Atareta Poananga

• Jurisdiction: New Zealand
• Judge: D F Clarkson,Mr W Chapman,Ms S Gill,Mr M Gough,Mr C Rickit
• Judgment Date: 30 April 2012
• Neutral Citation: [2012] NZLCDT 12
• Docket Number: LCDT 002/12
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 30 April 2012

In the Matter of the Lawyers and Conveyancers Act 2006

and

In the Matter of Atareta Poananga, of Gisborne, Barrister

[2012] NZLCDT 12

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Mr W Chapman

Ms S Gill

Mr M Gough

Mr C Rickit

LCDT 002/12

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

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.

REPRESENTATION

Ms G Phipps for the Standards Committee

Mr Y Singh for the Practitioner

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.

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.

• 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 appropriately verified. They also provide a check on the veracity of information given and consequently the appropriate use of tax-payer funds.

  Instructions

• 16. At all material times, the practitioner represented that she had instructions to act for Mr [A] and Mr [B]. This representation was made in an affidavit (“the representation affidavit”) prepared by the practitioner dated 6 March 2010.

• 17. This was also represented in an email dated 6 March 2010 in which the practitioner states “This took a long time to get the signatures”, referring to the representation affidavit.

Charge 1, Particular 1 — Duty of Fidelity to the Court — [Mr A]

• 18. On or about 22 March 2101 (sic) the practitioner prepared and filed a memorandum dated 22 March 2010 in which it was stated:

  “Mr [A] gave confirmation to me that I act for him in the [WAI(1)] claim on 10 February 2010 at Whangarei.”

• 19. The practitioner did not, as represented, meet in Whangarei with Mr [A] but says he did express a wish to her that she represent him.

Charge 1, Particular 2

• 20. On or around 9 August 2010, the practitioner prepared and filed a document titled “Memorandum of Counsel”. This document was exactly the same as the representation affidavit save for the intituling being changed to read “Memorandum of Counsel Concerning Representation of [the WAI(1) claim] dated 9 August 2010”.

• 21. The memorandum contains what is represented to be the signature of Mr [A]. The practitioner admits that:

  • 21.1. at that time she was not authorised to represent Mr [A]; and

  • 21.2. she had not met with Mr [A]; and

  • 21.3. it was the practitioner's personal assistant who placed Mr [A]'s electronic signature where Mr [A] should have placed his signature The practitioner says this was done despite her telling her personal assistant not to.

  Charge 2 — Duty of Fidelity to the Court-Mr [B]

• 22. The practitioner acknowledges that she placed in her own hand Mr [B]'s signature where Mr [B] should have placed his signature on his legal aid application dated 20 August 2008 and that she subsequently prepared and filed an affidavit dated 13 November 2009 containing a statement from Mr [B] his application “signed by myself”, knowing that this statement was untrue.

  Charge 3 — Forgery

• 23. In respect of the documents that are the subject of the charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal, it was the duty of the practitioner to attend to the execution of the Authority to Act documents. The practitioner placed in her own hand the signature of the persons named below on the following Authority to Act documents:

  • 23.1 [C] dated 28 July 2009 (sic) (Charge 3, Particular 1).

  • 23.2 [D] dated 28 August 2008 (Charge 3, Particular 18).

  • 23.3 [E] dated 6 October 2010 (Charge 3, Particular 19).

  Charge 3 — Legal Aid Applications

• 24. The practitioner submitted the following legal aid applications to the Legal Aid...