Auckland Standards Committee 2 Applicant v Bharat Parshotam

 
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[2016] NZLCDT 15

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Ms S Fitzgerald

Ms F Freeman

Ms C Rowe

Mr T Simmonds

LCDT 004/16

UNDER the Lawyers and Conveyancers Act 2006

IN THE MATTER OF Disciplinary Proceedings under part 7 of the act

BETWEEN
Auckland Standards Committee 2
Applicant
and
Bharat Parshotam
Practitioner
COUNSEL

Ms C Paterson for the Standards Committee

Mr J Billington QC for the Practitioner

Penalty decision following the admission by the practitioner of two charges of negligence or incompetence of such a degree as to reflect on his fitness to practice or as to bring his profession into disrepute — the practitioner had falsely witnessed documents that he had not seen signed by the client — he then falsely certified to LINZ that he had witnessed the signing of loan documents and the authority and instruction forms respectively — in addition, he had acted for multiple parties in transactions in which there was a risk that he might be unable to discharge his obligations to one or more clients — the practitioner had lied to New Zealand Law Society and a colleague in respect of one of the charges and had misled it in respect of the other charge by saying it was a unique error — his disciplinary history included four previous findings of unsatisfactory conduct, one of which related to breaching witnessing provisions and another related to misleading a client — what period of suspension was required.

The issue was what penalty should apply, given that the practitioner had misled the NZLS.

Held: The conduct subject to the charges was “high end negligence”. P's actions did not clearly constitute a wilful or reckless breach of the relevant rules, such as to support a finding of misconduct. However, his errors of judgment in respect of the witnessing of signatures, certifying that witnessing and failing to deal appropriately with a clear conflict of interest were serious and multiple. This was particularly so in falsely certifying to a lender that proper witnessing of documentation had occurred.

There were two separate complaints in which the same pattern of behaviour had occurred, and which undoubtedly brought the profession into disrepute. They were also at a level which reflected on P's fitness to practice.

In terms of mitigating factors, it was accepted that this was not wilful or calculated conduct for personal gain. There was no dishonest purpose. References filed in support of P spoke highly of the lawyer, his position in the community, and his clear devotion to his work. Until 2015 P had insufficient legal support for a busy practice. P had taken steps to reorganise his practice in a manner which would mean he was less stressed and could share the load with new partners.

A further mitigating feature which was put forward was P's acceptance of his negligence and cooperation from relatively early in the proceedings. This was somewhat difficult to attribute significant credit, when it followed immediately upon the seriously aggravating feature of false denials.

P was also to be given credit for addressing his responses by seeking medical help and counselling support.

The aggravating features included P's four previous findings of unsatisfactory conduct against him between March 2010 and November 2013. Four findings against such an experienced practitioner was of concern in itself but two were of particular significance. One in September 2012 had similarities to the current offending. P witnessed both the donor's and attorney's signatures and was not an independent witness and thus breached the Protection of Personal and Property Rights Act 1988.

The second finding of particular concern was in May 2013 where P was found to have misled his client by representing that proceedings had been filed when they had not. He was censured and fined. This latter dishonesty was of concern because P did not appear to have learned from this or have taken advantage of his relatively lenient treatment.

When he reassured Mr O about having witnessed Mrs R's signature, P put his client in the invidious position of having to defend herself and provide proof of the forgery. Not only was this a complete breach of trust towards his client but it was also an utterly unprofessional and seriously improper way to deal with a colleague, particularly one with whom he had enjoyed a longstanding relationship. This action could well have formed the subject of a separate charge.

The delay in forwarding files of both complainants to their new solicitors was an aggravating feature. P had to have known that both clients had a valid basis for complaint and withholding information from them was an aggravating feature.

Misleading the NZLS and its Standards Committee was the most serious of the aggravating features. Practitioners were expected to treat their professional body, particularly its disciplinary arm, with the utmost good faith and openness ( Canterbury Westland Standards Committee v Horsley). Once again, this could also have been the subject of a separate charge and it would be noted that in similar circumstances, in the one case where this had occurred, that charge was one of misconduct and carried a penalty of three years suspension ( Horsley).

Personal circumstances and laudatory references of the practitioner carried much less weight in the disciplinary penalty process because of the need to focus on the protection of the public and the protection of the reputation of the profession as a whole. This practitioner's errors showed a disturbing pattern. He had also been shown to have lied in his professional role to colleagues, clients and the disciplinary body of his profession. These actions raised clear questions about his fitness to practice.

One of the purposes of suspension or strike-off was to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, could be trusted to the ends of the earth; a “profession's most valuable asset is its collective reputation and the confidence which that inspires” ( Bolton v Law Society).

The higher courts had supported the principle that the manner in which a lawyer approached the disciplinary proceedings was relevant in making an overall assessment of fitness ( Hart v Auckland Standards Committee 1 of the New Zealand Law Society and Daniels v Complaints Committee 2 of the Wellington District Law Society).

Taking account of the serious aggravating factors in respect of P, a suspension of nine months was warranted

DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL ON PENALTY
Introduction
1

This is a case where the Tribunal is unanimous that a period of suspension is required but where it has struggled to assess the appropriate period of suspension to impose on Mr Parshotam for his admitted negligence.

2

The conduct itself can be assessed and compared with penalties imposed on other practitioners. The difficulty arises because there is a very serious aggravating feature (discussed further below) which is not itself the subject of a charge.

3

In precisely the same circumstances, namely the practitioner lying to the Standards Committee when accused, another practitioner, Mr Horsley, 1 faced an additional charge of misconduct, which he admitted. That led to a three year suspension, as compared with the two year suspension for the originating (and itself very serious) conduct.

4

The Tribunal is concerned not to accord unsustainable weight to the aggravating feature. However, we would not wish to see the penalty process in disciplinary proceedings, with its focus on public protection rather than punishment, assuming the more mathematical and precise features of criminal sentencing.

Background
5

Mr Parshotam, a very experienced and busy practitioner, admitted two charges of negligence or incompetence of such a degree as to reflect on his fitness to practice or as to bring his profession into disrepute. 2

6

The charges originally pleaded misconduct, effectively based on reckless contravention of the Rules of Professional Conduct and the Land Transfer Act 1952. 3

7

After brief evidence from Mr Parshotam, and submissions for the Standards Committee and for the practitioner (who had previously negotiated an agreed approach), the Tribunal granted leave to withdraw the misconduct charges. We accepted the Standards Committee's submission that in these circumstances “high end” negligence was a proper level of culpability.

Summary of the two complaints
8

Two complaints by separate clients, Mr and Mrs P and Mrs R, gave rise to the charges. They shared the common element that Mr Parshotam had falsely witnessed documents he had not seen signed by the client. He then falsely certified to LINZ 4 that he had witnessed the signing of loan documents and authority and instruction (“A and I”) forms respectively.

9

In addition, in relation to the P complaint, Mr Parshotam acted for multiple parties in transactions in which there was a risk that he may be unable to discharge his obligations to one or more clients. The full charges as originally pleaded and supporting particulars are annexed to this decision as Appendix I.

Complaint by Mrs R
10

In the R complaint four documents were falsely witnessed by the practitioner. The consequences of Mr Parshotam failing to witness Mrs R's signature were very serious. Mr R had forged Mrs R's signature on this occasion 5 and she knew nothing of the loan that was secured against...

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