Decision on penalty. Date of decision: 7 September 2022.
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Decision on penalty. Date of decision: 7 September 2022.
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Penalty / misconduct for practising outside terms of practising certificate by providing pro bono regulated services to the public, and unsatisfactory conduct for failing to provide client service information and act independently / failed to advise NZLS of his involvement in litigation when corresponding about status of practising certificate / Lawyers and Conveyancers Act 2006, section 9 / HELD / aggravating features include failure to disclose involvement in litigation, absolute duty of candour required and NZLS was misled / strong mitigating feature includes over 50-year career without previous blemish, services to community, and acted not for personal gain but desire to help his neighbours / more serious than comparable cases due to experience and on-notice of the issue / Tribunal ordered censure, $7,500 fine / practitioner to pay 75 per cent of Standards Committee’s and Tribunal’s costs
Charges / no case to answer / practitioner charged concerning five elderly clients / Hall v Wellington Standards Committee (No. 2)  NZAR 743 (HC) / Lawyers and Conveyancers Act 2006, section 240A / HELD / necessary for Tribunal to determine whether evidence sufficient to establish charge / basis for misconduct charges not established / no evidential foundation for overcharging / satisfied client competent to give instructions / no jurisdictional impediment to Tribunal hearing remaining unsatisfactory conduct charges / Tribunal may strike out charges that do not justify disciplinary sanction / no disciplinary sanction required / no reasonable basis to find against practitioner on fee complaint / particulars alleging wrong-doing with Powers of Attorney disclose no reasonable cause of action / minor infractions might arise in any busy practice without alarm / all charges dismissed / Standards Committee must pay Tribunal costs / costs between parties reserved
Liability / four sets of charges / overcharging / issued inflated $1 million invoice to enhance voting power as client’s creditor / proper purpose / charged $1,000 per hour fee without client care information / lack of time records / conflict of interest / client provided security & guarantees / loans from client / no independent advice / received fees directly rather than to firm on trust without receipt or invoice or reporting on minimal progress / ongoing police investigation / applied funds for own use / abuse of trust / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2 / rule 2.1 / rule 3.4 / rule 3.6 / rule 5 / rule 5.1 / rule 5.4 / rule 5.4.3 / rule 5.4.4 / rule 9 / rule 9.1 / rule 9.2 / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, reg 9 / reg 10 / HELD / not Tribunal’s role to undertake fee revision in the absence of gross overcharging / one charge dismissed, other charges proved as misconduct or unsatisfactory conduct
Liability / misconduct in managing parents’ estates and affairs / conduct unconnected with the provision of regulated services / breaches of fiduciary duties (including profiting), failure to maintain adequate records, failure to account / whether fit and proper person or suited to practice as a lawyer / HELD / practitioner owed fiduciary duties administering estates and affairs / reckless in handling father’s estate, caused losses to estate / has never produced mother’s will / made unsecured loans to herself and sister, who were both financial risks / brother received no share of father’s estate / previous misconduct finding for not complying with s 147 notice / has not produced records to demonstrate distributions / under a duty to account / failed to have proper regard to siblings’ interests / failed to recognise extent she imperiled mother’s position and hampered brother’s ability to obtain residuary share / s 7(1)(b)(ii) test met / charges proven
Penalty / misconduct for intimate relationship with client, then denying relationship during complaint / practitioner conceded misconduct / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 5.7.1 / Lawyers and Conveyancers Act 2006, section 240 / HELD / lawyer briefly represented client in family law matters / client’s husband complained / lawyer dishonestly denied relationship, an aggravating feature and significant misconduct / later made a self-report / no gross breach of trust, but relationship can compromise objectivity / retainer supervised, lawyer stepped back quickly / mitigating features include unblemished career, conduct out of character, remorse, self-report / Tribunal ordered four months’ suspension / final name suppression order / interests of rehabilitation outweigh public knowing name / no risk to community, purposes of disciplinary regime achieved / apology ordered / practitioner to pay Standards Committee and Tribunal costs
Liability / duty to complete retainer / fees payment and security for fees / advice regarding legal aid, litigation risk and whether fees may exceed recovery / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.2 / rule 9.5 / rule 11 / HELD / lawyers terminated retainer 4 weeks before JSC / not entitled to terminate, fees deferred and 7 day notice to pay arbitrary, left client stranded / did not fulfil fiduciary duties on termination / s 7(1)(a)(ii) test met / client signed deed acknowledging debt, providing security, did not receive legal advice or explanation about effect / demand for payment and threatening interactions reprehensible / s 7(1)(a)(i) test met / failed to advise about possibility of legal aid and that fees may exceed recovery / should suggest client may be eligible for legal aid and refer to further resources / failed to re-evaluate litigation prospects once estate diminished / unsatisfactory conduct found s 12(a) / charges proved
