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Kidnapping allegation leads to censure and fine

30 March 2017

A lawyer, B, who filed an affidavit that alleged another lawyer had “kidnapped” a young girl has been censured and fined $5,000.

The lawyers standards committee considered that B had not taken appropriate steps to ensure that reasonable grounds existed for the allegations before they were filed in court, as required by the Rules of Conduct and Client Care (RCCC).

“The committee does not accept [B]’s submission that he was entitled to make the allegations based on his clients’ instructions,” the committee said.

“An allegation of kidnapping is an allegation of serious criminal offending” the Committee said. It was also clear that the lawyer named in the affidavit was not acting in her capacity as a lawyer and there appears to have been no need to have referred to her as a “Lawyer”.

B acted for grandparents who had Court ordered day-to-day care of their granddaughter, E.

E ran away from her grandparents’ care (because of living conditions) and went to F’s house. F was a lawyer who knew the family and had assisted with E’s care. F alerted Child, Youth and Family, E’s school and E’s mother. She did not call the grandparents because of the scope of E’s concerns and assisted in taking her to her mother (some distance away).

The grandparents then filed proceedings in the Family Court. B acted for and advised the grandmother, who swore an affidavit making the allegations.

The issue in relation to the reputation of other parties is “clearly set out” in rules 13.8, 13.8.1 and 13.8.2 of the RCCC, the committee said.

Rule 13.8.1 states that a lawyer must not be a party to filing any document in court alleging reprehensible conduct “unless the lawyer has taken appropriate steps to ensure that reasonable grounds for making the allegation exist”.

“It is clear that [B] took no such steps and merely relied on his clients’ instructions, which were clearly emotionally based and without foundation.” No enquiries were made by B with either the Police or E about the allegations.

The committee “has concerns that [B] appears to have no apparent insight as to his wrongdoing or any remorse for his actions. The committee considers that the conduct is serious and has given serious consideration as to whether the matter should be referred to the New Zealand [Lawyers and Conveyancers] Disciplinary Tribunal.”

However, ultimately the committee found that the conduct was at “the high end of the spectrum of unsatisfactory conduct”.

The committee considered that the starting point for a breach of this nature would be an $8,500 fine. Taking into account the fact that this was the first disciplinary finding against B, the committee reduced the fine to $5,000.

It also ordered B to apologise in writing to F, to undertake professional ethics training as part of his CPD plan for the year, and to pay $1,500 costs.

Last updated on the 5th May 2017