LW v VI

 
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[2012] NZLCRO 45

Legal Complaints Review Officer

court:

LCRO Vaughan

LCRO 157/2011

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

Concerning a determination of the Wellington Standards Committee 1

Between
Lw
Applicant
and
VI
Respondent

Application for review against determination of the Standards Committee that practitioner's name be published — Committee had found unsatisfactory conduct in respect of representation of client on criminal matter — impact of failure to maintain professional standards in criminal law area — effect of name publication on those who practiced with practitioner — whether publication was necessary or desirable in the public interest.

The issue was whether publication was necessary or desirable in the public interest.

Held: It was only since 2008 that the “consumer protection” element of the disciplinary process had been in place. Therefore the weight to be given to previous disciplinary history of a practitioner when considering publication was limited.

Any publication would refer to LW's name only. It would not therefore directly affect his staff or those practising in conjunction with him. While there might be some impact if it was known that the person was either employed by LW or practised in conjunction with him in AEB, those persons did not thereby become imputed with LW's conduct and there would be limited if any adverse consequences arising from this.

Although there would be an effect on LW's reputation, LW had many satisfied clients and as the facts of the case would also be published, it would be recognised that the unsatisfactory conduct arose in the course of representing VI in a criminal matter. Those who wished to instruct LW to represent them on other matters might not have any concerns.

The LCRO publication guidelines identified factors to be taken into account when considering whether it would be in the public interest to publish a decision which had identifying details. These were:

  • •the extent to which publication would provide protection to the public including consumers of legal and conveyancing services;

  • •the extent to which publication would enhance public confidence in the provision of legal and conveyancing services;

  • •the impact of publication on the interests and privacy of the complainant, the practitioner or any other person;

  • •the seriousness of any professional breaches; and

  • •whether the practitioner had previously been found to have breached professional standards.

The primary issue under s206(4) was whether publication was necessary or desirable in the public interest. Representation of clients in criminal proceedings was an extremely important role for a solicitor to undertake. The consequences of inadequate representation would have a detrimental effect on the client. Where a practitioner's had been found wanting in this area, it was extremely important that this be communicated to the public so that they could make informed choices as to who would represent them.

Section 3(1)(a) LCA (Purposes) provided that one of the purposes was to maintain public confidence in the provision of legal services. A Standards Committee would be failing in its duty if it did not provide the public with a means of knowing that LW's representation had been found wanting, and enabling persons needing representation to make an informed choice.

The publication of the facts of this case, and LWs name, was necessary and desirable in the public interest. Standards Committee determination confirmed.

DECISION
Introduction
1

This is an application for review by LW against a determination of the Standards Committee to publish his name following an earlier finding against him of unsatisfactory conduct. The result of this review is that the determination of the Committee is confirmed but modified to include publication of the details of the first determination.

Background
2

VI was involved in an altercation at a service station and was charged with a criminal offence. He instructed LW to represent him in defending the charge but was convicted.

3

Following VI's complaint to the Complaints Service of the New Zealand Law Society, the Standards Committee made a finding that LW's conduct in representing VI constituted unsatisfactory conduct. He was fined $1,000 and was ordered to take advice in relation to the management of his practice at his own expense. In addition, he was ordered to pay costs of $1,000 to the New Zealand Law Society.

4

The Committee sought submissions from the parties as to publication of its determination and LW's name. VI filed submissions – LW did not.

5

In its determination dated 31 May 2011, the Committee determined pursuant to section 142(2) of the Lawyers and Conveyancers Act 2006 to publish LW's name in Law Talk and on the New Zealand Law Society website such publication to include LW's name but not VI's name or any details that might identify him.

6

LW has applied for a review of that determination.

Review
7

LW requested to appear in support of his application and a review hearing was held in Wellington on 31 May 2012. LW was accompanied by LX, the consultant from whom LW was directed by the Standards Committee to obtain advice with regard to the management of his practice.

8

At the outset of the hearing, I provided LW with a copy of VI's email dated 17 January 2012 to this Office which had not previously been provided to him. I advised that LW had a period of one week from the date of the hearing to provide any comments on that email. No comments have been received from him.

LW's submissions
9

The Standards Committee invited both VI and LW to provide submissions with regard to the issue of publication but none were received from LW. It would seem that it was only following the determination by the Committee to order publication of LW's name that he has been prompted to belatedly take some action in his own defence. The scope of a review by this Office enables LW to have his submissions considered, but these are submissions which should have been before the Standards Committee.

10

LW advises that he has been in practice for [many] years. His practice is primarily conveyancing based, but he has been undertaking criminal briefs since 1982. He advised that at the time of his instructions by VI, he was approved by the Legal Services Agency to undertake criminal jury trials.

11

His practice is conducted in conjunction with others under the name of AEB and he himself employs a staff solicitor and a...

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