Legal Complaints Review Officer v Hong
 NZLCDT 37
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Judge D F Clarkson
In the Matter of the Lawyers and Conveyancers Act 2006
Mr P Collins for the Legal Complaints Review Officer
Mr B Hong, respondent in person
Ms S Fitzgerald
Mr K Raureti
Ms C Rowe
Mr I Williams
Decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal as to penalty following a prosecution by the Legal Complaints Review Officer (LCRO) and a finding of misconduct — H had been involved in a dispute with another lawyer — the matter had been referred to the LCRO by a High Court Judge — the findings included the making of threats and discourtesy to the other lawyer — the practitioner had previously been found guilty of misconduct in a separate matter for breach of a Standards Committee Order and the practitioner had served a four month suspension — this had been quashed on judicial review — whether the four months' suspension on the quashed decision could be taken into account when setting this penalty — whether striking off was appropriate and consistent with similar cases involving threats and discourtesy.
Held: Justice demanded that the period of suspension served, wrongly as it transpired, be taken into account. The most principled way of doing so, was to take account of it as a mitigating factor in the overall assessment of penalty.
The HC Judge had been correct in her assessment of H's behaviour. On the other hand, this was not offending which involved serious risk or damage to clients, or any form of dishonesty and was therefore not at the high end of misconduct, such as to demand the penalty sought by the LCRO. The aggravating features were that the attacks were “persistent and wilful”. They continued over a lengthy period and were not just a moment's aberration or loss of control.
While H's lack of insight and remorse could not be considered an aggravating feature, it could be taken into account in the overall assessment of the practitioner's fitness and in assessing the likelihood of reoffending.
A possible aggravating feature was the practitioner's disciplinary history. However, H had been in practice for over 20 years and previous findings against him were at the lower level of professional failings. This was even more so with the removal of two of the previous findings as a result of the outcome of the judicial review proceedings. Little weight would be placed on H's previous offending particularly given that there was no previous offending of a similar nature to that under consideration.
Mitigating features included that there was no direct harm to clients in the manner in which H conducted himself. No dishonesty was involved. H felt strongly provoked by D, but that could not excuse H's intemperate behaviour. The strongest factor for H was that he had served a period of four months' suspension unnecessarily. The difficulty was that it was in connection with an entirely separate matter, but it had to be taken into account in the overall interests of justice.
In terms of consistency with other decisions relating to suspension, relevant decisions were and . In . , despite his comments having been directed at judges and therefore the offending being more serious, the HC decided that, having regard to it being the practitioner's first offence, strike-off was “too severe a response to a first offence of misconduct involving speech” The seven months' suspension that had been served by was the appropriate penalty. also involved threats against a practitioner, over a period of time (six months) and provocation from the complainant. Concern as to insight was a common factor with the present matter, although in the Tribunal could be confident that this behaviour would not be repeated.
There was concern as to H's level of insight to the degree that there is a real risk of repetition of the conduct. A short period of suspension was required to allow the practitioner to reflect on his behaviour and ensure that in future when he struck a challenging situation, particularly in a personal sense, that he sought assistance in dealing with it.
Consistency with the Eichelbaum decision, which upheld the decision not to impose suspension in a situation where there were additional findings of misconduct and unsatisfactory conduct to the present matter, meant that there ought to be a relatively low starting point of approximately three months, before taking account of the aggravating and mitigating features.
In terms of his overall fitness, H did himself no favours by the manner in which he conducted the disciplinary proceedings. His attacks on prosecuting counsel were thoroughly reprehensible. Despite the fact that he had made a formal apology to D, he demonstrated little contrition or insight into his behaviour.
There was lack of confidence for the future. In a letter to the HC, copied to the Attorney General, shortly before the penalty hearing, H accused the Tribunal of bad faith. He did not appear to fully appreciate the boundaries he ought to impose on himself in his professional dealings. In a document he filed with the Tribunal he was still making allegations about D and denying that his earlier threats were inappropriate. He further referred to having been “defamed” by prosecuting counsel, leading to his “… being maliciously suspended” by the Tribunal. Even making allowance for the fact that English was H's second language, these statements demonstrated a serious lack of insight on his part.
Weighing all of the above matters, H should be suspended for two months.
H was appealing the liability finding against him. The current suspension would be stayed pending the outcome of H's appeal to the HC.
Orders that H be suspended from practice as a barrister or as a solicitor, or as both, for a period of two months. The suspension was stayed pending the appeal.
1. Pursuant to s 242(1)(e), suspended from practice as a barrister or as a solicitor, or as both, for a period of two months. The suspension is stayed pending the appeal.
2. We note that the costs were partly incurred because of the failure of the LCRO to plead in the alternative in the first proceedings. We find the LCRO ‘direct’ costs of $4,000.00 to be properly incurred as part of the complaints process. In the circumstances we award $27,000.00 of the total costs claimed of $32,832.00.
3. We consider Mr Hong should meet the full Tribunal costs by reimbursement of these to the New Zealand Law Society. The Tribunal costs are certified at $12,331.00.
DECISION OF THE TRIBUNAL AS TO PENALTY
Mr Hong was prosecuted by the Legal Complaints Review Officer (“LCRO”) for misconduct, which the Tribunal found to be established in our decision of 19 August 2015.
Having heard submissions on penalty, we indicated to counsel that we did not intend to impose the “ultimate” sanction of strike-off, which had been sought by the LCRO. We also said that a period of suspension was in contemplation, the length of which and supporting reasons, would be given in a reserved decision. This is that decision.
Mr Collins, for the LCRO, presented cogent and persuasive submissions. Other than as to final outcome, and some minor matters, we accept them in their entirety.
We do not consider, however, in all the circumstances, the level of offending is such as to compel us to the unanimous view that Mr Hong is no longer a fit and proper person to practice as a lawyer.
After the hearing had concluded, Mr Hong made available to the Tribunal a decision of His Honour Kos J, which had been released immediately following the penalty hearing. 1 This decision was as a result of the judicial review proceedings brought by Mr Hong in relation to a determination of the Standards Committee on 14 February 2013. That decision found unsatisfactory conduct on Mr Hong's part and made four consequential orders. One of these orders was attendance at an education course. Mr Hong did not attend that course and subsequently a charge was laid by the Standards Committee against Mr Hong for breach of the Standards Committee Order.
That charge came before this Tribunal in April 2014 and the Tribunal found Mr Hong guilty of misconduct. In June 2014 the Tribunal imposed a penalty upon Mr Hong of 10 months suspension.
Mr Hong appealed that penalty and on appeal the suspension was reduced to the four months which had already been served by Mr Hong while awaiting the hearing of the appeal.
On the same day of his High Court appeal Mr Hong then filed an application for judicial review against the Standards Committee and the Tribunal. It is that judicial review which is the subject of the decision on 14 October last. The review was successful and as a result both the Standards Committee finding and the Tribunal finding and the subsequent finding of the Tribunal were set aside. Thus, Mr Hong has served a period of suspension of four months for offending in respect of which the finding has been set aside.
We note that His Honour commented 2:
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