National Standards Committee v Keith Ian Jefferies

 
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[2016] NZLCDT 29

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Mr J Bishop

Mr W Chapman

Ms M Scholtens QC

Ms P Walker

LCDT 018/16

Under the Lawyers and Conveyancers Act 2006

BETWEEN
National Standards Committee
Applicant
and
Keith Ian Jefferies
Practitioner
COUNSEL

Mr P Davey for the Standards Committee

Mr R Lithgow QC for the Practitioner

Penalty hearing for a practitioner who had been convicted of an offence punishable by imprisonment and which tended to bring his profession into disrepute — the practitioner was convicted of two counts of possession of methamphetamine (Class A), one count of possession of a Class C drug; and one charge of possession of utensils — the amounts in possession were of a residue nature only, but the search had located both drugs and utensils in three places, the practitioner's home, car and workplace — the practitioner had initially lied to the police about the ownership or possession of the items found, claiming they belonged to someone else — he later pleaded guilty following a negotiation over the summary of facts — the National Standards Committee sought suspension from practice - whether alcohol disciplinary cases were relevant to the drug offending — whether the sentence imposed on the criminal charge was determinative when considering penalty - whether suspension was required to show public disapproval.

The issues were: whether alcohol disciplinary cases were relevant to the drug offending; whether the sentence imposed on the criminal charge was determinative when considering penalty; whether suspension was required.

Held: In the first of the three cases identified by the Standards Committee ( National Standards Committee v Wootton), involved a practitioner who had been convicted of possession of methamphetamine and a pipe and who was suspended for a year. The practitioner had developed a serious addiction and had been out of practice for two years at the time of the hearing undertaking rehabilitation. Although the convictions were similar, the practitioner was so seriously affected as to reflect on his fitness to practise, which was not the case in the present matter.

The second matter ( Auckland Standards Committee 1 v Thomson) involved serious conduct, in that the practitioner was also a police prosecutor who had posted videos of himself using methamphetamine on social media. He accepted himself that he was not fit to practise and did not oppose being struck-off the roll.

National Standards Committee v Blair was again more serious than the present case because although cannabis was involved, there was a sale to an undercover police officer. In that matter the practitioner was suspended for three years.

Cases involving serious alcohol abuse engaged the second limb of s 241(d), namely that they reflected on the practitioner's fitness to practise. These cases involved patterns of addiction and therefore raised fitness issues. The penalties imposed in those cases reflected, to some extent, the steps taken by practitioners to address and deal with the addiction.

While sentence imposed on the practitioner, or at least from the maximum available sentence, was a factor in determining seriousness, it was not determinative. Regard should be had to how the public might judge the seriousness of a criminal lawyer, who represented clients facing drug charges, succumbing to the use of a Class A drug in this way. Assessment of such public perception was assisted by membership on the Tribunal of lay members, who Parliament intended to represent the public and consumers of legal services.

The offending was of a serious nature, although not at the very high end, or such as would impact directly on clients.

Lying to the police in relation to a number of areas of the search was an aggravating feature. J could simply have relied on his right to silence, but he made the situation worse by his actions. The fact that the items were found in three places, indicating a more pervasive “habit” rather than an isolated incident, was also an aggravating feature.

J's guilty plea, albeit somewhat delayed in the criminal jurisdiction, for what seem to be reasonable grounds, as well as his acknowledgement of this charge, were factors which counted in his favour.

Furthermore, apart from one previous ‘unsatisfactory conduct' finding this practitioner did not have a disciplinary history of significant concern. He had practised for approximately 30 years in an area of law which could be stressful and had not remunerated him at all well. He should be given credit for serving the community in this way.

There was a need for general deterrence in the marking of the profession's disapproval for the offending of this sort. This practitioner had vowed not to offend again in this manner, however the public would expect the Tribunal to send a strong message to the profession generally.

The predominant purposes of the disciplinary process were to advance the public interest (which included “protection of the public”), to maintain professional standards, to impose sanctions on a practitioner for breach of his/her duties, and to provide scope for rehabilitation in appropriate cases ( Daniels v Complaints Committee No. 2 of the Wellington District Law Society). A proportionate response was required.

Any penalty short of suspension would not reflect a proportionate response to this offending, having regard to the aggravating and mitigating features and having regard to the need for consistency with previous decisions of the Tribunal.

Suspension of any kind would impose a financial burden on J. His age, 67 years, should be taken into account in imposing the shortest period of suspension which properly reflected the profession's disapproval of his conduct. The offending was at a lower level than any of the three previous drug offending disciplinary cases. The practitioner's offer to undertake random testing as directed by the Law Society was a proper and protective measure.

A suspension of six months was the least restrictive intervention having regard to all of the factors in this case.

Orders - practitioner to be censured, suspended from practice for 6 months commencing 10 October 2016 and to submit to random drug tests as directed by the Chief Executive of the New Zealand Law Society. Payment of costs required.

DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL ON PENALTY
Introduction
1

Mr Jefferies appeared before us for a penalty hearing, consequent on his acknowledgement of a charge that:

He had been convicted of an offence punishable by imprisonment and which tended to bring his profession into disrepute.

2

The key difference between the National Standards Committee who brought the charge, and Mr Jefferies' counsel, is over the necessity of suspension of Mr Jefferies from practice.

Background
3

The starting point in assessing penalty is the seriousness of the conduct, so a brief background is required.

4

Mr Jefferies was convicted of two counts of possession of methamphetamine (Class A); one of possession of bk-MDMA (Class C); and one charge of possession of utensils. The amounts in possession were of a residue nature only, but the search, which took place in July 2014, located both drugs and utensils in three places, the practitioner's home, car and workplace.

5

Mr Jefferies claims he has no addiction and has been clean since this time. He provided a certificate from his therapist confirming his self referral, diligent attendance, clean drug testing and certifying that he did not have “an addictive personality” (although that term was not defined).

6

Rather than maintain his right to silence during the search, Mr Jefferies, a lawyer who has acted in criminal matters for 30 years, told the police that items in the car belonged to someone else, said the same about those in his office and commented that other people visited his home. In other words he lied about the ownership or possession of the items.

7

Mr Jefferies pleaded guilty in August of 2015, following a negotiation over the summary of facts. This was over a year after being charged. He was sentenced to total fines of $1,300, having sought a discharge without conviction. On appeal the sentence was upheld.

8

Unsurprisingly Mr Jefferies' offending attracted considerable media attention.

Submissions on seriousness
9

Mr Davey, on behalf of the National Standards Committee drew the Tribunal's attention to three cases where drug use had been considered, to emphasise that the Tribunal has taken the use of methamphetamine to be a serious matter. In the Wootton 1 matter, a practitioner who had been convicted of possession of methamphetamine and a pipe was suspended for a year. In the Wootton situation the practitioner had developed a serious addiction and had been out of practice for two years at the time of the hearing undertaking rehabilitation. Although the convictions are similar we accept that in that matter the practitioner was so seriously affected as to reflect on his fitness to practise, which is not the case in the present matter.

10

It is accepted by the Standards Committee that the second matter, the Thomson2 matter was a situation of more serious conduct, in that the practitioner was also a police prosecutor who had posted videos of himself using methamphetamine on social media. He accepted himself that he was not fit to practise...

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