Mahvash Ikram
The Lawyers and Conveyancers Disciplinary Tribunal has heard two conflicting accounts of the relationship between a barrister and his female client – a close friend of his wife – who has accused him of twice having sex with her at her home.
The barrister, who is facing a misconduct charge and one of misrepresentation, says while he had feelings for the client, there was no affair and he didn’t realise how he felt about her until four years after he began acting for her.
But the client says the pair had sex twice before the barrister sent her a retainer letter, which she told the tribunal he wrote to make the relationship look innocuous.
The tribunal has reserved its decision. In the meantime, the barrister has name suppression; his now former client has permanent name suppression.
The claims
The practitioner ceased acting for the woman against her wishes in April 2022, citing a conflict of interest. A few weeks earlier, his wife had seen a suspicious text message on his phone and confronted the woman.
He transferred the client to another lawyer and – nine months later – sent her a bill for more than $82,000, which prompted her to lay a complaint with the Law Society in March 2023. The practitioner later told a standards committee the pair were not in a sexual relationship.
The complainant had known the practitioner for more than 30 years, having met him through his wife, whom she knew from her school days. She regarded him as a trusted family friend.
Later, she separated from her husband and moved to Auckland. The practitioner began acting for her in January 2018 on matters arising from her divorce.
Both parties accept that there were frequent phone calls and visits to her home. They confided in each other about sensitive matters, things became romantic at some point and, the tribunal heard, he stayed the night at her home on one occasion and there was a kiss on the lips.
The National Legal Standards Committee 1 has charged the practitioner with misconduct under s 7(1)(a)(i) and/or s 7(1)(a)(ii) of the Lawyers and Conveyancers Act 2006 by entering into an intimate personal relationship with a client who the committee says was vulnerable. It says this is also a breach of rr 5, 5.7, 5.7.1 and/or 10 of the Conduct and Client Care Rules.
The second charge is in relation to the misrepresentations the practitioner made to the committee in February 2025. The committee has proposed the alternative charge of unsatisfactory conduct under s 12(b) and/or s 12(c).
However, the tribunal has questioned whether the dishonesty allegation should have been laid at all, when the only way to prove that the practitioner lied is for the tribunal to first accept the complainant’s contention that the two had sex.
The shame
The complainant’s evidence was that the relationship became sexual in 2020, on two occasions shortly before she was sent a written retainer on 16 June 2020.
The first time, she said, he stayed the night. However, she did not mention a sexual relationship in her complaint to the Law Society in July 2023, nor did she refer to it in her written reply, four months later, to the practitioner’s response. In fact, she first raised the issue of physical intimacy with the committee’s investigator a year after lodging her complaint.
The issue had “grown and grown and developed into something quite different”, the standards committee’s lawyer argued, but the woman disagreed, saying she was ashamed to admit what she had done.
“It’s not an easy thing to do, to say that you’ve had sex with your lawyer,” she said. “It’s basically playing ostrich – if I don’t say it, it didn’t happen. I was feeling really disgusted with myself. I was blaming myself.”
Unpaid dues
The practitioner says is the complaint was laid to avoid paying his $82,000 bill, but no charges relating to his fee have been laid with the tribunal.
The client says she was shocked when the bill arrived because of the amount and the lack of any itemisation.
“[It] sort of felt like somebody conjured up the figures and just threw it at me”, she said.
She rejected claims that she had filed a complaint to avoid paying the bill.
“I’m not saying I won’t pay it, but I do believe I need to see where he got those figures from and it needs to be clear.”
The complainant said she had asked for invoices over the course of the relationship, but had not received them. Nevertheless, she paid $5,000 towards the account.
The standards committee was not saying she had received poor service, the tribunal’s deputy chair, John Adams, said.
“We’ve also seen aspects of the legal work that he did for you… it looks like you got good service, competent service, and the fee on the face of it looks modest for what was done.”
The practitioner’s account
The lawyer’s top rate in 2018 was about $400 an hour, he said, but he charged the complainant the legal aid equivalent hourly rate of about $150.
He accepted he had stayed the night at her home but says he did not have sex with her. He had worked late the night before, arrived at her home exhausted, had a glass of wine and took up her suggestion that he sleep there, he said.
“I know what happened on that occasion,” he said. “We had something to eat, something to drink… she made the suggestion. So I thought that was sensible. I just fell asleep on the couch and she went to bed.”
He rejected the allegation of sex several times across both days of the hearing.
However, he admitted that feelings beyond friendship surfaced in March 2022, when a goodbye hug after a dinner at her home led to a mutual kiss of a few seconds.
“When I was leaving, when we embraced as we normally did, it ended up with a kiss on the lips. Now, with the benefit of hindsight, I can see that – at least I can only speak for myself – some feelings beyond friendship had emerged at that time… It wasn’t as if I forced myself on her. I kissed her, she kissed me.”
He told the tribunal he did not turn his mind to the professional implications for several days, then terminated the retainer, citing conflict of interest, on 19 April 2022. The woman asked him to continue but he wrote again a month later, saying he had taken independent advice and her file was transferred to another lawyer in June.
But the termination did not come about of his own accord, counsel for the standards committee argued.
“It came to a head because… text messages were discovered by his wife and there was an argument, and he’s taken steps subsequent to that in recanting.”
The practitioner accepted his termination letter still described the relationship as a friendship when it had become more than that. “Looking back on it, I could have left out the word ‘friendship’ and just said ‘relationship’.”
The practitioner had described the relationship in the letter to make it look innocuous, the standards committee counsel alleged, but he said he had done it so the client could not later claim he had billed her for their personal conversations.
Questioning the charges
It was unusual for a dishonesty charge to be laid where the dishonesty would exist only if the tribunal preferred the complainant’s account, counsel for the practitioner argued.
Such charges usually followed an admission, she said, and laying one on contested facts was “putting the cart before the horse”.
The tribunal said there was an absence of evidence in this case, which might make the required standard of proof impossible to reach.
The decision could rest on a number of different approaches. It might reject the complainant’s evidence, the tribunal said, or accept it in part, accept the practitioner’s evidence, or find there was simply no evidence either way.
“It doesn’t seem to be appropriate that a practitioner should be facing a charge of misleading the tribunal when the outcome of the charges themselves… can reflect all of those outcomes.”
A dishonesty charge could also oblige a practitioner to give evidence in a situation where he or she might have chosen not to, the tribunal said.
“[It’s] difficult to see how the committee thought it had enough information to reach an absolute view on the guilt of the practitioner,” the tribunal said, and by adding the dishonesty charge the committee had concluded a view on the merits, which it did not need to do to refer the matter.
Counsel for the committee accepted the practitioner’s legal work was not deficient and that there was no evidence of any impact on the complainant’s legal services. Nothing had actually gone wrong, she said. But the committee’s case was that it might have and its primary case rested on the complainant’s evidence.
If no intimate personal relationship was found, the only compromising influence left was a looseness in the formalities, she said, including the retainer not being documented until well into the engagement.
That was “lax, but it’s not a hanging offence”, Adams said.
A rigid reading of r 5 (a lawyer must be independent and free from compromising influences or loyalties) would catch every lawyer who acted for a friend, the tribunal said, because a personal relationship almost always sits alongside the professional one.
The point arose from the committee’s fallback position – that if no intimate personal relationship was found under r 5.7 (a lawyer must not enter into an intimate personal relationship with a client where that would be inconsistent with the trust and confidence reposed in them), the practitioner had still breached the general duty.
But the tribunal questioned how a relationship that fails the specific test could breach the general rule instead.
A departure from a professional code does not automatically constitute misconduct, Adams said.
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