McGUIRE v WELLINGTON STANDARDS COMMITTEE

JurisdictionNew Zealand
CourtHigh Court
JudgeMALLON J
Judgment Date02 December 2014
Neutral Citation[2014] NZHC 3042
Docket NumberCIV 2014-485-3007
Date02 December 2014

Under the Judicature Amendment Act 1972

And Part 30 of the High Court Rules

Between
Jeremy James Mcguire
Applicant
and
Wellington Standards Committee (No 1)
First Respondent
The Lawyers And Conveyancers Disciplinary Tribunal
Second Respondent

[2014] NZHC 3042

Mallon J

CIV 2014-485-3007

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application for judicial review of the respondent committee's decision to bring disciplinary proceedings against the applicant and the second respondent Tribunal's decision to censure him and order him to pay costs — the applicant had acted for a legal aid client regarding an estate matter and had entered into a contingency fee arrangement with the client — the Legal Services Agency had refused to consent to arrangement — the client laid a complaint regarding the fee — applicant had sought summary judgment for the fee notwithstanding being advised that the complaint had been laid — committee said that this was contrary to s161 Lawyers and Conveyancers Act 2006 (“LCA”) (stay of proceedings for recovery of costs) — committee determined to lay charges before the Tribunal — during initial hearing, applicant and committee agreed it would drop one charge and amend a misconduct charge to unsatisfactory conduct if applicant agreed to be supervised — agreement was not signed and referred to Tribunal until after the applicant had completed supervision — at the later hearing applicant sought discharge without conviction and costs — Tribunal censured him on basis he had not accepted responsibility — whether the decision to lay the charge was ultra vires because the first respondent had not validly delegated power under s184 LCA (delegation of functions and powers) — whether the decision to censure the applicant was unreasonable.

Appearances:

J McGuire appearing in person

T Mackenzie for the First Respondent

No appearance for the Second Respondent (abides)

JUDGMENT OF MALLON J

Table of Contents

Introduction

[1]

The legislation

[2]

The facts

[14]

Procedural matters

[50]

Delegation

[50]

Bias

[60]

Procedural irregularities

[65]

Charges in error

[72]

The decision

[77]

Unreasonable/legitimate expectation

[77]

Remedy

[91]

Result

[92]

Introduction
1

Mr McGuire is a barrister and solicitor. He seeks judicial review of disciplinary proceedings brought against him. He challenges matters leading to the decision of the Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) to censure him and order him to pay costs, and the decision itself.

The legislation
2

The New Zealand Law Society's (the Law Society) complaints service for receiving complaints about lawyers is established by regulations (the Regulations). 1 The Regulations set out how a complaint is to be made. 2 They set out the procedure the complaints service is to follow on receiving a complaint. 3 Under that procedure the complaints service is to refer the complaint to a Standards Committee as soon as is reasonably practicable. 4 The complaints service is also to notify the person to whom the complaint relates, provide them with a copy of the complaint, and advise them of their right to make a written submission to the Standards Committee. 5

3

The Regulations establish regionally based Standards Committees. 6 For present purposes the relevant ones are the Wellington Standards Committee (No 1) (WSC1) and the Wellington Standards Committee (No 2) (WSC2). The procedures of a Standards Committee must comply with the rules of natural justice. 7 A Standards Committee's decision is by majority vote. 8

4

The functions of a Standards Committee are set out in the Lawyers and Conveyancers Act 2006 (“the Act”). They include investigating a complaint, investigating of its own motion any matter that “appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner”,

making “final determinations in relation to complaints”, and prosecuting charges before the Tribunal. 9
5

On receiving a complaint, the Standards Committee must advise the complainant and the practitioner “as soon as practicable” whether it proposes to inquire into the complaint, to make directions for resolving the complaint, or to take no further action. 10 If it decides to inquire into a complaint, it must do so “as soon as practicable.” 11 It must perform its functions in accordance with the rules of natural justice. 12 The Standards Committee's hearing is to be on the papers unless it directs otherwise. 13 It may determine that the matter should be considered by the Tribunal, determine there has been “unsatisfactory conduct”, 14 and/or determine to take no further action. 15

6

If the Standards Committee determines to refer the matter to the Tribunal, the Standards Committee must frame an appropriate charge and lay it before the Tribunal. 16 It must give notice of that determination and a copy of the charge to the lawyer to whom it relates. 17 There are regulations that relate to the proceedings before the Tribunal (“the Tribunal Regulations”). 18 These include the following in relation to the laying and service of a charge:

5 Laying and service of charge by Standards Committee

  • (1) A charge laid under section 154 of the Act by a Standards Committee must be in form A and must be supported by affidavit.

