Ministry of Justice

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

Penalty / practitioner admitted one charge of misconduct / registered easement without obtaining authority and instructions from all owners, falsely certified such authority and fobbed off LINZ for two years until Registrar-General revoked right to sign and certify electronic instruments via Landonline / did not advise clients or law firms / HELD / moderately serious misconduct / honesty and candour are hallmarks of legal professional conduct / actions undermine profession’s reputation for probity / false certification not part of a pattern of behaviour / thoroughly ashamed and regretful / unlikely to err in this way again / tendency to avoid responsibility and withhold information is a risk feature / one prior more minor adverse disciplinary finding / minimising behaviour means Tribunal cannot accept practitioner appreciates gravity of offending / Tribunal ordered censure, five months’ suspension / practitioner to pay Standards Committee’s and Tribunal’s costs

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

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

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

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 

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 / 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 / practitioner admitted misconduct for misappropriation of $1 million / accepted they would be struck off / did not accept further charge of obstructing and frustrating the Standards Committee’s investigative processes / whether practitioner liable for obstruction / if so, whether misconduct or unsatisfactory conduct / HELD / obstruction charge made out / practitioner failed to provide files and documents despite repeated requests / behaviour cannot be ignored even though practitioner will inevitably be struck off / message needs to be sent to the legal community and the community at large that this behaviour is serious / obstruction was misconduct / conduct not excused by practitioner’s mental stress / Tribunal ordered practitioner be struck off and imposed censure for obstruction / practitioner to pay Standards Committee’s and Tribunal’s costs