Auckland Standards Committee No. 5 v Heval Hylan
 NZLCDT 31
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Judge D F Clarkson
MEMBERS OF TRIBUNAL
Mr A Lamont
Mr C Rickit
Mr P Shaw
Mr S Walker
In the Matter of the Lawyers and Conveyancers Act 2006
Mr C Morris for Standards Committee
Mr G Jenkin for the Practitioner
HEARING at Auckland
Penalty decision following a finding of misconduct against the practitioner — certificated a separation agreement knowing that contents of the agreement were false — had certified document when was under considerable personal pressure and inface of pressure from his client who was overwrought — no evidence that had done so for personal gain — character evidenceas to his considerable pro bono work and suggesting this had been a one — off lapse — however had conducted his defence in substantial hearing in a way that caused concerns about his probity and integrity and had inflated the costs to the Standards Committee — what penalty should be imposed.
The issue was what penalty should be imposed.
Held: The predominant purpose of sanctions in disciplinary proceedings relate to protection of the public rather than a punitive response to the practitioner. As stated by the Committee, H's obligation, based on his obligation to uphold and maintain the law, was to refuse to participate in giving the document its authenticity.
It was relevant that there had never been any complaint made by the client herself.
On an overall assessment of the offending, and of H, having regard to all the matters, strike-off was not warranted. However the conduct was so serious that it had to be reflected in an order suspending H.
While there were serious concerns about the manner in which H conducted himself in the substantive hearing, he had instructed fresh counsel and appeared to have adopted a more responsible approach at the penalty hearing. However account was taken of the conduct of the substantive hearing because it was at odds with H's initial openness in his first letter to the New Zealand Law Society. The unreliable impression created at the substantive hearing was also completely at odds with the references that had been provided on H's behalf by colleagues of considerable repute.
H did not pose a risk to the public and there was no element of dishonesty in the sense of personal gain, or more than a lapse in judgment when pressed by an overwrought client. He would need to learn to withstand the pleas of clients in upholding his own and his profession's ethical standards in future.
H's limited financial means and his inability to earn during a period of suspension were relevant to a costs award. However the manner of his defence did inflate the Standards Committee's costs.
Suspension of nine months, payment of $24,000 in costs to Committee and full costs to Law Society.
DECISION OF NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL (ON PENALTY)
This is a decision relating to the penalty to be imposed following a finding of misconduct against the practitioner, in a decision of the Tribunal released 31 January 2014.
The Tribunal, which considered the substantive charge, was chaired by Mr D Mackenzie. Unfortunately Mr Mackenzie retired from office on 31 January thus it was necessary for the penalty hearing Tribunal to be chaired by Judge D F Clarkson. We note there was also a change in counsel representing the practitioner at the penalty hearing.
The full background to this matter is set out in the Tribunal's decision of 31 January 2014. In particular the facts supporting the finding of misconduct are summarised at paragraph  of the decision as follows:
“The misconduct charge arose from the allegation made against Mr Hylan that at the time he certificated the (separation) agreement he knew:
(a) The contents of the agreement were false, in that contrary to what the agreement said the parties (Ms S and her husband) were not separated and were jointly caring for their children;
(b) Ms S was being forced to sign the agreement by Mr S; and
(c) The agreement was needed in order to support a Visa application to Immigration New Zealand (“INZ”) for a person said to be Mr S's “girlfriend”.”
The Tribunal found that the conduct represented:
“… A significant departure from accepted standards. And such as would, pursuant to s.7(1)(a)(i) of the Lawyers and Conveyancers Act 2006 (“the Act”)
… would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable.”
Furthermore the Tribunal found that the seriousness of the conduct itself was aggravated by the manner in which the charge had been defended. At paragraph the Tribunal recorded that this had included “… implausible claims and, at best, significant faulty recall …” and that this did not reflect well on Mr Hylan “… and compounds the issue of his lack of probity and integrity demonstrated by his conduct in signing the agreement.”
The Standards Committee sought an order striking Mr Hylan's name off the Roll of Barristers and Solicitors, the ultimate penalty.
Mr Morris referred to the alternative explanations proffered by Mr Hylan in the course of defending the matter. He referred to the Tribunal's finding that the explanation set out by the practitioner in his first letter to the Standards Committee of the Law Society on 23 January 2013 was in fact the correct version of events rather than subsequent attempts to justify his actions.
We were referred to the decisions in Fendal1 and , 2 confirming that the predominant purpose of sanctions in disciplinary proceedings relate to protection of the public rather than a punitive response to the practitioner. In we are reminded that:
“…The question posed by the legislation is whether, by reason of his or her conduct, the person accused is not a fit and proper person to be a practitioner. Professional misconduct having been established, the overall question is whether the practitioner's conduct viewed overall, warranted striking off. The Tribunal must consider the risk of reoffending, and the need to maintain the reputation and standards of the legal professions. It must consider whether a lesser penalty will suffice …”
Counsel referred us to the dicta in 3 where the starting point was said to be the seriousness of the conduct concerned. Of itself that could in some cases be determinative because it will “… demonstrate conclusively that the practitioner is unfitto continue to practise as a lawyer. Charges involving proven or admitted dishonesty will fall into this category.” However the Court went on to say:
“In cases involving lesser forms of misconduct, the manner in which the practitioner has responded to the charges may also be a significant factor. Willingness to participate fully in the investigation process, and to acknowledge error or wrongdoing where it has been established, may demonstrate insight by the practitioner into the causes and effects of wrongdoing. This, coupled with acceptance of responsibility for the misconduct may indicate that a lesser penalty than striking off is sufficient to protect the public in the future.”
Mr Morris correctly submitted that:
“Mr Hylan's obligation, based on his obligation to uphold and maintain the law, was to refuse to participate in giving the document its authenticity.”
Furthermore Mr Morris submitted that the practitioner had shown no insight into his conduct or remorse so that the Tribunal could have “ little confidence any rehabilitative type penalty would be appropriate”.
Mr Morris accepted that there was no personal gain motivation in the actions of the practitioner. He also accepted that were the Tribunal to prefer a lesser intervention than strike off that a period of suspension could be considered. The difficulties Mr Morris had with a rehabilitative approach related to his view of the practitioner's insight into his offending. There was also little detail about any mentoring that could be proposed.
However Mr Morris conceded that the practitioner's field of practice was in an area of law requiring strong advocacy for vulnerable clients and that there were a limited number of lawyers working in this area. He accepted that diminishing those legal resources for the public was clearly a factor for the Tribunal to consider. He also accepted the glowing references provided by the practitioner, particularly from one senior counsel.
In distinguishing the decision of 4 which had been raised in the submissions for the respondent, a decision in which the High Court set aside a strike off order made by the Tribunal in favour of a suspension for two years and a prohibition of practising on his own account. In that matter the practitioner had knowingly facilitated the dishonest use of an estate by its executors. Mr Morrissubmitted that could be distinguished on the basis that Mr Sorensen did not have credibility findings against him. We considered that distinction to be somewhat tenuous in that...
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