Published 19 May 2019
The New Zealand Lawyers and Conveyancers Disciplinary Tribunal suspended three lawyers from legal practice for periods ranging from three months to 12 months. The suspensions were the result of three separate sets of proceedings.
Simon Nicholas Claver has been suspended from practising as a lawyer for 12 months from 1 March 2019. Mr Claver has also been ordered by the Tribunal not to practise on his own account until further order of the Tribunal.
Mr Claver had admitted one charge of misconduct which related to a range of failures over a two to three year period, in respect of 14 different clients. Mr Claver admitted all the particulars. These included: acting without instructions, failing to follow instructions, misleading the Court, failing to act competently, failing to comply with penalty orders made by a standards committee, mishandling client funds and making a false declaration to the New Zealand Law Society.
Some of Mr Claver’s actions had significant consequences for his clients, including one client spending three weeks in custody beyond what was ultimately required.
The Tribunal was required to consider whether the offending was so severe as to warrant strike-off, or whether a lesser penalty could be imposed. In that light, it considered the seriousness of the offending as well as all aggravating and mitigating features.
The standards committee emphasised that the number and nature of the breaches evidenced a fundamental lack of competence and fitness to practise on Mr Claver’s part. Further, it drew attention to the lack of care and professionalism displayed by the practitioner.
However, after carefully considering the evidence, the Tribunal was not convinced that Mr Claver had been intentionally dishonest. Rather, it found that he had been extremely careless and had taken on work for which he was not equipped, which put the public at risk in an unacceptable fashion. Therefore, while it found the level of misconduct to be relatively serious, it did not consider it to be at the most serious level encountered by the Tribunal, and accordingly did not find that strike-off was warranted.
When considering aggravating factors, the Tribunal noted Mr Claver’s prior disciplinary history; in particular, three unsatisfactory conduct findings made between November 2013 and December 2017 which concerned conduct of the same nature as that under current consideration.
In terms of mitigating factors, the Tribunal gave Mr Claver considerable credit for his acceptance of the charge. Further, it noted with approval the steps taken by Mr Claver to address some of the issues that gave rise to these charges, including weekly counselling sessions, the engagement of an accountant, a significant reduction in his workload and his withdrawal from undertaking jury work.
When deciding on the final penalty, the Tribunal found that most of the failures in Mr Claver’s services to his clients could be cured by a reduction in his workload and in managing the type of work he undertakes.
After undertaking a comparison to similar cases the Tribunal imposed a 12 month suspension order, which it viewed as a proportionate response. Further, it considered that an order not to practise on his own account would act as a sufficient safeguard for the public in terms of oversight of his general standard of work.
Ronald Bruce Johnson has been censured and suspended from practice for three months from 1 May 2019. Mr Johnson had been found guilty of negligence in his professional capacity by the Disciplinary Tribunal. This related to his involvement in providing independent legal advice to the trustees of a trust. He was further found guilty of two counts of misconduct relating to breaches of the Trust Account Regulations. Mr Johnson appealed against both the decision and penalty, but his appeal was dismissed by the High Court.
Mr Johnson was asked by a fellow practitioner, Edward Errol Johnston, to advise the trustees of a trust in relation to the purchase by the trust of a property. Although no reason was put in writing for the reason of the referral, Mr Johnson was aware that Mr Edward Johnston had a conflict of interest because Mr Edward Johnston was the owner and vendor of the relevant property. Further, Mr Edward Johnston’s trustee company was a trustee of the trust.
When a complaint was lodged with the New Zealand Law Society, it was alleged that Mr Edward Johnston had used the trust as a vehicle to further his own interests. Relevant to this matter, it was alleged that Mr Johnson had facilitated this or was reckless to the truth of Mr Edward Johnston’s conduct. An investigator appointed by the standards committee concluded that given Mr Edward Johnston’s ownership of the property, Mr Johnson should have scrutinised the transaction as to price and financial viability.
With regards to the alleged trust accounting failures, an inspection undertaken by the New Zealand Law Society identified significant areas of non-compliance with the Lawyers and Conveyancers Act and the Trust Account Regulations.
In the Tribunal, much of the discussion in respect of the first charge turned on the nature of Mr Johnson’s retainer. While Mr Johnson had argued that the retainer was limited to advising the trustees on the purchase and in respect of finance, the Tribunal concluded that the retainer was a general retainer which incorporated advice on the significance of the purchase for the trust, including whether the purchase was consistent with the trustee’s duties. It also found that since Mr Johnson was dealing with commercially unsophisticated trustees, this increased Mr Johnson’s duties under the retainer. As such it found that he had not fulfilled his obligations to the trustees in respect of the retainer.
