New Zealand Law Society - Lawyers Complaints Service: Censured for lower level negligence

Lawyers Complaints Service: Censured for lower level negligence

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Auckland barrister Charl Benno Hirschfeld has been censured by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.

In [2014] NZLCDT 48, Mr Hirschfeld pleaded guilty to 12 charges of negligence in his professional capacity such as would tend to bring the profession into disrepute.

The charges related to incorrect criminal legal aid invoices he rendered to the Legal Services Agency (LSA) in 2009. The Tribunal accepted that the legal aid billing system relies on trust in the lawyers rendering accounts.

“We would not wish to endorse anything less than honesty and accuracy in billing practices.

“Although there were a number of different forms of errors made by Mr Hirschfeld, mostly they arose from his method of time recording and invoicing. There is no evidence to suggest any deliberate pattern of cheating the system or any other intentional wrongdoing,” the Tribunal said.

The Tribunal noted that it must analyse behaviour on a continuum of culpability or seriousness of conduct. “In doing so, we must employ some perspective. That is why proportionality is important.”

It observed that that the total overcharging across 17 invoices (which covered 32 hearings) was $1,368.

 “We find the level of negligence to be at the lower end of the scale,” the Tribunal said.

“There were instances of delegation to non-listed providers in about 25% of the 32 hearings under consideration in the charges. We consider this was significantly careless and ought to be regarded as an aggravating feature of the overall negligence”.

The Tribunal said it accepted the submission for Mr Hirschfeld that there was a lack of focus in the prosecution and also accepted the assertion that Mr Hirschfeld had been “overcharged”.

In addition credit was sought for 30 years of what his counsel described as “exemplary practice.”

“We accept that any practitioner bringing 30 years of previously positive contribution to his profession is entitled to claim some credit.

“We are very clear that this is a practitioner with high professional standards who has, according to all the evidence before us, served his clients well in the past,” the Tribunal said.

As well as the censure, Mr Hirschfeld was ordered to repay the $1,368, to make a contribution of $20,000 towards the costs of the prosecution and to reimburse the Law Society half the Tribunal costs, half being $16,188.

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