Legal exec guilty of unsatisfactory conduct

by Hannah Norton16 Mar 2015
A recently qualified legal executive who revealed confidential details about her father-in-law’s will has been found guilty of unsatisfactory conduct and banned from working for 18 months.

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal found Linda Nalder guilty of unsatisfactory conduct last Wednesday, after an incident which she disclosed information in a draft will prepared by her employer – breaching the duty of confidentiality owed to the client by her employer.

Nalder a recently qualified and not yet registered legal executive – was searching for a precedent when she accidently came upon the draft will of her father-in-law’s; the provisions of which excluded her ex-husband and their children from inheritance.

A few years previously, a failed property venture resulted in Nalder declaring in bankruptcy and one of the debts unpaid on her bankruptcy was a significant one to her former in-laws.

“Ms Nalder was horrified that this debt appeared to have led to the exclusion of the will, which she had seen,” a release from the tribunal said.

Her guilt and distress at this discovery led her to tell her ex-husband with whom she enjoyed a good relationship of the will provisions in from of her mother-in-law, it said.

"In doing so, she breached the duty of confidence owed to the client (testator) by her and the firm who employed her."

The tribunal said Nalder had accepted from outset her fault in disclosing the document, immediately resigning from her job and apologising to the testator client.

Her firm also provided a full apology and Nalder proved this apology was accepted by the client as a satisfactory outcome, it said.

"She apologised fulsomely to not only the client but her employer and the New Zealand Law Society. She accepts that she knew that the duty of care owed to clients was important and that there was no excuse for her action."
In The New Zealand Law Society's Wellington Standards Committee 1 v Nalder [2015] NZLCDT 5 (11 March 2015), the tribunal found that Ms Nalder's conduct did not meet the standard of "misconduct" as defined in section 11 of the Lawyers and Conveyancers Act 2006.

It said it considered that in order to meet the standard of "misconduct" as defined in section 11; the conduct must be so serious that, where the employee a practitioner, he or she would have been likely to have his or her name struck off the roll.

Confidentiality was a core value in legal practice, the tribunal said.

However it did not consider that a one-off lapse of this sort would have led to a strike-off on a first disciplinary offence if she were a practitioner.

The tribunal made an order in accordance with section 242(1)(h)(ii) of the Act that no practitioner or incorporated firm employ Nalder "in connection with practitioner's or incorporated firm's practice so long as the order remains in force".

The order was for 18 months commencing with the date of resignation from her previous employment with the law firm.