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Using his position as a lawyer to access the Court cells for an improper reason has led to a finding of misconduct and a censure for Auckland lawyer Justin Harder. The Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found that Mr Harder’s actions were transitory in nature, but involved a deliberate abuse of his position as a lawyer and was a serious departure from the standards expected of lawyers. The Tribunal held a formal censure was the appropriate response, noting that there were a number of relevant mitigating features.
Mr Harder knew the victim of a serious home invasion in which the victim was seriously assaulted and had several personal items taken from her home. He became aware that one of the alleged perpetrators, Mr S, was appearing for a bail hearing on 18 January 2021 so he attended Court to watch the hearing. He spoke to another lawyer, Mr B outside the courtroom and worked out that he was acting for Mr S. The bail hearing was adjourned and Mr Harder formed the view after observing the hearing that Mr S may be willing to assist in returning an item of importance to the victim. Mr Harder therefore decided to go to the custody cells to speak to Mr S. Mr Harder was aware of how to gain access to prisoners and was probably known to the custody officers. He was therefore able to gain access directly to Mr S. Mr Harder spoke to Mr S in an interview booth about a number of matters, including the return of the personal item. Halfway through the conversation, Mr B attempted to enter the booth to speak to his client, but Mr Harder asked for “two more minutes”. Mr Harder then ended the conversation and told Mr S to “take care of yourself” which Mr S interpreted as a threat. Mr B spoke to Mr S immediately after Mr Harder left the interview booth and noted he appeared “shaken and troubled”.
The Tribunal first considered the issue of whether this conduct fell into the personal or professional category of misconduct. The Tribunal accepted that Mr Harder took advantage of his status as a lawyer to gain access to the custody cells but did not consider that the misuse of this privilege was sufficient to bring the conduct within the professional category of misconduct. Mr Harder was not providing regulated services at the time and thus there were no regulated services to which the conduct involved could reasonably be connected. Accordingly, the Tribunal held that the conduct fell into the personal category of misconduct.
The Tribunal next considered whether the conduct met the threshold for personal misconduct. The Tribunal found that Mr Harder’s deliberate decision to abuse his privilege as a lawyer was a serious departure from the standards expected of lawyers and damaged the important relationship of trust and confidence between prison authorities and the legal profession. The majority of the Tribunal found that Mr Harder’s conduct was so reprehensible that, at that specific point in time, he was not a fit and proper person to practice as a lawyer. Mr Harder had gone through several steps to gain access to the cells, including walking down two flights of stairs and using the intercom to request that Mr S be brought to an interview booth. Once in the booth, Mr Harder asked for more time with Mr S after Mr B attempted to enter. The majority considered that Mr Harder had therefore persisted in conduct that he knew was an abuse of his position and the conduct was not sufficiently transitory as to avoid a finding that he was not a fit and proper person at the time. The Chair of the Tribunal disagreed and found that Mr Harder was a fit and proper person at the time, noting his conduct took place over a 15-minute period and was the result of the significant pressure on him at the time. Based on the view of the majority, Mr Harder was found guilty of misconduct pursuant to s 7 (1)(b)(ii).
In assessing penalty, the Tribunal noted that there were a number of relevant mitigating features in Mr Harder’s case, including his co-operation and early acceptance of responsibility, the steps that he had taken to avoid any repeat of the conduct and his overall contribution to the profession. The Tribunal accepted that Mr Harder was normally a lawyer with high standards, pride in his profession, and extremely hardworking for his clients. The Tribunal found that there was no need for specific deterrence in this case and that a formal censure would be the appropriate penalty. Mr Harder was also ordered to pay a contribution to the Standards Committee’s costs and 70 per cent of the Tribunal’s costs.