Ministry of Justice

Revoke interim suspension / misconduct for using client’s money as own despite client not receiving independent advice / negligence for failing to structure professional relationship and embarking on risky litigation strategy / Hart v Auckland Standards Committee 1 [2012] NZAR 1085 / HELD / difficulty in changing lawyers for practitioner’s clients outweighed by risk to public / use of client funds comprised serious failures / lacks candour / past convictions for dishonesty offending / negligent conduct towards client / tardy, dishonest and evasive manner of conduct at and before hearing / clients will inevitably face difficulty as practitioner will at least face suspension / relying on Hart, Tribunal to grant relief from interim suspension sparingly and only in circumstances not placing public at risk / evidence does not change conclusion that practitioner not fit and proper / application dismissed

Liability / two charges / took control of first client’s bank accounts and used money as own despite client not receiving independent advice / failed to structure professional relationship and embarked on risky litigation strategy for second client / Conduct and Client Care Rules 2008, rule 3 / rule 3.4 / rule 3.4A / rule 3.5 / rule 3.5A / rule 3.6 / rule 4.2 / rule 4.2.4 / rule 4.4.1 / rule 5.4 / rule 5.4.4 / rule 7.1 / rule 7.6 / rule 9.6 / rule 10 / rule 10.14 / HELD / misled and manipulated first client / mishandled his money / placed client at financial risk / has not accounted properly for transactions / did not seek supervision / did not cooperate with Committee / lied to Tribunal about a material matter / careless as to second client’s needs / gravity of conduct elevated by regarding relationships with clients as friendship / misconduct proved in relation to first client (s 7(1)(a)(i)) / negligence proved in relation to second client (s 241(c)) / parties to file penalty submiss…

Interim suspension / misconduct for using first client’s money as own despite client not receiving independent advice / negligence for failing to structure professional relationship with second client and embarking on risky strategy / HELD / practitioner was in a situation of conflict with first client / failed to account to client / failed to co-operate with Committee / failed to provide sufficient records to Committee / lied to Tribunal about material matters / character is an important component of being a fit and proper person to practise / practitioner does not appreciate his conduct comprised defaults in his character as a lawyer / characterising relationship with first client as friendship not an excuse, but an error causing concern about fitness to practise / behaviour in respect of clients woefully lax / not fit and proper / Tribunal ordered interim suspension pending penalty hearing

Record of penalty orders for [2023] NZLCDT 13

Penalty / misconduct for sexual harassment against four younger employees / HELD / conduct not isolated or out of character / three incidents over two to three years, pattern of conduct / serious misconduct but not at most serious level / mitigating factors / clean record / support letters / contribution to profession / steps taken to modify behaviour given less weight due to lack of insight from practitioner’s evidence / aggravating factors / practitioner trivialised conduct / continuing conduct after warnings / harm to complainants / not disclosing suspension by his firm at penalty hearing / conduct less serious than Gardner-Hopkins / starting point is higher end of suspension / costs reduced as practitioner accepted responsibility / Tribunal ordered censure, 18 months’ suspension and compensation ($10,000) to one complainant for emotional harm / practitioner to pay 80 per cent of Standards Committee’s costs ($38,643.61), not all charges having been proved and full Tribunal’s costs

Penalty / three charges of misconduct / failed to comply with s 147 notice in relation to four clients / HELD / regulatory body hampered by practitioner’s repeated failures to engage with it / practitioner dismissively treated serious departures from conduct expected of solicitors / unable to acknowledge practice was not providing the service clients were entitled to expect / practice was erratic, unresponsive and not an isolated lapse / lawyers owe duty to comply with current regulatory regime and whether regime may change in future is irrelevant / serious practice deficits / 18 prior findings of unsatisfactory conduct mark practitioner as problematic / no credible explanation for behaviour / medical evidence inadequate / no means of measuring ways to help practitioner practise safely / not fit and proper / compensation declined as no opportunity given to respond / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs

Liability / practitioner issued seven inaccurate invoices for various work / invoices included firm’s name and GST number / Lawyers and Conveyancers Act 2006, section 7(1)(a) / HELD / conduct not disgraceful or dishonourable / invoices not intended to be paid / sending fictitious invoices and including GST is serious / conduct was deceptive, but practitioner did not profit and had no ill intent / disgraceful or dishonourable conduct more usefully applied where moral opprobrium involved or conduct very serious / conduct not intentional or reckless breach of rules / actions were more careless ineptitude in not understanding firm’s systems or ensuring he was doing the work correctly / number of invoices and period of time of conduct considered in light of lengthy experience and expertise takes conduct into level of negligence / invoices require care / negligence proved (section 241(c)) / parties to file penalty submissions

