Auckland Standards Committee No. 1 v Barry John Hart

 
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[2012] NZLCDT 20

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Ms C Rowe

Ms M Scholtens QC

Mr P Shaw

Mr B Stanaway

LCDT 021/10

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
APPEARANCES

Mr P Collins for the Applicant

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

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.

At issue was whether professional misconduct had been made out in relation to the charges.

Held: Charge one. D's evidence was preferred to that of H and to another witness whose recollection of events was admittedly faulty. Rule 7.03 Rules of Professional Conduct for Barristers and Solicitors (relations with third parties) applied at the time and placed responsibility on a practitioner who engaged another person to provide services for a client to be liable for prompt payment for the fee of that person and specified the information that had to be provided where the matter was funded on legal aid. H was cavalier in his attitude tohis professional responsibility to D and in doing so brought the profession into disrepute. This conduct fell at the lower end of misconduct but was more serious than “conduct unbecoming” (which was pleaded in the alternative). Very high standards were expected from lawyers undertaking work on a legal aid basis in respect of all of their professional obligations. That H had eventually paid the account did not minimise the seriousness of the behaviour. Charge one was proved.

Charge three. In seeking a written explanation concerning a complaint which had been made about possible overcharging, the Standards Committee made a proper request. At the time of the Standards Committee's request, H was providing regulated services. The conduct was capable of falling within the provisions of s7(1)(a)(i) and (ii) LCA (misconduct defined in relation to lawyer and incorporated law firm). As neither W's file nor any other documents relating to H's charges to W had been provided, the failure element of the offending was proved on the balance of probabilities to the high standard required in matters of such a serious nature.

H had alleged that he had a “lawful justification or excuse” but the response of the Standards Committee to an opinion to this effect, which set out the impact of the transitional provisions and established that the opinion was misconceived, ought to have been accepted by H and acted, on since it removed the jurisdictional impediment on which he relied. H's actions in failing to provide W's file had prevented a proper investigation of the own motion complaint of the Standards Committee and H had obstructed the Committee in its proper business. This was an extremely serious breach of professional standards and reached the level of professional misconduct.

Charge four. In the circumstances where a barrister dealt directly with the client and the instructing solicitor had only minimal involvement, A, supported by his family, were clients to whom H owed a professional duty to disclose the basis upon which his fees would be charged and rule 3.4 LCCCR applied. The exception contained in rule 3.7 LCCCR was not intended to capture situations such as this. It was important that rules made for the protection of the public were not read down in a manner that would defeat their intent. It would undermine the fundamental purposes of the LCA if in such circumstances a barrister could seek to rely on the interposition of an instructing solicitor to evade his or her professional obligations. A had signed an agreement that effectively reduced the instructing solicitor's involvement to nothing while still maintaining the technical compliance with the intervention rule.

H was required, when first engaged by A's family, to outline the rate at which he would be charging for his services, the basis on which they would be charged, and the nature and extent of the services to be charged for. His failure to do so constituted misconduct under s7(1)(a)(ii) LCA, in that H wilfully or recklessly contravened rule 3.4 LCCCR. On the evidence considerable work was carried out for A, but it was largely carried out by a very junior member of the Chambers, using standard precedents for what was a routine application which would have required very little oversight on H's part. The actual Court appearances conducted by H himself were of a standard nature which, for a practitioner of his experience, ought to have been achieved with considerable ease.

Charging $35,000 constituted gross overcharging for the very standard form of criminal work involved in the file. Seven hours at $1,000 per hour for the first attendance could not be justified, nor the “preparation and review” of almost five hours charged at that rate. Charging such an excessive fee in itself constituted professional misconduct and when combined with H's actions in failing to properly advise the clients about his hourly rate and the attendances for which they would be charged, professional misconduct was certainly made out.

Charges of professional misconduct made out on all charges.

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...

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