Canterbury Westland Standards Committee 3 of The New Zealand Law Society

 
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[2015] NZLCDT 18

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Members Of Tribunal

Judge BJ Kendall(retired)

Mr W Chapman Mr M Gough

Mr A Lamont Mr S Maling

LCDT 032/14

BETWEEN
Canterbury Westland Standards Committee 3 of the New Zealand Law Society
Applicant
and
Susan Barbara Lewis
Respondent
Counsel

Mr H van Schreven for the Applicant

Mr P Doody for the Respondent

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.

The issue was: whether L'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.

Held: On the totality of the evidence, the memorandum was not correct and in particular 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 question then became whether L's conduct was misleading or deceptive. There had to be an element of knowledge or intention on the part of a lawyer before a finding could be made that a lawyer had misled or deceived a Court or some evidence of reckless disregard as to the accuracy of the information conveyed to the Court.

L believed in the correctness of the content of her memorandum but she was wrong to do so. She had succumbed to the pressure from her client and did not stand back to ensure that what she had set out in the memorandum was factually correct. There was no moral lapse on her part.

Her conduct was unsatisfactory, falling short of gross, wilful or reckless as to amount to misconduct (s241(b) LCA).

Although counsel for L was critical of the Committee for not dealing with the complaint at Committee level rather than referring the complaint to the Tribunal (which reflected on penalty and costs) any action of alleged deception had to be treated seriously and directly where a finding of misconduct was at least susceptible and thus justified a referral of the matter to the Tribunal for determination. That was a proper response to counsel's criticism.

L did not intend to mislead the Court and her offending did not reach the higher end of culpability. However L had displayed conduct which was not dissimilar to the conduct in the earlier disciplinary matters involving her and notably in family law. It arose from her becoming too closely aligned with the interests of her client(s), and responding to client demands impulsively, especially in situations of perceived emergency. L had yet to learn from past errors and mistakes such that a period of suspension from practice was the appropriate penalty that should be imposed.

L was to be suspended from practice for six months and to pay costs.

DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL CONCERNING CHARGE AND PENALTY
1

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.

2

The respondent denied both charges.

3

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.

4

This decision now records the reasons for the finding of unsatisfactory conduct, determines the penalty to be imposed, and the reasons for doing so.

5

The background facts to the charges as alleged by the applicant are:

  • 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.

  • b. The proceedings had been the subject of a hearing in the Family Court and of an interim judgment delivered on 25 September 2013.

  • 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”

  • 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.

  • 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.

  • 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’.

  • 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.

6

The respondent swore an affidavit in response to charge on 18 December 2014 in which she accepted:

  • a. That she was counsel for the mother in the proceedings referred to.

  • b. That the proceedings had been the subject of a hearing and that an interim judgment had been delivered.

  • c. That she had filed the memorandum referred to in paragraph 5(c) above.

7

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.

8

The respondent accepted that she did not contact counsel for the child about it because it involved only the parents.

9

The Committee's contention is that the memorandum was not true or correct, and that the respondent knew or ought to have known that:

  • a. She had not in fact reached agreement with counsel for the father as to all the matters contained in the memorandum.

  • b. She did not consult with, nor reach agreement with, counsel for the child.

  • c. That she did not provide a copy of the memorandum to either counsel neither at the time of its filing nor shortly afterwards.

10

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...

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