Ministry of Justice

Penalty / misconduct for breach of fiduciary duties / failure to maintain adequate records in managing parents’ estates and affairs / failure to account / HELD / practitioner’s level of misconduct relatively serious / mitigating features include references, only having one complaint upheld over 35 years and deteriorating health / misconduct not falling within regulated services not a mitigating feature / no lesser standard for private business dealings / aggravating features include ongoing failure to account and no remorse, insight or apology / practitioner’s misconduct not isolated as misapplication of estate funds occurred across multiple transactions and many years / practitioner’s deteriorating health and lack of judgment and understanding of basic legal principles relevant to fitness to practise / Tribunal unable to find path for practitioner to be brought back to safe practice / Tribunal ordered practitioner be struck off  

Liability and penalty / first charge of misleading clients and avoiding communication on botched conveyancing matter / second charge of avoiding resolution of LINZ queries about three e-dealing certifications / third charge of failing to be frank to Law Society when declaring he was fit and proper by disclosing only one fine but not others / Lawyers and Conveyancers Act 2006, section 4(a) / Conduct and Client Care Rules 2008, rule 2 / rule 3 / rule 10 / rule 11 / HELD / conduct occurred while providing regulated services / first two charges proved as misconduct / third charge proved as unsatisfactory conduct / previous complaints upheld show practitioner’s practise as unreliable, insufficiently concerned about clients, unresponsive and unhelpful / lacks essential attributes of honesty, trustworthiness and integrity / not fit and proper / Tribunal ordered practitioner be struck off and pay $2,327.60 compensation / practitioner to pay Standards Committee’s and Tribunal’s costs  

Penalty / practitioner admitted one charge of unsatisfactory conduct / signed solicitor’s certificate when working as consultant, and sent engagement letters that failed to include information on name of firm acting, practitioner’s position in the practice, and exclusions of practice’s indemnity insurance / HELD / investigation against practitioner was over-zealous, offensive and inappropriate at times / practitioner committed minor infractions of rules / no harm came or was likely to come / practitioner should be restored to position practitioner would have been in had the matter been dealt with appropriately / censure or significant contribution to costs not proportionate responses / Tribunal ordered practitioner to pay $1,000 fine / practitioner to pay small contribution to Standards Committee’s costs ($1,000) / permanent name suppression granted

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