Dr v Auckland Standards Committee 1

 
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[2011] NZLCRO 43

LEGAL COMPLAINTS REVIEW OFFICER, AUCKLAND

Judges:

LCRO Vaughan

LCRO 28/2011

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.

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.

The issues were: whether the penalty of publication of name imposed on DR was correct; whether the fine imposed on DR was inappropriate; whether the amount of costs imposed on DR was appropriate.

Held: DR did not take issue with any of the comments or findings made by Her Honour and having regard to these, the committee was unanimous in its decision in determining that the applicant's conduct constituted unsatisfactory conduct. The maximum fine that could be imposed by a standards committee pursuant to s156(1)(i) Lawyers and Conveyancers Act 2006 (“LCA”) was $15,000. The judge was extremely critical of DR's preparation and performance in her representation of JR, which had extremely serious consequences for her client. The fine imposed by the Committee represented one third of the maximum and in all of the circumstances there was no reason for the level of the fine to be adjusted.

The references supplied by DR from three clients as to her capabilities needed to be weighed against her performance when representing JR and the adverse comments made by Winkelmann J. Judges had a unique opportunity to assess the ability and competence of lawyers who appeared before them, and their performance in representing their client's interests. It was only infrequently that a Judge felt constrained to make such adverse comments, and it was therefore right that the committee placed significant weight on these comments.

The “casual” approach to JR's representation resulted in his being detained in prison for a period of six weeks longer than should have been the case. It was very much in the public interest if a lawyer's shortcomings resulted in a person being deprived of his freedom and the public interest factor was extremely relevant to the decision as to whether or not to publish. The fact that DR's name would be made known by reason of Winkelmann J's decision was a factor that supported publication. Consumers of legal services could not be protected if they were not informed and the consequences for JR as a result of DR's representation far outweighed the reasons advanced by her to have the publication ordered by the committee overturned.

The decision of the committee to publish DR's name was confirmed.

The Costs Orders Guidelines provided that where an adverse finding was made or upheld against a practitioner, that practitioner would generally be expected to bear half the costs of the review. A practitioner's ability to pay, including current earning ability and financial commitments, would be relevant in ordering the costs ( Kaye v ADLS). As DR indicated that her income was minimal and that she derived very little net income from her practice as a lawyer, the costs payable by DR were reduced to one half of the costs that would normally be imposed.

DR ordered to pay the sum of $600 by way of costs to the New Zealand Law Society.

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...

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