Samuels v New Zealand Law Society

JurisdictionNew Zealand
CourtHigh Court
JudgeHeath J
Judgment Date01 Dec 2014
Neutral Citation[2014] NZHC 3025
Docket NumberCIV 2014-404-2187

[2014] NZHC 3025

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2014-404-2187

In the Matter of the Lawyers and Conveyancers Act 2006

Between
Bernard Claude Samuels
Applicant
and
New Zealand Law Society
Respondent
Counsel:

M J Kidd for Applicant

M Hodge for Respondent

Application for an order that the applicant be admitted as a barrister and solicitor of the High Court of New Zealand — New Zealand Law Society (the Society) had refused a certificate of character on the grounds that the applicant had failed to disclose that he had been suspended from practice in South Africa — applicant had later been reinstated to practise and had remained on the Roll of Attorneys in South Africa and was regarded, throughout that period, as a fit and proper person to practise — applicant had not co-operated with the Society's requests for further information on suspension — whether the applicant was a fit and proper person to be admitted as barrister and solicitor of the High Court.

Held: The Court of Appeal held that the concept of a “fit and proper person” incorporated standards of “integrity, probity and trustworthiness” ( New Zealand Law Society v Mitchell).

In each case, a fact-specific inquiry had to be undertaken to determine whether the “fit and proper person” standard had been met. Four principles would be relevant to an inquiry into whether such a person was “fit and proper” to be admitted to the New Zealand Bar (Re M):

(a) The Court's focus was on likely future conduct. It was not part of the Court's function to punish for past conduct.

(b) A person who had erred professionally after admission to the legal profession bore a heavier onus than was cast on a candidate for first admission.

(c) Due recognition had to be given to the circumstance of youth where errors of conduct occurred when an applicant was immature.

(d) It was necessary to look at the circumstances “in the round”, rather than paying particular regard to an event in the past, whether it be a previous conviction or a suspension from legal practice.

S did himself no favours in the way in which he approached his applications to the Society for a character certificate. Initially, he failed to disclose the period of suspension in South Africa. When the circumstances in which the suspension arose assumed importance, S seemed reluctant to provide the necessary information that the Society required. It was clear that he did not grasp the implications of non-disclosure when his applications were made in 2012 and 2013. S considered that reinstatement, of itself, proved his fitness to practice.

Although S did not disclose the suspension proceedings when he first applied for a character certificate in 2012, there was evidence that he advised the Society of the suspension in a letter dated 4 April 2008 to the Director of Regulatory Services, at the Society. The fact that S disclosed his suspension to in the letter suggested that his failure to refer to it in his 2012 application for a certificate of character was more likely to have been an oversight. In those circumstances, it could not be said that he failed to provide timely disclosure of the suspension.

S' dealings with the Society in relation to the requests for further disclosure fell below the standard that ought to be expected of a candidate for admission. But, there were significant mitigating factors. S had found the circumstances that had led to his suspension so traumatic that he was unprepared to reveal detail. That was the only explanation for somewhat sharp responses to reasonable questions from the Society. S' conduct contrasted unfavourably with the commendable way in which he had dealt with the problems in South Africa between 1996 and 2000.

While S' contemporary correspondence with the Society demonstrated a lack of insight into the importance of the suspension order to his fitness to practice as a barrister and solicitor in New Zealand, he now understood that he ought to have responded more appropriately.

Ultimately, the focus was on S' likely future conduct. The fact that the suspension order was lifted only three years after it was made and S continued to practise without incident in South Africa suggested that there was no need for further sanction. Viewing S' circumstances “in the round”, his conduct in dealing with the application was not a disqualifying factor

There was evidence which suggested that S had not been the author of the email that it was alleged he had sent. If S were admitted to the Bar and it subsequently became clear that he had sent the email, not only would he be likely to be struck off the Roll immediately, but he would also be at serious risk of prosecution for perjury. It was unlikely that S would deliberately lie to the Court in those circumstances.

