Auckland Standards Committee no.5 v Rohde

 
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[2016] NZLCDT 9

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Ms S Fitzgerald

Ms C Rowe

Ms S Sage

Mr W Smith

LCDT 001/16

In the Matter of the Lawyers and Conveyancers Act 2006

Between
Auckland Standards Committee No. 5
Applicant
and
Shane Alan Rohde
Respondent
COUNSEL

Ms R Reed for the Standards Committee

Mr C Patterson for the Respondent

Decision on penalty following an admission by a practitioner that he had been convicted of offences punishable by imprisonment, which reflected on his fitness to practise, or tended to bring his profession into disrepute. The three convictions related to driving with excess breath alcohol as well as a charge of dangerous driving. The practitioner was attempting to evade the police at the time of the offending by driving away at high speeds — his colleague and junior employee had been in the car — the practitioner had refused to confirm for the police that he had been the driver, placing his colleague in danger of prosecution — the practitioner did not plead guilty until the day of his trial, six months later — the practitioner was now attending AA meetings regularly and had acknowledged his problem with alcohol — whether the practitioner's exercise of his right to silence in a situation where he placed his colleague in danger of prosecution was an aggravating feature in the disciplinary context — whether the public, as consumers, needed to be directly protected from the practitioner — and, what length of suspension should be imposed.

The issues were: whether R's exercise of his right to silence in a situation where he placed his colleague in danger of prosecution was an aggravating feature in the disciplinary context; whether the public, as consumers, need to be directly protected from R; and, whether suspension was appropriate.

Held: R's exercise of his right to silence could not be questioned in the criminal law context, but it could not always be ignored in the disciplinary context. In this situation, doing so imperilled a colleague and employee. That was a matter which went to the overall assessment of fitness to practise.

R had attended seven AA meetings per week. His sponsor was also a practitioner, sober for a number of years. R felt well supported by this man as he did by a number of colleagues to whom he had disclosed his problem and within his own practice. He had a supportive general practitioner and a very supportive family.

There was no evidence that R's clients had been put at risk by his offending or the alcohol problem that led to it. His openness with his firm and other colleagues, and the steps he had taken to safeguard his sobriety were a sufficient safety net. The public, as consumers, did not need to be directly protected from R.

The starting point for any penalty discussion had to be the seriousness of the offending. R did not attempt to minimise the seriousness of his offending. That was a proper approach. Infractions of drink-driving law, even at relatively low levels, were serious, as was the dangerous driving incident.

R's behaviour in attempting to evade the police by speeding off and then departing from his vehicle and refusing to disclose who had been driving were aggravating features in a disciplinary context. Arising from that, the lack of concern for the position in which he placed his employee and colleague, both at the time and subsequent to the offending, was reprehensible.

In terms of mitigating factors, R's (albeit somewhat belated) committed and determined effort to address his alcoholism was impressive. R was straightforward and open with the Tribunal in discussing his addiction. R was also now playing an active part in contributing to the recovery of others. These were strong mitigating features.

The Standards Committee submitted that a short period of suspension was appropriate on the basis of the decisions of Auckland Standards Committee 1 v Ravelich; Hawke's Bay Lawyers Standards Committee v Beacham; and Canterbury-Westland Standards Committee v Tafts. While it was necessary to demonstrate to the profession and its disciplinary institutions that this behaviour was extremely serious, in R's case it was not necessary to impose a period of suspension. An approach of the least restrictive intervention ought to be adopted.

Order for censure. Including a warning that he was on notice that a rehabilitative approach was unlikely to be repeated.

A fine was imposed of $10,000.

By consent:

  • (a) The costs of the Standards Committee in the sum of $3,806 were awarded against R.

  • (b) The s257 costs were awarded against the New Zealand Law Society in the sum of $1,992.

  • (c) Those s 57 costs were to be reimbursed by R to the New Zealand Law Society.

REASONS FOR DECISION ON PENALTY
1

Shane Rohde admitted a charge that he had been convicted of offences punishable by imprisonment, which reflected on his fitness to practise, or tended to bring his profession into disrepute.

2

The three convictions relied on were: one for excess breath alcohol in May 2014;

and in September 2015 excess breath alcohol as well as dangerous driving.

3

His behaviour, in attempting to evade the police in the 2015 incident is an aggravating feature. Mr Rohde sped away from the police, and during the brief chase reached speeds of up to 120 kilometres per hour in a suburban area. He refused to identify himself as the driver, having left his car, and thus put his colleague (and employee) who had been in the car, at risk of prosecution also.

4

While we recognise that exercising his right to silence cannot be questioned in the criminal law context, it cannot always be ignored in the disciplinary context. In this situation, as stated, doing so imperilled a colleague and employee. That is a matter which goes to the overall assessment of fitness to practise.

5

Although he eventually pleaded guilty, it was not until the day of the trial, six months after the event, so that his colleague and by then former employee, was required to be ready to give evidence against him.

6

Mr Rohde was sentenced to supervision (with special conditions as to alcohol counselling) and community work.

7

On the day of his sentencing he attended his first meeting at Alcoholics Anonymous (“AA”). He had, some days previously, been introduced to The Honourable John Banks, who, he says, persuaded him that he had a serious alcohol addiction, which he could not tackle alone, or without a serious intervention.

Issues
8

The issues for the Tribunal, in assessing penalty, are:

1
    Do the public, as consumers, need to be directly protected from Mr Rohde? 2. Having regard to aggravating and mitigating features, and relevant case law, is a penalty less than suspension sufficient to mark the seriousness of Mr Rohde's conduct?
9

In her submissions for the Standards Committee, Ms Reed pointed out that Mr Rohde's evidence did not include any psychological assessment nor detailed plan as to the support structures within his practise and in relation to his recovery.

10

In response Mr Rohde filed a further affidavit which annexed a number of references expressing confidence in Mr Rohde as a person and in his recovery from his addiction. We then heard further oral evidence from Mr Rohde who was cross-examined by Ms Reed...

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