that the practice is widely known and strictly observed by those involved in criminal work.  I am in no doubt that such a practice is sufficient widely known and observed to be described as an ‘established convention’.

[25]     She considered that Mr Harold had breached the convention.   She agreed with the Standards Committee conclusion that the conduct amounted to “conduct unbecoming”.  She observed:5

Notwithstanding this observation I have accepted that the practice of ‘no contact’ is a well established convention, and one that is strictly observed by lawyers practicing at the criminal bar.  In such circumstances this becomes a proper benchmark for evaluating acceptable professional standards as observed by the “competent, ethical, and responsible practitioner”.   This standard was reflected in the Waitakere District Court Family Guidelines as “In this Court objection will be taken to contact between complainants and counsel, whether by counsel approaching the complainants or vice versa, except through and in the presence of Community Victim Services or the Victim  Advisor...”  and  later  in  the  Family  Violence  Courts  National Operating Guidelines that there was to be “no contact between victims and Defence Counsel at the Family Violence Court, whether by Defence Counsel approaching victims or vice versa”.

The  Practitioner  was  aware  of  the  Guideline.    He  is  also  aware  of  the practice and I accept that he generally observes it.   That he perceived distinguishing circumstances in this case such that the practice did [not] apply was, in my view, a lapse of judgment on his part on this occasion. This was a family violence matter and for reasons already stated I cannot agree that there was anything about the circumstances that made the protocol redundant in this case.

(Italics emphasis in original, underlining added.)

The claim

[26]     Mr Illingworth put the plaintiff’s case on two primary grounds.   First he submitted  that  the  decision  of  the  Officer  was  based  on  an  error  of  law.    He submitted that the relevant rules in fact expressly permitted a practitioner to discuss a case with any witness.   He submitted that the standard imposed contradicted the standards set out in the relevant rules.  There had been, he argued, a failure to apply

the relevant Rule of Professional Conduct.  He also submitted that the decision was

5      At [50]–[51].

based  on  clear  and  significant  mistakes  of  fact,  there  being  no  convention  in existence of the type enunciated by the Standards Committee.

[27]     While mistake of law and mistake of fact were the primary submissions made by Mr Illingworth, the statement of claim also asserted that the decision was unreasonable and made as a result of taking into account irrelevant considerations or failing to take into account relevant considerations.   It was also pleaded that there was a breach of the principles of natural justice, but this was not pursued.

[28]     The New Zealand Law Society as intervener submitted that nothing in the rules or commentary amounted to an ethical requirement to notify the Police or Crown before interviewing a complainant.  It observed:

This is in keeping with history of the practice as revealed by the excerpts from earlier rules and rulings of Law Societies filed by the plaintiff.   It follows that the Committee’s and the LCRO’s findings rest on what was opined by them to be an accepted mode of practice.

[29]     The intervener submitted that the opinions of the Crown Solicitor and senior counsel who were on the Committee could not be lightly brushed aside.   But, the intervener asked, were their collective opinions a sufficient foundation for the determination?    The intervener did  not  express  a view  on  that  proposition,  but accepted that if the convention was not found to exist, then the finding of conduct unbecoming  must  be  set  aside.   The  intervener  doubted  whether  the  Waitakere District Court’s family violence protocols applied.

[30]   Mr Pyke for the Society did however submit that by interrogating the complainant about the reason she “told the Police something different” Mr Harold treated her unfairly and instead of asking the question he should have sent her off for independent advice.   He emphasised the dangers associated with speaking to witnesses for the other side.  He observed that even if the application for review is successful, a question still arises as to the propriety of Mr Harold’s actions.  It was argued that the Court should send the matter back to the Officer recommending that she reconsider the matter of Mr Harold’s conduct and whether it was unbecoming.  It was suggested that the Court could signal the points that might be reconsidered by the Officer.

The Rules of Professional Conduct

[31]     Under s 17(2)(d) of the Law Practitioners Act 1982 the Council of the New Zealand Law Society had the ability to make rules “[r]egulating in respect of any matters the professional practice, conduct and discipline of practitioners”.  The rules are made under the authority of the statute.  It was observed in the introduction to the seventh edition of the Rules of Professional Conduct that “There is a professional obligation on every practitioner to observe and comply with the rules that follow in the course of practice in New Zealand.”  It was also observed that practitioners must be aware that “… a breach of a rule as elaborated by a commentary in this publication, could well put the practitioner in jeopardy”.