  • (2) The Standards Committee laying the charge must ensure that the person charged and the complainant (if any) are, without delay, served with—

    • (a) written notice of the Committee's determination that the complaint or matter should be determined by the Disciplinary Tribunal; and

    • (b) a copy of the charge; and

    • (c) a copy of the supporting affidavit.

7

If the Standards Committee determines that there has been unsatisfactory conduct it may make various orders, including censuring or reprimanding the lawyer, requiring the lawyer to apologise to the complainant, reducing the lawyer's fee, requiring the lawyer to pay a fine, and requiring the lawyer to take advice about his or her practice. 19

8

Where the complaint relates to the amount of a bill of costs, “no proceedings for the recovery of the amount of the bill may be commenced or proceeded with until after the complaint has been finally disposed of.” 20 When the Standards Committee makes its final determination on the complaint it must certify the amount that it finds is due to or from the lawyer. 21

9

The Standards Committee has a power to appoint committees. 22 The power is exercisable “from time to time.” 23 The committee may comprise two or more members of the Standards Committee and “such other persons (if any) as the Standards Committee thinks fit”. 24 Such a committee may be appointed to inquire into and report to the Standards Committee on matters within the Standards Committee's functions or powers. 25 Or it may be appointed “to exercise on behalf of the Standards Committee any of its functions or powers.” 26

10

A Standards Committee may delegate “any of its functions and powers” to any such committee that it has appointed pursuant to its power of appointment. 27 It can also delegate its functions and powers to “any of its members” or “to any other person.” 28 This power of delegation extends to the power of delegation itself. It does not extend to some specific powers, including the power to determine a

complaint (under s 152) or to make orders in respect of such a determination (under s 156). 29 Every delegation must be in writing. 30
11

The Act establishes the Tribunal. 31 Its functions include hearing and determining charges brought against a lawyer. 32 In performing its functions and powers it must observe the rules of natural justice. 33 A charge brought by the Standards Committee is to be prosecuted by it and it may be represented by counsel. 34 The person to whom the charge relates is entitled to appear and be heard and to be represented by counsel. 35 At the hearing the Tribunal may receive information which it considers may assist it in dealing effectively with the matters before it, whether or not that information would be admissible in a court of law.

12

The Tribunal has power to impose orders if it is satisfied that it has been proved on the balance of probabilities that the lawyer: 36

  • (a) has been guilty of misconduct; or

  • (b) has been guilty of unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct; or

  • (c) has been guilty of negligence or incompetence in his or her professional capacity of such a degree or frequency as to reflect on his or her fitness to practise or as to bring the profession into disrepute; or

  • (d) has been convicted of an offence punishable by imprisonment which reflects on his or her fitness to practise, or tends to bring the profession into disrepute.

13

The orders that the Tribunal can impose include the same powers available to the Standards Committee, 37 an order suspending the lawyer from practice, an order prohibiting the lawyer from practising on his or her own account, an order that the lawyer be struck off the roll, and a penalty not exceeding $30,000. 38 The Tribunal may make any such order as to costs as it thinks fit. 39

The facts
14

The background to this matter begins with Mr McGuire's retainer with a client, Ms Sheridan, in respect of a claim on an estate. Ms Sheridan was granted legal aid for this matter. Mr McGuire and Ms Sheridan also entered into a contingency agreement. The agreement provided as follows:

  • 1. The client is guaranteed a minimum net payment of $50,000.00 if the case is won in the Wellington High Court and payment of at least $55,695.00 is awarded to the Client.

  • 2. Current legal aid of $5,695.00 that is granted and paid shall be repaid to the legal services agency by the lawyer if judgment up $55,695 is ordered.

  • 3. Thereafter, any judgment over $55,695.00...

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2 cases
  • Jeremy James Mcguire v Secretary for Justice
    • New Zealand
    • Supreme Court
    • 27 November 2018
    ...Committee (No 1) v McGuire [2011] NZLCDT 28. 20 Wellington Standards Committee (No 1) v McGuire [2013] NZLCDT 41. 21 McGuire v Wellington Standards Committee (No 1) [2014] NZHC 3042 [ Wellington 22 At [84]–[89]. 23 At [92]. 24 McGuire v Wellington Standards Committee (No 1) [2015] NZHC 44......
  • McGuire v Wellington Standards Committee (No 1)
    • New Zealand
    • High Court
    • 12 March 2015
    ...of costs. 12 I therefore order costs of $14,700 against the first respondent and in Mr McGuire's favour. Mallon J 1 McGuire v Wellington Standards Committee (No 1) [2014] NZHC 2 These figures were not calculated on the basis of Mr McGuire's usual hourly rate, but on the basis that he had r......

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