New Zealand Law Society - Lawyers Complaints Service: Strike off follows final warning

Lawyers Complaints Service: Strike off follows final warning

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David John Porteous has been struck off by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after he admitted three charges of misconduct and two charges of unsatisfactory conduct [2014] NZLCDT 72.

The involvement of elderly and vulnerable clients was a unifying factor in the offending.

“The practitioner has admitted all the underlying facts,” the Tribunal said.

Charge one, of misconduct, relates to Mr Porteous deducting a dormant balance held in trust for an elderly client without authority of the client.

Charge two is of unsatisfactory conduct. Again, Mr Porteous’s client was aged, blind, partially deaf and in the early stages of dementia. Among other things, he deducted a fee of $45,000 without reference to her and without her authority. The fee included a narration “for future attendances in relation to rest home matters and preparation for and attendances in relation to administration of your estate”. The practitioner has pleaded guilty on the basis that he charged a fee that was not fair and reasonable.

Charge three, of misconduct, relates to the client referred to in charge two. Mr Porteous pleaded guilty because of his unacceptable billing and file management practices. The charge captured regulatory breaches by failures to send invoices or annual statements. He also failed to provide certain information as required by Rule 3.4 of the Conduct and Client Care Rules and failed to maintain time records or to document an agreement relating to fees.

Charge four is unsatisfactory conduct. Mr Porteous acted for a client who died in January 2011. He became sole executor and trustee of her will. He charged a fee of $35,280 which comprised $17,200 for services during the life of his client and $18,080 for services following her death. The standards committee established that he charged an hourly rate of $1,146 for the work done while his client was alive, and an hourly rate of $775 for work done after the death of his client. Mr Porteous’s guilty plea is an acceptance that the fees he charged were not fair and reasonable for the services he provided.

Charge 5, of misconduct, relates to his billing and file management practices with regard to his elderly client referred to in charge four. Mr Porteous failed to:

  • document any agreement relating to fees to be charged upon death;
  • complete time records to enable accurate invoices to be rendered;
  • send his client any material updating her with costs relating to his services; and
  • be transparent in relation to the fee he ultimately charged.”

The Tribunal also noted Mr Porteous’s previous disciplinary history, where he had been found guilty of disciplinary breaches on two previous occasions in 1999 and 2005. The Tribunal particularly focused on the 2005 offending. The “most serious” matters involved Mr Porteous:

  • being witness as signing a deed knowing that the person signing was not who he purported to be;
  • selling a business without appropriate authority;
  • dispersing funds without ensuring that the funds were in fact paid to the client; and
  • signing a memorandum of transfer purporting to have witnessed the person’s signature in his presence when it was not so signed.

“What is relevant to the consideration of penalty in this matter, is that the Tribunal in its decision at the time told the practitioner that it was very much his last chance and that ‘it is inconceivable that, if there were any repetition of these sorts of things, you could survive as a practitioner’. It went on to warn the practitioner that a repetition of such conduct would very likely be the end of his career.”

In deciding to strike Mr Porteous off, the Tribunal said that “to have ordered otherwise would have rendered hollow such a strong final warning”.

Counsel for Mr Porteous said his client had accepted the inevitability of strike off, that he had surrendered his practising certificate, was selling his practice and had applied to be bankrupted.

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