Ministry of Justice

Charges / no case to answer / practitioner charged concerning five elderly clients / Hall v Wellington Standards Committee (No. 2) [2013] 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 / 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

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

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 / 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 / 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

Liability / practitioner assisted a person to avoid GST in his property development business, outside his legal practice / then failed to account for GST / personal misconduct / whether conduct misconduct / Lawyers and Conveyancers Act 2006, section 7(1)(b) / HELD / although IRD declined to pursue action, Tribunal obliged to determine charges laid / offer to complete job as a “cashie” and subsequent accounting miscoding demonstrates intention to assist tax avoidance /  disregard of practitioner’s tax and company law obligations / not a fit and proper person to be a lawyer at that time / s 7(1)(b)(ii) test met / misconduct charge proved

Liability / practitioner charged with misconduct for six incidents, involving physical/sexual contact, or intimate touching against multiple summer clerks at two firm social events while intoxicated / whether conduct is professional or personal / whether conduct accidental / section 239 / HELD / firm-sponsored team building activities not unconnected with provision of legal services / applicable standard is professional misconduct under s 7(1)(a) / summer clerks’ evidence accepted and compelling / conduct disgraceful or dishonourable or a reckless breach of rule 12 for failing to model required standards of behaviour / also meets higher misconduct threshold for personal conduct / partner obliged to model appropriate behaviour for junior staff, self-regulate to ensure propriety and not abuse power imbalances / conduct not accidental / evidence of previous conduct around women relevant / practitioner’s evidence evolved over disciplinary process, explanations unreliable.

Penalty / admitted misconduct / practitioner-controlled company was nominally owed a debt truly owned by a trust / practitioner agreed to settle debt without trustee approval / paid $70,000 to persons not connected to the trust, taking some of the remainder as fees / Lawyers and Conveyancers Act 2006, section 243(1)(g) / HELD / no uplift in penalty for prior findings of professional negligence and misconduct / Tribunal concerned with practitioner’s practice / practitioner failed to protect the trust’s interests / paid money to other persons / applied money to fees without authority / defended proceedings / mitigating factors included admission of facts and contribution to community / Tribunal ordered censure, 12-month suspension and prohibition on practising on their own account, in partnership or otherwise, until authorised by Tribunal / practitioner to pay Standards Committee’s and Tribunal’s costs / no reason to depart from general rule practitioner must pay costs

Penalty / trust account administrator stole $2,570 from firm / admitted wrongdoing and fully cooperated with employer and Law Society / whether order prohibiting employment by a lawyer or incorporated law firm should be imposed / Lawyers and Conveyancers Act 2006, section 240 / section 242(1)(h)(ii) / HELD / Tribunal made order prohibiting employment by a lawyer or incorporated law firm / granted permanent name suppression and prohibited publication of administrator’s name / thefts unlike usual behaviour / little likelihood of repeating this action / Tribunal did not regard administrator as someone about whom the public needed to be warned / hearing was public and those who need to know will be advised of identity / permanent suppression of material recording personal stressors / administrator has behaved in exemplary manner to bring matter to conclusion and has brought on herself severe and ongoing consequences / accordingly no costs ordered against administrator

Liability / care of children proceedings / practitioner sent letters to various parties containing false allegations and speculation regarding hacking of social media accounts, and seeking IP addresses / misconduct or unsatisfactory conduct / Lawyers and Conveyancers Act 2006, section 7(1)(a) / section 12 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 12 / HELD / Tribunal found misconduct / sending letters with knowledge they would cause difficulties for the ex‑partner and their new partner in employment / making false assertions and raising false inferences / sending letters to a party unrelated to the matters / giving negative views about the ex-partner and their new partner’s alleged wrongdoing / repeated assertion to Committee that Notes of Evidence supported practitioner’s stance was deliberately misleading / wilful and reckless contraventions of r 12 / alternatively, unsatisfactory conduct

Penalty / practitioner admitted unsatisfactory conduct for failing to provide file to Standards Committee when requested and continuing to do so for 18 months / suspension or fine / Lawyers and Conveyancers Act 2006, section 3 / HELD / censure and fine may not be enough to motivate practitioner to comply with the Committee’s demands / practitioner had history of adverse disciplinary findings, indicating “a practice with several aspects of laxity” / practitioner’s actions and prior history raised suspension as a fair prospect / Tribunal ordered finding of unsatisfactory conduct, $8,000 fine, and censure / practitioner to pay Standards Committee’s and Tribunal’s costs / client granted permanent name suppression

Penalty / practitioner admitted unsatisfactory conduct by failing to alert complainant and the complainant’s business entities that practitioner was personally contributing to loans from their client / appropriate penalty / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 5.4.1 / rule 5.4.2 / HELD / censure not appropriate, as oversight did not prejudice client / Tribunal had no underlying concern about practitioner’s professional practice / ordered $5,000 fine / permanent name suppression for provider, client and associated entities / costs hearing to follow