New Zealand Law Society - Misconduct by a lawyer - “Inexcusable and reprehensible conduct” following breakdown in personal relationship

Misconduct by a lawyer - “Inexcusable and reprehensible conduct” following breakdown in personal relationship

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) has released its liability and penalty decisions in relation to Auckland lawyer Murray Tingey.

Mr Tingey faced two charges relating to conduct towards a colleague, Ms X, with whom he was in an intermittent personal relationship. Mr Tingey accepted Charge 1 but denied Charge 2, which the Tribunal dismissed. In terms of penalty, the Tribunal noted that a unique aspect of the case was that the conduct had occurred 12-14 years prior. The Tribunal did not consider suspension necessary and instead imposed a $15,000 fine and censured Mr Tingey.

The below summarises both the liability and penalty decisions in more detail.

Liability decision

Charge 1 was a charge of misconduct under Lawyers and Conveyancers Act 2006 and related to several incidents post 2009. Mr Tingey admitted the charge, but denied some of the particulars supporting the charge. The Tribunal made a number of factual determinations in relation to the various incidents. Charge 2 was a charge of misconduct under the Law Practitioners Act 1982 and related to a single incident in 2008. Mr Tingey denied this charge and it was dismissed by the Tribunal.

The Tribunal noted that the case raised an important issue about the extent to which the conduct of a lawyer in the context of a personal relationship should be a disciplinary matter. It accepted that the worst of Mr Tingey’s conduct ought to be subject to a disciplinary response. However, it noted it was unrealistic to disregard the high levels of emotion which were present in relation to the other conduct. It noted there was a difference between upholding professional standards to prevent exploitation and the imposition of “moralising or infantilising principles which would interfere with the right to of adults to freely make relationship decisions”. 

Turning to the facts of the case, Mr Tingey and Ms X engaged in a personal relationship while working together. This relationship continued for almost five years with regular meetings and communications. Both parties were married at the start of the relationship and kept the relationship secret as they were aware that it would be strongly disapproved of by the firm, which had a strong family culture. The Tribunal noted that their age and status was “not so dissimilar as to raise a concern about power imbalance”. The Tribunal also noted that the relationship between Mr Tingey and Ms X ended more than 12 years ago and some of the events referred to in the charges occurred 15 years ago. Ms X made the complaint as she felt she had a duty to speak up.  The Tribunal made no criticism of the delay, but noted that it meant that a huge amount of material that may have been of assistance was unavailable due to the passage of time. It also meant that allowances must be made for the frailty of memory.  It noted that where there was room for doubt or hesitancy, this needed to be resolved in Mr Tingey’s favour.

Charge 1 involved three particulars. The first incident took place on a Saturday in 2009 while both Mr Tingey and Ms X were working at the office. They had ended their relationship at this point. After finding out that Ms X was going on a date with another man that night, Mr Tingey became “jealous and distressed” and behaved in “a demanding and controlling manner”. He blocked Ms X’s exit as she attempted to leave her office. He followed her down to the carpark and got in the passenger seat of her vehicle. He remained there after being asked to leave repeatedly, and “this continued the pattern of intrusive, and for Ms X, frightening behaviour”.

The next incident took place in November 2009 and was the most serious incident. The relationship between Mr Tingey and Ms X had ended at this point and there was a firm event in which Mr Tingey consumed a large amount of alcohol. He asked if he could accompany Ms X home after the event but she refused. He went to her apartment and banged on the door and demanded to be let in. When Ms X refused, he applied force to the door until it gave way and entered the apartment. He grabbed Ms X’s phone, blocked the hallway and followed Ms X to her bedroom where he pulled her down on the bed beside him. Police were called and Mr Tingey was removed from the apartment. Mr Tingey later apologised to Ms X and the firm arranged counselling for both of them. The pair resumed their relationship in January 2010, before ending it for the final time in April 2011.

The third aspect of charge one related to workplace harassment during 2011 following the end of the relationship. Mr Tingey and Ms X were working on an important file together (the A file)  for one of Mr Tingey’s major clients. Ms X had also received instructions from a significant client in London which led to a disagreement on which file should be prioritised. While on a recruitment trip for the firm, they got into an argument about this, and Ms X told Mr Tingey that she did not want him physically near her. He later returned to her hotel room and barged in to retrieve his laptop charge. 

