Auckland Standards Committee 4 v Anthony Bernard Joseph Morahan
| Jurisdiction | New Zealand |
| Judge | Judge BJ Kendall (retired),Mr W Chapman,Ms C Rowe,Mr W Smith,Mr I Williams |
| Judgment Date | 21 August 2015 |
| Neutral Citation | [2015] NZLCDT 29 |
| Docket Number | LCDT 002/15 |
| Court | Lawyers and Conveyancers’ Disciplinary Tribunal |
| Date | 21 August 2015 |
[2015] NZLCDT 29
MEMBERS OF TRIBUNAL
Judge BJ Kendall (retired)
Mr W Chapman, Ms C Rowe, and Mr W Smithand Mr I Williams
LCDT 002/15
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
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.
Mr DCS Morris for the Applicant
Ms P Main for the Respondent
RESERVED DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL CONCERNING CHARGES
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.
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.
The solicitor says that he was never retained. The practitioner is of the opposite view. We discuss their competing evidence shortly.
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
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.
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.
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.
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(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
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(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.
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(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
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(d) Charge seven alleges misconduct in that the practitioner used the name of Mr Thompson on Court documents without his knowledge, consent, or authority.
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(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.
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.
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:
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(a) Did Mr Thompson, as a matter of fact, participate in the litigation as the practitioner's instructing solicitor?
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(b) If he did not, did the practitioner have a genuine belief that Mr Thompson was so instructed?
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(c) If so, was the practitioner's belief based on proper and reasonable grounds?
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 Tribunal received affidavit and viva voce evidence from the solicitor and the practitioner but not from Mr Toner.
The solicitor says:
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(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:
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(i) a description of the legal problem in the client's words together with a full background;
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(ii) photo identification;
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(iii) a Letter of Engagement in the form required by the solicitor;
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(iv) a financial retainer for the solicitor and counsel.
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(b) The client was introduced to him in an indirect fashion (they never met) but no retainer arrangement was concluded.
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.
The practitioner told the Tribunal that:
#x201C; You might (possibly) get a file from John Appleby at Ladbrook Law relating to Michael Toner …. I explained that you would be my instructing solicitor and would handle any conveyancing … The file may come to me direct, in which case I will let you know. If it arrives at your office, can you let me know?”.
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(a) He wrote to the solicitor on 20 April 2011. He signalled that a file would likely arrive from the client's former solicitor. He undertook to apprise the solicitor if the file arrived at his office.
The practitioner then prepared his own form of Letter of Engagement which was signed by the client apparently on 27 April 2011. This was retained in the practitioner's personal file and was not provided to the solicitor (though it ostensibly served to bind the solicitor as well).
It was common ground that the solicitor and the practitioner met informally when the practitioner would call at the solicitor's office. They would discuss legal matters of common interest. There were at least several meetings. The practitioner and the solicitor were at odds as to the number of meetings and whether they in fact discussed the instruction in question. We do not have to resolve their differences for present purposes as our finding is that it is not directly pertinent to the charges, for reasons which will be developed.
On 30 October 2012 the practitioner wrote to the solicitor with an email indicating that the litigation was to be extended from the Family Court to the High Court. He asked whether the solicitor was #x201C; happy to continue as instructing solicitor for the High Court proceedings#X201D;. The solicitor replied by email on the same day saying that he could not recall this instruction and that he had no file nor records. He said:
#x201C;If it is going to the High Court and there needs to be an instructing solicitor that will be fine providing he signs a Letter of Engagement, a retainer is given for you and me and kept topped up and I am kept in the loop with documents and involvement. Our duty is firstly to the court and we must observe this carefully and be on top of it. Sorry to sound pedantic but as lawyers we have to be thorough and careful — too many complaints and problems now for lawyers under the new regime.
Let me know what you think and the way forward#x201D;. 6
The practitioner responded the same day apologising #x201C; for not keeping [the solicitor] in the loop#X201D;. There was no reference to the existence of the barrister's terms of Letter of Engagement. Rather, he said, #x201C; I have been trying to get original signed instructions through the ordinary mail. They seem to keep going astray. Do you wish to send Michael Toner, via me, a letter of engagement?”. The practitioner expressly acknowledged that it was appropriate to have a retainer contract in place before proceeding in the High Court, seemingly conceding the necessity for this arrangement also in...
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