Penalty / misconduct / assisted a person to avoid GST, failed to account for GST, miscoded accounts / business dealing unconnected with legal services / whether suspension from practise necessary to mark seriousness, denounce conduct and signal standards of integrity required of lawyers in all business dealings / HELD / conduct not most serious, involves private business arrangements / aggravating features include long delay in failing to pay GST and previous unsatisfactory conduct finding / mitigating feature include full payment of GST and penalties, no harm to clients and outsourced accounting responsibilities / positive references go beyond usual references, include senior criminal jury work in South Auckland, and mentoring young Māori and Pacifica lawyers / practitioner fit and proper, preventing him from doing so would risk serious loss to clients and employees / Tribunal ordered censure, $10,000 fine / practitioner to pay Standard’s Committee’s and Tribunal’s costs
Liability / charged with practising outside terms of practising certificate by providing pro bono regulated services to the public, and failing to provide client service information and act independently / represented his wife and eight others in litigation before courts / Lawyers and Conveyancers Act 2006, section 9 / section 69 / section 94 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / rule 3.5 / rule 5 / rule 5.6 / HELD / misconduct found per s 9 / practitioner employed, not entitled to practice on own account / putting issue of wife to one side, other parties clearly constituted “the public” / clients exposed to significant adverse costs award including an uplift for practitioner’s conduct / breaches of rr 3.4, 3.5 and 5 are unsatisfactory conduct per ss 12(a) or 12(b)(ii) / charges under s 7(1)(a)(iii) a duplication of s 9 charges / misconduct and unsatisfactory conduct proved
Penalty / found guilty of six charges of misconduct for six incidents of exploitative sexual contact with five different women at two work events / partner in law firm offended against summer clerks / seriousness of conduct / aggravating features / mitigating factors / strike-off starting point / HELD / misconduct serious, somewhat below Horsley or Daniels cases, where practitioners were suspended three years / aggravating features include repetition, power imbalance, incalculable impact on victims, and intention to get drunk / mitigating features include consequences already incurred, changes made, and financial circumstances / has previously minimised his responsibility, but relatively recent changes in accepting accountability are positive although belated / financial circumstances not defining nor as dire as claimed / caused reputation damage to profession / Tribunal ordered censure and two-year suspension / practitioner to pay Standards Committee’s costs and Tribunal costs
Penalty / misconduct / duty of candour / failure to disclose relevant information to High Court in without notice application / whether suspension necessary / HELD / one-off reckless breach / no deliberate omission / no aggravating features / no prior disciplinary history / unable to cope with growth of sole practice / merged with large law firm to manage capacity, disclosed investigation, acknowledged failings and has support and supervision / Tribunal considered no risk of practitioner repeating conduct / high level of remorse, insight and responsibility for actions / practitioner incurred significant cost in disciplinary proceedings / notable community involvement and pro bono contributions / practitioner sought to use experience to educate young women about learning from mistakes / suspension not necessary / Tribunal ordered censure and $15,000 fine / practitioner to pay Standards Committee’s and Tribunal’s costs / interim suppression order of practitioner’s name discharged
Penalty / practitioner admitted two charges of misconduct and found guilty of another / conveyancing transaction involving transfer of property owned by practitioner mother to company owned by the practitioner and her husband / practitioner then borrowed additional money against the property / conflict of interest / failing to protect client’s interests / misleading conduct / appropriate penalty / HELD / practitioner did not present risk to other clients or public / no need for fine or censure / features of misconduct (inattention to practitioner’s mother and securing additional funds against the property) understandable although grievous / Tribunal ordered 10-week suspension / practitioner to pay Standards Committee’s and Tribunal’s costs
Penalty / misconduct for sending letters containing false allegations and speculation to employers of people involved in family court case / HELD / Standards Committee’s penalty submissions focused on a punitive outcome / penalty can pursue more than one goal / Tribunal needs to disapprove of misconduct, but compensation and rehabilitation also relevant / practitioner needs to be challenged about her practice and to account for her choices / required to undertake professional supervision for a minimum of one year / ordered to compensate each victim $3,000 / Tribunal ordered six-week suspension / practitioner to pay Standards Committee’s and Tribunal’s costs