Failing to disclose relevant pieces of information to the High Court in a without notice application for a freezing order has resulted in a finding by the Lawyers and Conveyancers Disciplinary Tribunal of misconduct for Auckland lawyer Royal Reed.
Although the matter also involved one of Mrs Reed’s employees, Mrs Reed took responsibility for the omissions as she had taken instructions directly from the client and supervised the lawyer who drafted the documents. The Tribunal made an order for a $15,000 fine, censure and costs.
The Tribunal highlighted that the practitioner was under considerable work-related pressure at the time, and that there were multiple mitigating factors. Mrs Reed had also taken responsible steps to ensure something like this would not happen again and accepted responsibility for failures in supervision.
The practitioner and her firm acted for a wife in relationship property proceedings. They filed a without notice application seeking a freezing order in the Family Court. The application was declined but the matter was adjourned to allow the wife to file further evidence.
However, rather than filing further evidence in the Family Court, the wife eventually filed a without notice application in the High Court instead. This application did not state that a previous application had been refused in the Family Court on the basis of the evidence before it. In reliance on the defective information provided, the High Court made the freezing order.
However, nine months later, the order was discharged on application by the husband. The High Court held that had the Court been made aware of the missing facts, then “unequivocally” the freezing order would not have been granted.
Although this matter also involved one of Mrs Reed’s employees, Mrs Reed took responsibility for the omissions as she had taken instructions directly from the client and supervised the lawyer who drafted the documents. While Mrs Reed admitted the failure to disclose and accepted her conduct was at the higher end of unsatisfactory conduct, the Tribunal disagreed and found the relevant conduct constituted misconduct.
The Tribunal found that the errors were “sufficiently serious to find a reckless breach of the duty of utmost candour. Having heard directly from the practitioner, we are not prepared to go the step further and infer deliberate omissions on her part. What is hard to avoid as a conclusion, is deliberate forum shopping.”
The Tribunal found “the conduct proved to the level of misconduct as a reckless breach. The decision not to go back to the Family Court with further evidence…but to try a different forum in the High Court is of significant concern”.
The Tribunal also highlighted that the practitioner was under considerable work-related pressure at the time. Her references and testimonials described someone who is generous in giving her time and skills to the wider community.
Mrs Reed had since taken responsible steps to ensure something like this would not happen again and accepted responsibility for failures in supervision in this matter.
The Tribunal acknowledged that there had been significant consequences which had already taken place. They noted that that Mrs Reed had demonstrated a high level of remorse and insight, which they saw as exemplifying the disciplinary process working well to educate a practitioner, while also ensuring protection of the public and that professional standards were maintained.
The Lawyers and Conveyancers Disciplinary Tribunal is an independent body administered by the Ministry of Justice.