Auckland Standards Committee No. 1 v Barry John Hart

JurisdictionNew Zealand
JudgeD F Clarkson,Ms C Rowe,Ms M Scholtens QC,Mr P Shaw,Mr B Stanaway
Judgment Date02 August 2012
Neutral Citation[2012] NZLCDT 20
Docket NumberLCDT 021/10
CourtLawyers and Conveyancers’ Disciplinary Tribunal
Date02 August 2012
BETWEEN

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

Auckland Standards Committee No. 1
Applicant
and
Barry John Hart
of Auckland, Lawyer

[2012] NZLCDT 20

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Ms C Rowe

Ms M Scholtens QC

Mr P Shaw

Mr B Stanaway

LCDT 021/10

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Disciplinary charges against law practitioner alleging misconduct in his professional capacity — complaint by private investigator engaged by practitioner that he had not been informed that payment of his account was subject to approval by the Legal Services Agency and might not be approved entirely or in part — full account not paid by practitioner until prior to Disputes Tribunal hearing on the matter — charge that practitioner refused to disclose file relating to former client when requested to do so by Standards Committee investigating fees charged by practitioner — charge that practitioner grossly overcharged by approximately $20,000 in relation to services provided to a client — whether professional misconduct had been made out.

APPEARANCES

Mr P Collins for the Applicant

Mr N Cooke for the Practitioner (for first half day only)

DECISION OF NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Introduction
1

This decision concerns the hearing of four charges brought against the practitioner Mr Barry Hart, two of which were framed in the alternative. The charges are annexed as Schedule 1.

Procedure
2

This three day fixture was the fifth that had been set for the hearing of this matter. (We wrongly recorded it as the fourth in our adjournment decision of 16 July).

3

As had occurred prior to a previous fixture, there was activity on Mr Hart's part late on the Friday preceding the Monday morning commencement date. At 4.20 pm the Registry received an email to the effect that Mr Hart was unwell. This was accompanied by a medical certificate which gave little detail, no diagnosis and stated that Mr Hart was not fit for work, in particular court work.

4

The Registry promptly informed Mr Hart that the Tribunal may wish to cross-examine the Doctor (in respect of the medical certificate).

5

At the commencement of the hearing Mr Cooke, instructing solicitor on the record throughout these proceedings, appeared to seek an adjournment on Mr Hart's behalf on the grounds of his client's ill health. A further medical certificate was provided which simply stated that Mr Hart had been reviewed and one of his symptoms had not improved. He was said to be unfit to attend his scheduled appearances that week. It was not clear whether the Doctor understood the nature of the appearance which had been scheduled for Mr Hart. Mr Cooke said that the Doctor was not prepared to attend Court. This was despite the Tribunal indicating that certain conditions, which the Doctor had sought, would be met by the Tribunal.

6

On two occasions leading up to the hearing it had been necessary for the Tribunal Chair to clearly state that, given the number of previous adjournments and delays which had been encountered in the course of this proceeding, the fixture must proceed. The Chair had reminded Mr Hart of the critical comments of Her Honour Justice Winkelmann in February of this year, concerning the delays which had occurred in this proceeding.

7

The Tribunal reached the view that, following the departure of Mr Hart's last counsel, on 27 June, Mr Hart did not intend to engage in these proceedings. We formed that view because it is clear none of his witnesses were told they were required for cross examination (because the only one who appeared did so at the specific request of the Tribunal following the first day). Furthermore, despite numerous requests to provide the Tribunal with information about the video conference which had been approved for the cross examination of Mr Hart's expert witness, who was overseas, Mr Hart did not respond or indicate to the Tribunal how these arrangements had been made. Furthermore, Mr Hart did not engage new counsel. On the adjournment application he was simply represented by his instructing solicitor who was without further instructions or knowledge of the file.

8

The decision to proceed to hear the Standards Committee's case undoubtedly imposed a greater burden on counsel representing the Standards Committee and on the Tribunal in the absence of the respondent. The Tribunal was at pains to examine and carefully consider the evidence provided by the respondent and the Standards Committee.

9

The Standards Committee's expert witness, Mr Billington QC, was examined by the Tribunal at some length.

10

Ms D Murray, a deponent on behalf of the respondent, was called by the Tribunal to be cross examined because of what appeared initially to be a stark conflict between her evidence and the evidence of one of the complainants.