In May/June 2011, Ms X returned from London and Mr Tingey tried to contact her about the A file, but was unable to reach her. He then went to her house without invitation and attempted to gain entry, but Ms X refused. He went around to the rear of the house and was persistent in his attempts to enter Ms X’s property. He became angry and aggressive and he remained at the property in an agitated state for some time. The Tribunal found it unacceptable to go to a colleague’s home to berate them, even though it expressed some sympathy for Mr Tingey’s concern over the handling of the A file given it related to an important client of his. More broadly, the Tribunal accepted there were examples of Mr Tingey being overbearing and unpleasant to Ms X during this period. The Tribunal accepted that Mr Tingey’s conduct was the primary reason for Ms X leaving the firm, but that she had also been hugely stressed by the many difficulties of the A file.

In respect of Charge 2, the allegation related to a weekend conference that both Mr Tingey and Ms X attended in 2008. During the evening, Mr Tingey knocked on Ms X’s cabin in an intoxicated state and she refused him entry.  Ms X was anxious that his knocking would wake up her colleague with whom she was sharing the accommodation. The Tribunal found that Mr Tingey’s conduct was “boorish and annoying”. However, it could not be satisfied due to the passage of time that he angry or aggressive, that he remained outside the cabin for an extended period or that Ms X was left distressed or intimidated. The Tribunal did not find this conduct met the threshold for professional misconduct, but noted it might well have constituted conduct unbecoming a barrister or solicitor.

Penalty decision

In its penalty decision, the Tribunal noted that the imposition of penalty was “troubling and complicated” due to the context of the lengthy intimate relationship and the time that had elapsed since the conduct.

It noted that the November 2009 incident was “by far the most serious” and was an incident of domestic violence which left Ms X frightened and distressed. In her victim impact statement, Ms X described how for a long time she felt “unsafe in her home, had heightened anxiety levels and her self-esteem levels were impacted”. She described feeling “humiliated, ashamed and hopeless”. The Tribunal noted the other incidents were less serious, but “ought not t be experienced by any colleague, or ex-partner within either the workplace or home”. The Tribunal did not accept there was a pattern of misconduct, but did accept there was “a pattern of inexcusable and reprehensible conduct towards Ms X”.

The Tribunal accepted that it was an aggravating feature of the case that the conduct had occurred over a period of almost two years. However, it did not accept that Mr Tingey’s status as a senior member of the profession was an aggravating factor and, instead, characterised this as the absence of a mitigating feature.

In terms of mitigating features, the Tribunal gave Mr Tingey considerable credit for accepting the most serious conduct, including providing a 3 page admission document which very closely aligned with the Tribunal’s findings in the liability decision. Mr Tingey was also given credit for apologising to Ms X twice in 2013 before any complaint was made, which showed genuine regret for his actions. The Tribunal also noted that Mr Tingey had lost 75% of his ongoing work as a result of publicity of the case. The Tribunal accepted that erroneous damage was done to Mr Tingey the inaccurate reporting and that this could be taken into account in mitigation. Mr Tingey’s efforts in terms of seeking professional help was also considered a mitigating factor. It also took into account the glowing references provided by colleagues and clients, noting Mr Tingey was clearly a talented lawyer who had provided services for the public benefit.

The Standards Committee sought suspension as a penalty, arguing that nothing short of suspension would mark the seriousness of the conduct and provide sufficient deterrence to other lawyers. Mr Tingey argued that he had suffered enormous consequences (including loss of partnership, significant legal costs, being vilified and losing friends and colleagues) and that would sufficiently deter any other practitioner. The Tribunal noted that it needed to carefully examine where Mr Tingey was now given the unusual circumstances of the case (being the delay of 12-14 years since the conduct occurred). It noted that Mr Tingey did not have a supervisory role over employees, was in a stable relationship and did not consume alcohol to excess. The Tribunal held that the conduct did not and should not require the same response as if these were recent events.

In imposing it penalty, the Tribunal held the unique aspects of the case meant that public confidence would not be undermined by a less intrusive penalty than suspension. Instead, it imposed a fine of $15,000 and censured Mr Tingey. Mr Tingey was ordered to pay 30% of the Standards Committee’s costs and half of the Tribunal’s costs. A number of suppression orders were made which are set out in the decision.