Timothy John Burcher v Auckland Standards Committee 5 of The New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: Whata J
• Judgment Date: 31 January 2020
• Neutral Citation: [2020] NZHC 43
• Court: High Court
• Docket Number: CIV-2019-404-1262
• Date: 31 January 2020

Between

Timothy John Burcher

Appellant

and

Auckland Standards Committee 5 of the New Zealand Law Society

Respondent

[2020] NZHC 43

Whata J

CIV-2019-404-1262

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Law Practitioners — appeal against finding of misconduct — providing regulated services while suspended — whether acting as a solicitor/trustee was providing regulated services when performing legal work for the trust — Lawyers and Conveyancers Act 2006

Counsel:

D P H Jones QC for Appellant

E Mok for Respondent

JUDGMENT OF Whata J

This judgment was delivered by me on 31 January 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

1 Mr Burcher has been found guilty of misconduct on the basis that he provided regulated services while suspended. 1 This is Mr Burcher's appeal.

Background

2 The following narrative is largely based on the background provided by the Tribunal, which is not disputed.

3 On 18 December 2015, Mr Burcher was suspended from practice for a period of nine months commencing at the close of business, 23 December 2015. This followed his guilty plea on two charges of misconduct and one charge of unsatisfactory conduct. Those charges related to breaches of the rules relating to a nominee company. Mr Burcher was the trust account partner and the partner primarily responsible for the running of the nominee company.

4 Following the Christmas break, Mr Burcher returned to the firm's premises on 13 December 2016, at which point he corresponded with the General Manager of Regulatory Services of the Law Society, Ms Olivier, over the suspension order and type of activity he was permitted to undertake. Mr Burcher set out five sorts of activities which he proposed to engage in during the period of his suspension, namely:

• (a) Assisting in a search for premises for the firm;

• (b) being involved in staff employment and general management of the practice;

• (c) archiving of files and ensuring wills and trusts were up to date;

• (d) the pursuit of continuing legal education; and

• (e) assisting with the final wind-down of a nominee company.

5 Ms Olivier advised Mr Burcher, among other things, that “care will need to be taken that other lawyers do not form the impression that you are continuing to practise, although that seems unlikely from what you have described”.

6 Shortly after this advice, Mr Burcher sent a further email to Ms Olivier on 26 January 2016. In that email he pointed out that he is a trustee of several trusts and attorney for various people. As recorded by the Tribunal, he said:

I presume I can still talk to the other trustees as long as I disclose that it is only about those specific matters that are not of a legal nature … likewise if people need me to sign documents as to attorney if someone else is providing the legal advice I must surely be able to sign the document.

7 Ms Olivier responded the next day:

I cannot see any reason why you would need to resign as attorney or trustee by virtue of your limited suspension and there is no reason why you could not sign documentation in your capacity as trustee/attorney. You may wish to advise any affected clients of your suspension.

I note your awareness that you would not be providing legal advice in that capacity.

8 At about the same time, Mr Burcher's then partner, Mr Macdonald, raised concerns with Mr Burcher about his conduct. Mr Macdonald stated in an email:

You have been suspended. Despite that, you are in the office every day and not only are you making and receiving many phone calls but you are also giving tapes to [Ms M] to do as well as spending a lot of time in her office directing her on her work. You are also dealing with clients' funds and have provided a number of trust account records hand-written by you. I have already expressed my concern about the position.

9 Ms M is a legal executive of more than twenty years' experience who worked with Mr Burcher for a long time.

10 On 5 May 2016, Mr Macdonald made a confidential report to the Law Society expressing concern that Mr Burcher was acting in breach of the suspension order. The Law Society followed with an investigation which reviewed in excess of 500 pieces of dictation that Mr Burcher had made during the period in question, addressed to the legal executive, Ms M. The investigator concluded that Mr Burcher may have provided regulated services and identified specific examples. Most of those examples form part of the charges.

The charges

11 The charges allege that Mr Burcher provided regulated services on multiple occasions from 15 January 2016 through to 24 May 2016, which were in breach of the Disciplinary Tribunal's suspension order. These charges correspond to nine particulars. It is convenient to set them out in full.

