Auckland Standards Committee No 1 v Hart

 
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[2012] NZLCDT 26

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Chair

Judge D F Clarkson

LCDT 021/10

In the Matter of the Lawyers and Conveyancers Act 2006 and the Law Practitioners Act 1982

Between
Auckland Standards Committee No. 1
Applicant
and
And Barry John Hart

of Auckland, Lawyer

Members of Tribunal

Ms C Rowe

Ms M Scholtens QC

Mr P Shaw

Mr B Stanaway

APPEARANCES

Mr P Collins for the Standards Committee of the Law Society

Mr G King for the Practitioner

Decision as to penalty for a finding of three charges of professional misconduct relating to gross overcharging, obstruction and professional misconduct — charges related to failing to pay an expert, failing to supply requested material during the disciplinary process and overcharging — history of professional misconduct findings — whether adverse publicity was sufficient deterrence and punishment — whether orders should be made under s244 Lawyers and Conveyancers Act 2006 (“LCA”) (making of order for striking off roll) and s249 LCA (order for costs).

The issues were whether H should be struck off and whether H should pay costs.

Held: The overall conduct of the practitioner could be examined in assessing whether the practitioner was a fit and proper person to be a practitioner. H's submission that the publicity provided deterrent and protective factors for the practitioner and public respectively was rejected. Accepting it would shift the responsibility from the practitioner to his clients. Furthermore, implicit in the submission was the recognition that the public did require some warning about him. It was not the Tribunal's function to make a distinction between a practitioner who was in the public eye and one who was not, in terms of how the public might be protected.

H's submission that other cases supported the view that striking off or suspension would be disproportionate, was rejected. While consistency was important to Tribunal penalty decisions, every case heard by the Tribunal had enormous factual differences and factors which had to be taken account of, including previous disciplinary history.

This was the first case of gross overcharging considered by the Tribunal since the LCA came into effect. It was difficult to compare the case in terms of a practitioner's complete failure to engage with his profession. It was not proper to analyse each of the charges separately as contended by the practitioner. The three most salient features of the matter were: a combination of the three types of professional misconduct found; H's previous lengthy disciplinary history; and a lack of remorse shown by H.

The total overview of H's conduct and of his conduct of the proceedings showed that the public required protection from him. Given H's age and stage in his professional career, and given his approach to the charges, practising under supervision was not a viable option. The evidence disclosed a lack of integrity on the part of H. Furthermore, it was dishonest for H to have been paid by the Legal Services Agency and then not pay the expert.

Had H approached the various investigations in these proceedings differently, and had there been a less serious recent disciplinary history, suspension would have been the option adopted. But the arrogant and derisory manner in which he had approached any complaint, right up to the penalty hearing where he attempted to defend his failure to produce files for inspection following a complaint, meant that the Tribunal had no confidence in either his rehabilitation or protection of the public by ensuring there was no risk of reoffending.

H's hard work and determined advocacy did not compensate for the deficits demonstrated repeatedly over a long period of time. H was no longer a fit and proper person to practise as a barrister or solicitor.

H indicated there were no bankruptcy petitions against him at this stage and he had not provided either a declaration as to his financial means or any calendar of his future engagements. Having regard to H's actions in prolonging the matter there should to be a contribution by H to the Law Society's costs of 85% of the actual costs.

H was struck off from the Roll of Barristers and Solicitors under s244 LCA and he was ordered to pay 85% of the Standards Committee's costs of $116,429 — s249 LCA (order for payment of costs).

Orders
  • [a] There will be an order striking the practitioner Barry John Hart from the Roll of Barristers and Solicitors, s 244( 1) and (2).

  • [b] There will be an order that he pay 85% of the Standards Committee's costs of $116,429, s 249.

  • [c] There will be an order that the New Zealand Law Society pay the Tribunal costs of $45,000, s 257.

  • [d] There will be an order that the practitioner refund to the Society the s 257 costs of the Tribunal in full, s 249.

  • [e] There will be an order by consent that the practitioner pay by 10 September 2012 the sum of $20,000 to the A Family, complainants in respect of Charge 4, s 156(1) (e) and (g) and s 242.

  • [f] There will be a suppression order relating to the names of the complainants generally and to the clients in the references provided by Mr Hart, s 240.

CONTENTS

Paragraph

Page

Introduction

[1]

3

Penalty sought by the Law Society

[2]

3

Penalty submissions on behalf of the practitioner

[23]

9

References

[33]

11

Charge 3 and the effect of the Orlov decision

[38]

12

LCRO v B (suppressed)

[52]

17

Discussion

[53]

17

Costs

[75]

23

Orders

24

DECISION AS TO PENALTY OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Introduction
1

This decision on penalty is consequent upon the Tribunal's decision of 2 August 2012 1, finding the practitioner guilty of three charges of professional misconduct. The details of those charges are set out in our decision and will not be repeated here.

Penalty sought by the Law Society (“the Society”)
2

In opening, Mr Collins said that the submission that the practitioner ought to be struck off was not one made lightly by his professional body. He acknowledged that for a practitioner of some 46 years standing at a senior level at the criminal bar, this would not have been sought had any lesser response been deemed sufficient.

3

Mr Collins went on to detail what he described as the “evolutionary nature” of the proceedings. He acknowledged that at the outset of the proceedings the nature of the charges might not of themselves have indicated that such a sanction would be necessary. However, he referred to the increasing disquiet about the practitioner, in the sense of his fitness to practise because of the manner in which the proceedings, and indeed all investigations of complaints about him, have been conducted. This when put with the previous offending history of the practitioner, meant that the Society considered it had no option but to seek strike off.

4

In addition the Society sought a refund of $20,000 to complainant, Ms T, on behalf of her brother and her family. This was not opposed by Mr Hart.

5

A substantial contribution was sought to the costs incurred by the Law Society in the proceedings which exceeded $116,000. In addition the Society sought reimbursement by Mr Hart of any order made under s 257 in respect of the costs of the Tribunal.

6

In his submissions Mr Collins referred to “… a pattern of culpable irresponsibility to the detriment of clients, the institutions of his profession, and the public.” He submitted that the cumulative effect demonstrated that Mr Hart was not fit to remain in practice.

7

Mr Collins went on to detail the aggravating factors which could be considered by the Tribunal in addition to the misconduct findings made by us in our decision of 2 August.

  • [a] The poor disciplinary history of Mr Hart. In this regard we have been provided with a lengthy affidavit by Mr Heyns of the Society setting out seven previous disciplinary findings against Mr Hart. One of these is 30 years old but is relevant in its subject matter in that it is a finding of professional misconduct for gross overcharging — that is an identical finding to the current Charge 4.

  • [b] More recently in 2006 Mr Hart pleaded guilty to a charge of conduct unbecoming a barrister and was censured. That related to an...

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