One wanted to eat their sandwich; the other wanted the room for a meeting. The argument went all the way to NZ’s Legal Complaints Review Officer.
New Zealand’s Legal Complaints Review Officer (LCRO) Fraser Goldsmith has had to adjudicate a spat between two criminal lawyers over whether a sandwich should have been eaten in an interview room, with allegations from both sides about how the other behaved, and who said what to whom.
He was required to reach a decision after an earlier finding of the local legal Standards Committee was rejected.
Neither lawyer is named in the finding, but are referred to as the applicant (the lawyer who had the sandwich) and the respondent (the lawyer who wanted to use the room in which he was eating it).
The saga began when both lawyers were scheduled to represent clients in the District Court list on the same day. The court building has a lawyers’ room and three client interview rooms.
During a 15-minute court break, the applicant entered an empty interview room to eat a sandwich, as “a self-management measure for his diabetic condition.”
The respondent was a duty lawyer, who entered the room because she wanted to have a confidential discussion with her clients. The applicant did not wish to leave.
“Words were exchanged,” as Goldsmith puts it.
Conflicting Allegations
What those words were differs markedly between the two lawyers’ evidence.
The applicant contended he was placidly eating his sandwich when the duty solicitor “barged into the room … like a wild animal let loose … and shouted at me to ‘get out, get out!’” He proceeded to “counsel the respondent to have courtesy and respect for a fellow practitioner.”
The respondent, on the other hand, said she had politely asked if she could use the room for a client discussion and whether the applicant could eat his sandwich outside, but he refused to leave until he’d finished eating.
She claimed she then said that sandwich consumption was not the intended use of an interview room and asked twice more for him to leave. He twice refused, and allegedly said “young lady, you need to learn manners” and “other things along the same lines” in front of the respondent’s clients, which she considered to be demeaning.
The duty lawyer admitted that “at this point, I advised courtesy was gone and could he just leave, which he eventually did but not without constant complaining about leaving and how lacking in manners I was in front of the clients.”
Not content with that rebuke, he went on to lodge a formal complaint.
He alleged that she had failed to maintain professional standards, did not treat him with respect and courtesy, and engaged in conduct that tended to bring the profession into disrepute, along with other breaches of the Lawyers and Conveyancers Act. These included “[failing] to treat him, as a person involved in a court process, with respect” and “[engaging] in conduct that amounted to one or more of bullying, discrimination, and racial harassment.”
The Standards Committee noted that, confronted with two very different accounts of what happened and with no third party evidence, it was up to the applicant to prove that, in her rush to get him to finish his sandwich, the duty lawyer had committed the breaches he alleged.
Since he couldn’t do so, it was “unnecessary or inappropriate to take the complaint any further.”
Still, both parties were reminded of “their obligation to treat fellow practitioners with respect and courtesy.”
The owner of the sandwich wasn’t happy with that, however, and appealed to the LCRO on the basis that “the Committee wrongly concluded that it could not resolve a factual dispute” and had “failed to conduct a due inquiry” because it didn’t exercise its powers to obtain evidence from other people.
Officer Not Impressed
Goldsmith was clearly unimpressed that the case had come before him.
“It is disappointing that this matter is before this office,” he wrote. “Two mature criminal advocates should be able to pick up the telephone and resolve a professional contretemps over alleged intemperance without engaging the resources of the Lawyers Complaints Service or of the LCRO. We are where we are, however.”
The law gives a Review Officer far-reaching powers to “conduct his or her own investigations, including the power to exercise … all the powers of a Standards Committee or an investigator and [to] seek and receive evidence.”
But Goldsmith concluded that not only were there “no additional issues or questions … that necessitate any further submission,” but that “the review can be adequately determined in the absence of the parties.”
He found no grounds to hold that any rule relating to professional conduct had been breached.
“The fact that both parties are lawyers and were attending court for their respective client matters does not mean that their crossing of paths amounts to the respondent ’treating‘ the applicant as a person ’involved in [a] court process,’” he said.
“The applicant seems to have been involved in eating his lunch.”