New Zealand Law Society - Lawyers Complaints Service: Brett Cooper's suspension appeal dismissed

Lawyers Complaints Service: Brett Cooper's suspension appeal dismissed

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Brett Cooper’s appeal against a suspension of 18 months has been dismissed by Justice Venning in the High Court.

On 2 March 2015 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found Mr Cooper guilty of misconduct in [2015] NZLCDT 7. Mr Cooper pleaded guilty to a charge of unsatisfactory conduct.

The first charge was that Mr Cooper misled the court in the course of a criminal proceeding.

He had been directed to attend the Rotorua District Court on 28 May 2012 to argue an application that he had made for an adjournment. He did not appear, but sent an email to the Court on that morning stating that he was unwell and could not appear and conduct a hearing to an acceptable professional standard. He attached a medical certificate.

When the matter was called, the Court asked another lawyer, who was in Court as duty solicitor, to contact Mr Cooper. He did so by phone and then informed the Court that Mr Cooper was ill.

Mr Cooper was, in fact, appearing on another matter in the Christchurch District Court.

The second charge was that in the overall conduct of proceedings in a case (the same matter on which he had been directed to appear on 28 May 2012) he did not conduct himself to a professional standard and failed to comply with his overriding duties as an officer of the court and to facilitate the administration of justice.

He failed to organise himself to avoid conflicting appearances in different courts and he failed to instruct an agent to appear on his behalf.

“On my view of the record, I agree with the Tribunal’s findings,” Justice Venning said in his judgment on Mr Cooper’s appeal, [2015] NZHC 2352.

“Mr Cooper was aware of the fixture of 28 May. He had sought an adjournment of it. He had been told his application for adjournment would be listed for argument on 28 May (inferentially it would have been clear to Mr Cooper that, if his application for adjournment was declined, the case would proceed) and to avoid that issue and to meet his obligations to a different client he chose not to attend the Rotorua District Court.

“He ignored the Registrar’s communication of the Judge’s direction that he was required to attend Court and deliberately misled the Court in his letter of 28 May by suggesting he was so unwell that he would be unable to conduct the hearing.

Serious breach

“That was a serious breach of his obligations as an officer of the Court,” Justice Venning said.

In terms of the length of suspension, Justice Venning said that given the maximum period of three years’ suspension, a starting point of 18 months was open to the Tribunal.

“This was serious misconduct on the part of the practitioner akin to wilful dishonesty.

“He deliberately misled the Court. That impacted on the business of the Court, the client and the administration of justice generally.

“It is a serious matter for counsel to mislead the Court. Judges properly place reliance on counsel’s advice and often act on the basis of it. It is a serious matter to breach the trust that Judges place in counsel’s advice.”

Although he dismissed Mr Cooper’s appeal against a suspension of 18 months, Justice Venning allowed the appeal against the costs award of $27,925.62. This costs order was quashed and replaced with an order that Mr Cooper pay the standards committee costs of $22,340.50. The Tribunal’s order that Mr Cooper pay the Law Society $5,540 Tribunal costs stands.

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