[32]     The  rules  are  not  the  only  source  of  ethical  standards,  and  in  the commentaries there are references to cases and other sources of authority.   The introduction makes it clear that they do not purport to deal with every circumstance that might give rise to an ethical responsibility6  and the rules are “... not to be considered an exhaustive code or treatise”.7    However, insofar as the rules relate to the type of conduct that is the subject of a  specific complaint, they are highly relevant. The Court of Appeal observed in Black v Taylor8 per Richardson J:

An ethical code of this kind expresses the profession's own collective judgment as to the standards to be expected of practitioners. While it does not impose legal obligations or have the force of law it is some indication of relevant public policy concerns.

[33]     Rule 10.08 provides expressly in relation to criminal proceedings:

In criminal, as in all other proceedings before the court, no practitioner or party has the sole right to call a witness or discuss the case with a witness.

6      Rules of Professional Conduct for Barristers and Solicitors (7th ed, 2004) at 3-4.

7      Ibid at 2.

8      Black v Taylor [1993] 3 NZLR 403 (CA) at 409.

Commentary

(1)   In a District Court prosecution, counsel may interview any person who might be called as a witness by the police prior to the court hearing save that counsel would be unwise to interview complainants in sexual offence cases or members of the police without first notifying the prosecutor of counsel’s intention.

(2)   In indictable matters, where counsel wishes to interview any Crown witnesses after the lower court hearing but before the trial, counsel should notify the Crown solicitor of counsel’s intention to do so.

(3)   Where a prosecution witness is interviewed, counsel should bear in mind the possibility of subsequent accusations of tampering with the evidence to be given by that witness.  Depending on the circumstances of the matter, including the nature of the offence and the importance of the witness in the case, consideration should be given to carrying out the interview in the presence of an independent and reputable person.

…

(5)   Counsel has a responsibility when interviewing a prosecution witness to ensure that nothing is said or done to intimidate the witness.

(6)   It should be remembered that while a practitioner has the “right” to interview anyone, so also has the person the “right” to refuse to be interviewed.  No one is obliged to make a statement, if he or she does not wish to do so, when interviewed by a solicitor, counsel or anyone else.     It  follows  that  in  interviewing  prosecution  witnesses,  both courtesy and self-interest are usually served by making arrangements for the interview through the police prosecutor or Crown solicitor.

…

(11) A practitioner must be careful to avoid treating a potential witness in an overbearing or misleading way in regard to that person’s right to decline to be interviewed.

(Emphasis added.)

[34]     Rule 8.05 is a more general rule which overlaps with r 10.08.  It provides:

No practitioner engaged in a proceeding, criminal or civil, has the sole right to call or discuss the case with a witness.

Commentary

...

(2)   Subject to paragraph (1) [which deals with expert witnesses] above, it is permissible for a practitioner acting for one party to interview a witness or prospective witness at any stage prior to the hearing whether or not that witness has been interviewed by the practitioner acting for the other party or called as a witness.

(3)   Practitioners acting as defence counsel are referred to Rule 10.08.

…

[35]     The Rules of Professional Conduct set out general propositions as to how practitioners should act, as well as proscribing and permitting and directing conduct in specific situations.  Thus in the area of conflicts of interest the general nature of the  relationship  between  practitioner  and  client  is  stated,9   and  in  addition  it  is provided  that  certain  conduct  “must”  not  happen,10   that  certain  actions  “may” occur,11 and that in other situations a practitioner “shall” take certain steps.12

[36]     The status of the commentaries is not fully explained in the rules, and that style of rule and commentary was not continued in the Rules of Conduct and Client Care, where there are only rules.  However, it is clear from the introduction that they are to be treated as an elaboration of the rules and must be observed in letter and spirit by practitioners.  The rules and the commentaries reflect the New Zealand law profession’s collective judgment of the standards to be expected from practitioners. The commentaries are sometimes explanatory as in the nature of comment, and sometimes an elaboration of the stated rule.

Application of relevant rules to this complaint

[37]     It can be seen that in relation to witnesses that both rr 8.05 and 10.08 set out the general proposition that no practitioner has the sole right to call a witness or

discuss the case with a witness.  The commentaries then elaborate, consistent with

9      At r 1.01.

10     See rr 1.01 – 1.05.

11     See r 1.06.

12     See r 1.07.

that  proposition,  that  a  practitioner  may  interview  a  witness  who  has  been interviewed or called by another party.  They then set out some warnings about the dangers of that practice and set out the qualification in commentary (2) to r 10.08 of the need in indictable matters after the lower Court hearing for counsel to notify the Crown solicitor of counsel’s intention to do so.

