Ministry of Justice

Penalty / practitioner admitted misconduct in relation to threats towards police sergeant, conduct in court and from alcohol consumption / appropriate penalty / HELD / high end of misconduct spectrum / previous unsatisfactory conduct finding for similar issues / poor performance by practitioner required setting aside a conviction and retrial / adversely affects criminal justice system / has repeatedly attempted to achieve abstinence without success / admitted charges of misconduct and has already had lengthy suspension / Tribunal ordered 18-month suspension from date of hearing / practitioner must give undertakings and obtain a supervisor to report on sobriety / Tribunal recommended practitioner be required to show fitness for practice prior to being granted a practising certificate / practitioner ordered to pay 50 per cent of the Standards Committee’s costs and 50 per cent of Tribunal’s costs / medical and personal details suppressed

Penalty / practitioner admitted misconduct / unable to manage trust account by closing it when firm ceased, failing to pay out client funds and failing to appropriately record transactions / agreement that censure was appropriate / whether suspension required / HELD / practitioner had no capacity to pay a fine / seven previous disciplinary matters including two admissions of misconduct leading to suspension / Tribunal ordered censure and three-month suspension / no costs order against practitioner due to his impecuniosity

Penalty / practitioner admitted charge laid under s 241(d) / conviction for 13 charges of money laundering / Crimes Act 1961, section 243(2) / Lawyers and Conveyancers Act 2006, section 241(d) / HELD / practitioner unfit to continue practice as a lawyer / practitioner agrees / Tribunal ordered practitioner be struck off / practitioner ordered to pay Tribunal’s costs

Penalty / unsatisfactory conduct relating to interaction with court security and failure to deliver file / misconduct relating to visiting a client in police cells with client’s partner, who practitioner represented as his assistant, and possession of methamphetamine / HELD / offending serious / mitigating factors include the practitioner not having practised for three years, that offending coincided with severe illness, and that he has re-engaged with Law Society regarding these proceedings and ongoing practice restrictions / fine inappropriate due to financial position / practitioner must provide undertaking for three years, practitioner only to practice as an employed barrister and solicitor by and under direct supervision of another barrister and solicitor / practitioner to pay 20 per cent of Standards Committee’s costs and half of Tribunal’s costs / name suppression granted / public interest in open proceedings outweighed by practitioner’s health and children’s interests

Penalty / improperly witnessed and certified numerous documents / put client convenience before rules / no concealment of actions / firm’s internal controls failed to prevent conduct, including while practitioner was employed solicitor / HELD / survey of purposes of penalty and suspension in professional discipline / moderately serious misconduct / aggravating factors were the number of breaches and duration of conduct / numerous mitigating factors, including remorse and good character, no harm to clients and conduct not deceitful or misleading or for personal gain, and the offending is historical and not identified by practitioner’s employer, LINZ not suspending access to e-dealing, reputational damage, current regulatory compliance, and delay in disciplinary process / threshold for suspension not met / Tribunal ordered censure / practitioner must provide undertakings as to random file supervision / ordered to pay 80 per cent of Standards Committee’s costs and Tribunal’s full costs

Penalty / charge laid under s 241(d) / two convictions for doing an indecent act / own-motion investigation by Standards Committee / Lawyers and Conveyancers Act 2006, section 241(d) / HELD / whether reasonable member of the public would regard convictions as reflecting on the practitioner’s fitness to practice law / conduct falls within “moral obloquy” / practitioner accepts convictions bring profession into disrepute / suspension would serve as further punishment / practitioner has taken steps to address reasons for offending and to mitigate risk / no public interest in preventing him practising law / Tribunal ordered censure / must provide undertakings / for five years, to obtain prior written approval from Law Society before practising, with it being satisfied practitioner will adhere to condition not to be in the presence of a person aged 16 years or under except in the physical presence of another lawyer / for two years, will continue to undertake therapy / costs reserved

Penalty / misconduct and unsatisfactory conduct / practitioner made arrangements to permit a struck-off practitioner to practise / what is the appropriate penalty and should practitioner be granted name suppression / HELD / ordinarily, permitting another practitioner to circumvent penalty would result in suspension or strike-off / practitioner’s specific circumstances allow a compassionate and proportionate response / unblemished record, health concerns, and has ceased practice / threshold for name suppression not met / Tribunal ordered censure and $10,000 fine / practitioner to pay reasonable contribution to Standards Committee’s costs and Tribunal’s costs

Penalty / practitioner’s plan to manage alcohol addiction, which was connected to offending / arrangements in place for regular support, counselling, monitoring and mentoring / HELD / Tribunal endorsed practitioner’s support arrangements and undertakings / goals of rehabilitation and safeguards met by arrangements / further matters considered include nature of offending, low probability of similar difficulties occurring in future, time since offending, previous disciplinary history, willingness to rehabilitate, and the area’s need for competent criminal barristers with practitioner’s enthusiasm / Tribunal ordered censure including final warning / practitioner to pay $20,000 of Standards Committee costs as agreed with the Committee and to pay 75 per cent of the Tribunal’s costs

Liability / Standards Committee charged practitioner with negligence or incompetence / provided legal services without notifying employer or having the skills, experience or supervision to do so / not keeping a proper file, with adverse effects for client / later tried to persuade client to withdraw complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7 / rule 7.1 / rule 13.3 / HELD / client significantly hampered in managing their case due to lack of English language ability / practitioner and client accepted written terms of engagement, not “limited terms” suggested by practitioner / negligent or incompetent conduct in relation to file management, client representation at court hearing, advice on discovery, method of providing a non-English speaking deponent’s evidence, and failing to obtain adequate supervision / misconduct found / attempting to persuade client to withdraw complaint was unsatisfactory conduct

Penalty / misconduct and unsatisfactory conduct / practitioner performed legal work as a solicitor/trustee while suspended / breach of LCDT orders / High Court appeal confirmed four particulars as disgraceful or dishonourable / Burcher v Auckland Standards Committee 5 [2020] NZHC 43 / Central Standards Committee v Meyrick [2018] NZLCDT 28 / Auckland Standards Committees 3 and 4 v Banbrook [2017] NZLCDT 35 / HELD / no criticism of work performed for clients / harm to credibility of disciplinary system / suspended trustee lawyer must engage another lawyer to carry out legal work / not most serious breach of suspension order, but all breaches are serious / in context of dysfunctional partnership / did not charge for work / conduct occurred four years ago / aggravating feature: third appearance before LCDT / public protection not required / Tribunal ordered two-month suspension and censure / practitioner to pay two-thirds of Standards Committee’s costs and reimburse full Tribunal’s costs

Penalty / practitioner previously struck off / outstanding charges dealt with by finding of misconduct by consent, on the basis of all other charges being withdrawn by leave of the Tribunal / Standards Committee did not seek further compensation in this jurisdiction / parties agreed that appropriate penalty was censure and costs / only remaining issue quantum of costs / HELD / Tribunal ordered censure / practitioner to pay Standards Committee’s and Tribunal’s costs / however practitioner should not have to pay costs for filing amended charges where Tribunal considered original charges to be “somewhat defective” / also costs should be reduced to reflect attendances for a compensation claim which was not ultimately pursued

Decision on Penalty.  Date of Decision: 29 April 2020.