Canterbury Westland Standards Committee 3 of The New Zealand Law Society
| Jurisdiction | New Zealand |
| Judge | Judge BJ Kendall,Mr W Chapman,Mr M Gough,Mr A Lamont,Mr S Maling |
| Judgment Date | 12 May 2015 |
| Neutral Citation | [2015] NZLCDT 18 |
| Docket Number | LCDT 032/14 |
| Court | Lawyers and Conveyancers’ Disciplinary Tribunal |
| Date | 12 May 2015 |
[2015] NZLCDT 18
Members Of Tribunal
Judge BJ Kendall(retired)
Mr W Chapman Mr M Gough
Mr A Lamont Mr S Maling
LCDT 032/14
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Decision as to liability and penalty on a charge of misconduct by a lawyer under s241(a) Lawyers and Conveyancers Act 2006 (LCA) or an alternative charge of unsatisfactory conduct under s241(b) LCA — the lawyer had filed a memorandum with the Family Court (FC) stating that alternative child care arrangements had been agreed for one day and that counsel for the father and the child had agreed to the filing of the memorandum — both counsel for the father and counsel for the child stated that they had not been consulted about the memorandum, and had neither agreed to, nor consented to its filing of the memorandum -FC had made an order based on the contents of the memorandum and had to later revoke it — whether the lawyer's conduct had been misleading or deceptive — whether the conduct should have been dealt with at Standards Committee level — whether suspension was warranted in light of the previous disciplinary history.
Mr H van Schreven for the Applicant
Mr P Doody for the Respondent
The respondent was charged by the applicant with misconduct under s 241(a) of the Lawyers and Conveyancers Act 2006 (“the Act”) and with an alternative charge under s 241(b) of the Act alleging unsatisfactory conduct.
The respondent denied both charges.
The Tribunal heard the charges in Christchurch on 23 March 2015. At the conclusion of the hearing and after deliberation the Tribunal found that the respondent was guilty of unsatisfactory conduct. Counsel for the Committee and the respondent then agreed that a hearing as to penalty could take place on the papers. It was agreed that counsel for the Committee would make submissions by 8 April. Counsel for the respondent would reply by 24 April, and then the applicant would file responding submissions (if any) by 1 May 2015.
This decision now records the reasons for the finding of unsatisfactory conduct, determines the penalty to be imposed, and the reasons for doing so.
The background facts to the charges as alleged by the applicant are:
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a. The respondent was counsel for the respondent mother in proceedings brought under the Care of Children Act 2004 concerning the parenting of her children.
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b. The proceedings had been the subject of a hearing in the Family Court and of an interim judgment delivered on 25 September 2013.
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c. The respondent filed a memorandum in the Family Court at Christchurch on 8 November 2013 which stated:
“MAY IT PLEASE THE COURT:
Counselhave consulted with their respective clients in this matter, and advise the following is agreed:
Today only Mrs S will deliver M to the Child Care Centre at Ipm and will administer her medication no later than 2.30pm. Mr S will then collect the child.
On future occasions, M will be taken to the school by Mrs S and placed into Mr S's care at the end of the school day at the same time as C is collected.
All change-overs during the school term will be at the school and at non-school times will be at the Avonhead Mall.
Dated at Christchurch this 8th day of November, 2013
S B Lewis
Solicitor for A S
TO: The Registrar, Family Court
AND TO: Counsel for the Applicant
AND TO: Counsel for the Child”
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d. That the memorandum set out what the respondent represented as agreed and consented variations to the interim order of 25 September 2013 and purported to deal with matters relating to the exchange of caregiver which had been the subject of the parties' dispute in the Proceedings.
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e. That the memorandum followed an earlier memorandum filed by the father's counsel which detailed that by consent the changeover time be specified as 3.00pm.
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f. That, on becoming aware of the respondent's memorandum, counsel for the father filed a memorandum to the Court rejecting the statements made by the respondent as to ‘agreed variations’.
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g. That counsel for the father and counsel for the child both stated that they had not been consulted about the matter of the memorandum. They had neither agreed to, nor consented to the filing of the memorandum and had not been provided with a copy of it.
The respondent swore an affidavit in response to charge on 18 December 2014 in which she accepted:
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a. That she was counsel for the mother in the proceedings referred to.
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b. That the proceedings had been the subject of a hearing and that an interim judgment had been delivered.
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c. That she had filed the memorandum referred to in paragraph 5(c) above.
The respondent's response has been that the memorandum related to a one- off occasion only. She said that the change originated from a request through the office of the father's counsel; that she contacted her client about it; and received her consent to it.
The respondent accepted that she did not contact counsel for the child about it because it involved only the parents.
The Committee's contention is that the memorandum was not true or correct, and that the respondent knew or ought to have known that:
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a. She had not in fact reached agreement with counsel for the father as to all the matters contained in the memorandum.
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b. She did not consult with, nor reach agreement with, counsel for the child.
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c. That she did not provide a copy of the memorandum to either counsel neither at the time of its filing nor shortly afterwards.
Counsel for the father filed an affidavit in which she deposed that she had written to the respondent asserting that the information provided by her to the Court was untrue. She also said that the respondent's advice to the Court that counsel had been provided with a copy of the memorandum was incorrect and misleading as she had never received a copy of it. It was only by coincidence that she had become aware of it at all.
The respondent has not challenged the evidence of counsel for the father.
The respondent appeared before the Tribunal and gave evidence. She spoke of the stress she was under from her client having accepted instructions at the last moment. Her client was difficult and demanding, contacting her “over every little thing”.
The respondent produced a copy of a file note she made on 8th November 2013 (the day of the memorandum) in which is noted “ today only: collection from pre- school”. The respondent clearly struggled before the Tribunal to put into context the notes she had made. She admitted that she did not send a copy of her memorandum to other counsel and that she did not speak to the father's counsel about it. She said that the mother was very particular about her role as a mother and that everything had to be done at once. In filing the memorandum, she considered that it was a wise thing to record a one-off occasion.
Having considered the totality of the evidence, the Tribunal concludes that the memorandum created by the respondent stated a position that was not correct and in particular that there was no agreement between counsel and the parties. The memorandum also clearly implied that it had been copied to other counsel. It had not been.
The presiding Family Court Judge did make an order based on the contents of the respondent's memorandum and had later to revoke it after counsel for the father had filled her memorandum.
The question then becomes whether the respondent's conduct was misleading or deceptive. The memorandum was incorrect and misled the Court into...
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