New Zealand Law Society - Criminal lawyer’s poor representation of his client

Criminal lawyer’s poor representation of his client

A lawyer’s representation of his client in a criminal case has been found by a Standards Committee to have fallen short of the standards expected of a reasonably competent lawyer.

The lawyer’s client was found guilty of several offences and sentenced to a significant period of imprisonment. He successfully appealed the convictions on the grounds of trial counsel error. The Court of Appeal considered that the lawyer had made several mistakes and that there was a real risk that these errors affected the outcome of the trial and raised the possibility of a miscarriage of justice.

In considering the lawyer’s conduct the Committee was mindful that it was required to exercise its own independent judgment in relation to the concerns expressed by the Court of Appeal.

The Committee determined that, at a minimum, a reasonably competent lawyer would have:

  • met his client before the trial to discuss the charges;
  • appreciated the significance of the evidence before him;
  • made enquiries as to whether a key witness was prepared to give evidence; and
  • asked for an adjournment to take further instructions from his client when the evidence of the witness being present at the relevant time was disclosed at the trial.

The Committee was satisfied that by failing to take the above steps, the lawyer’s representation amounted to a high level of unsatisfactory conduct.

By a fine margin, the Committee determined that the lawyer’s conduct was not sufficiently serious to warrant referral to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.

Mitigating factors included that the conduct appeared to be an uncharacteristic lapse in judgement, he had never previously had a complaint made against him and his own admission that his conduct was unsatisfactory.

The lawyer was censured, ordered to pay a $5,000 fine and $1,000 costs to the New Zealand Law Society | Te Kāhui Ture o Aotearoa.

Information about the role of Standard Committees

The Law Society administers one aspect of the complaint and disciplinary process – the Lawyers Complaints Service – which receives complaints about lawyers. Complaints are referred to independent Standards Committees which are responsible for investigating and deciding on the outcome of complaints made about lawyers. The Law Society has no power to direct Standards Committees to take further action or to influence the outcome of their inquiries. Members of Standards Committees are lawyers and lay people.

Standards Committees have the power to undertake investigations of their "own motion". Such investigations arise where matters are referred to the Law Society (other than as a complaint); or where the person raising a concern opts not to take an active role as a complainant. 

At the conclusion of the Standards Committee’s process, a Standards Committee may decide to take no further action; may find that a lawyer has engaged in unsatisfactory conduct; or may make a referral to the Lawyers and Conveyancers Disciplinary Tribunal if it considers the conduct complained of may amount to misconduct. 

Only the Standards Committee can make an order to publish its decision, including any names of lawyers, in summary or in full. 

There is more information about the co-regulatory system governing the legal profession here.

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