Auckland Standards Committee 5 v Robert John Moody
 NZLCDT 23
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
MEMBERS OF TRIBUNAL
Judge D F ClarksonP
Mr J Bishop
Ms C Rowe
Ms S Sages JJ
Mr B Stanaway
IN THE MATTER of the Lawyers and Conveyancers Act 2006
Ms Paterson (February) and Mr Hodge (July) for the Standards Committee
Mr Godinet for the Practitioner
Application for a permanent stay of proceedings on the grounds of ill health of the practitioner — the practitioner was charged in June 2015 with serious failures in his charging practices, including overcharging, to the extent that his conduct was alleged to amount to misconduct, (pleaded with lesser alternative charges) — the medical evidence was that the practitioner was suffering from frontotemporal dementia and would not be able to recall detail as to what he had in his mind at the time he invoiced his clients and that he could not make suggestions to his lawyer about how to deal with the allegations — duty of practitioners where they noticed a gradual deterioration in a colleague — whether the practitioner's condition meant that he would be denied natural justice under s236 Lawyers and Conveyancers Act 2006 (rules of natural justice) if a stay was not granted — whether suppression should be granted in regard to details of the practitioner's illness.
Held: The issues were: whether the practitioner's condition meant that he would be denied natural justice if a stay was not granted; and whether suppression should be granted in regard to details of the practitioner's illness.
In Re A charges were stayed by the Medical Council where a doctor was found to have suffered from “a chronic and progressive brain syndrome of such severity as to limit his ability to communicate adequately with counsel”. This authority would seem to be on all fours with the present situation.
It was clear from the uncontroverted and extensive evidence that the practitioner would simply not be able to receive a fair hearing in a manner in which he was a full participant. Section 236 Lawyers and Conveyancers Act 2006 required that the Tribunal observe the rules of natural justice. It would not be possible to do this given the practitioner's current cognitive state.
The charges were serious and there was a public interest in the resolution of charges against practitioners. The fullest evidence was required for a robust testing of this type of application. A high threshold was required before such an application could be granted.
These proceedings were not primarily for restitution purposes. Complainants would often have civil remedies, separate from the disciplinary process. The primary purpose of proceedings under the LCA were for protection of the public and maintenance of the public's confidence in the legal profession.
Public protection had been achieved by the suspension of the practitioner from practice and his subsequent acknowledgement that he would not seek a further practising certificate. It would be a condition of any stay that should the practitioner seek to obtain a practising certificate in the future the charges would have to be revived and heard.
The practitioner's deterioration had been a gradual one, although obviously more apparent in recent years. It would be disappointing if colleagues had notproactively attempted to persuade him to cease practice at an earlier time. Given the purposes of the LCA to protect consumers of legal services, and maintain public confidence in the provision of such services, the profession was encouraged to be attuned to such matters in a general sense in the future.
It was agreed at the conclusion of the hearing that in order to enunciate proper reasons for the decision and provide guidance for future similar situations, it would be proper to record the nature of the practitioner's illness and the evidence supporting his lack of capacity. However, interim suppression remained in relation to matters which were of a more personal or personality related nature. These more private aspects of the illness were not requiredto be published in order to provide a coherent account of the situation.
Application for a stay was granted with the condition set out above.
The Standards Committee incurred significant costs in this matter. There had been a number of delays occasioned by the practitioner's conduct and it had been a novel point which required considerable research on the part of the Standards Committee. A contribution to costs of two thirds of the $36,634.23 wassa proper contribution
This decision is the first in which the Tribunal has been asked to consider a permanent stay of proceedings on the grounds of ill health of the practitioner. The practitioner was charged in June 2015 with serious failures in his charging practices, including overcharging, to the extent that his conduct was alleged to amount to misconduct, (pleaded with lesser alternative charges). This allegedly covered a period from 2008to 2013.
Although Mr Moody initially represented himself, his family was concerned as to his capacity to do so and Mr Godinet stepped in to assist. Counsel then experienced significant difficulties in obtaining clear instructions from the practitioner and finally, an assessment of Mr Moody by a psychogeriatrician, Dr Jane Casey, was undertaken.
In the interim, the Tribunal had become so concerned about Mr Moody's functioning and the risk posed to clients, as to initiate a hearing as to interim suspension. An order was made suspending Mr Moody from practice on 17 November 2015.
On 17 February 2016 an application was filed seeking a permanent stay of the proceedings because the practitioner suffered from dementia and therefore was said to lack the capacity to instruct and retain counsel and fully participate in the proceedings. The application relied on the evidence of Dr Casey who was available for the hearing on 22 February 2016.
Having heard Dr Casey's evidence, and while accepting the high calibre of that evidence, the Tribunal was concerned about making such a significant decision on the evidence of only one doctor, who had been retained by the practitioner.
The hearing was adjourned to obtain a further report from a neurologist, Dr Ernest Willoughby, who had seen Mr Moody on a number of occasions, dating back to 2010.
The stay hearing resumed on 21 July 2016 when Dr Willoughby was also available for cross-examination.
Following his evidence, the Standards Committee did not oppose the stay.
We are grateful to Mr Hodge and Ms Paterson for their detailed and fair submissions filed on behalf of the Standards Committee which have greatly assisted the Tribunal in conducting the necessary balancing exercise in this difficult matter.
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