Canterbury Westland Standards Committee v Craig Ronald Horsley
 NZLCDT 47
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Judge D F Clarkson
Mr J Clarke, Mr S Grieve QC, Ms C Rowe, Mr I Williams
In the matter of the Lawyers and Conveyancers Act 2006
Mr M Hodge for the Standards Committee
Mr J Billington QC for the Practitioner
Penalty hearing following a finding that practitioner had breached his duties to his client by entering into a sexual relationship with her and that he knowingly gave false information to the Standards Committee in the course of its investigation — practitioner had represented complainant in Youth Court when she was 16 years old and then entered into a relationship with her when she was 18 — he represented her on a driving charge after that time — whether the maximum penalty should be applied.
Held: The issue was whether the maximum penalty should be applied.
The element of general deterrence in assessing penalty in this matter was a particularly strong one given not only the “dishonourable” findings in respect of charge 1, but the very serious misconduct contained within charge 2. The misleading approach initially taken with the Tribunal by the filing of a formal response containing false information was an aggravating feature of the second charge.
The evidence pointed to the complainant being vulnerable. She was 18 years of age, and H was over 50. He had represented her from the time she was 16 years of age in the Youth Court. She had experienced homelessness, had undergone periods when she had abused drugs and had poor mental health. All of this was known to H at the time when he commenced this relationship with her. These matters had cast enormous doubt on H's judgment.
In terms of mitigating features as to both charges, H was held in high regard by members of his profession. He had practised for 30 years and senior colleagues had, in references provided to the Tribunal, described the trust they had in him.
H ought to receive some credit for the guilty plea on the second charge but it came very late in the piece, on the morning of the first hearing.
The acceptance of responsibility by H and the mitigating features were just sufficient, pull the penalty back from strike-off to the maximum period of suspension.
It was important not to treat charge 2 as an aggravating feature of charge 1 or of the overall view of the practitioner. To do so would be to risk double punishment. The two charges were discrete and although the course of conduct in charge 2 arose from inquiries as to the conduct in charge 1, this was not a course of conduct where the facts were so inextricably interwoven that a global penalty should be imposed.
Penalty of two years' suspension on charge 1 and three years' suspension on charge 2, to run concurrently.
The decision of the Tribunal on liability was delivered on 19 March 2014. A penalty hearing was allocated for 4 April however, at the practitioner's request, this was adjourned in order that a psychological assessment might be obtained by him. That adjournment was granted on the condition that the practitioner cease practice by 4 April, since it was accepted that the best outcome which could be expected by the practitioner would involve a period of suspension.
The penalty hearing took place on 12 June 2014.
The Standards Committee submitted that the two charges established against the practitioner (one of which he had admitted) demonstrated his lack of fitness to continue in practice. Counsel also drew attention to the further dishonesty in relation to the disciplinary process.
Mr Hodge drew the Tribunal's attention to the key findings in the substantive decision, which detailed how the practitioner had put his own interests for secrecy of the relationship ahead of those of his client, thus breaching one of the primary lawyer/client duties. Counsel referred the Tribunal to further concerning aspects of the practitioner's behaviour in relation to Charge 1, which culminated in his lack of candour with various people and institutions to whom, as an officer of the Court, he owed a clear duty. We refer in particular to paragraphs  to  of the Tribunal's decision.
The Tribunal was reminded of its expressed concern as to the length of time it took the practitioner to reach the conclusion that he had difficulty in continuing one of the relationships with his client. We were also referred to the finding that Mr Horsley appeared to be unaware of:
“… The ramifications for the profession as a whole of publication of his affair with a young client with whom he had previously represented in the Youth Court.”
In terms of another decision with a similar fact situation, the Standards Committee referred to the decision in . 1 This is a case where a practitioner was found to have had sexual intercourse with a client in circumstances which represented an abuse of her trust and confidence in the practitioner. He was suspended for the maximum three years.
Mr Hodge summed up, in relation to the first charge, that:
“At best, the practitioner was utterly indifferent to his professional obligations, and to the fact that his conduct compromised those obligations.”
In relation to the second charge of knowingly giving false information to the Standards Committee in the course of its investigation, Mr Hodge pointed out that this had been a written response involving a deliberate choice by the practitioner to mislead, not a spur of the moment (verbal) answer under pressure.
Furthermore, we were reminded that this was followed by a misleading statement to the Tribunal itself, as to when the relationship had started, in the formal Response to the charges.
The practitioner did not provide an accurate picture until he was required to swear an affidavit in August 2013. The investigation had begun in October 2011 and the first specific questions about the intimate relationship were put to Mr Horsley in a letter from the Law Society of 23 November 2011.
Mr Horsley lied to the Society firstly in a statement forwarded to the Society via a Mr B Hesketh, Barrister on 31 October 2011, and secondly, in a full written personal statement of some eight pages on 7 December 2011, which was in response to the 23 November letter. Mr Horsley later retained counsel and was clearly not frank with his counsel because his response dated 11 July 2013 contained the incorrect and misleading date about the commencement of the relationship.
Mr Hodge referred us to a decision of the New South Wales Court of Appeal in . 2 In that matter the Court held that the attempt to deceive the Law Society was serious enough, but the attempt to deceive the Statutory Committee (the equivalent of the Tribunal) was even more serious. The Court considered this demonstrated the practitioner was unfit to remain on the roll.
Mr Hodge then referred us to the decisions in 3 and 4 respectively, where it was held that failure to comply with lawful requirements of a disciplinary body or cooperate was a serious matter indeed. In 5 it was said:
“… There must also be a duty to act in a professional, candid and straightforward way in dealing with the Society and its representatives …”
And at :
“… The purpose of the disciplinary procedures is to protect the public and ensure that there is confidence in the standards and probity met by members of the legal profession. It is therefore axiomatic that practitioners must co- operate with those tasked with dealing with complaints made even if practitioners consider the complaints are without justification …”
Mr Hodge, relying on these dicta submitted that the present instance of knowingly lying to a professional regulatory body was even more serious than non- compliance with its requirement. He submitted that the misleading statement in the formal response to the Tribunal was an aggravating feature of Charge 2....
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