New Zealand Law Society - Lawyers Complaints Service: Fined for failing to follow tribunal orders

Lawyers Complaints Service: Fined for failing to follow tribunal orders

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A former lawyer, D, was the subject of orders of a District Law Practitioners Disciplinary Tribunal following a misconduct hearing in 2008. The orders prevented him taking steps in any court proceeding against certain named individuals.

Mr D had performed duties while an employee of a firm in proceedings brought by the firm’s clients against those particular individuals. A lawyers standards committee found this was a breach of the tribunal order, and was therefore unsatisfactory conduct.

The committee censured D, fined him $5,000, and ordered him to pay $1,500 costs.

The consent order of the tribunal had been made in November 2008, and stated that D “shall cease to accept work for a period of ten years in all fields of practice in relation to making claims or accepting instructions to make claims against” certain named persons, including any associated persons.

Part of the order had also stated that D should no longer act as the solicitor on the record in any proceedings against the named persons.

D relinquished his practising certificate in early 2009, just before he was made bankrupt. He was later employed by a law firm to assist the firm with client liaison.

Two of the persons named in the order complained when it became known that D had worked on proceedings against them brought by clients of the firm.

In his response to the complaint, D said because the firm, and not he, were the solicitors on the record, he was not in breach of the tribunal’s order.

After considering all the material, the standards committee disagreed, stating in particular that “on a true reading of this order [D]’s conduct fell clearly within the scope of the order and his actions constituted a breach of the order”.

The committee said D should have refused to work on the clients’ proceedings. The firm that he was working for had represented him in the disciplinary hearing in 2008, and was well aware of the orders.

Because D did not have a practising certificate, his conduct was not a breach of ss7 or 12 of the Lawyers and Conveyancers Act 2006, and instead brought ss11 and 14 (unsatisfactory conduct and misconduct by employees of law firms) into consideration. The standards committee said it considered the conduct was wholly unacceptable, and came close to misconduct rendering him liable to have his name struck off the roll.

The committee took into account that D had been bankrupted in 2009, and noted that while the fine of $5,000 in those circumstances was appropriate, had D not been bankrupt, a larger fine would have been warranted.

D sought a review of this decision by the Legal Complaints Review Officer (LCRO). In his application for review, he reiterated that he had been an employee and not in a position to refuse to work on files as required by his employer. He also said that the tribunal order was intended to prevent him acting on his own in matters against the named persons, as the tribunal had been concerned he would lose objectivity. Noting he was a sole practitioner at the time of the order, he emphasised the relative narrowness of his current role, and the supervision provided by the firm.

The LCRO, however, relied upon the discussion in the tribunal’s decision to reach the conclusion that the tribunal, in fact, intended that there be no contact with the named persons of any kind, and supported the wide interpretation that the standards committee had given to the order.

D and the firm made efforts to consider and seek advice about the scope of the order. For this reason the LCRO considered that the circumstances did not indicate D deliberately intended to act in a manner which breached the order. As a result, the LCRO reduced the fine from $5,000 to $4,000.

The LCRO noted that “ultimately the judgement was for the applicant to make”, and added “any uncertainty on his part ought to have been resolved on the side of caution”. This was notwithstanding his employer’s instructions, which could not be “sufficient to absolve a lawyer (or former lawyer) from his professional responsibilities”.

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