The referral of the application to the Practice Approval Committee

The New Zealand Law Society Te Kāhui Ture o Aotearoa received an application from Mr James Gardner-Hopkins for a practising certificate in February 2025. Mr Gardner-Hopkins’ application was referred to a Practice Approval Committee for consideration.

Practice Approval Committees are specialist committees which are sub-delegates of the Law Society’s Board. The Committees decide non-standard applications which cannot be administratively processed (or approved) by the Law Society’s Registry team. Each Committee is comprised of senior lawyers from a range of backgrounds.¹ An experienced lay member, who brings a consumer and public perspective to the decision-making process, also sits on each Committee.

Practice Approval Committees do not normally publish their decisions due to privacy reasons. However, the Law Society may publish a decision summary when consistent with its regulatory functions.

The Law Society has chosen to publish a summary of the outcome of Mr Gardner-Hopkins’ application due to the serious nature of the misconduct, the profound impact it had on the legal profession, and the high number of submissions received on the application. This summary is intended to ensure that members of the legal profession and the public are fully informed about the legal framework the Committee must apply and all the considerations the Committee took into account in reaching its decision.

What was considered by the Committee?

The Law Society is the regulator of lawyers under the Lawyers and Conveyancers Act 2006 (the Act). The purposes of the Act include maintaining trust and confidence in the legal profession and protecting legal consumers. These considerations are embedded in the decision-making framework and the legal principles that the Committee applies when considering an application.

When the Committee considers an application, it considers all the information put before it but also makes its own proactive inquiries. In this case the Committee considered:

• submissions made by the applicant;
• information from lawyers or other professionals who intend to provide mentoring or supervision support to an applicant;
• character references and any relevant regulatory information; and
• expert reports in relation to any health issues or other risk related factor.

In addition, the full panel of the Committee interviewed Mr Gardner-Hopkins in person. The interview covered matters related to Mr Gardner-Hopkins' offending, his insight and understanding of the underlying causes, his current circumstances, and steps he had taken to specifically address his personal and professional risk factors.

The Committee also engaged its own independent psychologist who met with Mr Gardner-Hopkins and provided an expert report.

The Committee carefully considered the submissions received in opposition to, and in support of, the application. This included the submissions made in response to Mr Gardner-Hopkins viewing the LinkedIn profiles of individuals who had previously submitted along with Mr Gardner-Hopkins’ explanation for his actions.

What are the legal requirements for assessing a practising certificate application?

The Committee was required to determine the application with reference to the relevant legal principles, which are summarised in the Supreme Court’s decision in New Zealand Law Society v Stanley.² Stanley sets out the factors a decision-maker must take into account when assessing whether a person is a “fit and proper” person to hold a practising certificate. The test is “forward focused” in nature and not intended to be punitive. Past misconduct is relevant to the extent it impacts on an applicant’s present ability to meet their duties and obligations as a lawyer.

In disciplinary cases, the penalty assessment requires consideration of both the nature and seriousness of the misconduct and the personal circumstances of the lawyer. The Tribunal will order strike off if, after conducting an assessment, it concludes that the lawyer is not a fit and proper person at the time of its penalty decision. Other orders, including suspension, will be made if the Tribunal concludes as a result of its assessment that the lawyer is a fit and proper person at the time of its penalty decision, even if by a fine margin only.

The Law Society’s independent Standards Committee sought a strike off against Mr Gardner-Hopkins following the Tribunal’s liability finding. The Tribunal and a full bench of the High Court found, however, that while Mr Gardner-Hopkins was not fit and proper at the time of the misconduct in 2015, suspension was appropriate. By the penalty stage, both the Tribunal and the High Court assessed Mr Gardner-Hopkins as fit and proper to return to practice, after a period of suspension, having regard to the steps Mr Gardner-Hopkins had taken to address the underlying causes. The High Court noted that penalty is “forward focused” and that the least restrictive penalty must be imposed. It found the risk that Mr Gardner-Hopkins may engage in similar conduct had considerably diminished due to therapeutic interventions and changes in his life circumstances. The High Court noted the impact of the conduct on confidence in the legal profession but was satisfied that suspending Mr Gardner-Hopkins for the maximum statutory period of three years would ensure future compliance with professional obligations and reflect the seriousness of the misconduct along with a censure.³

In its penalty decision, the Tribunal identified four risk factors and set out a ‘pathway’ of steps Mr Gardner-Hopkins should follow if he were to seek to return to practice following his suspension.⁴ The High Court found this would “arguably act as a further backstop’ in terms of future risk”.

The starting point for the Committee in considering Mr Gardner-Hopkins’s application, therefore, was the Tribunal’s and High Court’s finding that Mr Gardner-Hopkins met the fit and proper test at the time penalty was imposed. The key issue for the Committee was therefore if anything had changed since 2022 which would mean that Mr Gardner-Hopkins was no longer a fit and proper person. As part of its consideration of Mr Gardner-Hopkins’ application, the Committee also had close regard to these risk factors and the proposed pathway set out by the Tribunal.

The Committee’s decision

The Committee had regard to the totality of the information before it, including its own independent inquiries. In assessing Mr Gardner-Hopkins' application, the Committee focused on key considerations it identified as relevant:

1. acknowledgement of his offending and the impact on affected people as well as his insight into the causes of the offending;
2. commitment to ensure there would be no repeat of his offending;
3. conduct over the last three years;
4. present circumstances and whether these presented any future risk indicators;
5. present and intended future use of alcohol (being one of the underlying issues relevant to the offending);
6. proposed protective measures following any return to the profession.

