Acting outside of the terms of his practising certificate by representing people and entities in ‘leaky building’ litigation while he was an employed lawyer has resulted in a finding (by the Lawyers and Conveyancers Disciplinary Tribunal) of misconduct for lawyer Barry Brill. The Tribunal also found that Mr Brill had engaged in unsatisfactory conduct by breaching the requirement for a practitioner to provide certain information to clients, and for conflicts of interest.
The charges heard by the Tribunal related to Mr Brill representing people and entities in leaky building litigation in the High Court and Court of Appeal. They also relate to Mr Brill’s application for leave to appeal to the Supreme Court. The Court of Appeal described arguments Mr Brill advanced on his clients' behalf as "border[ing] on being vexatious and frivolous" and awarded increased costs against them.
Despite acting in litigation on behalf of others, Mr Brill had repeatedly asserted to the New Zealand Law Society, during extensive correspondence and communication, that he was only providing legal services to his employer as in-house counsel.
The Law Society became aware of his representation during the leaky building litigation, and it became clear he had appeared as counsel in this litigation outside of his employment as an in-house counsel.
The Tribunal’s decision on liability made it clear that Mr Brill was an employee, and not entitled to practise on his own account. The Tribunal therefore found he had breached Section 9 of the Lawyers and Conveyancers Act.
It stated: “We find that misconduct pursuant to s 9 has been established by the Standards Committee on the balance of probabilities. Having found Mr Brill to be an employee in terms of that section, we consider it is quite clear he provided services to the public in the conduct by him of the litigation of the ... proceedings.”
In its penalty decision, the Tribunal censured Mr Brill and imposed a fine of $7,500. The Tribunal also ordered Mr Brill to pay 75 per cent of the Standards Committee’s costs and to reimburse the New Zealand Law Society for 75 per cent of the Tribunal’s costs. As part of the censure the Tribunal reinforced the need for “strict adherence to the two permitted modes of practice – as an employed lawyer, or as a lawyer qualified and approved to practice on his or her own account”. The Tribunal's penalty decision also reinforced the "absolute duty of candour lawyers owe to their professional body when responding to its enquiries".
Mr Brill has filed an appeal against liability and penalty in the High Court.
The Lawyers and Conveyancers Disciplinary Tribunal is an independent body which operates like a court and is administered by the Ministry of Justice. It is separate from the New Zealand Law Society.