Having considered all of the factors to which the Society referred in opposing the application, S could properly be regarded as a “fit and proper person to be admitted as a barrister and solicitor of the High Court”, and to uphold the fundamental obligations cast upon lawyers the Lawyers and Conveyancers Act.

Order that S be admitted.

JUDGMENT OF Heath J

The application
1

Mr Samuels applied to the New Zealand Law Society (the Society) for a certificate of character, for the purpose of an intended application for admission to the New Zealand Bar. The Society declined to issue a certificate. As a result, he applies for an order that he be admitted as a barrister and solicitor of the High Court of New Zealand. 1 The issue is whether this Court is satisfied that he is a fit and proper person. 2

2

All candidates for admission as barristers and solicitors of the High Court of New Zealand must demonstrate they are fit and proper persons to hold that status. Ordinarily, a certificate of character from the Society is be sufficient to meet the “fit and proper person” criterion. 3 If no such certificate is issued, it is for this Court to determine for itself whether the candidate should be admitted.

Background
3

Mr Samuels is currently aged 62 years. From 1991, he practised as an Attorney in South Africa. For reasons I explore later, 4 between 8 September 1997 and 25 July 2000, Mr Samuels was suspended from practice in that jurisdiction. The main reasons for the Society's decision not to provide a certificate of character are Mr Samuels' failure to disclose that suspension when he initially applied to the

Society for a certificate of character, and his (alleged) subsequent lack of candour in providing information about it.

4

Mr Samuels first applied for a certificate of character, in October 2012. At that time, he did not declare the suspension. Mr Samuels answered “No” to a question on the application form: “Has your right of practice as a lawyer been cancelled or suspended in a foreign country?” When the Society learnt of the suspension, it declined to issue a certificate.

5

A second application was made on 25 March 2013. On this occasion, the suspension was disclosed and a substantial number of documents from the South African Courts' records were made available to the Society's Practice Approval Committee (the Committee). 5 On 7 June 2013, the Committee, having considered relevant information, decided to decline the March 2013 application.

6

Mr Samuels applied to this Court on 29 August 2014. The Society opposes his application because Mr Samuels, in its view:

  • (a) failed to provide timely disclosure of his earlier suspension from legal practice in South Africa,

  • (b) prepared and pursued his application to the Society in a manner that demonstrated a lack of care and professionalism,

  • (c) showed a lack of insight and candour in responding to the Society's queries about his earlier suspension from practice in South Africa,

  • (d) evidenced inappropriate personal conduct in a dispute with a former landlord, and

  • (e) sent an “unprofessional email” to the Society.

Legal principles
7

Admission and enrolment of barristers and solicitors is governed by Part 3 of the Lawyers and Conveyancers Act 2006 (the Act). There are three categories of persons who may seek admission. Mr Samuels falls into the second, having been previously admitted as an Attorney by a “Superior Court” in South Africa. 6

8

Mr Samuels has acquired the qualifications required for admission in New Zealand, and otherwise meets the criteria prescribed by rules made under s 54 of the

Act. 7 To establish the one remaining criterion, Mr Samuels must demonstrate that he is a fit and proper person to be admitted as a barrister and solicitor of this Court.
9

For the purpose of determining whether or not a person is a fit and proper person to be admitted, this Court may take account of any matters it considers relevant. 8 The Act includes, in a non-exhaustive list of “relevant matters”:

  • (a) Whether the candidate is of good character, 9

  • (b) Whether the candidate has been the subject of disciplinary action in a foreign country, 10

  • (c) Whether the candidate's right of practise as a lawyer has been suspended in a foreign country. 11

10

The Court of Appeal has held that the concept of a “fit and proper person” incorporates standards of “integrity, probity and trustworthiness”. In New Zealand Law Society v Mitchell, 12 that Court considered the case of a practitioner who, having been admitted to the Bar, had been struck off for failing to disclose 39 criminal convictions at the time he applied for (and obtained) admission and practising certificates. It held that the standard may have been met if he “had … disclosed his convictions promptly in his application for admission”. Mr Mitchell was admitted in 2001. The convictions had occurred between 1989 and 1994.

11

In each case, a fact-specific inquiry must be undertaken to determine...

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