[38]     It follows by necessary implication from the statement of principle that no practitioner has the sole right to call or discuss a case with a witness and the specific commentary that notice should be given to the Crown after a preliminary hearing, that prior to a preliminary hearing of an indictable matter defence counsel are not prohibited from speaking to a Crown witness without giving notice.  This is how any practitioner reading the rules would interpret them.  The statement that in indictable matters after the lower Court hearing counsel “should” notify can be seen as a statement of good practice.

[39]     The practitioner would see that this was the seventh edition of the rules, and that the rules having been in place for many years were settled.  That practitioner, secure in the knowledge that the rules and commentaries are the profession’s own collective judgment as to the standards expected of practitioners, could reasonably expect that to rely on them and act on them would not involve a breach of professional standards.

[40]     Rule 10.08 and commentary (2) to that rule expressly referred to the type of situation that was the subject of the complaint against Mr Harold.  He was discussing an indictable prosecution with a Crown witness prior to the lower Court hearing. The effect of r 10.08 and commentary (2) re-inforced by r 8.05 and commentary (2), is to acknowledge what Mr Harold did as permissible conduct.

[41]     The rule that presently applies under the Rules of Conduct and Client Care is to similar effect.  These rules are made by the New Zealand Law Society13  and are stated to be based on the fundamental obligations of lawyers.14  They came into force

shortly after Mr Harold’s meeting with the complainant.  They reflect much of what

13 Lawyers and Conveyancers Act 2006, s 95.

14     See the “Notes about the rules” in the Schedule.

was in the earlier rules and can be seen also as a statement of the collective opinion of the profession as to what is good practice by practitioners.  It is stated at r 13.10.4 of the new rules:

A lawyer engaged in any proceeding does not have the sole right to call or discuss the case with a witness. A lawyer acting for one party may interview a witness or prospective witness at any stage prior to the hearing, whether or not the witness has been interviewed by the lawyer acting for the other party.

[42]     It is observed in the footnote that:

Where a lawyer proposes to interview a witness for the other side, it is prudent  to  inform  the  lawyer  representing  the  other  side  of  this  fact, especially in respect of sensitive criminal matters where it is important to take steps to avoid any suggestion of interfering with the course of justice.

The phrase “it is prudent …” implies that there is no prohibition, but a particular risk that the conduct could be unbecoming.

[43]     The footnote does not go so far as commentary (2) to r 10.08 in one respect (“prudent” to notify rather than “should” notify), and further in another (it does not distinguish between before and after the “lower court hearing”, or summary and indictable matters).  The footnote is not a prohibition, but rather a recommendation of good practice.   There is no requirement to notify, but it is made clear that a practitioner takes a risk if he or she talks about the case to the opponent’s prospective witness without notifying the other side, particularly in a sensitive criminal matter.  It follows that contact may in certain circumstances constitute unsatisfactory conduct. But contact without notice to the opponent is not prohibited even in a sensitive criminal matter.   It is clear that whether the discussion or interview involves unsatisfactory conduct will turn on the particular background and facts of the discussion or interview.

Consideration of the relevant rules by the Officer and the Standards Committee

[44]     The Standards Committee referred to Mr Harold’s reliance on r 10.08 to

justify his behavior.15    The Standards Committee observed later in its decision that

15     At 3.

r 10.08 and r 13.10 should be read against “this background”.16    The background appears to have been the convention as stated by the Committee that in all cases including summary cases and in indictable cases at any time, a practitioner seeking to discuss a case with a Crown witness should notify the Police or the Crown in advance of doing so.

[45]     The  Standards  Committee  did  not  explain  how  such  a  connection  could override the implied acknowledgement that such a discussion may occur that is contained in the Rules of Professional Conduct.  It did not set out the relevant rules or seek to examine or explain or reconcile their terms with the facts before it.   In deciding that a convention existed which had the effect of contradicting the thrust of the relevant rules, the Standards Committee appears to have relied on its own assessment  of  good  practice  and  the  statement  of  the  Crown  Solicitor,  and  to disregard the rules.  The Standards Committee made no attempt to interpret to apply those rules in relation to Mr Harold’s conduct, and in particular did not consider how Mr Harold’s conduct could be unsatisfactory when it was impliedly permitted by r 10.08 and commentary (2).   It made no reference at all to r 8.05 and the more express permission in commentary (2) to that rule.

