Ministry of Justice

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

Decision on interim suspension.  Date of decision: 3 March 2021.

Penalty / practitioner admitted misconduct in relation to threats towards police sergeant, conduct in court and from alcohol consumption / appropriate penalty / HELD / high end of misconduct spectrum / previous unsatisfactory conduct finding for similar issues / poor performance by practitioner required setting aside a conviction and retrial / adversely affects criminal justice system / has repeatedly attempted to achieve abstinence without success / admitted charges of misconduct and has already had lengthy suspension / Tribunal ordered 18-month suspension from date of hearing / practitioner must give undertakings and obtain a supervisor to report on sobriety / Tribunal recommended practitioner be required to show fitness for practice prior to being granted a practising certificate / practitioner ordered to pay 50 per cent of the Standards Committee’s costs and 50 per cent of Tribunal’s costs / medical and personal details suppressed

Penalty / practitioner admitted misconduct / unable to manage trust account by closing it when firm ceased, failing to pay out client funds and failing to appropriately record transactions / agreement that censure was appropriate / whether suspension required / HELD / practitioner had no capacity to pay a fine / seven previous disciplinary matters including two admissions of misconduct leading to suspension / Tribunal ordered censure and three-month suspension / no costs order against practitioner due to his impecuniosity

Penalty / practitioner admitted charge laid under s 241(d) / conviction for 13 charges of money laundering / Crimes Act 1961, section 243(2) / Lawyers and Conveyancers Act 2006, section 241(d) / HELD / practitioner unfit to continue practice as a lawyer / practitioner agrees / Tribunal ordered practitioner be struck off / practitioner ordered to pay Tribunal’s costs

Penalty / unsatisfactory conduct relating to interaction with court security and failure to deliver file / misconduct relating to visiting a client in police cells with client’s partner, who practitioner represented as his assistant, and possession of methamphetamine / HELD / offending serious / mitigating factors include the practitioner not having practised for three years, that offending coincided with severe illness, and that he has re-engaged with Law Society regarding these proceedings and ongoing practice restrictions / fine inappropriate due to financial position / practitioner must provide undertaking for three years, practitioner only to practice as an employed barrister and solicitor by and under direct supervision of another barrister and solicitor / practitioner to pay 20 per cent of Standards Committee’s costs and half of Tribunal’s costs / name suppression granted / public interest in open proceedings outweighed by practitioner’s health and children’s interests

Penalty / improperly witnessed and certified numerous documents / put client convenience before rules / no concealment of actions / firm’s internal controls failed to prevent conduct, including while practitioner was employed solicitor / HELD / survey of purposes of penalty and suspension in professional discipline / moderately serious misconduct / aggravating factors were the number of breaches and duration of conduct / numerous mitigating factors, including remorse and good character, no harm to clients and conduct not deceitful or misleading or for personal gain, and the offending is historical and not identified by practitioner’s employer, LINZ not suspending access to e-dealing, reputational damage, current regulatory compliance, and delay in disciplinary process / threshold for suspension not met / Tribunal ordered censure / practitioner must provide undertakings as to random file supervision / ordered to pay 80 per cent of Standards Committee’s costs and Tribunal’s full costs