Lawyer v New Zealand Law Society

In August 2019, a lawyer unsuccessfully sought judicial review of the complaints process undertaken by the New Zealand Law Society and Wellington Standards Committee No 2. An appeal was lodged and is set to be heard on 3 December 2020, but has been delayed by the COVID-19 pandemic and other matters. The applicant filed an application for a stay of further steps in the complaints process pending the appeal, arguing that such steps would render their appeal rights nugatory and that a complainant had breached confidentiality obligations. The respondents opposed the stay application, arguing that the merits of the appeal were weak and that there was a public interest in concluding the complaints process as soon as possible.

The court held that there was no merit in the applicant’s argument that their appeal rights would be rendered nugatory by the respondents taking further steps in the process, as the further steps were of the same character as the steps already taken. The court also held that there was merit in the respondents’ argument that the court is generally reluctant to grant relief in judicial review claims brought midway through disciplinary procedures, as there are generally opportunities for procedural deficiencies to be cured before substantive outcomes occur. However, the court found that the prospect of a complainant exploiting the resumption of steps in the disciplinary proceeding to advance criticisms of the applicant in other contexts, where such disclosures would be exploiting the predicament confronting the applicant, altered the balancing of competing interests in a stay. The court concluded that the risk of inappropriate disclosures by a complainant was sufficiently unacceptable to make a stay justifiable, unless adequate safeguards applied to the contemplated next steps to prevent that occurring.

The court ordered that the respondents could provide the investigator’s reports to each of the parties and seek their responses, but only after receiving from each intended recipient unqualified written undertakings that they would not disclose the content of the reports to any other person except those who had communicated the reports to them. Each recipient must acknowledge receipt of a copy of the judgment, including acceptance that any breach of the undertaking would be treated as contempt of court. The respondents were also allowed to continue with processes preparatory to, but not including, any hearing on the complaints, but were required to take all reasonable steps to protect the confidentiality of the content of the investigator’s reports. If the respondents were not satisfied that adequate steps were in place to maintain confidentiality of the investigator’s reports, then no disclosures were to occur pending determination of the applicant’s appeal. The orders would apply until the hearing in the Court of Appeal, at which time that Court could reconsider the matter. Costs on the current application were to be considered in light of the substantive outcome in the Court of Appeal.