Applying the legal test in Stanley and evaluating the information before it, the Committee reached a majority decision⁵ to approve Mr Gardner-Hopkins’ application. Beginning with the Tribunal and High Court’s assessment that Mr Gardner-Hopkins met the fit and proper test in 2022, the majority concluded that there is no evidence before it that he no longer remained 'fit and proper'.

In its assessment, the majority of the Committee concluded that the information before it established that Mr Gardner-Hopkins’s current circumstances and conduct over the last three years did not indicate a material change from the position taken by the Tribunal and the High Court that Mr Gardner-Hopkins had met the fit and proper test in 2022.

This view was based on its assessment of the relevant factors which satisfied the majority that Mr Gardner-Hopkins had:

• expressed insight, remorse and regret at his conduct and reflected on the harm caused to others both in a therapeutic context and in his interview with the Committee. Mr Gardner-Hopkins expressed a wish to apologise to the affected people again and acknowledged that criticism of his earlier apology in the disciplinary proceedings as coming too late in the piece was fair.
• engaged with therapeutic and clinical support to understand the underlying causes of his offending and to address the relevant risk factors. It was recommended by those experts, including the independent psychologist engaged by the Committee, that no further therapeutic and clinical support was necessary.
• taken steps to ensure he was managing risk factors, including around limiting alcohol use and maintaining professional boundaries.
• developed a supportive professional network while working as a consultant during his suspension.
• proposed a mentoring arrangement with senior lawyers to assist him with re-entering the legal profession and to support safe interactions in professional and collegial environments.
• intended to practise in a way which managed risks by avoiding contributors such as heavy workloads, lack of work/life balance, lack of mentorship and unsafe coping mechanisms.

The Committee had regard to the expert evidence it had received in terms of Mr Gardner-Hopkins’ risk of re-offending and the four risk areas identified by the Tribunal. In summary, those reports concluded that future misconduct is “unlikely”.

The majority's view had regard to the Committee’s interview with Mr Gardner-Hopkins, his presentation and insights into his offending and his plans for re-entering practice, including how he would practice and engage with others in a safe and professional way. It was satisfied that Mr Gardner-Hopkins had addressed the 'return to practice' pathway as set out by the Tribunal and the relevant risk factors.

Proposed protective measures

In considering the proposed protective measures, the Committee had regard to the structured nature of the mentoring arrangement with two senior lawyers which would provide a continued focus on the four risk factors identified by the Tribunal. That arrangement is to continue for two years and may be continued, if assessed as appropriate, by the Law Society. The arrangement may only be discharged or altered with Law Society approval and includes mandatory periodic reporting to the Law Society by Mr Gardner-Hopkins’ mentors and review and escalation mechanisms. One of Mr Gardner-Hopkins' mentors is based in the same city as him and the other is located in a location to which he travels frequently.

The arrangement incorporates a mix of in-person and virtual sessions at set intervals that Mr Gardner-Hopkins is required to attend. There are reporting and escalation mechanisms in place for mentors to follow in the event Mr Gardner-Hopkins fails to comply or any behaviour or well-being concerns became apparent. The mentors provided information to the Committee about their experience in mentoring and supporting other lawyers, including those facing significant challenges.

The majority concluded that Mr Gardner-Hopkins’ proposed mentoring arrangement was robust and comprehensive with the mentors being experienced and respected senior lawyers . The arrangement is secured by formal undertakings to the Law Society given by both Mr Gardner-Hopkins and his mentors.

The majority also acknowledged Mr Gardner-Hopkins' home environment and commitment to his family. The Committee noted that Mr Gardner-Hopkins will practise as a barrister sole with an established network, support of mentors and insight into risks and stressors and ways to manage these including with a balance between his family commitments and work. It considered Mr Gardner-Hopkins' proposed work arrangements and did not identify any risk factors relevant to this arrangement.

Minority view

The minority view was that the application should be declined or referred to the Board of the Law Society. The minority were not satisfied that Mr Gardner-Hopkins had genuine insight into the gravity of his conduct, the impact of it and how to adequately identify and manage stressors and triggers. For example, his mentoring arrangement did not go beyond guidance provided and it showed a lack of insight that Mr Gardner-Hopkins had not thought to, or not been able to, identify a female mentor, nor did it squarely align with the Tribunal’s expectation of “in-person” mentoring and support. There were also concerns about whether engaging with one mentor remotely was sufficient. The minority considered that Mr Gardner-Hopkins' proposed work arrangement also contained an element of risk – given that he would be working from home in isolation and would not benefit from collegial support, noting that there was limited opportunity to develop social coping mechanisms in that context.

Conclusion

The Committee has approved Mr Gardner-Hopkins’ application for a practising certificate.

Throughout the process, the Committee acknowledged the gravity of Mr Gardner-Hopkins' offending and the lasting impact that it has had on those individuals directly affected and the wider legal community. It also recognised the contribution made by members of the legal profession and public who had made submissions on his application. These were carefully considered as part of the Committee’s decision.

¹ In this case, a member of the Law Society’s Board was appointed to the Committee considering the application.
² New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50.
³ National Standards Committee (No.1) of the New Zealand Law Society v Gardner-Hopkins [ 2022] NZHC 1709 .
⁴ The four risks factors identified by the Tribunal were: problematic alcohol consumption practices; poor understanding of professional boundaries; loss of mentorship; and failure to prioritise therapeutic needs and personal support. A link to the Tribunal’s penalty decision is here: 2022-NZLCDT-2-National-Standards-Committee-1-v-Gardner-Hopkins.pdf.
⁵ Truman Wee (Convenor), Deborah Henderson, and Andrew Logan were in the majority. The minority were Rasela-Joy Gibson (Lay Member) and Frazer Barton.