Auckland Standards Committee 4 v Anthony Bernard Joseph Morahan

 
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[2015] NZLCDT 29

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

MEMBERS OF TRIBUNAL

Judge BJ Kendall (retired)

Mr W Chapman, Ms C Rowe, and Mr W Smithand Mr I Williams

LCDT 002/15

BETWEEN
Auckland Standards Committee 4
Applicant
and
Anthony Bernard Joseph Morahan
Respondent
counsel

Mr DCS Morris for the Applicant

Ms P Main for the Respondent

Judgment on the laying of charges against a barrister relating to whether a solicitor had been instructed — the charges asserted a breach of r14.4 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (intervention rule) — the barrister claimed there had been a reverse brief — solicitor said the client was introduced to him in an indirect fashion (they never met) but no retainer arrangement was concluded as he consistently required a letter of engagement in the form in his own form and a financial retainer for the himself and counsel before accepting an instruction from a client — the barrister asserted there was a relaxed practice of the Family Court (FC) Bar towards compliance with the Intervention Rule — whether the barrister had a genuine belief that the solicitor was instructed — if so, whether the belief was based on proper and reasonable grounds — whether an alleged “relaxed” approach by the FC Bar to the intervention rule was relevant.

RESERVED DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL CONCERNING CHARGES

Background
1

The practitioner is a barrister. He was asked to represent the client, Mr Toner, in litigation between the client and his wife in the Family Court at Waitakere.

2

The client and the solicitor, Mr Thompson, were not known to each other. However, the practitioner wished to introduce them so that the solicitor could act as his solicitor for the purposes of the instruction.

3

The solicitor says that he was never retained. The practitioner is of the opposite view. We discuss their competing evidence shortly.

4

The practitioner filed pleadings in the Family Court showing the solicitor as instructing him. But the practitioner cited his own PO Box and email detail as the address for service (at least apparently so). 1

5

An issue arose relating to service of certain documents on the client. There was dissension between the two counsel representing the competing parties. Then, the solicitor, Mr Thompson, declined to accept service, saying that he was not the instructing solicitor.

6

A complaint was made. It was said that either the solicitor wrongly refused to accept service or the practitioner wrongly recorded on the pleadings that the solicitor had instructed him and that the practitioner acted in breach of the Intervention Rule.

The Charges
7

There was a finding by the Standards Committee that the solicitor had indeed not been properly retained. As a consequence of that finding, ten charges were laid against the practitioner. Leave was subsequently granted to withdraw charges five, six, nine and ten. There are six charges remaining.

  • (a) Charge one is an allegation of misconduct by wilfully or recklessly acting for a client without an instructing solicitor in breach of Rule 14.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (#x201C;the Rules#X201D;). 2

  • (b) Charge three is an allegation of misconduct by misleading the Court, opposing counsel, and/or the Standards Committee, by asserting in written correspondence and Court documents that Mr Thompson was his instructing solicitor, when the practitioner was aware that Mr Thompson was not in fact his instructing solicitor, or was reckless as to whether or not Mr Thompson was his instructing solicitor.

  • (c) Charges two and four are charges laid as alternatives to charges one and three and allege unsatisfactory conduct by referring to the particulars asserted in respect of those charges. 3

  • (d) Charge seven alleges misconduct in that the practitioner used the name of Mr Thompson on Court documents without his knowledge, consent, or authority.

  • (e) Charge eight alleges in the alternative unsatisfactory conduct on the part of the practitioner and relies on the particulars set out in charge seven.

8

In essence the charges assert a breach of the Intervention Rule 4 which provides that a barrister sole must not accept instructions to act for another person who is not a barrister and solicitor holding a practising certificate.

9

It was common ground at the hearing that the essential questions with respect to all the charges (with the exception of charge numbered seven) included:

  • (a) Did Mr Thompson, as a matter of fact, participate in the litigation as the practitioner's instructing solicitor?

  • (b) If he did not, did the practitioner have a genuine belief that Mr Thompson was so instructed?

  • (c) If so, was the practitioner's belief based on proper and reasonable grounds?

10

Charge seven is an assertion of misconduct in that the solicitor's name was used on documents filed in Court without the solicitor's knowledge, consent or authority. It is not dependent upon a prior finding as to the existence of a retainer from the client and the reasonable knowledge of the practitioner. For the moment, this decision concentrates on the factual matters raised in the last paragraph.

The Evidence
11

The Tribunal received affidavit and viva voce evidence from the solicitor and the practitioner but not from Mr Toner.

12

The solicitor says:

  • (a) At material dates he recognised the obligations upon him according to the Intervention Rule. He asserted that he consistently required certain pre-conditions before accepting an instruction from a client. Those are...

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