Penalty / negligence for acting during conflict of interests / HELD / practitioner fell short of obligations due to handling of possible undue influence, failing to recognise conflict of interests, and correcting error in enduring power of attorney without recognising he was not independent / Tribunal accepts practitioner was actively protecting vulnerable client and was careful in obtaining medical evidence to show client had decisional capacity / conduct a relatively serious example of negligence / prior finding of unsatisfactory conduct an aggravating feature, but Tribunal noted it involved actions of staff member for which practitioner took responsibility / practitioner ought to have declined to act given vulnerability of client / mitigating features of long career and retirement, no public protection required / Tribunal ordered censure and $8,000 fine / practitioner to pay discounted Standards Committee costs ($45,000) and full Tribunal’s costs

Liability / practitioner failed to secure, protect and hold in confidence client files / documents dumped in a construction site while practitioner was overseas / failed to administer practice to ensure these duties were adhered to / HELD / practitioner suffered significant events impacting functioning / did not respond to clients’ complaints that practitioner was unresponsive / moved out of family home / left behind concluded client files / faced significant barriers in accessing the files left behind / cooperated with Complaints Service and sought assistance from Law Society / commuted between Australia and New Zealand while winding down practice / unable to return to New Zealand due to COVID-19 pandemic / left behind files were then dumped / was unaware of and did not allow files to be dumped / while appreciating serious client confidentiality concerns, practitioner ought not to be held responsible having regard to his extenuating circumstances / charge dismissed

Penalty / misconduct for being convicted of tax evasion / misusing trust money / HELD / practitioner’s failure to pay tax was wilful blindness at best / ignored multiple prompts from IRD / selfishly avoided civic duty / misuse of trust money occurred in stressed circumstances but practitioner deliberately stole client money / gross lack of ethical behaviour / character references dismissed / credit given for pro bono and community work / practitioner remains self-deceiving, minimising culpability and lacking ethical rigour / no insight or acceptance of wrongdoing / little prospect that similar conduct will be avoided in future / credit given for beginning counselling / no steps taken to regularise accounting practises / practitioner shows no insight that could fuel rehabilitative response / nature and gravity of charges make strike-off primary option / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs

Interim suspension / misconduct for failure to comply with section 147 notice in relation to four clients / practitioner suspended from practice until further order / order made in context where penalty hearing adjourned to allow for parties to assemble their case / reasons for order / Lawyers and Conveyancers Act 2006, section 3 / section 245 / HELD / practitioner’s conduct was tardy and capricious on several significant occasions / practitioner’s inability to meet timetables in this case noted / practitioner’s disabilities prevent her from providing the practice the public is entitled to expect / disciplinary history shows pervasive pattern / Tribunal concerned with practitioner’s ability to carry out ordinary tasks given her cognitive performance and confused demeanour at liability hearing / public at ongoing risk of practitioner’s patchy performance in immediate future / no basis to expect performance will improve within term of order / public interests firmly engaged

Issue practising certificate / Law Society refused to issue certificate to practise as barrister sole without supervision / practitioner appealed / Lawyers and Conveyancers Act 2006, section 3 / section 30 / section 31 / section 39 / section 41 / Practice Rules Regulations 2008, reg 3 / reg 12 / HELD / practitioner’s sole practice in 2014 was not viable / little experience gained / proposed business plan does not address previous failure resulting in complaint upheld in 2011 / no basis for confidence that plan will work / slow payment of fine and costs from 2011 complaint infers practitioner unable to manage affairs and not realistic in business matters / Law Society courses and successful tenancy dispute not sufficient experience / lawyers generally expected to obtain meaningful amount of practical experience before engaging in sole practice unsupervised / insufficient experience for solo practice / nothing to suggest he can do better than in 2014 / appeal dismissed

Liability / sexual harassment / six charges of misconduct / practitioner’s conduct broadly categorised as sexual harassment against three junior and two senior staff / was intoxicated while working as a lawyer / no dispute conduct occurred in professional setting / HELD / charges 1 to 3 proven as misconduct / evidence of complainants credible / practitioner lacked awareness of power imbalance between summer clerks or junior staff members and senior member / conduct went beyond merely unwise or unacceptable conduct / was disgraceful and dishonourable / charge 4 dismissed / complainant concedes physical touch while dancing at Christmas party may have been accidental / charge 5 (intoxication while working) dismissed / observation of one person insufficient / no evidence such as evidential breath or blood testing available / no evidence of harm to clients or impaired performance / charge 6 dismissed as duplicate and redundant / parties to file penalty submissions