New Zealand Law Society - Lawyers Complaints Service: Strike off appeal dismissed

Lawyers Complaints Service: Strike off appeal dismissed

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Vinay Deobhakta’s appeal against a misconduct finding and strike off has been dismissed.

“I can find no criticism of the [New Zealand Lawyers and Conveyancers] Tribunal’s conclusion,” Justice John Faire said in dismissing the appeal ([2015] NZHC 965).

“Mr Deobhakta’s conduct went beyond mere professional incompetence or deficiencies in practice. His actions were clearly disgraceful and dishonourable and amounted to misconduct,” Justice Faire said.

The Tribunal struck off Mr Deobhakta in [2014] NZLCDT 50 after finding him guilty of misconduct in [2013] NZLCDT 55. The Tribunal found that Mr Deobhakta had:

  • failed to account for $4,000 in cash his client had given him (the client had approached Mr Deobhakta to act for him on a tax liability matter);
  • did not have an instructing solicitor at the time of receiving instructions and did not pay the money into a trust account;
  • suggested to his client that a $21,000 cheque payable to the Inland Revenue Department to reduce his client’s tax liability be diverted to another purpose unrelated to and of no real value to the client, which was a “significant failure” of his duty to the client;
  • misled his client by signing what purported to be a contingency agreement, which was in reality no such thing, at a time when Mr Deobhakta knew he was about to be made bankrupt, and therefore knew that the document was worthless (the contingency agreement provided that the client would be refunded fees if certain “aims” were not “sought”, rather than any particular outcomes achieved);
  • acted in a dishonest manner, or very close to dishonesty, in relation to the contingency agreement; and
  • sent “extremely abusive” and “obscene” text messages to his client after the client had instructed another lawyer.

The Tribunal also found that:

  • taken as a whole, Mr Deobhakta’s conduct was so serious as to undermine the reputation and standards of the legal profession. It established that he is not a fit and proper person to practise as a lawyer; and
  • the public interest, including the protection of the public, and the need to maintain professional standards, require that he be prohibited from practice.

“There is no excuse, in my view, for the abusive text messages that Mr Deobhakta sent when he found out that [his client] had sought advice from another lawyer,” Justice Faire said.

“To his credit, through his counsel, he acknowledged that the sending of those texts amounted to misconduct.

“The fact that [his client] sought alternative legal advice, in the circumstances, was not at all surprising. He had been faced with the rejection of any settlement basis with the Inland Revenue Department by a person who had then attempted to divert his funds to a purpose unrelated to anything concerning [his client], for the practitioner’s own benefit.

“These actions collectively are misconduct and can quite properly be described as disgraceful and dishonourable,” Justice Faire said.

Mr Deobhakta also appealed a Tribunal order that he pay his client $4,000 compensation. Justice Faire said that the ground for challenging that penalty was not justified.

And Mr Deobhakta unsuccessfully appealed the costs orders the Tribunal made – that he pay the Law Society $25,903.62 standards committee costs and $6,346 Tribunal costs.

“I see no basis for setting aside the financial penalty imposed by the Tribunal,” Justice Faire said. “Whether they are ultimately enforceable in bankruptcy proceedings is an entirely different matter where different considerations apply.”

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