Ministry of Justice

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

Liability and penalty / practitioner intentionally breached binding settlement agreement / lacked independence when representing clients / made meritless allegations against lawyers and judicial officers / Lawyers and Conveyancers Act 2006, section 4 / Conduct and Client Care Rules 2008, rule 2.3 / rule 10.1 / rule 13.1 / rule 13.2 / rule 13.8 / HELD / lawyers entitled to represent clients fearlessly but conduct must comply with Act and Rules / interactions between lawyer and judicial system must be courteous for system to function / allegations require evidential foundation / deliberate disregard of non-publication order and unrestrained manner of successive proceedings amount to repeated abuses of process / representation of clients were attempts to relitigate personal issues / not fit and proper / circumstances cumulatively amount to misconduct / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs

Penalty / unsatisfactory conduct for failing to act competently and in a timely manner in court proceedings / unsatisfactory conduct for accepting funds paid on account of fees directly into his own account / misconduct for providing regulated services for client other than in the course of his employment / Lawyers and Conveyancers Act 2006, section 9(1)(a) / Trust Account Regulations 2008, reg 10 / HELD / client suffered adverse decisions and bankruptcy due to practitioner’s woeful performance / practitioner failed to appear at court hearings / his service was dilatory and disorganised / Tribunal ordered twelve months’ suspension / condition on suspension / before being issued with a new practising certificate, practitioner will have active ongoing supervision from appropriate senior person / practitioner should have realistic prospect of paying his debts to NZLS / Tribunal ordered refund of $5,800 to client / practitioner to pay Standards Committee’s and Tribunal’s costs

Penalty / misconduct involving conflicts of interest / unsatisfactory conduct in dealing with trust account defaults / whether conduct should be marked by modest suspension / whether censure and contribution to costs sufficient / HELD / moderately serious misconduct / two occasions of conflict of interest / practitioner previously benefited from reduced suspension for previous offending / Tribunal refused to credit voluntary cessation from practice as “involuntary suspension” / prior disciplinary findings not aggravating factor, but pattern of disregard for professional standards can be observed / suspension appropriate / however, Standard Committee should not have pursued misconduct charge for minor defaults / Tribunal ordered three-month suspension / practitioner to pay 75 per cent of Standards Committee’s costs ($20,000) and Tribunal’s full costs

Liability / one charge of misconduct / practitioner abused position as lawyer to gain access to alleged perpetrator of criminal offending in custody at court / communicated with alleged perpetrator without his lawyer’s consent / attempted to gain information for personal benefit / whether conduct personal or professional / misconduct or unsatisfactory conduct / Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2015] 2 NZLR 606 / HELD / conduct was personal / misuse of status as lawyer itself does not connect conduct with provision of regulated services / practitioner did not provide regulated services / deliberate decision to abuse privilege as lawyer for personal benefit a serious departure from standards expected of lawyers / trust an important element between lawyers and custodial officers / practitioner’s conduct had potential to undermine that trust significantly / misconduct found / parties to file penalty submissions

Liability / two charges of unsatisfactory conduct and one charge of misconduct / failure to attend court / failure to ensure affidavit accompanied application to set aside bankruptcy notice / failure to advise client of bankruptcy / failure to withdraw as counsel for Family Court proceedings / practitioner prohibited from practising on own account / Lawyers and Conveyancers Act 2006, section 9(1)(a) / Trust Account Regulations 2008, regulation 10 / HELD / practitioner failed to act competently and in timely manner / lawyer-client relationship between practitioner and friend well-established / practitioner provided regulated services for client other than in course of employment / constructed the apparent “extra-legal” arrangement to suit his purposes / took advantage of loophole to appear as non-lawyer representative / practitioner accepted funds paid on account of fees directly into own account / unsatisfactory conduct found (section 12(a)) / parties to file penalty submissions