New Zealand Law Society - Lawyers Complaints Service: Fine follows sentencing notes

Lawyers Complaints Service: Fine follows sentencing notes

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A lawyer, D, has been censured and fined $15,000 by a lawyers standards committee for his conduct around taking a retraction statement from a complainant. This is the maximum fine a standards committee can make.

The complainant had alleged she had been sexually abused by her father over a period of some five and a half to six years, starting when she was 10 or 11.

The standards committee initiated an own motion investigation into D’s conduct following receipt from the Crown Solicitor of a copy of the sentencing notes of the judge in a District Court trial.

In those notes, the judge said that D’s behaviour “fell below the standard required of a barrister and solicitor of the High Court”.

D advised that he received a telephone call from a Mr A, who was a client for whom he provided commercial advice. Mr A was the brother of the accused, Mr B, and the uncle of the complainant. D also advised that he had previously acted for the accused.

Mr A advised D that the complainant wished to retract the allegations against her father and asked him to assist her to make a statement to that effect. Then D received a call from Mr A to say he wanted to bring the complainant in to make her statement. They arrived, accompanied by the complainant’s mother.

The complainant confirmed she wished to retract the allegation made against her father. D said he asked her if she had spoken to the police about retracting her allegations, and she responded that she had, but the police would not listen to her.

Possible repercussions

D said he warned the complainant that there could be repercussions. He then prepared a handwritten statement in which she said she did not wish to proceed with the allegations against her father, which she then signed. D witnessed her signature.

At all times Mr A and the accused’s wife (the complainant’s mother) remained in D’s office with the complainant.

After they had all departed, D “reflected on the wisdom of having [Mr A] and [the complainant’s mother] present at the interview so [he] arranged with the complainant to see her the next day and told her why”.

D then presented her with a copy of the retraction now typed up with an amendment to make it clear that she was saying that she had not told the police the truth.

“I pointed the change out to her and she said she understood and she re-signed the retraction,” D said. “I told her that I would be sending the retraction to her father’s solicitor and that he would probably use it in the trial if the police looked to proceed. She said that was o.k. (sic)”

The statement was provided to the accused’s counsel and D was required to give evidence to introduce it into court.

The accused was ultimately found guilty and sentenced to a term of imprisonment.

Committee findings

The committee found that D’s conduct had been unsatisfactory, and that he had had breached rules 5, 5.3 and 6 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. These rules relate to providing independent judgement and advice, and not acting where there is a conflict of interest.

“It must have occurred to [D] that [the complainant] simply wishing to retract would not be a persuasive basis for the prosecution to end,” the committee said. “If she admitted that she had, in effect, lied to the police, this would undermine her credibility to an extent that might cause the prosecution to offer no evidence.

“It would, however, expose this young woman to charges of attempting to pervert the course of justice or perjury. It would have a significant impact upon her community status as a reliable person. It might well seriously impact upon her personal well-being.”

The committee also considered that D should have declined to act for the complainant. “Given his previous dealings with the accused … and ongoing dealings with the accused’s brother [Mr A], [D] was not able to offer [the complainant] independent advice free from compromising loyalties.”

D’s failure to appreciate that he was providing regulated services, and that he was not a suitable person to prepare and witness the “retraction” document “displays a serious lack of process or judgement,” the committee said.

As well as the censure and fine, the committee ordered both publication of the facts and of D’s name, and that he pay $1,500 costs.

On review

D sought a review by the Legal Complaints Review Officer (LCRO), particularly with regard to the level of fine and the order for publication.

The LCRO confirmed the standards committee determination on the censure, $15,000 fine, costs order and publication of the anonymised facts.

However it reversed the order for publication of D’s name. The LCRO said that in this unusual case neither the public interest nor the need for protection of the public was high. The LCRO also referred to negative effects of D’s name publication on other people and organisations.

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