The New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) has suspended Auckland lawyer, Ms W, for a period of two months, censured her and ordered that she cannot practise on her own account unless authorised by the Tribunal. Ms W admitted to two charges of misconduct, which both related to her work on a civil claim while acting as a barrister. One charge related to her failure to meet minimum standards in litigation and the other related to making false statements to her client and opposing counsel. The Tribunal found that Ms W suffered from diminished responsibility due to the cumulative effects of her personal circumstances at the time, which called for “a merciful approach” on penalty.
Ms W was acting for clients who brought a civil claim for alleged negligent building design. The Tribunal accepted that she misconducted herself by accepting instructions without an instructing solicitor. After commencing the claim, she failed to act in a timely and competent manner in respect of those proceedings, causing the matter to stall. Over an 18-month period, Ms W failed to progress the matter in a timely manner and made a number of false statements to both her client and opposing counsel in order to explain the delay. To her client, she blamed the court and opposing counsel. To opposing counsel, she suggested health issues for her clients were causing delays. The Tribunal held that Ms W knew that these statements were false at the time she made them. At the outset of the 18 month period, Ms W filed a joint memorandum in which she undertook to file a document by a certain date, which then she failed to do. The Tribunal did not accept that this constituted a breach of an undertaking as the term “undertakes” in the context of the memorandum does not impose a solemn duty on the court “beyond the terms of an ordinary timetable order”.
The Tribunal determined that Ms W suffered from diminished responsibility at the time, as a result of the cumulative effect of a number of personal matters, including the impact of IVF treatment, subsequent miscarriages, the death of her grandmother and the financial and emotional stress associated with the Covid-19 lockdowns. This combination of events caused her to suffer a number of “intense” physiological, mental health and psychological episodes including high levels of anxiety, stress, memory fog, depression and grief. Despite being very unwell, Ms W did not alert those around her to her plight. The Tribunal noted that Ms W’s evidence showed she remained in denial about her conduct, insofar that she could not bring herself to believe that she had lied to both her client and opposing counsel. However, it held her conduct was not “calculated and strategic dishonesty” and that she "acted in an irrational manner out of an increasing panic”.
In determining the appropriate penalty, the Tribunal noted that such misconduct would usually warrant a lengthy period of suspension, if not strike off. Due to the unique circumstances of this case, the Tribunal held it was “an appropriate case to extend a merciful approach”. It noted that Ms W’s conduct was not borne out of a desire to harm her client or “advance her own interests beyond the immediate embarrassment of accepting she had been failing in her work”. It noted that she had done everything she could to make things right for the client after the issues came to light (including repaying all fees and paying the client compensation). The Tribunal also noted Ms W’s lack of previous disciplinary history and positive contributions to the profession.
In reaching its conclusion on penalty, the Tribunal considered that there remained a need to mark the conduct in order to meet public expectations of denunciation, and to send a firm message to the profession. The Tribunal, therefore, suspended Ms W for a period of two months. She was also censured and ordered not to practise on her own account unless authorised by the Tribunal. Beyond the order restricting her from practising on her own account unless permitted, the Tribunal saw no need for other orders to protect the public. Ms W was also ordered to pay costs.
In setting out its rationale for the penalty imposed, the Tribunal commented that there are valuable lessons to be learnt by the profession from this case. One is the wisdom of complying with the intervention rules, which would have identified the misleading conduct sooner, and the other is for lawyers to recognise when they are not coping, to seek assistance and to ensure the client is always informed and advised.
The Tribunal permanently suppressed Ms W’s name as its decision necessarily involved the disclosure of personal details about her and because it did not consider she was a significant future risk to the public.