New Zealand Law Society - Lawyers Complaints Service: High Court upholds suspension

Lawyers Complaints Service: High Court upholds suspension

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Anthony Bernard Joseph Morahan’s three-month suspension for breaching the intervention rule and misleading the court has been upheld by the High Court.

In noting that the suspension began on 30 November, Justice Wylie said that “Mr Morahan is fortunate that the Christmas vacation will mean that the suspension is, in reality, for a lesser period”.

In [2015] NZLCDT 29, the New Zealand Lawyers and Conveyancers Tribunal suspended Mr Morahan for three months after finding him guilty of three charges of misconduct (see LawTalk 877, 6 November 2015). The charges were that Mr Morahan:

  • wilfully or recklessly acted for a client without an instructing solicitor in breach of rule 14.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008;
  • misled the court, opposing counsel and/or the respondent standards committee, by asserting in written correspondence and court documents that a Mr T was his instructing solicitor, when Mr Morahan was aware that Mr T was not in fact his instructing solicitor, or was reckless as to whether or not Mr T was his instructing solicitor; and
  • used Mr T’s name on court documents without his knowledge, consent or authority.

Mr Morahan appealed both the three misconduct findings and the penalty of suspension. In [2015] NZHC 2886, Justice Wylie dismissed both appeals. Justice Wylie said he did not accept Mr Morahan’s submission that Mr T had instructed him.

“No responsible barrister could, in my view, properly conclude that the email correspondence which occurred amounted to an instruction by Mr T to Mr Morahan to act for Mr A. It is specious to suggest otherwise. Nor in my judgment can Mr Morahan contend that he thought he had been instructed by Mr T,” Justice Wylie said.

“In my judgement, the Tribunal was correct when it found that Mr T had not instructed Mr Morahan to act on Mr A’s behalf.”

While breach of the intervention rule of itself is not necessarily a particularly grave offence, consciously electing to breach the rule is “rather more serious and misleading the Court is very serious indeed,” Justice Wylie said.

Serious misconduct

“In my judgment, Mr Morahan deliberately and wilfully misled the Family Court at Waitakere, by representing that he had an instructing solicitor when he did not have one. This was serious misconduct on the part of Mr Morahan, and in my view akin to wilful dishonesty.”

In that regard, he said that he disagreed with the Tribunal, which had found there was no dishonesty by Mr Morahan.

Justice Wylie also referred to Mr Morahan’s attitude to the complaint, which was “belligerent” from the outset.

“By way of example, he referred to the standards committee as being a ‘secret committee’. He expressed doubt that the committee knew the meaning of the requirement in s 142(1) of the Act to behave in a way that was consistent with the rules of natural justice. He commented that the committee behaved more like a ‘secret inquisition or secret Star Chamber’ than a judicial tribunal, and he referred to its investigation as a ‘witch hunt’.

“He referred to the complainant as a ‘vengeful shrew’. He alleged that the committee and/or the investigating officer … had redacted exhibits. He failed to abide by timetable orders set by the committee. He did not provide explanations for these failures. He failed to bring all relevant files to hearings despite a written request that he do so.

“In the submissions made on his behalf in relation to penalty, he asserted that the standards committee submissions were directed at besmirching him rather than being truthful. He said that the standards committee had made ‘vile, unprofessional claims’, and that the prosecution counsel had set out to trap him. He alleged the prosecution had coached Mr T to give his evidence.

“It is also clear that Mr Morahan has no remorse,” Justice Wylie said.

“A practitioner cannot expect that disreputable correspondence, or belligerent conduct, will be ignored in the exercise of the Tribunal’s power. That is because character – good or bad – can be very relevant to what sanction or penalty should be imposed.

“When determining ultimate fitness to remain in practice, whether limited by suspension or by striking off, the Tribunal is entitled to review the entire conduct of the practitioner, and transgressions the subject of earlier proceedings which go to the general behaviour of the practitioner.

“It cannot regard poor behaviour as justifying a more severe penalty, but it is an aggravating personal factor, and relevant to balancing matters of character.

“In my view, the Tribunal did not err in imposing a sentence of suspension for three months. The order was an appropriate and necessary response given the wilful misconduct of Mr Morahan.”

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