Auckland Standards Committee 1 v Mary Frances Hackshaw

 
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[2016] NZLCDT 18

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge BJ Kendall (retired)

MEMBERS OF TRIBUNAL

Ms F Freeman

Mr C Lucas

Ms S Sage

Mr W Smith

LCDT 011/16

BETWEEN
Auckland Standards Committee 1
Applicant
and
Mary Frances Hackshaw
Respondent
COUNSEL

Ms C Paterson for the Applicant

No appearance of the Respondent

Decision on liability and penalty for a charge of misconduct within the meaning of s7(1)(a)(1) Lawyers and Conveyancers Act 2006 (LCA) (conduct of the lawyer‖ when‖ providing regulated services‖ that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable) — charge arose out of the respondent's administration of a legacy — it was alleged that she misappropriated $10,000 of funds held on trust — hearing proceeded by way of formal proof — whether the charge had been proved — whether the respondent should be struck off.

The issues were: whether the charge had been proved; and whether the respondent should be struck off.

Held: As the respondent had not provided an explanation for the withdrawals and had not responded to enquiries from the Complaints Service the only available inference was that the respondent had deliberately misappropriated the sums for her own purposes.

The respondent's deliberate conduct in misappropriating the funds met the threshold for misconduct in that it would be regarded by lawyers of good standing to be “disgraceful or dishonourable”. Accordingly, the charge was proved.

The solicitor's trust account had been long regarded as sacrosanct such that dealing with its funds for personal use was considered to be at the highest level of professional misconduct and culpability (Bolton v Law Society). Strike off was the only response to dishonesty involving the misuse of funds held on behalf of clients.

The Tribunal had unanimously agreed that an order striking the respondent off the roll should be made.

An order for $10,000.00 compensation payable to the estate, equivalent to the amount of the legacy which had been misappropriated, was appropriate in the circumstances.

The respondent was to pay costs of $10,518 to the Law Society and as well refund to the Society the costs of the Tribunal in the amount of 1,516.

REASONS FOR THE DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL CONCERNING CHARGE AND PENALTY
1

The respondent former practitioner is charged with misconduct within the meaning of s 7(1)(a)(1) of the Lawyers and Conveyancers Act 2006 (ACT).

2

The charge arises out of the respondent's administration of a legacy left by the late JFMcC where it is alleged that she misappropriated $10,000.00 and accumulated funds held on trust for the benefit of a son of the deceased and or failed to account for those funds, and dealt with them contrary to the terms of the will of JFMcC.

3

The respondent is charged in the alternative with negligence or incompetence and with a further alternative of unsatisfactory conduct.

4

The respondent has not engaged with the Lawyers Complaints Service during its investigation. She has not filed a response to the charge. She is understood to be in living in Australia and has not responded to correspondence sent to her at the Australian addresses she had given.

5

The hearing before the Tribunal has proceeded by way of formal proof. The Tribunal has been mindful of its duty to ensure a fair hearing in the absence of the respondent. 1

6

The respondent was engaged to administer the estate of JFMcC in 2002. The will of the deceased included a provision...

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