11

In addition a number of areas of the defence had been signalled by Mr Hart's previous counsel, both Mr Katz QC (at the hearing concerning the application to amend Charge 4), and Mr G King who appeared for Mr Hart in December 2011. During the December hearing, which was unable to proceed substantively because of Mr Hart's last minute judicial review application, we were able to deal with a number of preliminary issues in two of the days which had been allocated. Thus we had an opportunity of hearing many of the aspects of Mr Hart's defence argued and have undertaken a thorough consideration of the evidence filed by him.

Charges 1 and 2
12

In this matter Mr D, the complainant, had been engaged by Mr Hart to provide private investigation services in connection with a legally aided client facing criminal charges. Mr D alleged that Mr Hart had failed to inform him that payment of his account was subject to approval by the Legal Services Agency (“LSA”) and might not be approved entirely or in part. Mr D indicated that he had been told that legal aid had been sought and that this might lead to a delay in payment of his account by a month or so.

13

In fact legal aid was declined and Mr D's invoices for $4682.36 rendered in mid-2008 were not paid by Mr Hart. It is his evidence that Mr Hart paid half of this amount at a point when Mr D had complained to the Law Society in April 2009. Mr D then sought payment of the balance through a Disputes Tribunal claim and the balance was paid prior to that hearing in January 2011.

14

There is a dispute on the evidence because Mr Hart says:

“When I instructed Mr D I made it clear to him that payment for his work was subject to the LSA accepting his quote. I never told him that he would be paid within a month of invoice as set out in paragraph 3 of his affidavit.”

15

He went on to confirm that the client had no financial resources and therefore there was never any prospect of an alternative arrangement for payment having been made.

16

Because of Mr Hart's non-attendance at the hearing he was not available for cross examination on this conflicting evidence. Mr Hart also filed an affidavit from Mr D Gardiner. Mr Gardiner confirms that the events had happened three and a half years prior to the swearing of his affidavit (on 5 December 2011, the scheduled first day of one of the previous fixtures). He confirms he does not have “ a precise recall as regards what occurred …” but had refreshed his memory by referring to his timesheets.

17

Mr Gardiner recalls Mr Hart explaining to Mr D that the client was on legal aid and that the work he would undertake would be covered by that. He goes on to say:

“I believe that it should have been clear to Mr D that any invoice he submitted would need to be approved by the Legal Services Agency.”

18

He did not recall discussion about the timing of payments.

19

Mr Gardiner had been required for cross examination but did not appear. In any event his recollection is admittedly faulty. His assumption as to Mr D's understanding of the LSA payment arrangements is unsupported and speculative.

20

Against Mr Hart and Mr Gardiner's evidence, apart from the clear statements of Mr D the complainant, is the logical point, submitted by Mr Collins for the Standards Committee, that there is no reason why Mr D, a total stranger to the legally aided client, would agree to undertake work on a pro bono basis. Had he not been assured about payment he undoubtedly would have refused to undertake the work.

21

We prefer Mr D's evidence to that of Mr Gardiner's and Mr Hart's.

22

The Standards Committee rely on Rule 7.03 of the Rules of Professional Conduct for Barristers and Solicitors, which applied at the time. In summary that Rule places responsibility upon a practitioner who engages another person to provide services for a client to be liable for prompt payment for the fee of that person. The Rule goes on to specify that where the matter is funded on legal aid:

“… the practitioner must inform the instructed person of that fact at the outset and advise the instructed person of all the requirements as the consequence of the grant of legal aid, including the requirement that any fee over the amount of the estimate approved by the Legal Services Agency cannot be paid unless an amended estimate is submitted for approval before the matter is finally determined …”

23

Mr Hart was cavalier in his professional responsibility to this complainant and in doing so brings the profession into disrepute.

24

Whilst we consider this to be in the category of misconduct, as an abuse of the privileges of practising as a lawyer 1 we accept it is at the lower end of misconduct. It is however, in our view, more serious than “conduct unbecoming”, which is pleaded in the alternative. As this Tribunal has indicated in the past we expect very high standards from lawyers undertaking work on a legal aid basis in respect of all of their professional obligations.

25

That Mr Hart finally paid the account does not...

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