Auckland Standards Committee No. 5 v Christopher Michael Clews

 
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[2014] NZLCDT 19

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Mr S Grieve QC

Mr K Raureti

Mr P Shaw

Mr T Simmonds

LCDT 023/13

In The Matter of the Lawyers and Conveyancers Act 2006

BETWEEN
Auckland Standards Committee No. 5
Applicant
and
Christopher Michael Clews
Practitioner

Mr McCoubrey for Standards Committee

Mr Peter Gorringe for the Practitioner

Practitioner charged in the alternative with misconduct, negligence or incompetence reflecting on fitness to practise or unsatisfactory conduct — practitioner seriously breached former client's privilege in communications — had been found guilty of unsatisfactory conduct by a Standards Committee in relation to his conduct of client's trial — had visited client in prison shortly after this and discussed a pardon, and got client to sign authority to uplift files from current counsel — said he was not providing regulated services during visit — whether the breaches of privilege reached the standard of serious misconduct — whether practitioner had been providing regulated services during visit.

Held: There had been no clear communication made to the practitioner which could have justified him in thinking that the appellant had waived privilege. Furthermore in the letter sent to Crown Law the practitioner made reference to “a distinct likelihood of waiver”, rather than waiver actually having been given.

The fundamental nature of the protection of a client's privilege in relation to his communications with his legal representative meant that a breach of such was far along the continuum of professional misbehaviour. A client had to be able to have absolute faith in the confidentiality of his communications with his counsel. The practitioner was aware that E had not waived privilege and yet he breached it in two letters.

The communications and the practitioner's viva voce evidence had a clearly defensive tone. He was clearly wanting to give his version of events relating to the trial and in doing so put his interests ahead of his client's and so committed the fundamental breach of trust. In doing so he had either behaved dishonourably in the eyes of the reasonable legal practitioner or had been negligent to such an extent as to bring the profession into disrepute. Either finding supported a finding of professional misconduct.

The circumstances surrounding the prison visit gave weight to this as an instance of the practitioner providing regulated services. He went to the prison armed with written authorities, on his letterhead, apparently before he even knew of E's attempt to seek a pardon. He booked the visits as a lawyer. He provided inconsistent answers as to the purposes for which he was obtaining E's files. He conceded in his evidence that he was able to utilise the files to assist with his own negotiations with the Legal Services Agency over his fees. The only reasonable interpretation is that he was providing regulated services.

Going to see a former client in respect of whose representation the practitioner had just previously had a finding of unsatisfactory conduct, seeking to uplift his files from his current counsel and putting them to the use he did, was misconduct by reckless contravention of r5 (Independence) and Rule 5.4 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Conflicting interests).

The second charge of misconduct was proved.

DECISION OF NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Introduction
1

The two charges set out below were heard on 3 March 2014. The Tribunal heard evidence from the practitioner, who was cross-examined by counsel for the Standards Committee. No other deponents were required for cross-examination. Submissions were then made by both counsel. After considering the matter the Tribunal gave an oral decision that it found misconduct proved in respect of both charges. It reserved its reasons for the decision which are now set out.

Charges
2

At the outset of the hearing the charges were amended by consent. The amended charges are:

Auckland Standards Committee 5 ( Committee) hereby charges Christopher Michael Clews ( Practitioner) with:

First Charge

Misconduct within the meaning of s.7(1)(a)(i) of the Lawyers and Conveyancers Act 2006 ( Act), or, alternatively,

Negligence or incompetence in his professional capacity, and the negligence or incompetence has been of such a degree as to reflect on his or her fitness to practise or as to bring his profession into disrepute (s.241(1)(c) of the Act), or; alternatively:

Unsatisfactory conduct within the meaning of s.12(a) and/or s.12(b) of the Act.

The particulars of the charges are as follows:

  • 1 At all material times the Practitioner was enrolled as a barrister and solicitor of the High Court of New Zealand and held a current practising certificate.

  • 2 He was counsel for Mr E at a trial at which Mr E was charged with one count of rape and one count of doing an indecent act on a young person under the age of 16 years.

  • 3 Mr E was convicted and appealed against those convictions. The Court of Appeal held that it was not necessary for Mr E to waive the privilege that existed between Mr E and the Practitioner: E v The Queen [2010] NZCA 280. The Court of Appeal gave judgment on 24 November 2009.

  • 4 In the knowledge that Mr E had not waived privilege, on 4 March 2010 the Practitioner sent to Crown Law (acting for the respondent to Mr E's appeal) a draft affidavit and “questions and answers” document, both of which contained privileged material.

  • 5 This is conduct that occurred at a time the practitioner was providing regulated services and is conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable.

  • 6 Alternatively, it was negligent or incompetent, and the negligence or incompetence has been of such a degree as to reflect on his fitness to practise or as to bring his profession into disrepute.

  • 7 Alternatively, this is conduct that occurred at a time the practitioner was providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

  • 8 Alternatively, it is conduct that occurred at a time when the practitioner was providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable.

3

A concession was made by the practitioner in cross-examination that his document of March 2010 plainly breached privilege. Furthermore in explanation for his behaviour, Mr Clews said he had decided to forward the material (which included Mr E's own brief of evidence) because he had decided “to become proactive by putting something forward”.

4

The practitioner had initially contended that he was not providing regulated services at the time he corresponded with the Crown, however he withdrew that submission at the hearing and accepted that he was providing regulated services.

Second Charge

Misconduct within the meaning of ss.7(1)(a)(i) and/or 7(1)(a)(ii) of the Lawyers and Conveyancers Act 2006 ( Act), or, alternatively,

Negligence or incompetence in his professional capacity, and the negligence or incompetence has been of such a degree as to reflect on his fitness to practise or as to bring his profession into disrepute (s.241(1)(c) of the Act), or; alternatively:

Unsatisfactory conduct within the meaning of s.12(a) and/or s.12(c) of the Act.

The particulars of the charges are as follows:

  • 1 At all material times the Practitioner was enrolled as a barrister and solicitor of the High Court of New Zealand and held a current practising certificate.

  • 2 He was counsel for Mr E at a trial at which Mr E was charged with one count of rape and one count of doing an indecent act on a young person under the age of 16 years.

  • 3 Mr E was convicted and appealed against those convictions. The Court of Appeal in E v The Queen (No. 2) [2010] NZCA 280 upheld the grounds of appeal relating to the Practitioner's closing address; and the lack of an identification warning with regard to one of the victims. In E v The Queen (No. 3) [2010] NZCA 544, the Court of Appeal applied the proviso and dismissed the appeal.

  • 4 On 27 October 2011, a Wellington Standards Committee determined that there had been unsatisfactory conduct on the Practitioner's part. The Practitioner was censured and ordered to pay costs of $500.

  • 5 At some point on or about 31 October 2011, the Practitioner approached Mr E and thereafter commenced to act for Mr E in an application to the Governor-General. Any such application would necessarily require reliance on the matters...

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