Brett Cooper, a lawyer already serving an 18-month suspension from practice ordered by the Lawyers and Conveyancers Disciplinary Tribunal on 2 March 2015, has lost his battle to prevent publication of his name after six findings of unsatisfactory conduct dating from 2012 and 2013 were upheld.
Mr Cooper initially sought a review by the Legal Complaints Review Officer (LCRO) of the six lawyers standards committee decisions on the grounds that they were wrong and that the committee had made the wrong orders, including an order that he be censured (LCRO 280/2013, 281/2013, 324/2013, 325/2013, 34/2014, 118/2014).
Subsequently he narrowed this to an appeal against the two fines of $5,000 imposed and publication of his name.
Under the terms of the Tribunal’s order he is able to apply in mid 2016 to practise again, and Mr Cooper indicated to the LCRO that he may wish to resume practice in the future.
The standards committee considered complaints about Mr Cooper’s conduct between 2011 and 2012.
In the first, a client complained about Mr Cooper repeatedly seeking adjournments and failing to represent him on a defended drink driving charge. The client eventually pleaded guilty and then complained that he had paid money for services Mr Cooper had not provided.
Mr Cooper refunded the fees, the client withdrew the complaint, and the committee decided not to take any further action on that part of the complaint.
However it found that Mr Cooper “had not met his obligations under rules 3.4 and 3.5 to provide information to [his client] in advance.”
The committee also found that Mr Cooper had deposited funds from this client directly into his practice account in contravention of rule 9.3 of the Conduct and Client Care Rules (Rules), regs 9 and 10 of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008 (Trust Account Regulations) and s 110 of the Lawyers and Conveyancers Act 2006 (LCA).
The committee considered this was a “serious breach” of the LCA and the Rules, made a finding of unsatisfactory conduct, and censured and fined him $5,000 plus $1,500 costs.
In August 2013 the committee began an own motion inquiry after receiving a memorandum from a judge expressing concern about Mr Cooper’s conduct in relation to three clients and about Mr Cooper’s published comments about a fellow judge.
The judge said that Mr Cooper’s application for dismissal in a defended hearing was “unstructured and poorly expressed”, lacked any “evidential foundation”, and that “even a basic reading of the relevant section would have shown that the submission was wrong”. The judge considered the submission as “deliberately inaccurate and intended to mislead the Court.”
The judge also observed that “Mr Cooper’s conduct appeared discourteous, unprofessional, wasteful of court time and prejudicial to his client’s interests.”
In another instance Mr Cooper was said by the judge to have provided a “plainly inadequate” medical certificate to explain his client’s absence. The judge stood the matter down, but when it was recalled later that morning Mr Cooper was absent, although he had not been excused.
The committee also referred to reported comments by Mr Cooper on the Stuff website (in response to public criticism by two of his clients about what they reportedly believed was poor advice from Mr Cooper) that “it has quite a lot to do with the judge hearing the case. Unfortunately for [my client] he ran into Judge [x]”.
The committee concluded that Mr Cooper’s treatment of the Court and its processes was “disdainful”, and that he had breached rules 2.1, 2.2, and 2.3, with the conduct being such that lawyers in good standing would see it as “unacceptable”.
“Mr Cooper’s conduct breaches his duty to the Court and is an attempt to obstruct the course of justice,” the committee said. “It is also using the law for an improper purpose.”
It also said it was inappropriate for a lawyer to criticise a judge through the media.
The committee also noted that Mr Cooper had also paid funds from a second client directly into his practice account, again breaching rule 9.3 of the Rules, regs 9 and 10 of the Trust Account Regulations and s 110 of the LCA.
It entered a finding of unsatisfactory conduct, censured Mr Cooper, fined him $5,000 and ordered him to pay $1,500 costs.
Following the pre-approval of the Law Society Board, the committee met again in January and April 2014 and confirmed its earlier preliminary decision to publish Mr Cooper’s name.
Mr Cooper then sought a review by the LCRO of all six matters – which subsequently was reduced to a review of just the fines and publication.
At the review hearing, counsel for Mr Cooper provided three specialist medical reports and an affidavit from his GP about Mr Cooper’s health.
The LCRO noted that this material had not been available to the committee when it made its decisions, and that “the reports and affidavit were prepared in respect of a separate disciplinary matter concluded before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on 2 March 2015”.
In reviewing the two fines of $5,000, the LCRO said the fines were for quite separate matters, that Mr Cooper had twice breached the LCA and the Trust Account Regulations, and that the fines were for only a third of the maximum allowed.
“I have been unable to identify any sufficiently compelling reason to interfere with the Committee’s discretion,” the LCRO said in confirming both fines.
Noting that the statutory cap on fines was $15,000, the LCRO noted that each $5,000 fine “backs up” the censure and was reasonable “bearing in mind the seriousness of the conduct being punished”.
He added that “it is largely, if not solely Mr Cooper’s failure to manage his own workload that brought him to the attention of the standards committee”.
In ordering publication of Mr Cooper’s name the LCRO said the public interest will be better protected by publication than by relying on Mr Cooper to self-report any matters that may affect any future application by him for a practising certificate.
There is a lack, the LCRO said “of any real evidence from Mr Cooper that he recognises he has done wrong. There is no expression of contrition by him and no suggestion that an apology may be appropriate. The general thrust of his early responses to the committee is that he feels his situation is the product of a judge holding a grudge against him. There is no evidence that supports that contention.
“What is of greater concern, however, is that this is not the first time Mr Cooper has been the subject of an own motion investigation by a standards committee for matters of this ilk.”
A previous decision showed a pattern of conduct by Mr Cooper. The conduct in that case was virtually identical to the concerns raised by the judge who presented a memorandum to the standards committee.
The LCRO concluded that the interests of the public outweighed the adverse effect that publication of Mr Cooper’s name might have on his interests.