[46]     I consider on an overview that the lack of any engagement by the Committee with the provisions of rr 10.08 and 8.05 and their commentaries, and r 13.10.4 of the Rules of Conduct and Client Care, and the apparent lack of any regard for what is impliedly acknowledged in those rules as acceptable, and to impose instead the Committee’s own perception of what was good practice, constituted an error or law.

[47]     The same error was made by the Legal Complaints Review Officer who reviewed that decision.  She noted that r 10.08 states that counsel would be “unwise” to interview a complainant in sexual offences without prior notification to the prosecutor.   However, she did not refer to commentary (2).   She did not refer to r 8.05  or  the  commentary  to  that  rule.    She  did  not  refer  to  the  fact  that  the convention that she appeared to accept exists runs contrary to what is impliedly acknowledged as permissible conduct in those rules, or to explain why the rules can

be put to one side.  She did not examine how Mr Harold’s conduct could be found to

16     At 4.

have  been  unsatisfactory  when  such  conduct  is  impliedly  acknowledged  as acceptable (although risky) by the rules.   Her failure to consider and weigh in the process of determination the rules that expressly relate to the relevant ethical duty was an error of law.

[48]     The Rules of Professional Conduct did not need to be treated as if they solely governed the situation, or treated as offence provisions setting out ingredients that had  to  be  strictly  proven  before  misconduct  was  established.    However,  they expressly applied to the type of conduct in question and were highly relevant.  They and the Rules of Conduct and Client Care should have been  given weight  and incorporated into the reasoning process. They were not.

Further error of law

[49]     Instead, the Officer gave primacy to the Waitakere District Court Family Violence Court Guidelines which she appeared to conclude set the appropriate standard for proper conduct.17   She quoted this extract from the Guidelines:18

In this Court objection will be taken to contact between complainants and counsel, whether by counsel approaching the complainants or vice versa, except through and in the presence of Community Victim Services or the Victim Advisor.”

[50]     It was common ground that the Waitakere District Court Family Violence Courts Guidelines did not apply.   The proceedings were not within the summary jurisdiction of the Family Violence Courts at Waitakere and Mr Harold’s client was not subject to that Court’s procedures.  The Guidelines may have had some relevance as indicating good general practice.   But to give them primacy when they did not apply to the  specific situation and in the face of express Rules of Professional Conduct which impliedly accepted the conduct in question was an error.

Conclusion on error of law

[51]     There were therefore errors of law.  I conclude that the first basis of claim is made out.

17     At [50]–[53].

18     At [27] and [50].

Consequences of the error of law

[52]     It is necessary to consider whether the decision of the Officer should be declared invalid and the order of unsatisfactory conduct set aside, or whether a new hearing should be ordered.  Mr Pyke for the New Zealand Law Society submitted that a rehearing would be an appropriate remedy and should be directed.

[53]     A competent practitioner at the time of the complaint would have been aware of the Rules of Professional Conduct.  The Rules of Conduct and Client Care were about to come into force and were also relevant.  Such a practitioner could expect the Rules of Professional Conduct to provide good guidance as to what was satisfactory conduct.   Any such practitioner who examined the rules would, for the reasons given, have concluded that there was no professional requirement or convention that the Police or Crown should be notified before speaking to the complainant.

[54]     Thus  Mr  Harold,  if  he  had  given  the  matter  such  attention  could  have concluded that in speaking to the complainant he was acting in accord with the profession’s own collective judgment as to the procedure he could adopt.  He did not need to  give notice prior to the lower  Court  hearing.   It is impossible in such circumstances to see how a Standards Committee acting properly applying the relevant rules could conclude that Mr Harold’s conduct was unsatisfactory.  There is therefore no point in ordering a rehearing.

[55]     Mr Pyke referred to certain specific aspects of Mr Harold’s conduct during the interview, in particular his question to the complainant as to why she had made a different statement to the Police.  He suggested that this went too far.  However, the question of his specific conduct during the discussion was not the subject of the complaint.  The complaint was about making the contact without notification, and it was a convention to notify that he was said to have breached.  It would not be fair to order a re-hearing of what would be in effect a new complaint.   There is also the concern at subjecting Mr Harold to further inquiry on a matter which even on the Standards Committee consideration had only warranted censure, so long after the event.

[56]     The views of the Standard Committee and the Officer as to conventions in the profession do of course command respect.  As the relevant rules say, there are risks attendant on a practitioner talking to a Crown witness, particularly if there is any likely risk of the witness being subjected to pressure.   These risks are expressly referred to in both the former and present rules.  But risks and good practice cannot be turned into a convention which contradicts what is impliedly acknowledged as permissible conduct by the rules themselves.

