Auckland Standards Committee No 1 v Hart

• Jurisdiction: New Zealand
• Judge: Judge D F Clarkson
• Judgment Date: 27 August 2012
• Neutral Citation: [2012] NZLCDT 26
• Docket Number: LCDT 021/10
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 27 August 2012

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

[2012] NZLCDT 26

Chair

Judge D F Clarkson

LCDT 021/10

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

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).

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

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 unprofessional verbal altercation with a fellow lawyer.

• [c] In March of 2010 there was a finding of unsatisfactory conduct in respect of overcharging and “a lapse in his obligations under Rule 3 to always act competently and take reasonable care and under Rule 10 to promote and maintain proper standards of professionalism in his dealings”. The Standards Committee went on to find his behaviour unacceptable measured against the standards of “competent, ethical and reasonable practitioners”.

• [d] Only three months after that finding there was a further finding of unsatisfactory conduct in the form of conduct unbecoming for overcharging. In respect of both of these 2010 matters Mr Hart was ordered to refund portions of his fees to the respective clients. In respect of both matters Mr Hart exercised his right to review by the Legal Complaints Review Officer (“LCRO”) and, again, in respect of both matters, the findings as to overcharging were upheld.

• [e] On 11 July 2011 the Standards Committee determined to take no further action in respect of a complaint by a client who had paid Mr Hart $15,000 and alleged failure to make any progress in advancing the client's instructions for a period of four and a half years.

  The client sought a review from the LCRO who reversed the finding of the Standards Committee and found unsatisfactory conduct on Mr Hart's part. There were findings that he did not complete the services for which he had been retained. He failed to “promote and maintain the standards of professionalism in breach of Rule 10”. 2

  The LCRO went on to make findings that the client's trust and confidence had been destroyed (a breach of Rule 5.1) and that much of the correspondence with the client contained matters which were self serving to the practitioner, and “… much of the activity that did occur was designed to give the impression that some activity was occurring on the file when in reality little of substance was being achieved”. A finding of unsatisfactory conduct was made by the LCRO Mr O Vaughan. As well as a censure being administered the LCRO ordered Mr Hart to pay compensation to the client for distress and anxiety and to refund the client $10,000 of the $15,000 charged. Costs were also awarded.

• [f] There were two further findings in August of this year a matter of days prior to the penalty hearing. Both of these were findings of unsatisfactory conduct by the Standards Committee in respect of Mr Hart's failure to pay expert witnesses engaged by him. In other words, identical behaviour to that found by us in Charge 1.

8 In addressing the underlying principles and authorities binding upon the Tribunal considering penalty Mr Collins referred us to both Dorbu v New Zealand Law Society 3 and Daniels v Complaints Committee 2 of Wellington District Law Society 4. Both of these authorities were relied upon for the view that the overall conduct of the practitioner can be examined in assessing whether the practitioner is 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 both the risk of reoffending and the need to maintain the reputation and standards of the legal profession. It must also consider whether a lesser penalty will suffice. The Court recognises that the Tribunal is normally best placed to assess the seriousness of the practitioner's offending …” 5

9 And

“A Tribunal, when determining ultimate fitness to remain in practice, whether limited by suspension or by striking off, is entitled to review the entire conduct of the practitioner and transgressions the subject of the disciplinary proceedings and the general behaviour of the practitioner. It cannot regard poor behaviour as justifying more severe penalties, but it is the obvious absence of a mitigating factor and relevant to balancing matters of character.

In considering sanctions to be imposed on an errant practitioner, a disciplinary tribunal is required to view in total the fitness of a practitioner to practise, whether in the short or long term. Criminal proceedings of course reflect badly upon the individual offender, whereas breaches of professional standards may reflect upon the wider group of the whole profession, and will arise if the public should see a sanction as inadequate to reflect the gravity of the proven conduct. The public are entitled to scrutinise the manner in which a profession disciplines its members because it is the professional with which the public must have confidence if it is properly to provide the necessary service. To maintain public confidence in the profession members of the public need to have a general understanding that the legal profession, and the Tribunal members that are set up to govern the conduct, will not treat lightly serious breaches of standards. 6

10 In addressing the level of seriousness of the misconduct Mr Collins submitted that the behaviour of the practitioner in relation to Charge 1, which was found by the Tribunal to be the lower end of the range of misconduct, could be classified as dishonourable. He further submitted that its real significance, in the context of

penalty, was as part of a wider pattern of serious professional failings. Mr Collins reminded us that Mr Hart had two previous unsatisfactory conduct findings for precisely the same behaviour; failing to pay a forensic scientist and psychiatrist respectively on those occasions

11 Charge 3, it was submitted was extremely serious, as found by the Tribunal in the 2 August decision. 7

12 Mr Collins submitted that this behaviour raised serious issues as to Mr Hart's...