Samuels v New Zealand Law Society
| Jurisdiction | New Zealand |
| Judge | Heath J |
| Judgment Date | 01 December 2014 |
| Neutral Citation | [2014] NZHC 3025 |
| Docket Number | CIV 2014-404-2187 |
| Court | High Court |
| Date | 01 December 2014 |
In the Matter of the Lawyers and Conveyancers Act 2006
[2014] NZHC 3025
CIV 2014-404-2187
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
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.
M J Kidd for Applicant
M Hodge for Respondent
JUDGMENT OF Heath J
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
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.
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.
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.
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.
Mr Samuels applied to this Court on 29 August 2014. The Society opposes his application because Mr Samuels, in its view:
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(a) failed to provide timely disclosure of his earlier suspension from legal practice in South Africa,
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(b) prepared and pursued his application to the Society in a manner that demonstrated a lack of care and professionalism,
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(c) showed a lack of insight and candour in responding to the Society's queries about his earlier suspension from practice in South Africa,
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(d) evidenced inappropriate personal conduct in a dispute with a former landlord, and
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(e) sent an “unprofessional email” to the Society.
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
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
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”:
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(a) Whether the candidate is of good character, 9
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(b) Whether the candidate has been the subject of disciplinary action in a foreign country, 10
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(c) Whether the candidate's right of practise as a lawyer has been suspended in a foreign country. 11
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.
In each case, a fact-specific inquiry must be undertaken to determine whether the “fit and proper person” standard has been met. The authorities on this issue were considered recently by Keane J, in Gibbs v New Zealand Law Society 13 and Faire J, in Ali v New Zealand Law Society. 14
Both Keane and Faire JJ took as their starting point a decision of the Court of Appeal in Re Lundon. 15 Delivering the judgment of himself and Herdman, Reed, Adams and Ostler JJ, Skerrett CJ said:
… what we are called upon to do is to decide whether upon the evidence we would be justified upon valid and substantial grounds in holding out to the public that the applicant is a fit and proper person to stand in the ranks of an honourable profession to whose members ignorant people are frequently obliged to resort for assistance in the conduct of their affairs, and in whom they are in the habit of reposing unbounded confidence. …
The relations between a solicitor and his client are so close and confidential, and the influence acquired over the client is so great, and so open to abuse, that the Court ought to be satisfied that the person applying for admission is possessed of such integrity and moral rectitude of character that he may be safely accredited by the Court to the public to be entrusted with their business and private affairs.
In Re M, 16 this Court focussed on the approach to be taken to persons who had had previous convictions but had rehabilitated themselves. Panckhurst and Chisholm JJ identified four principles that would be relevant to an inquiry into whether such a person was “fit and proper” to be admitted to the New Zealand Bar: 17
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(a) The Court's focus is on likely future conduct. In determining whether an applicant is a fit and proper person to be admitted, it is not part of the Court's function to punish for past conduct.
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(b) A person who has erred professionally after admission to the legal profession bears a heavier onus than is cast upon a candidate for first admission.
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(c) Due recognition must be given to the circumstance of youth where errors of conduct occurred when an applicant was immature.
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(d) It is 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 (in my view) a suspension from legal practice.
Mr Samuels was cross-examined before me at the hearing of his application. The following findings are drawn from both the affidavit and oral evidence.
Mr Samuels 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. 18
When the circumstances in which the suspension arose assumed importance, Mr Samuels seemed reluctant to provide the necessary information that the Society required. The events that led to Mr Samuels' suspension were, because of the close link between his personal and professional life, traumatic to him. 19 As Mr Samuels deposed, he had tried to put it “out of his mind”. Although I am satisfied that Mr Samuels now understands why the issue was of such importance to the Committee when it considered whether to issue a character certificate, it is clear that he did not grasp the implications of non-disclosure when his applications were made in 2012 and 2013. I am satisfied that was because Mr Samuels felt aggrieved about the need to revisit these events, given the fact that he was subsequently reinstated to practice in South Africa. 20 He considered that reinstatement, of itself, proved his fitness to practice.
It is unfortunate that Mr Samuels felt the need to suppress information about what occurred in South Africa. On reading of the relevant Court papers, I was impressed with the way in which he dealt with a difficult situation. In an affidavit sworn in 2000, in support of an application to lift his suspension, Mr Samuels accepted that from about October 1995, his “practice was out of control”. During April 1996, Mr Samuels and his former wife separated. She had been working for him as an administrator in his office. When she left,...
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