New Zealand Law Society - Tribunal finds an inadequate apology letter and delayed distribution of an estate to be misconduct

Tribunal finds an inadequate apology letter and delayed distribution of an estate to be misconduct

Sending an inadequate letter of apology has led to a finding of misconduct by the Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) for lawyer, Patrick Kennelly.  Mr Kennelly was ordered to apologise to Mr P by the Legal Complaints Review Officer (LCRO) but was found to have not complied with that order as the letter sent did not contain an acknowledgement of wrongdoing.  A separate finding of misconduct was made in relation to delayed distribution of estate funds.

The LCRO ordered Mr Kennelly to apologise for his part in causing Mr P distress arising from a Family Court matter and for his disrespectful and discourteous correspondence in the complaint and review process.  Mr Kennelly was given a month to issue the apology and the wording of the apology was left to Mr Kennelly to determine.  Mr Kennelly provided an apology letter as directed but it was crafted to mock the order, inferentially insult the LCRO, purposefully designed to convey no remorse, and designed to withhold any measure of vindication or resolution to Mr P.

The Tribunal rejected any argument that it was inappropriate for Mr Kennelly to be required to issue an apology and rejected Mr Kennelly’s claim that the letter was sincere, noting as an example that the words “this has been a joyous and pleasurable opportunity” could only be read as ironic in the context.  The Tribunal held that Mr Kennelly was expected to acknowledge wrongdoing and express remorse in the letter so as to serve the purposes of the Lawyers and Conveyancers Act 2006 and the associated Conduct and Client Care Rules.  Practitioners are required to be courteous in their dealings in order to maintain public confidence in the profession.  The Tribunal noted that this was reinforced by rule 10.1, 10.2 and 11(b).

In this context, the purpose of the apology was to bring the long-running animosity to a conclusion by an appropriate acknowledgement of wrongdoing.  While the order could not change Mr Kennelly’s underlying feelings, it had formal value in terms of modelling reparation of an inflamed situation.  Mr Kennelly’s letter pretended to perform an apology but in fact enacted a different purpose and contained no expression of remorse.  The Tribunal record that “rather than salving any wound suffered by Mr P, the letter added insult to injury”. The Tribunal therefore found that Mr Kennelly had failed to comply with the LCRO’s order and that his conduct would be regarded by lawyers of good standing as disgraceful or dishonourable.  It was a willful contravention of various rules and therefore was misconduct.

The Tribunal also considered that Mr Kennelly’s conduct in delaying the distribution of estate funds was misconduct.  After making some distributions, Mr Kennelly had placed the balance of the funds into an interest bearing account in 2014, but had not done anything with the funds since.  In 2019, Mr Kennelly was subject to disciplinary action for failing to distribute shares from the same estate.  The Tribunal rejected Mr Kennelly’s argument that res judicata applied as the Standards Committee was not aware of the default with the funds at the time of the earlier proceedings.  It noted that Mr Kennelly’s delay in distributing the funds was “simply unacceptable” and this was exacerbated by his failure to be prompted by his earlier complaint.  The Tribunal found that Mr Kennelly’ conduct was disgraceful and breached his obligation to act in a competent and timely manner.

There will be a separate penalty hearing held before the Tribunal.