Auckland Standards committee v Christopher Patrick Comeskey

• Jurisdiction: New Zealand
• Judge: D F Clarkson,Ms S Hughes,Ms C Rowe,Ms M Scholtens QC,Mr W Smith
• Judgment Date: 15 July 2010
• Neutral Citation: [2010] NZLCDT 19
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Docket Number: LCDT 002/10, 005/09
• Date: 15 July 2010

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

BETWEEN

Auckland Standards committee

Applicant

and

Christopher Patrick Comeskey

Respondent

Decision No. [2010] NZLCDT 19

CHAIR

MEMBERS OF TRIBUNAL

Judge D F Clarkson

Ms S Hughes QC

Ms C Rowe

Ms M Scholtens QC

Mr W Smith

LCDT 002/10, 005/09

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Lawyer pleaded guilty to three charges of professional misconduct — contravention of Conduct and Client Care Rules, disgraceful/dishonourable conduct charging for services not entitled to charge for and misleading the Court of Appeal. Law Society sought strike off for Legal Services Agency charge and suspension for other charges — whether the penalties sought by the Law Society were appropriate given all the circumstances.

APPEARANCES

Mr J Billington QC and Mr M Treleaven for New Zealand Law Society Mr R Fairbrother for the Respondent

Mr R Fairbrother for the Respondent

DECISION OF NEW ZEALAND LAWYERS AND CONVEYANCERS TRIBUNAL

Introduction

1 During a hearing of this Tribunal on 5–6 July 2010 in Auckland, Mr Comeskey has pleaded guilty to three charges of misconduct in his professional capacity laid by the New Zealand Law Society. A further charge (or set of alternative charges) has been withdrawn by the Society. The hearing was adjourned for a sanctioning hearing until 15 July 2010 where the Tribunal made an order pursuant to section 242(1)(e) of the Lawyers and Conveyancers Act 2006 (“the 2006 Act”) that Mr Comeskey be suspended from practice as a barrister or solicitor for a period of 9 months; an order that Mr Comeskey pay costs to the Law Society; and that Mr Comeskey reimburse the Law Society for two thirds of the costs of the Tribunal to reflect the split between the two charges under the 2006 Act and one charge under the Law Practitioners Act 1982 (“the 1982 Act”). The penalty expressly recognises certain undertakings given by Mr Comeskey to the Tribunal. The order of suspension was stayed until delivery of this written decision.

The Charges giving rise to misconduct

2 The summary of the charges laid against Mr Comeskey is as follows:

• (a) Auckland Standards Committee 1 of the New Zealand Law Society charged Mr Comeskey with misconduct pursuant to ss 241(a) and 7(1)(a)(ii) of the Lawyers and Conveyancers Act 2006 (“the Act”) being conduct that occurred between 1 September 2008 and 31 August 2009 when Mr Comeskey was providing regulated services and was conduct that consisted of a wilful or reckless contravention of the Client Care Rules in relation to his instruction to act as assigned counsel for Ms F.

• (b) Auckland Standards Committee 1 of the New Zealand Law Society charged Mr Comeskey with misconduct pursuant to ss 241(a) and 7(1)(a)(i) of the Act being conduct that occurred at a time when he was providing regulated services and was conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable in that he rendered a criminal legal aid invoice dated 18 February 2009 charging for services that he was not entitled to charge for.

• (c) Auckland Section 356 Standards Committee of the New Zealand Law Society charged Mr Comeskey pursuant to the 1982 Act that on or about 14 February 2008 he made a misleading submission to the Court of Appeal and in doing so was negligent or incompetent in his professional capacity to such a degree as to tend to bring the profession into disrepute.

• (d) Auckland Standards Committee 1 of the New Zealand Law Society charged Mr Comeskey pursuant to s 241(a) or (b) of the Act with the alternative charges of misconduct or unsatisfactory conduct or negligence or incompetence in relation to comments made to the New Zealand Herald on or about 22 November 2009. (These charges were withdrawn).

Background

3 Mr Comeskey pleaded guilty to charges (a) to (c) above, and the charges in (d) above were withdrawn following Mr Comeskey's guilty pleas for the first three charges. The three charges on which the Tribunal was required to determine a penalty relate to professional misconduct which occurred during the twelve month period from February 2008 to February 2009. For the purposes of this decision, we have bracketed charges (a) and (b) above because they are connected.

