Anthony (Tony) Bamford has been censured and fined $5,000 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after he admitted failing to advise a client to seek independent advice upon becoming aware there was a conflict of interest.

In [2015] NZLCDT 39, Mr Bamford admitted charges of unsatisfactory conduct.

The charges arose out of Mr Bamford’s response to an error of one of his staff members, B, when B failed to complete the GST question in an agreement for sale and purchase. The Tribunal noted that B had already been dealt with by a lawyers standards committee.

“As a result of the omission, the purchaser’s solicitor, surprisingly, completed the GST question which related to the vendor’s GST status (without drawing this to the attention of Mr Bamford’s firm or employee),” the Tribunal said.

Price reduction

“Consequently, Mr Bamford’s client needed to reduce the purchase price by a significant sum.

“Mr Bamford’s firm became aware of this error on 18 February 2014 and settlement was scheduled for 7 March 2014.

“The unsatisfactory conduct, which is admitted, is that Mr Bamford did not immediately upon becoming aware of a possible claim against his firm – therefore a conflict of interest – send his client away to obtain independent advice.

“Rather, Mr Bamford and his employee focused on resolving the issue for the client. It was not until the client made it plain, on 5 March 2014, that he would be looking to the firm to recompense him for his loss, that Mr Bamford advised his client of the need for him to obtain independent advice.

“The client declined the offer at this stage; he was anxious for settlement to proceed because the sale transaction supported a related purchase transaction.

“The second charge, of a less serious nature, arose because Mr Bamford was dilatory in his subsequent response to the client’s complaint against the firm. He took two months to claim on his insurance, and rather than formally responding to the client in writing, telephoned him and then ‘went silent’ with the client while he awaited the insurance company response.

“To complete the contextual matters, we accept that the negotiation between the lawyer, his insurer and the client achieved a settlement,” the Tribunal said.

Rule 5.11 of the Lawyers and Conveyances Act (Lawyers: Conduct and Client Care) Rules 2008 mandates that once a lawyer becomes aware of a potential claim against him or her, a client must be advised to seek independent advice and also informed that a lawyer can no longer continue to act unless, having received independent advice, the client gives informed consent to that.

“Mr Bamford has acknowledged, by his plea, that he let his client down in that regard.

Recognising conflict

“We record that it is extremely important for a practitioner to recognise and clearly turn his or her mind to the consequences where a possible claim against a practitioner becomes apparent,” the Tribunal said.

The Tribunal noted that Mr Bamford had been in practice for 26 years and until recently had an unblemished disciplinary history. However, between April 2014 and January 2015 he had sustained three findings by a standards committee of unsatisfactory conduct.

Among the mitigating factors, Mr Bamford had made significant changes to his practice, in particular engaging a senior lawyer to provide regular professional advice and assistance in the management of his practice.

In relation to the offending itself “we accept that the practitioner was not motivated by self interest; and that he did, albeit belatedly, offer the client independent advice,” the Tribunal said.

“In imposing a censure on Mr Bamford, this Tribunal is expressing on behalf of the public and the legal profession extreme dissatisfaction with your behaviour in failing to observe what should have been seen as a fundamental obligation to comply with practice rules.

“This failure may be seen as an error of judgement but, if so, it is an error that deserves adverse criticism. A censure will remain always a part of your disciplinary record and will hopefully cause you to reflect on your failings and ensure that such failings do not occur again.”

As well as the censure and fine, the Tribunal formalised the mentoring arrangement in place and ordered Mr Bamford to undertake regular advice for two years. It also ordered him to pay a $10,000 contribution towards the standards committee costs and $4,307 Tribunal costs.