Ministry of Justice

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

Penalty / practitioner admitted one charge of misconduct / issued three fraudulent fee invoices that would be paid to personal bank account / HELD / offending at very serious end of misconduct as it was planned and deliberate, and involved altering documents to divert client funds and use of associate to avoid detection / aggravating features include placing client funds at risk, exploiting position of trust, and lying that offending was a one-off incident during Standards Committee enquiry / mitigating features include admission of charge, expression of remorse, and practitioner’s youth, inexperience and personal difficulties / offending not explained by personal difficulties / practitioner’s insight not apparent in dishonest response and non-repayment of fees wrongly taken / unclear what practitioner needs to remedy for rehabilitation purposes / not fit and proper / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs

Penalty / two counts of misconduct by each practitioner / terminated retainer four weeks before settlement conference / had client sign deed acknowledging debt without independent legal advice or explanation about effect / unsatisfactory conduct by first practitioner for failing to advise about eligibility for legal aid and litigation risk / Lawyers and Conveyancers Act 2006, section 156(1)(d) / HELD / misconduct serious but not dishonest or malicious / aggravating features include disciplinary history, belated action to discharge mortgage, lack of insight by first practitioner / mitigating features include lengthy career and writing off outstanding fees / client suffered significant stress, anxiety and humiliation (emotional harm) / compensation principles discussed / Tribunal ordered censure, $10,000 and $7,000 fine respectively, and $5,000 compensation each / practitioners to jointly pay contribution to Standards Committee’s costs ($30,000) and full Tribunal’s costs

Liability and penalty / failed to account for $25,000 paid without authority / acted for developer and received funds from financier, paid out $25,000 as instructed by developer without financier’s authorisation / nearly six years later financier has been unable to recover funds / Lawyers and Conveyancers Act 2006, section 111 / Conduct and Client Care Rules 2008, rule 10.5 / HELD / erroneously paid funds but failed to account properly and candidly / made an undertaking to repay funds, has failed to honour undertaking for more than five years / undertaking should be promptly performed / failure constitutes wilful contravention of Act or Rules, is misconduct (s 7(1)(a)(ii)) / moderately serious misconduct / eight disciplinary findings / remorse not demonstrated / has retired / lack of engagement in disciplinary process / name suppression declined / Tribunal ordered censure and practitioner to pay $25,000 compensation / practitioner to pay Standards Committee’s and Tribunal’s costs