Charge (a) in relation to Ms F and (b) the Legal Services Agency

4 In September 2008 Mr Comeskey was assigned by the Legal Service Agency to act for Ms F who had been charged with serious indictable offences. Mr Comeskey was at that time the only practitioner in his practice who was entitled through his contract with the Legal Services Agency to appear as Counsel for Ms F. However the evidence from the Court file was that on at least two occasions, Ms F was represented in court appearances by employees of Mr Comeskey's practice, Ms Vikki Reid and Mr Soondrum. We note for completeness that there was some disagreement between the evidence of Ms F and that of her former partner Mr P (untested) about who represented her on specific occasions. Mr Comeskey told us he did not know, Mr Soondrum was not called as a witness, and the evidence of Mr P was not tested because Mr Comeskey pleaded guilty to the charges before Mr P had been called for cross-examination. We do know that Mr Comeskey represented Ms F on 22 September 2008, Ms Reid appeared on 6 November 2008, and Mr Soondrum on 17 February 2008. Neither Ms Reid nor Mr Soondrum was authorised under the Legal Services Act 2000 to appear for Ms F.

5 It was as a result of Mr Comeskey's failure to act for Ms F that she complained to the Legal Services Agency and sought the assignment of new counsel, which occurred on 2 December 2009.

6 Ms F complained that Mr Comeskey had failed to appear for her, failed to contact her, failed to make appointments, and failed to return her telephone calls. The Client Care Rules 1 are explicit about a lawyer's responsibilities to his/her client, and can be summarised as follows:

“The obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients.” 2

7 Mr Comeskey rendered the prescribed Legal Services tax invoice dated 18 February 2009 to the Legal Services Agency claiming for payment of the sum of $3, 157.00 calculated at the rate for Senior Counsel of $154.00. Mr Comeskey was

at that time the only practitioner in his practice who was legally entitled to act for Ms F, and the only practitioner entitled to claim at the Senior Counsel rate

8 This invoice claimed for each of the court appearances representing Ms F as if Mr Comeskey himself had appeared as Counsel. He had not done so. Even if Mr Soondrum or Ms Reid had been authorised under the Legal Services Act to appear as counsel, which they were not, the fees applicable would have been significantly less than those charged by Mr Comeskey.

9 The invoice referred to also claimed for 15 hours' preparation time in Mr Comeskey's name, including a claim for “preparation of callover memorandum” when in fact no such memorandum had been prepared by Mr Comeskey or anyone else in his office. There was no evidence confirming the 15 hours' preparation by Mr Comeskey. Indeed an affidavit was received from Mr Duff, the counsel to whom the file was referred, which confirmed that there was no evidence of time recording on the file, nor any evidence of the preparation of documents by Mr Comeskey or any member of his staff.

10 Although not the subject of a charge, a subsequent invoice dated 31 August 2009 contained a claim for a further 25 hours' preparation in relation to the F matter. Ms F told us she had had no contact from Mr Comeskey's office except in August 2009 when Mr Soondrum (not the authorised practitioner Mr Comeskey) had advised her to plead guilty to “a lesser charge.” The indictment contained five counts (not two) and it is not clear which of the lesser charges Mr Soondrum had advised her to plead guilty to. Under cross-examination Mr Comeskey was unable to assist us with this issue. Mr Comeskey recalled having meetings with Ms F, and this was corroborated by the untested evidence of Mr P. However, there is certainly no evidence of preparation on the scale of the 40 hours claimed across the 2 invoices. We restrict ourselves to commenting only on the invoice which is the subject of charges, and there is no evidence to support the hours claimed in preparation on that particular invoice. By pleading guilty after being cross-examined on this subject, we take Mr Comeskey to accept that finding.

11 When the Legal Services Agency learned that Mr Comeskey had not acted as assigned for Ms F, and that the tax invoices received were apparently incorrect, they wrote to Mr Comeskey seeking an explanation and, given the lack of response, complained to the Law Society which initiated its own investigation. Mr Comeskey did not respond to either the Law Society or the Legal Services Agency when asked to explain his conduct. The Law Society subsequently brought the charges of failing to act for Ms F in terms of the Client Care Rules; and rendering a false invoice to the Legal Services Agency.

12 In an affidavit dated 29 March 2010 seeking strike-out of the Legal Services charges against him, Mr Comeskey admitted, inter alia, that the invoices referred to were consistent with most, if not all, Legal Aid invoices emanating from his practice; that he did not personally prepare or sign these invoices which bore a facsimile stamp only of his signature; that the amounts invoiced and claims made complied with his understanding of his contract with the Legal Services Agency; that there had never been an intention to mislead the Legal Services Agency; and that — in his view — the practices he adopted were those commonly applied by practitioners who maintain a professional office, train staff and meet the demands of a demanding criminal practice in all jurisdictional...