A Standards Committee has found a barrister engaged in unsatisfactory conduct where he recorded a lawyer as his instructing solicitor on documents filed in court, without that lawyer’s knowledge or permission. The Committee also considered it unsatisfactory that the barrister failed to comply with his subsequent undertaking to that lawyer to remove him as solicitor on the record within a specified period. The Committee censured and fined the barrister.
Mr B initiated a proceeding in the District Court using documents that named Mr S as solicitor for the plaintiff. When Mr S received copies of those documents from the Court, he contacted Mr B to advise that he was not instructed to act in the proceeding and that he had been named as solicitor for the plaintiff without his permission. Mr B replied to say that a colleague, Mr F, who was acting for another party in the same proceeding had advised him that Mr S was willing to act “essentially in a post-box role”. Mr S replied to expand on his position. He said he knew nothing of the matter, had never confirmed he would be involved, had never met the barrister or the barrister’s client, had not issued a letter of engagement, objected to his name being used without his consent and refused to be a “post-box solicitor”.
Mr B apologised to Mr S but did not immediately arrange for him to be removed as solicitor on the court record. Mr S complained to Mr B again and, at Mr S’s request, Mr B gave Mr S an undertaking that he would obtain a replacement solicitor and, essentially, remove Mr S as solicitor on the record within five working days. However, Mr S was not removed from the record until around three weeks later. In the meantime, Mr S had received further documents in the proceeding (from the District Court as well as from the lawyer for one of the defendants) and had complained about Mr B.
Naming Mr S on the court documents
Mr B acknowledged to the Committee that his conduct was capable of being seen as unsatisfactory. However, he asked the Committee to consider two extenuating circumstances. The first was his desperation about a looming limitation deadline the day after he initiated the proceeding. The second was that he believed, in good faith, that Mr F had made enquiries with Mr S on his behalf.
The Committee said it was clear that Mr S should not have been named as the solicitor for the plaintiff without his consent. It considered that, regardless of the deadline, Mr B should have sent Mr S a short email or telephoned him to seek confirmation that Mr S agreed to be his instructing solicitor before he filed the proceeding. It noted that, at a minimum, Mr S would have needed to check for conflicts.
The Committee also noted that in making Mr S the solicitor on record for the plaintiff, Mr B had “created duties and liabilities” for Mr S, without Mr S’s knowledge or consent. The Committee considered that to be “entirely inappropriate and unacceptable”.
However, the Committee did not consider that the conduct rose to a level that might warrant a referral to the Disciplinary Tribunal. This was because the Committee accepted that Mr B had acted out of a “mistaken but genuine belief” (that Mr S had agreed to be his instructing solicitor) and “had not deliberately engaged in misleading conduct”.
Instead, the Committee concluded that Mr B’s conduct had fallen short of the expected standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and would be regarded by lawyers of good standing as being unacceptable and/or unprofessional. Accordingly, the Committee determined that Mr B had engaged in unsatisfactory conduct that amounted to a breach of sections 12(a) and (b) of the Lawyers and Conveyancers Act 2006 (LCA).
Undertaking to remove name from record
Mr B did find a new instructing solicitor within five working days, but that lawyer did not formally become solicitor on the record until later. In corresponding with the Committee, Mr B accepted he had breached the express terms of the undertaking, having focused only on the first aspect of finding a replacement instructing solicitor.
The Committee found that Mr B had failed to comply with his undertaking to Mr S, thereby breaching (what is now) Rule 10.5 of the Conduct and Client Care Rules, and that this constituted unsatisfactory conduct under section 12(c) of the LCA.
In considering what orders to make, the Committee noted that Mr B’s breaches of his professional obligations were “serious”. However, it imposed fines “at the lower end of the scale” after taking into account mitigating factors. Those factors included that Mr B had been frank in his response to the complaint, without seeking to deny or deflect blame; he had apologised to Mr S; at the time of the conduct, he had been in an intense and stressful period; and he had an unblemished disciplinary record.
The Committee censured Mr B and fined him $1,500 for each of the two findings of unsatisfactory conduct. It also ordered him to pay costs of $1,000 to the Law Society.
 Prior to the 1 July 2021 version of the Conduct and Client Care Rules, the rule relating to undertakings was Rule 10.3.