New Zealand Law Society - Lawyer struck off for misappropriation of funds

Lawyer struck off for misappropriation of funds

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has struck off Takena Stirling after he admitted five charges of misconduct. The charges all related to dishonest conduct in relation to Mr Stirling’s trust account and were described by the Tribunal as “in the most serious category”. The Tribunal noted that there were a number of positive features about Mr Striling and that his situation was not irredeemable in the long run, meaning it was not unthinkable that he might be able to practise in the future subject to conditions.

By way of factual background, Mr Stirling worked as a sole practitioner. The charges related to his deception of his bank and misappropriation of funds, persistent overdrawing of the trust account, discharging a mortgage (on 31 August 2022) without repaying the mortgage (until 9 September 2022), filing false and misleading trust account compliance certificates (April to July 2022) and misappropriating funds from his overdrawn trust account in June, July, and September 2022. A claim has been made to the Fidelity Fund in relation to Mr Stirling’s misappropriation.

The Tribunal noted that the gravity of the situation and its condemnation of the conduct needed to be balanced by recording some features which add credit to Mr Stirling. It acknowledged his deep remorse for the conduct and that he had immediately accepted responsibility, rather than advancing “weak” excuses. Mr Stirling was conscious of the shame he had brought on his community and whanāu. He had apologised to the Law Society, the bank, his former clients and the community. The Tribunal regarded those apologies as genuine.

Furthermore, Mr Stirling had previously contributed to his community and suffered a loss of standing as a result of his actions. He had to resign as a local body councillor and his social, family and living circumstances had all changed drastically. The Tribunal noted that “the task of picking up his life has been difficult, humbling and miserable for Mr Stirling”.

The Tribunal commented that it did not find his situation irredeemable in the long run. The quality of his legal work was not at issue and he still had the capacity to contribute to the community via his many skills. While he could not expect to be in charge of a trust account again, it was “not unthinkable that he might be able to practise, subject to conditions, at some time in the future”. The Tribunal noted this would of course depend on how he conducted himself in the medium term.

The Tribunal ordered that Mr Stirling’s name be struck off the roll of barristers and solicitors and he was ordered to pay costs.

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