Dr v Auckland Standards Committee 1

JurisdictionNew Zealand
JudgeLCRO Vaughan
Judgment Date15 August 2011
Neutral Citation[2011] NZLCRO 43
Docket NumberLCRO 28/2011
CourtLegal Complaints Review Officer
Date15 August 2011

Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a determination by the Auckland Standards Committee 1

BETWEEN
DR
Applicant
and
Auckland Standards Committee 1
Respondent

The names and identifying details of the parties in this decision have been changed.

[2011] NZLCRO 43

Judges:

LCRO Vaughan

LCRO 28/2011

LEGAL COMPLAINTS REVIEW OFFICER, AUCKLAND

Application for review of penalty following determination of unsatisfactory conduct of applicant practitioner while representing her client — practitioner was heavily criticised by judge in a decision — committee determined that applicant provided incorrect advice to her client which resulted in miscarriage of justice — committee imposed censure, fine and costs and ordered publication of name — whether penalty was appropriate.

DECISION
Background
1

This review application is in respect of a decision by Auckland Standards Committee 1 in respect of an own motion investigation by the Complaints Service following receipt of a Minute from Winkelmann J. In that Minute Her Honour referred to a copy of her decision in J R v Department of Corrections.

2

In that decision, Her Honour was extremely critical of the applicant's performance in advising J R. It is not necessary to go into the details of the case, but the criticism by the Judge arose from the fact that J R pleaded guilty to a charge under section 71 of the Parole Act 2002. Her Honour noted that J R in fact had a strong defence to the charge. In return for the guilty plea, the Prosecution agreed to seek a conviction and discharge. On the applicant's advice, J R expected then to be released from gaol. Instead, he remained in gaol and faced the uncertain prospect of defending an application for recall. In the end, the application for recall did not succeed.

3

The Judge's comments were made in the course of delivering a Judgment in an appeal against the conviction on the grounds that there had been a miscarriage of justice, occasioned by the incorrect advice provided by the applicant. The appeal succeeded and the conviction was quashed.

The Standards Committee Determination
4

The issue for the Standards Committee was the quality of the applicant's representation of her client.

5

The Standards Committee noted the several findings of Her Honour in which she was critical of the applicant's performance.

6

The Committee determined that the applicant's conduct constituted unsatisfactory conduct and made the following orders:–

  • (a) censure;

  • (b) a fine of $5,000;

  • (c) costs in the sum of $750.

7

In addition, the Standards Committee resolved that full publication of the matter should be made, which included publication of the applicant's name.

8

The applicant has applied for a review of the Standards Committee determination.

Review
9

In her application for review the applicant stated that she wished to apply for a review “on the basis the Standards Committee's discretion was exercised in an unreasonable or irrational way.”

10

In subsequent correspondence with this Office, she made it clear, that while she accepted the finding of unsatisfactory conduct, she asked for the amount of the fine, and particularly the publication order, to be reconsidered.

11

A review hearing took place in Auckland on 30 June 2011.

The fine
12

The applicant requested that the level of the fine be reconsidered in light of the fact that the fee received by her for the work undertaken was $1,587.00 only. At the hearing, she indicated that she had limited means to pay any fine.

13

The applicant had provided incorrect advice to J R resulting in him remaining in prison for approximately six weeks after the hearing. He faced the uncertainty of the outcome of the application for recall. In addition, he pleaded guilty to a charge to which he had a very strong defence.

14

In the appeal before Winkelmann J, the applicant insisted that she did not give advice to her clients because that was not her role. As a result of this approach to advising Mr R, Her Honour found that it was unlikely that she had advised Mr R as to the strength of his defence, or that she linked or balanced the prosecution's “offer” with advice that he had a strong defence. Her Honour noted at paragraph [21] of her decision that “although she undoubtedly left the decision to Mr R, the absence of any effective preparation for the hearing on her part would no doubt have contributed to Mr R's understanding that he did not have a defence to the charge.”

15

Contrary to the applicant's view of her role, Her Honour noted the decision of the Court of Appeal in R v Merriless [2009] NZCA 59 at [24], where it was stated that “counsel have a duty to advise a client as best they can as to courses to adopt in defending, or not, as the case may be, criminal charges. Various options should be outlined, including any possible sentences if convictions occurred, but also the fact that guilty pleas will attract significant discounts when sentencing occurs. It is incumbent upon counsel to express an opinion, if they are able to do so, as to possible or likely outcomes or difficulties in presenting certain defences”.

16

In paragraph [23] of the decision Her Honour stated that “on any view of the facts, Ms DR' approach to representation of Mr R was casual to the point of neglect.”

17

The applicant did not take issue with any of the comments or findings made by Her Honour. Having regard to these, the Committee was unanimous in its decision in determining that the applicant's conduct constituted unsatisfactory conduct, and imposed a fine of $5,000. The Committee noted that this was an appropriate fine to impose to reflect the seriousness of the conduct.

18

The maximum fine that may be imposed by a Standards Committee pursuant to section 156(1)(i) of the Lawyers and Conveyancers Act 2006 is $15,000. The fine imposed by the Committee represents one third of the maximum and in all of the circumstances there is no reason for the level of the fine to be adjusted. Her Honour was extremely critical of...

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