Cooper v Standards Committee X
| Jurisdiction | New Zealand |
| Judgment Date | 17 April 2015 |
| Neutral Citation | [2015] NZLCRO 24 |
| Date | 17 April 2015 |
| Docket Number | LCRO 280/2013 LCRO 34/2014 LCRO 281/2013 LCRO 325/2013 LCRO 118/2014 |
| Court | Legal Complaints Review Officer |
Concerning applications for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
and
Concerning determinations of the Standards Committee
[2015] NZLCRO 24
LCRO 280/2013
LCRO 324/2013
LCRO 34/2014
LCRO 281/2013
LCRO 325/2013
LCRO 118/2014
Application for review of the penalty in two Standards Committee decisions which required the practitioner to pay two fines of $5,000 and ordered publication of his name — decisions related to an allegation by a client that the practitioner had repeatedly sought adjournments, and failed to attend Court to represent him on a defended drink-driving charge — Committee found that there had been a breach of the Trust Account Regulations — second fine related to an own motion investigation following complaints by a judge — practitioner did not make submissions on name publication to Committee — at review the practitioner presented medical evidence that he was suffering from a chronic stress reaction and the publication of name was a significant stressor — whether the Committee should have taken into account the stressors from the practitioner's practice as a barrister sole — whether the fines were manifestly excessive — whether the totality principle applied — whether publication should not be ordered in light of the practitioner's medical condition.
Mr B Cooper as the Applicant
Mr OJ as counsel for the Applicant
Standards Committee as the Respondent
The New Zealand Law Society
Mr Cooper applied for a review of six related Standards Committee [X] decisions on the basis that they were wrong, and the Committee had made the wrong orders. Over the course of time since those applications were filed, Mr Cooper's views have changed. He seeks a review only of those parts of the determinations which ordered him to pay two fines of $5,000 each, 1 and that his name be published in respect of both such decisions. 2 Otherwise, he raises no challenge to the decisions, and accepts the orders that he be censured and pay costs. 3
Both complaints arise from Mr Cooper's conduct between 2011 and 2012. The first is a result of a complaint by Mr AQ, the second arises from a memorandum sent by a Judge that gave rise to the Committee commencing an own motion investigation.
A complaint was laid by Mr AQ raising concerns about Mr Cooper having repeatedly sought adjournments, and failed to attend Court to represent him on a defended drink-driving charge. After several months' delay, Mr AQ entered a guilty plea and was sentenced, in Mr Cooper's absence. Mr AQ objected to having paid Mr Cooper $7,000 for services Mr Cooper did not provide. Mr Cooper refunded the $7,000, and Mr AQ withdrew his complaint.
The Committee did not consider any further action was necessary in respect of Mr AQ's service provision complaints, Mr Cooper having refunded his fees, and decided to take no further action pursuant to s 152(2) of the Lawyers and Conveyancers Act 2006 (the Act).
However, arising from Mr AQ's complaint the Committee found that Mr Cooper had not met his obligations under rules 3.4 and 3.5 4 to provide information to Mr AQ in advance, and more significantly, that Mr Cooper appeared to have receipted funds directly into his practice account, in breach of rule 9.3, regs 9 and 10 of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008, and s 110 of the Act.
The Committee considered: 5
…that the protection of client money is of paramount importance under the Act and the reason why there are stringent rules around the handling of client money by lawyers.
Mr Cooper's conduct is in direct contravention of these requirements and is a serious breach of the Act and the Rules.
The Committee determined, “pursuant to s 152(2)(b), that there has been unsatisfactory conduct on the part of Mr Cooper as defined in s 12(c) of the Act”, and that: 6
Having made findings of unsatisfactory conduct against Mr Cooper, the Committee considers it appropriate to censure Mr Cooper and impose a fine of $5,000 to reflect the seriousness of the breaches. Furthermore the Committee considers that Mr Cooper should pay costs of $1,500 to the Law Society.
The Committee deferred making any direction on publication, and allowed the parties 14 days to file submissions.
The Committee commenced an own motion investigation pursuant to s 130(c) of the Act having received a memorandum from Judge TR 7 (the memorandum) raising concerns about aspects of Mr Cooper's conduct, and being aware of two related articles that had been published on the [newsmedia] website.
