Atareta Poananga

 
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[2012] NZLCDT 12

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Mr W Chapman

Ms S Gill

Mr M Gough

Mr C Rickit

LCDT 002/12

In the Matter of the Lawyers and Conveyancers Act 2006

and

In the Matter of Atareta Poananga, of Gisborne, Barrister

REPRESENTATION

Ms G Phipps for the Standards Committee

Mr Y Singh for the Practitioner

Application pursuant to s242(1)(c) Lawyers and Conveyancers Act 2006 (Disciplinary Tribunal to order lawyer's name to be struck off the roll where charge proved) to strike off practitioner's name from the roll of Barristers and Solicitors for professional misconduct including forging client's signatures on legal aid applications, and falsifying attestations and statutory declarations to obtain funding while acting for clients on Treaty of Waitangi claims — practitioner admitted charges against her and accepted agreed statement of facts in disciplinary proceedings, but pleaded lesser alternatives — submitted medical certificate which had some implications on the offending — later revealed that practitioner had attempted to skew results of neuropsychological assessment tests to assist disciplinary proceedings — whether the practitioner's conduct required that she be struck off.

The issue was: whether P should be struck off the roll of Barristers and Solicitors.

Held: P was not unique in being a providing regulated services under pressure or providing services to various Mäori clients with whom common whakapapa was shared. There were no unique circumstances in the dealings of P that gave her no alternative other than to commit acts of forgery. It was not within the power of P's clients to legitimise forgery and false attestation simply by saying that they were happy for her to sign for them. Although a client might find it acceptable for a lawyer to forge their signature on a legal aid form, this was not a mitigating feature. It was not for clients to tolerate laxness or deceptive behaviour when public money was being dispensed. There were stringent qualifications around the granting of taxpayer funded legal services.

Although the primary motivation of P in doing the acts was to assist her clients, she was still in denial or minimising the level of dishonesty of her behaviour which ultimately led to her financial gain (through the payment of her fees). While appearing to acknowledge responsibility by not defending the proceedings, P at the same time, embarked on a pattern of deceptive behaviour (during the neuropsychological tests) which reflected the behaviour that was the subject matter of the charges themselves.

The lack of integrity demonstrated by P's misconduct in this matter, particularly when accompanied by failure to recognise it as such, meant that strike off was the only proper response in order to protect the public and the reputation of the profession. P's behaviour around the medical assessment did not reflect well on her fitness to be a legal practitioner.

P was not a fit and proper person to be a practitioner; P struck off pursuant to s242(1)(c) LCA.

REASONS FOR DECISION AS TO STRIKE OFF
Introduction
1

Ms Poananga (“the Practitioner”) has admitted four charges relating to her conduct as a Barrister. The charges were each laid in the alternative and it is not entirely clear which alternatives she acknowledged. However she was absolutely clear at the penalty hearing that the charges were accepted and indeed accepted an Agreed Statement of Facts the day before the hearing.

2

For the sake of clarity, the Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”) finds that the evidence establishes professional misconduct rather than the lesser alternatives pleaded.

Charges
3

The charges are as follows 1:

CHARGE 1: Duty of Fidelity to the Court — [Mr A]

The National Standards Committee charges Atareta Poananga, Barrister, of Gisborne, with misconduct or ALTERNATIVELY unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct or ALTERNATIVELY negligence or incompetence in her professional capacity in that negligence or incompetence has been of such a degree or so frequent as to reflect on her fitness to practise or as to bring her profession into disrepute.

CHARGE 2: Duty of Fidelity to the Court — Mr [B]

The National Standards Committee charges Atareta Poananga, Barrister, of Gisborne, with misconduct or ALTERNATIVELY unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct or ALTERNATIVELY negligence or incompetence in her professional capacity in that negligence or incompetence has been of such a degree or so frequent as to reflect on her fitness to practise or as to bring her profession into disrepute.

CHARGE 3: Forgery

The National Standards Committee charges Atareta Poananga, Barrister, of Gisborne, with misconduct or ALTERNATIVELY unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct in her professional capacity in

that she prepared and submitted legal aid applications for claimants before the Waitangi Tribunal in circumstances where she forged the signature of each claimant and/or witnessed those forged signatures.
CHARGE 4: False Declaration

The National Standards Committee charges Atareta Poananga, Barrister, of Gisborne, with misconduct or ALTERNATIVELY unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct or ALTERNATIVELY negligence or incompetence in her professional capacity in that negligence or incompetence has been of such a degree or so frequent as to reflect on her fitness to practise or as to bring her profession into disrepute.

CHARGE 1: Duty of Fidelity to the Court — [Mr A]
CHARGE 2: Duty of Fidelity to the Court — Mr [B]
CHARGE 3: Forgery
CHARGE 4: False Declaration
4

The full particulars in respect of each charge are lengthy and the full text of charges, together with particulars, is appended as a Schedule to this decision.

5

The Agreed Statement of Facts are as follows 2:

1
    Atareta Poananga (“the practitioner”) is a barrister, practising in Gisborne. Past Practice 2. At all material times the practitioner was based in Gisborne and was contracted to work for [Law] Chambers, a chambers situated in Auckland. 3. The barristers in [Law] Chambers specialise in carrying out Treaty of Waitangi work. 4. The practitioner had instructions to act on a number of Treaty of Waitangi claims including [claim X]. 5. At all material times, a senior practitioner in the chambers was approved as lead provider for legal aid, the practitioner was a secondary provider. 6. As a secondary provider, the expectation was that the practitioner carried out the day-to-day work under the supervision of a lead provider. 7. A copy of the practitioner's curriculum vitae is numbered 42 and is on page 139 of the Bundle of Documents. 2 Agreed Statement of Facts Claims 8. On 13 December 2006, by amendment to the Treaty of Waitangi Act, a limitation was imposed in respect of the filing of historical Treaty claims. In effect this meant that after 1 September 2008, no Maori might submit a new claim to the Waitangi Tribunal. 9. This deadline created a significant workload for practitioners working in this area in order to ensure that claimants' claims were filed in time. 10. In the chambers in which the practitioner practised, they went from 80 to 350 active claims in the 2008 year. 11. As part of arranging instructions and filing a claim, documents were signed by claimants, including: 11.1. an Authority to Act; and 11.2. a Legal Aid application. Completion of Legal Aid applications 12. It was the usual practice in the chambers for the secondary provider to arrange to have the legal aid form filled out by the claimant. The secondary provider (or another suitably qualified person) then attested and dated the signature of the claimant after he or she (the claimant) had signed. They did so as a witness to the claimant's signature. Thereafter the application was taken to the lead provider who signed as the lead provider. 13. The form contains a declaration that must be taken by a solicitor of the High Court or Justice of the Peace. The declaration requires the claimant to declare that: “The statements and representations [they] have made and the information [they] have given in this application are true and complete to the best of [their] knowledge”. 14. The form also contains an acknowledgement by each applicant that states: “I make this application as a member of the Waitangi Tribunal claimant group detailed in this application. If I knowingly make any false statement or representations I commit an offence under section 110 of the Legal Services Act 2000. I have received a completed copy of this application form from my lawyer.” 15. The Ministry (and former LSA) regards these declarations as an important part of ensuring that Waitangi claims are...

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