The High Court upheld in full the findings of the Tribunal. In particular, it found that Mr Johnson’s duties were not limited to advising the trustees on the mechanics of the transaction and included ensuring that the trustees were aware of their duties as trustees and had considered whether the purchase of the property was consistent with those duties.
In respect of the trust accounting charges, Mr Johnson admitted the breaches alleged, but appealed against the finding of misconduct, arguing that similar breaches had previously been treated as unsatisfactory conduct or negligence. In the High Court, Mr Johnson submitted that for a finding of misconduct to be established, it had to be established that his conduct was disgraceful or dishonourable or in reckless contravention of the relevant Act or regulations. Further, it was submitted that in most cases relating to trust account breaches where there had been a finding of misconduct, there had been a misappropriation of client funds. However, the High Court, like the Tribunal before it, did not accept those submissions and concluded that in the circumstances a finding of misconduct was appropriate. It found that Mr Johnson’s behaviour had fallen well short of the conduct required of by the Conduct and Client Care Rules.
The High Court further upheld the penalty of censure, three months suspension and costs of $50,000.
Andrew MacLean Morrison has been suspended from practice as a barrister and solicitor for six months from 26 March 2019. Mr Morrison had initially appealed to the High Court against the Disciplinary Tribunal decision but subsequently withdrew his appeal.
Mr Morrison faced two charges of misconduct in the Tribunal, which were laid by the Legal Complaints Review Officer. These consisted of the manipulation of a document and alternatively, a breach of duty to supervise and manage. Mr Morrison had admitted that his conduct in respect of each charge was unsatisfactory but denied that his conduct amounted to misconduct or that he was negligent or incompetent.
Mr Morrison was instructed by a client, a successful farmer, in respect of forming a trust and the creation of a new will. This stemmed largely from the client’s two sons being in dispute over the distribution of their father’s assets. Mr Morrison prepared the will and trust deed. The important terms of the deed (Version 1) were that there were three named trustees, and that the discretionary beneficiaries included both of the client’s sons as well as “any child, grandchild or great-grandchild of the Settlor...”.
However, the client became disillusioned with one of his sons and instructed Mr Morrison that he required a variation of Version 1 whereby that son was to be removed as a discretionary beneficiary. Further, new trustees were agreed upon as one of the original proposed trustees did not wish to become a trustee. Accordingly, a new version (Version 2) was created. However, Version 2 was not signed and in early 2011 a final version (Version 3) was created. This version created several changes, but importantly page 13 of Version 1 with the client’s signature on it was removed from Version 1 and inserted into Version 3. Further, the word “child” was removed from the definition of discretionary beneficiary by class. Version 3 was not sent to the client for signature but sent to the other two trustees who duly signed and returned it to Mr Morrison. Mr Morrison then hand dated the document 10 February 2010, the date that Version 1 had been completed.
The LCRO argued that the conduct constituted misconduct. It submitted that the removal of page 13 from Version 1 and its insertion required a manual and deliberate manual act. Further, it was alleged that the removal of the word “child” from Version 3 required a manual act and a degree of legal analysis. It also relied on Mr Morrison’s admission that he inserted the date 10 February 2010 into Version 3. Accordingly, it submitted that these actions were done wilfully with a wrong intention.
The fact that the only people who worked on the document(s) were Mr Morrison and his legal secretary, gave rise to the alternative charge of breach of duty to supervise and manage.
Mr Morrison admitted all essential facts. He described these as significant errors amounting to unsatisfactory conduct for which he took responsibility and described what happened as being accidental. Submissions for the practitioner stated that the likely explanation was a lapse by an overworked older practitioner near the end of his career. Reliance was placed on Mr Morrison’s 50 years of unblemished practice.
The Tribunal found Version 3 to be a fraudulent document. It further concluded, after careful consideration of the evidence, that Mr Morrison was responsible for the manipulations resulting in Version 3 and that these were done deliberately. It accordingly found that Mr Morrison’s conduct was dishonourable and constituted misconduct. Because it had found Mr Morrison responsible for the manipulation of the document, it was not necessary to consider the charge relating to breach of duty to supervise and manage.
In terms of Mr Morrison’s unblemished record, the Tribunal accepted the submission from the LCRO that “the facts of this matter were sufficiently compelling in favour of a finding of misconduct to render it unnecessary to balance those facts against a credibility consideration of [Mr Morrison] arising from his unblemished record”. It stated further that was not unusual for a lawyer who has a previously unblemished record to be found to have sullied that record.