The memorandum and attachments detailed the Judge's concerns over Mr Cooper's conduct in respect of three of his clients, Mr YE, Mr AQ, and Mr DB, and concerns about Mr Cooper's conduct expressed in a decision 8 made by another District Court Judge.
The decision refers to a minute and oral judgment issued by Judge TR following a formal proof hearing on 9 January 2012 of charges against Mr YE. 9 The Committee recorded the Judge's concern that Mr Cooper's conduct appeared “unprofessional and contrary to his client's interests.” 10
The Judge recorded that Mr YE did not appear on the day scheduled for his defended hearing, and Mr Cooper handed up what the Judge considered to be a plainly inadequate medical certificate for Mr YE. The Judge stood the matter down, but when it was recalled neither Mr YE nor Mr Cooper was present, although Mr Cooper had not been excused by the Court. In the circumstances, the case proceeded, in the absence of lawyer and client, by way of formal proof. The Committee referred to the
Judge's comment in the oral judgment dated 9 January 2012, before he issued a warrant for Mr YE: 11
[8] It is not for the Court at this stage to speculate on what might be Counsel's motivation in the matter, simply to say, his failure to attend to this matter in Court as the morning developed is extraordinary. In the circumstances, the information is proved.
The Committee referred to the Judge's concern about the quality of a submission put by Mr Cooper on an application for dismissal after a defended hearing. The Judge's view was that Mr Cooper persisted with a submission that was “unstructured and poorly expressed”, lacked any “evidential foundation”, was “plainly inaccurate” and that “even a basic reading of the relevant section would have shown that the submission was wrong”. 12 The Committee recorded the Judge's view that: 13
In this matter, while allowing for the disorganisation and poor advocacy revealed by the transcript, it is difficult to view Mr Cooper's submission as otherwise than deliberately inaccurate and intended to mislead the Court.
The Committee recorded the concerns expressed by the Judge in the memorandum relating to the series of adjournments covering more than a year, of Mr AQ's defended hearing between 18 August 2011 and 6 September 2012, following which Mr AQ entered a guilty plea and was sentenced, after terminating Mr Cooper's retainer and seeking alternative representation. The Committee recorded the Judge's observation that “Mr Cooper's conduct appears discourteous, unprofessional, wasteful of court time and prejudicial to his client's interests”. 14
IX
The Committee also noted another proceeding recording a similar history of repeated adjournments, over the course of 11 months, heard by Judge SW in [City]. 15 That matter ultimately proceeded by way of formal proof in the absence of the defendant, and of Mr Cooper as counsel. The decision describes aspects of Mr Cooper's practice as being “far from satisfactory”. 16
The Committee also referred to two articles published on the [newsmedia] website.
The first article related to Mr AQ, the Judge's reaction to Mr Cooper repeatedly seeking adjournments, and the Judge's concern that “similar problems have afflicted cases of other clients of Mr Cooper in Court”. 17
The second article referred to complaints by Mr AQ and Mr EN who reportedly believed they had received poor advice from Mr Cooper, and Mr Cooper's reported comment that “it has quite a lot to do with the Judge hearing the case. Unfortunately for Mr AQ, he ran into Judge TR…”. 18
The Committee considered Mr Cooper's response, including his view that Judge TR harboured a “distinct grudge” against him, his explanation of the basis of his submissions, and a letter from Mr YE saying he was a satisfied client. Mr Cooper also referred to allegedly inappropriate comments he had made to the media, and his evidence that he had no intention of making inappropriate comments about Judicial Officers.
The Committee considered that Mr Cooper “adopted a mode of operating that relies on delay and adjournments, and in providing medical notes to Courts to avoid hearings”. Mr Cooper's treatment of the Court and its processes was described as disdainful, and the Committee concluded that he had breached rules 2.1, 2.2 and 2.3 19 which regulate lawyers' conduct as officers of the Court, saying: 20
Mr Cooper's conduct breaches his duty to the Court and is an attempt to obstruct the course of justice. It is also using the law for an improper purpose. The Committee considers the conduct is such that it breaches the above Rules and would be regarded by lawyers of good standing as being unacceptable.
Accordingly, the Committee finds there has been unsatisfactory conduct on his part as defined...
To continue reading
Request your trial