Auckland Standards Committee No. 1 v Davina Valerie Murray

 
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[2015] NZLCDT 6

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Ms S Hughes QC

Ms C Rowe

Ms M Scholtens QC

Mr W Smith

LCDT 012/14

In the Matter of the Lawyers and Conveyancers Act 2006

BETWEEN
Auckland Standards Committee No. 1
Applicant
and
Davina Valerie Murray
of Auckland, Former Lawyer
APPEARANCES

Mr M Treleaven for the Standards Committee

Mr W Pyke for Ms Murray

Reasons for order that practitioner's name be removed from the Roll of Barristers and Solicitors – practitioner was convicted and sentenced of a summary offence for smuggling items into Mt Eden Prison, to a high security prisoner who was serving a term of preventive detention — practitioner argued that that the conviction was for a summary offence in which culpability, as found by the District Court, was neither at or near the most serious end of the scale for such an offence — Standards Committee said that the circumstances of the conviction led to the conclusion that she was not a fit and proper person to practice law — whether strike off was warranted.

Held: The issue was: whether strike off was warranted.

While the conviction was only for a summary offence, from a professional disciplinary point of view, it went directly to the heart of the standing of the profession in the community. This view was shared by the DC Judge who tried the matter, and the High Court Judge who presided on appeal. The abuse of a privileged position as a lawyer went to the seriousness of the practitioner's conduct.

The manner of M's conduct of her trial was relevant to whether she was a fit and proper person. She was at times discourteous and unprofessional in her manner of self-representation, but more importantly that she falsely accused two prison officers of planting evidence on the prisoner. Evidence was called from the prisoner to support this allegation. Throughout, M knew this to be completely untrue, because she later acknowledged by her, she had purchased the cell phone and other items herself and had supplied them to the prisoner.

It was a serious breach of ethics for an officer of the Court allow false evidence to be knowingly put before the Court. This was probably one of the most reprehensible forms of conduct which could be undertaken by any trial lawyer. The system of criminal and civil justice relied on the Courts being able to have absolute confidence in the integrity of counsel appearing. M demonstrated that no such confidence could be reposed in her. The case was similar in this regard to Legal Practitioners Complaints Committee v Pepe.

As to M's conduct of the disciplinary proceedings, the Standards Committee submitted that lack of insight was evidenced by M's challenge of the proof of her “conviction” at the hearing of this charge. Although M's change of stance was a very last minute one (six days before the hearing and almost one year after the charges were laid), not much weight could be place on the approach taken. It took some time for M to engage legal counsel and she should not be particularly penalised for her lateness in filing a formal response to the charges.

However, while conducting the proceedings in person, she showed a significant ethical blind spot by inviting the prisoner to join a pre-hearing telephone conference with the Tribunal Chair, without informing either the Chair or other counsel of his presence. This conduct only came to light when the Corrections Department sent a recording of the conversation to the Tribunal. When the Chair sought an explanation for this occurrence, M's response, instead of an apology was to demand that the Tribunal provide her with “the legal provisions that gave rise to (the Tribunal) being willing to accept that the disclosure of the information from the Department of Corrections met the legal test to enable the Department to make this disclosure.” M acknowledged her fault on this occasion but offered no apology for it.

There were three adverse findings against M in the space of a five-year career. These were not only an aggravating feature but had considerable relevance to the assessment of proper penalty when considering protection of the public and likelihood of rehabilitation.

The first involved M receiving payment of fees of $2,300 directly from a client (thus breaching the intervention rule) and then failing to obtain an urgent order as instructed. The second, a very serious matter, involved a finding that not only did M act for her partner in a relationship property proceeding while in an intimate relationship with him but that when their relationship was ended she disclosed confidential information to her former partner's wife (who was represented by counsel) against her client/former partner's interests. She further went on to engage in a similar breach of confidence when speaking with counsel for the former partner's wife. A further finding of unsatisfactory conduct was made against M when, shortly following the suicide of her partner, for whom she had previously acted, she sent a fees account to the estate for $67,500 when there were numerous emails and details of communications in which M had made it plain that she was providing legal services to her then partner at no cost. The tragic circumstances of this man's death, and its reported effects upon M, were relied on by her as a mitigating feature in her District Court sentencing.

All three of these decisions were appealed by M to the Legal Complaints Review Officer (“LCRO”) and were upheld in all but minor respects. M's conduct in attempting to delay or thwart the LCRO process followed a similar pattern of lack of co-operation with the disciplinary process. The appeals were lodged by her despite her having taken all possible steps to delay the Standards Committee processes by seeking numerous extensions, then in the end not providing the Standards Committee with any material or appearing to explain herself.

M had been provided a letter for the DC sentencing. In it she stated her belief that she now had clear insight into her offending and apologised to the Court for her previous “attitude”. She expressed remorse for her offending and apologised to the Department of Corrections for “infringement of their rules”. She did not apologise to the Corrections officers whom she had falsely accused. M's submissions of remorse and the suggestion that some weight ought to be placed on a letter written to the Court expressing remorse were somewhat thin in the current setting, in the light of her failure to appear at her own penalty hearing. Her absence was unable to be explained by her counsel.

The primary purposes for penalty was the protection of the public and the upholding of professional standards such that the public's confidence in the profession was maintained and promoted. In relation to protection of the public, an assessment of risk of reoffending might need to be undertaken. Further purposes included rehabilitation of the practitioner, in order that hard earned and valuable skills did not go to waste. General and specific deterrence might also be factors in a given case. And finally, while punishment was not a primary purpose, it was accepted that there was of necessity a punitive element in many of the penalty outcomes.

The general sentencing principle of the “least restrictive outcome” was a proper one in disciplinary proceedings ( Daniels v Complaints Committee 2 of the Wellington District Law Society). Assessing all of the factors and in particular having regard to the public protection role, M was not a fit and proper person to continue in legal practice. The entire picture presented by her offending, her subsequent conduct and her previous disciplinary history was of a practitioner with little or no understanding of her ethical obligations to clients, her profession or the institutions of justice.

Order striking M from the Roll of Barristers and Solicitors.

REASONS FOR PENALTY DECISION OF NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
1

On 26 February 2015, this Tribunal ordered that Davina Murray's name be removed from the Roll of Barristers and Solicitors. We reserved our reasons for making that “order of last resort”. This decision provides those reasons.

2

Any penalty consideration must start with the seriousness of the conduct in question. 1 We then consider matters of mitigation and aggravation in relation to the conduct and to the practitioner.

3

We have regard to the purposes of disciplinary penalties, in relation to these circumstances and this practitioner. Finally, the Tribunal must consider whether it has reached the view, unanimously, that the practitioner is no longer a fit and proper person to be a lawyer and an officer of the court, with the privileges and responsibilities that status entails.

Conduct
4

Our decision of 16 December sets out the background, leading to Ms Murray's conviction and sentence for smuggling items into Mt Eden Prison, to a high security prisoner who was serving a term of preventive detention.

5

In our decision we referred to the seriousness of this conduct. 2 We noted that while the conviction itself was only for a summary offence “… from a professional disciplinary point of view, it goes directly to the heart of the standing of the profession in the community”. We noted this view was shared by the District Court Judge who tried the matter, and the High Court Judge who presided on appeal. 3

6

The Standards Committee submits that it is the type of conviction referred to in the Ziems...

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