[57]     The thrust of the rules in the instant case is that there is no requirement of notice but practitioners are alerted to the risks.   So if a practitioner embarks on a discussion, and there is obvious pressure from one source or another, the background warnings and the caution that all practitioners should have in such a situation may form the backdrop to a specific finding of unsatisfactory conduct in the course of the interview.  But that was not the nature of this charge, which related to the failure to give notice, not the details of what Mr Harold did or said in the discussion.

[58]     Reference must be made to the affidavits from five practitioners experienced at the criminal bar, including one very senior silk, filed on behalf of Mr Harold, where they express the opinion that the convention relied on by the Officer and the Standards Committee does not exist.  While referring to the need for caution, they attested that from their experience, defence counsel were able to discuss the case with Crown witnesses, at least prior to the lower court hearing.

[59]     The New Zealand Law Society has not filed any affidavit evidence on this question of practice or convention and has not sought to argue that their views are incorrect.  Mr Pyke accepted for the New Zealand Law Society that if it could have presented expert affidavit evidence supporting the existence of such a convention it would have done so.  He confirmed that inquiries were in fact made by the Society. No affidavit evidence was filed by the Auckland Crown Solicitor supporting the existence of such a convention.

[60]     I have not taken this later affidavit material into account in assessing whether there was an error of law as it was not before the Standards Committee or the

Officer.   However, it is relevant in relation to the issue of remedy.   It is a further indication that the complaint would not be upheld at a re-hearing.

[61]     Deference must be given to the views of an expert body such as the Standards Committee.  However, such deference must be tempered in this situation by the fact that there are express rules which deal with the very issue in contention, and the New Zealand Law Society has not contested the view strongly expressed that no convention as stated by the Standards Committee and Officer exists.

[62]     The Court is faced with the uncontradicted views of five practitioners who state that the convention which the Standards Committee concluded was breached, does not exist.  The New Zealand Law Society finds itself unable to gainsay those opinions.   Rules 10.08 and 8.05 support a position which is the opposite of that reached by the Standards Committee and the Officer.   All the objective material before the Standards Committee save for the view expressed by the Crown Solicitor, indicated that there was no actual requirement on defence counsel before a preliminary hearing to  notify the other  side  before  discussing the  case  with  an opposition witness.

[63]   There can undoubtedly be circumstances where it will be a breach of professional standards for a practitioner to have a discussion with a witness for the other side.  If that discussion arose to the practitioner’s knowledge as a consequence of improper pressure or conduct, the contact could be conduct unbecoming.   A practitioner could be found in certain circumstances to have been guilty of grave discourtesy, or bullying or intimidatory behaviour.  This sort of conduct could well give rise to a complaint that is upheld.  In certain circumstances it may be prudent or courteous to inform the lawyer representing the other side of the fact of an interview.

[64]     But no such detailed circumstances were the subject of the complaint.  Given this, and the clear words and meaning of rr 10.08 and 8.05, I conclude that it would be pointless to order a rehearing and I decline to do so.

[65]     I make it clear that despite the words of the present rules, it may be that in certain areas of court work courts develop directions of good practice which are not

in the Rules of Conduct and Client Care or which differ from them.  The breach of such guidelines could be unsatisfactory conduct.   The Family Violence Courts National Operating Guidelines may be such directions, and it may be that counsel’s failure to observe a direction as to practice in certain circumstances could be unsatisfactory conduct whatever the Rules of Conduct and Client Care say.  But it is common ground that the Waitakere District Court Family Guidelines and the Family Violence Courts National Operating Guidelines did not apply to Mr Harold’s conduct in 2008, while the Rules of Professional Conduct did.

Other heads of claim

[66]     Given the conclusions reached, it is not necessary to consider the other heads of claim.

Conclusion and remedy

[67]     The decisions were made pursuant to an error of law and were invalid.   I consider that the position is sufficiently clear for it to be inappropriate to order a rehearing.

Result

[68]     The decisions of the Auckland Standards Committee 1 of 2 February 2010 and the Legal Complaints Review Officer on 21 April 2011 are declared to be invalid and are set aside.

[69]     I decline to order a re-hearing.

Costs

[70]     I  do  not  immediately  see  that  any  cost  issues  can  arise,  but  out  of  an abundance of  caution  I reserve  the  question  of costs  for  further  submissions  if necessary.

……………………………..

Asher J