New Zealand Law Society - Successful appeal against six-week suspension

Successful appeal against six-week suspension

Whangārei lawyer Lynnette O’Boyle has successfully appealed a term of suspension imposed on her by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). The Tribunal had found Ms O’Boyle guilty of misconduct and suspended her from legal practice for six weeks. This was quashed by the High Court on appeal on the basis it was disproportionately severe in the circumstances and replaced with a censure.

The misconduct which led to the suspension involved Ms O’Boyle sending letters to the employers of her client’s ex-partner and his current partner. She also copied those letters to the Privacy Commissioner. The letters contained a number of false allegations and were “designed to damage the employment relationships of the two victims”. The victims were senior employees for Government departments and were embarrassed by the communications. Ms O’Boyle compounded her wrongdoing by repeatedly telling the Standards Committee that some of the allegations were proven by the evidence in the Family Court case, which was incorrect. The Tribunal imposed a six-week suspension, ordered Ms O’Boyle to pay each of the two victims $3000 each, to engage in a course of professional supervision and to pay costs. View a copy of the Tribunal’s decision.

Ms O’Boyle appealed the Tribunal’s decision only in relation to the suspension. She argued that the true effect of the suspension was disproportionate to the wrongdoing given the amount of legal aid work she undertakes. As a matter of law, any period of suspension terminates “provider” status under the legal aid regime. Accordingly, on completion of the period of suspension, Ms O’Boyle would need to make a fresh application for provider status which take some time to be approved. Given that Ms O’Boyle derived most of her income from legal aid, the process of reapplying would extend the period in which was without her normal source of income by at least four to five more weeks, and quite possibly longer. In the High Court, Peters J noted that Ms O’Boyle was unaware of these consequences at the time of the penalty hearing, and that the Tribunal does not refer to the point in its penalty decision.

The Committee opposed the appeal and noted that suspension was necessary to mark the seriousness of Ms O’Boyle’s conduct. It further noted that, had the Tribunal known of Ms O’Boyle’s four previous unsatisfactory conduct findings, it would likely have imposed a longer period of suspension. Neither counsel for Ms O’Boyle nor the Committee were aware of these at the penalty hearing, and the Tribunal had incorrectly proceeded on the basis that Ms O’Boyle had no disciplinary history.

Peters J allowed the appeal on the basis that the consequences of the period of suspension imposed are not confined to the period of suspension itself. Her Honour noted there is nothing on the face of the Tribunal’s decision to suggest it knew of this. Her Honour concluded that in the circumstances of this case, a censure seems the most appropriate substitute. She stated that a censure, in combination with the supervision that has already been ordered (and undertaken in part), struck the best balance between punishment, deterrence and rehabilitation. Peters J also emphasised that a censure sends a clear and public message to Ms O’Boyle and to others in the profession.  Ms O’Boyle was ordered to pay the Committee’s costs.

The censure imposed is set out below:

Lynette O'Boyle is formally censured for the following professional failings (as described in Auckland Standards Committee 4 v O’Boyle [2021] NZLCDT 15):

  • Acceding to her client's wish to send letters to the employers of Mr C (her client's ex-partner) and Ms P (Mr C's new partner) that were hurtful and damaging to their reputations, and that she knew could also cause them employment difficulties.
  • Incorrectly asserting in those letters that Mr C was a perjurer.
  • Deliberately misleading a Standards Committee during the course of its investigation.

The cumulative effect of these failings was to fall well below the standard of conduct that the public, and other members of the profession, are entitled to expect from a lawyer.

Ms O'Boyle’s failure to abide by professional standards requires a censure as a mark of considerable disapproval. 

Ms O'Boyle is reminded that compliance with professional standards is essential to ensure the maintenance of the high professional standards demanded of all lawyers, and of the confidence of the public in the legal profession.

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