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.

The issues were: whether M had a genuine belief that T was instructed; if so, whether the belief was based on proper and reasonable grounds; whether analleged “relaxed” approach by the FC Bar to the intervention rule was relevant

Held:T was a careful and prudent practitioner who was aware of his obligations and insisted on certain minimum requirements from a client in consequence. He was not prepared to act as a mere ‘letter box’ and properly said that he would be bound to receive and review correspondence and documents. He wanted to be in a position to evaluate and have oversight over the conduct of the case by the practitioner.

There was nothing magic in the concept of a Reverse Brief in the sense that the expression connoted only the manner of introduction of a client to a solicitor. It did not alter the elemental fact that no contract of retainer could be concluded between a client and solicitor until they were ad idem on itselements. This solicitor had made it clear what he always required, in situations such as this. M could not sensibly contend that a contract of retainer had been concluded.

It would have been reasonably evident to M that there had been no meeting of the minds about the retainer from the perspective of the solicitor. There was no reasonable argument that T had been retained by the client. Nor was M the agent for the client for the purpose of concluding the terms of the retainer. M served to introduce the two parties only. It followed he could not bind T in any unilateral way as for example, in terms of his own Letter of Engagement.

There was no reasonable ground for M to believe that there was a retainer in place. He was well aware of his obligations in terms of the Intervention Rule and acknowledged these in a general way. With a client at a distance, he would have understood the need for there to have been a clear communication between the solicitor and client and a good understanding of their respective obligations.

The reasoning given for the alleged relaxed approach by the FC to the intervention rule was that the typical work of a FC barrister resulted in a low fee charged (indeed, the practitioner said that a great deal of his work was pro bono) and there was a desire not to further impose on the client the costsof solicitors' fees. Such reasoning might have an initial attraction as being laudable, but the Intervention Rule preserved the distinction between practising as a barrister sole and a barrister and solicitor. Inter alia, it served to ensure the independence of the barrister, provided protection for the client, and allowed the solicitor to maintain oversight of the litigation. The Intervention Rule was part of statue law and was well known to barristers and solicitors. It was not capable of amendment or of being ignored by reason of some informal convention. M's attitude, as to the merit of a relaxed approachto the Intervention Rule, led him to turn a blind eye to the requirements he otherwise acknowledged.

The charges of misconduct were made out. M was guilty of the charges. He was also guilty of a charge of misconduct within the meaning of s7 Lawyers and Conveyancers Act 2006 (Misconduct defined in relation to lawyer) in that he used T's name on documents filed in Court without the knowledge, consent or authority of T.

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 seen from exhibit GWT 10 5 as including at least:

    • (i) a description of the legal problem in the client's words together with a full background;

    • (ii) photo identification;

    • (iii) a Letter of Engagement in the form required by the solicitor;

    • (iv) a financial retainer for the solicitor and counsel.

  • (b) The client was introduced to him in an indirect fashion (they never met) but no retainer arrangement was concluded.

13

The solicitor impressed as a careful and prudent practitioner who was quite aware of his obligations and insisting on certain minimum requirements from a client in consequence. The solicitor was not prepared to act as a mere #x2018;letter box#x2019; and (in our view properly) said that he would be bound to receive and review correspondence and documents. He wanted to be in a position to evaluate and have oversight over the conduct of the case by the practitioner.

14

The practitioner told the Tribunal that:

  • (a)...

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