Former Wellington barrister Christopher Knute Skagen has been struck off after the Lawyers and Conveyancers Disciplinary Tribunal found him guilty of 12 charges of misconduct. In [2014] NZLCDT 82, it has also ordered Mr Skagen to pay $11,800 compensation to two former clients.
The charges related to dealings while acting for two unrelated clients and failing to produce documents for the investigating standards committee.
While acting for his two clients, Mr Skagen breached the intervention rule by receiving instructions directly from the clients. In addition, he asked for fees in advance, without depositing them in a solicitor’s trust account.
Mr Skagen said that he had agreed to represent each of the clients for a fixed fee. In doing so, he said, he was not in breach of Rule 14.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
Rule 14.4 states: “… a barrister sole must not accept instructions to act for another person other than from a person who holds a practising certificate as a barrister and solicitor.”
He asserted that there was no provision in any statute that prohibited an agreement to provide future service, or a fixed fee arrangement, or advance payment for services. He further asserted that there was no statute or rule that required an advance payment of a fixed fee to be paid into a trust account or that directs a barrister as to the mode of payment of a fixed fee.
The Tribunal said that receiving instructions directly from clients was “in clear breach of the [intervention] rule”.
The Tribunal also said that Mr Skagen was wrong to take the position that fees did not have to be paid into a trust account.
Quoting its decision in Canterbury Standards Committee v Parsons [2013] NZLCDT 48, the Tribunal said it did not consider a barrister was “free to create a system that attempted to by-pass trust account obligations by billing fees and disbursements in advance.”
As a result, the Tribunal said, it found the misconduct charges proved.
Mr Skagen was also charged with failing to act in a timely and competent manner in respect of both clients.
In the case of one client, Mr A, the Tribunal said it “must conclude that this charge is proved by reason of the undisputed fact that the practitioner simply did not work on the matter”.
Upon receiving instructions from another client, Mr B, Mr Skagen began acting for him. He then failed to advise Mr B what was required of him under a Family Court discovery order.
Mr Skagen then failed to advise Mr B that he no longer held a practising certificate and could no longer act for him. He failed to arrange alternative representation and did not follow up with what was required for discovery. The Family Court Judge then ordered costs of $800 against both Mr B and Mr Skagen.
Another charge was that Mr Skagen failed to repay Mr A $4,100. Mr Skagen admitted that and said that he was unable to make repayment because Mr A breached the contract and there was no requirement on him to repay. The Tribunal described that position as “disingenuous and dishonest … disgraceful and dishonourable”.
Mr Skagen admitted that he failed to repay monies to Mr B, saying that he was unable to make repayment.
The first of two “investigation” charges was that Mr Skagen failed to permit an investigator to examine accounts.
An investigator has “wide ranging powers”, the Tribunal noted, to examine “all accounts, regardless of usage or label”.
As a result of the refusal, the Law Society inspector had to apply to the bank to recover the accounts. Mr Skagen argued that the inspector had exceeded his powers of investigation. Mr Skagen said the investigator was informed that all payments were fixed fees and went into his personal account because they were his personal property. He said the inspector only had authority to investigate trust accounts.
“The practitioner is wrong to hold that view having regard to the wide-ranging powers that an investigator has,” the Tribunal said.
The final charge was that Mr Skagen failed to produce records to the investigator. Having obtained the practitioner’s accounts, the investigator found multiple deposits.
Mr Skagen refused to provide any invoices relating to the deposits, claiming that all client information that the investigator might have captured was privileged information and beyond the scope of his powers.
“The argument for the standards committee is that an invoice rendered at the commencement of the relationship would not be privileged when considered against s 54 of the Evidence Act 2006, which provides for privilege to extend to any communication between the person and the legal advisor which is intended to be confidential and made in the course of and for the purposes of obtaining professional legal services from the legal advisor and the legal adviser giving such services to that person.
“We agree with counsel for the standards committee that the privilege was not the practitioner’s to claim,” the Tribunal said.
“It is for the client to claim. That was not done and, of course, the clients have made complaints.” The Tribunal said it found Mr Skagen’s conduct to be “disgraceful and dishonourable”.
“We find that the number, nature and gravity of the charges and the relevant history of similar offending, together with the lack of any insight into his behaviour … lead us to the conclusion that Mr Skagen is not a fit and proper person to be a practitioner,” the Tribunal said.
As well as the strike off, the Tribunal ordered Mr Skagen to pay the Law Society $22,238.98 standards committee costs and $2,533 Tribunal costs. It also ordered Mr Skagen to pay Mr A $4,100 and Mr B $7,700 compensation.
Mr Skagen has filed an appeal in the High Court against the misconduct findings and the striking off decision.