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Barrister acting as attorney for old friend censured

31 March 2017

A former lawyer has been censured and fined $5,000 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal for negligence or incompetence of such a degree as to reflect on his fitness to practise, or as to bring the profession into disrepute.

The charges arose while M was acting for a friend of 40 years, Ms G, who appointed him as her attorney under an Enduring Power of Attorney.

Following hospitalisation in early 2014, a doctor certified, in May of that year, that Ms G was no longer competent to manage her own affairs. At that point the EPA “crystallised” and M stepped up to help out his friend.

Although described as “well motivated”, “sadly, Mr M was not attuned to the different (and, as we have found, conflicting) roles imposed on him,” the Tribunal said in [2016] NZLCDT 24.

Divided loyalties

He did not understand that in acting as Attorney, as well as being chair of the local branch of a charity, to which Ms G would make donations, he was placing himself into a position of divided loyalties.

“When shortly after, he resumed practice as a barrister, and charged fees for his attendances to Ms G, he had become even more muddled and unaware of the ethical obligations to which he needed to pay attention.”

As well as not being alert to the conflict of interest, the Tribunal identified a series of rule breaches by M, including:

  • he was a barrister without an instructing solicitor, and charged fees directly;
  • he held cash funds for a client;
  • he did not provide his client with the statutory information required;
  • he billed seven hours for a simple query about his conduct, when no charge ought to have been made;
  • he did not provide fulsome details about a $20,000 payment made to “his” charity on behalf of Ms G, when asked to explain it;
  • in allowing the building purchase (by “his” charity) to proceed after the $20,000 payment had been questioned he again acted in conflict of interest;
  • he appeared to consider his subsequent resignation from the charity position resolved any conflict; and
  • he failed to seek guidance from the court on his role, although it is accepted he did seek advice.

As well as the censure and fine, the Tribunal – in [2016] NZLCDT 34 – ordered M to refund the client fees of $3,648, pay a contribution of $15,000 towards standards committee costs and pay Tribunal costs of $7,027.

The Tribunal also ordered suppression of M’s name because there was no future risk M posed to the public (as he was fully retired), because his health was extremely poor and that both psychological and physical health problems meant that M might suffer serious adverse consequences were his name published.

Last updated on the 31st March 2017