Conduct unbecoming. Provision of documents for inspection
This is a summary of a decision made by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 744.
A lawyer who failed to provide documents for inspection by a Standards Committee was found guilty of conduct unbecoming. He was censured, fined and ordered to pay costs.
A complaint had been made about the lawyer under the Law Practitioners Act 1982, before the 1 August 2008 commencement of the Lawyers and Conveyancers Act 2006. A s356 Standards Committee investigated the complaint under the transitional provisions of the new Act.
In April 2009, the Standards Committee required the lawyer to produce for inspection all relevant books, documents, papers, accounts or records in the lawyer’s possession or control. The lawyer did not respond. Under s101 of the 1982 Act, a lawyer who refuses or fails to comply with any lawful requirement of a committee dealing with a complaint is guilty of misconduct in his or her professional capacity, unless there is a lawful justification or excuse.
Since the lawyer’s failure to respond occurred after 1 August 2008, the s356 Standards Committee referred the matter to one of the permanent Standards Committees under the 2006 Act. That second Standards Committee then decided to begin an own-motion investigation.
In a letter to that Standards Committee, the lawyer said that he had only a copy of the original file and he provided this copy with his letter. However, the Standards Committee was satisfied that the words “all books, documents, papers, accounts or records” included a copy of the client’s file. It decided the lawyer had no lawful justification or excuse for failing to provide the copy of the file. The fact that he had later provided it when the Standards Committee investigated the matter did not change this.
The Standards Committee said that an undue delay in responding to the requirements of a Standards Committee investigating a complaint was a serious matter. The lawyer’s conduct was unacceptable measured against the standards of “competent, ethical and responsible practitioners” (B v Medical Council [2005] 3 NZLR 810). The Standards Committee found the lawyer guilty of unsatisfactory conduct in the form of conduct unbecoming.
In deciding on a penalty, the Standards Committee noted that the lawyer had wilfully disregarded the requirement to produce the document and said this was totally unacceptable. It also took into account that he had belatedly repented and produced the documents. The Standards Committee censured the lawyer, fined him $1,000, and ordered him to pay $1,000 in costs and expenses to the New Zealand Law Society.