New Zealand Law Society - Tribunal finds acting outside of the terms of practising certificate to be misconduct

Tribunal finds acting outside of the terms of practising certificate to be misconduct

Acting outside of the terms of his practising certificate by accepting instructions to act as an employment representative while he was an employed lawyer has resulted in a finding (by the Lawyers and Conveyancers Tribunal) of misconduct for lawyer Stephen Potter. 

The Tribunal also made two findings of unsatisfactory conduct on the basis that Mr Potter failed to act in a competent and timely manner while acting for the same client on other matters and directed payment of $5,800 into his personal bank account instead of his employer’s trust account.

In 2014, Mr Potter was suspended from practising on his own account and was only able to practise law as an employee.  During this period, Mr Potter became friends with his future client and later agreed to act for him in respect of several sets of proceedings through his employer.  The Tribunal found that Mr Potter did not act in a competent and timely manner as he failed to attend court on three occasions, which left the client exposed and caused him to suffer loss.  In relation to bankruptcy proceedings, Mr Potter failed to ensure there was an affidavit of the client accompanying the application to set aside the bankruptcy notice.  He also failed to advise the client that the application had been successful and that he had been adjudicated bankrupt.  Mr Potter also acted for the client in Family Court proceedings.  When the relationship broke down, Mr Potter delayed withdrawing as counsel on record, which left the client at a disadvantage because he could not access the Court file himself to prepare for the hearing.  These issues combined led to a finding of unsatisfactory conduct. 

The Tribunal made a further finding of unsatisfactory conduct in relation to Mr Potter asking the client to deposit payment for his services into his personal bank account rather than his employer’s trust account.  The client paid a total of $5,800 into Mr Potter’s personal account.

Mr Potter also agreed to act for the client in relation to an employment dispute.  He agreed to carry out the work as an employment representative and provided the client with an engagement letter to that effect.  The Tribunal held this was misconduct on the basis that Mr Potter was providing regulated services other than in the course of his employment.  While the Tribunal noted that non-lawyer can act an employment representative, it considered that in this case Mr Potter was providing regulated services, noting that the lawyer-client relationship between the two was well established by this point and Mr Potter had provided a letter of engagement which was technical on nature.  The Tribunal held that members of the public are entitled to expect professional standards of conduct, competence, and accountability from those who are admitted to the bar, whether or not the service can be carried out by lay advocates.

The Tribunal commented that Mr Potter was vulnerable to breaching the rules because he lacked support or guidance from any mentor and did not recognise or observe professional boundaries.  The Tribunal also commented that general disorganisation appeared to be a key issue for Mr Potter.  A penalty hearing will be set down for later this year.

Read the decision on the Tribunal’s website

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