15 January 2016

12 On or around 15 January 2016:

• (a) Mr Burcher gave legal advice in relation to the direction or management of relationship property proceedings by drafting correspondence to barrister Alan Goodwin (the lawyer for the other party in the proceedings) and Mr Burcher's client, Michael Matthew. Mr Burcher dictated a letter to be sent by another employee at the firm:

  • (i) Mr Burcher's correspondence to Mr Goodwin advised that the client would be in New Zealand in the next couple of months and “we would certainly recommend that he attend a round table meeting in an attempt to finalise relationship property issues”.

  • (ii) Mr Burcher's correspondence to Mr Matthew enclosed the correspondence with Mr Goodwin and stated:

    I really think a round table informal meeting would be a good idea. We really need to try to shut this down as soon as possible to avoid incurring further unnecessary costs. I know that you are absolutely against paying anything but even making adjustments for per lack of child care contributions etc. there is still a litigation risk and we may well find we are able to get rid of her for a reasonably modest sum.

• (b) Mr Burcher provided conveyancing services by drafting correspondence to [CS] on behalf of his client [A] Investments Limited (to be sent by another employee at the firm) which included detailed comments on, and proposed changes to, a draft management agreement, including that two clauses of the agreement be deleted, and seeking machine rental depreciation costs be included in the agreement.

18 January 2016

13 On or around 18 January 2016, Mr Burcher dictated letters to a solicitor, Manu Bhanabhai; and firm, Martelli McKegg, in respect of an outstanding leasehold matter following the sale of a property by Tower City Holdings Limited. In particular:

• (a) The letter to Mr Bhanabhai advised:

  Our client instructs that it asked for the agent to arrange for notice to be given to the tenant in the shop. It thought that this had been done but our client has now on-sold the property and the purchaser says that the tenant alleges that she has not been given any formal written notice. We note that there were no apportionments of rental on the settlement statement and our client relied on your client's agent to arrange the notice.

  Our client has absolutely no knowledge of the terms of the agreement or indeed the name of the tenant. Can you please urgently forward to us a copy of the lease and confirm up until what date the rent has been paid.

• (b) The letter to Martelli McKegg advised that the client was “urgently ascertaining the situation from the original vendor” regarding the leasehold.

14 March 2016

14 On or around 14 March 2016, Mr Burcher prepared a letter for Macky Robertson Limited. That letter involved the provision of conveyancing services (or services incidental to conveyancing services), in that it included comments and advice on terms of an agreement, a priority deed, and the sale of a property.

6 April 2016

15 On or around 6 April 2016:

• (a) Mr Burcher provided services to his client, A Investments, in relation to the reserved areas of work. He did this by dictating a letter to be sent to a solicitor for another party, setting out terms of proposed settlement, and his client's position on priority arrangements. The letter stated:

  Our client is willing to make substantial concessions on dealing with any sale proceeds of the property provided he gets prompt acceptance from yours … Our clients [sic] additional advances are significant already. It is not mine [sic] to make any further contributions as it anticipates shortly having to make the 10% settlement payment. If it paid the costs that your client has incurred it would be entitled to a priority of those. In the circumstances it is perfectly happy for your client to be reimbursed for those current costs that it will attend to payment but no further costs … We believe this is a very fair and generous concession by our client and the offer will not be on the table for very long.

• (b) Mr Burcher provided legal advice to one of his clients, Harry Dodson, in relation to the Black Watch Trust. Mr Burcher dictated a letter to Mr Dodson which thanked him for his instructions to review trust documents and prepare a new will and trust documents. The letter stated:

  Our review of the trust deed notes that clause 10.01 contemplates an independent trustee before discretions can be exercised on certain beneficiaries who are also trustees. We think in due course that it may be sensible that you also resign as a trustee and appoint Tim Burcher in your place for the moment. However, if it is likely the only distributions from the trust will be in your favour ten [sic] certainly Tom and Cecilia are able to exercise this discretion.

24 May 2016 to 1 June 2016

16 On the following occasions, Mr Burcher provided the following conveyancing services:

• (a) On or around 26 May 2016, Mr Burcher dictated an agreement to surrender and create rights of way, a height...