Waikato Bay of Plenty Standards Committee 2 v Angela Bean
 NZLCDT 7
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Judge D F Clarkson
Mr W Chapman
Mr S Morris
Mr P Shaw
Mr I Williams
In The Matter of the Lawyers and Conveyancers Act 2006
Ms N Copeland for the Standards Committee
Mr T Conder and Mr L Stewart for the Practitioner
Decision on a penalty following guilty pleas on two charges of misconduct pursuant to s7(1)(a)(i) Lawyers and Conveyancers Act 2006, namely that her conduct “… would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable” — the practitioner agreed to a cash fee of $2,500 (notwithstanding there was recorded time of $4,000) — when the client returned the next day with the $2,500 cash, instead of invoicing him for that amount, she raised an invoice for $500 and took $2,000 for herself — when her deception was discovered by her employer, she immediately acknowledged her wrongdoing, returned the money, resigned and apologised — she self-reported to the New Zealand Law Society and handed in her practising certificate — she had not sought to practice law since, had admitted the Standards Committee charges at the earliest opportunity and fully cooperated with the process — whether a suspension of three years was appropriate — whether costs should be reduced to 20% of the total sought to reflect fairness and co-operation by the practitioner — whether name suppression should be ordered because of the risk to the practitioner's health and the risk of damage to her current employer.
The issues were: whether a suspension of three years was appropriate; whether costs should be reduced to 20% of the total sought to reflect fairness and co-operation by the practitioner; and whether name suppression should be ordered.
Held: A three year suspension was proper based upon the principles applied in previous cases before the Tribunal and the Courts. Where deliberate dishonesty was involved, the Tribunal would almost inevitably strike-off the practitioner from the roll ( ). However, the Courts had repeatedly noted that where a lesser penalty would suffice to mark the seriousness of the conduct and to protect the public, that that ought to be considered ( ).
In this instance the conduct concerned a single event. It was accepted that the conduct was very serious, but the actions of the practitioner in fully accepting responsibility for her actions and taking steps to remove herself from the profession and seek medical help and therapeutic support did provide substantial mitigation.
The practitioner had an unblemished disciplinary record and had practised law for 15 years without any previous concerns. At the time of the conduct and subsequently she had been diagnosed as suffering from [redacted].
The agreed penalty of three year's suspension, taking account of time already “served” was proper in terms of the penalty principles, the objects of the Act, and precedent.
A censure was also imposed.
Ms Bean appeared before the Disciplinary Tribunal for a penalty hearing, having admitted two charges of misconduct pursuant to s 7(1)(a)(i) of the Lawyers and Conveyancers Act 2006 (“the Act”), namely that her conduct “… would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable …”.
At the conclusion of the hearing we made the orders which are set out at the end of this decision and reserved our reasons to be delivered in writing. This decision sets out those reasons.
Ms Bean represented a couple in what came to be a somewhat difficult transaction for a number of reasons. At the conclusion of this transaction Ms Bean was asked by one of her clients what level of fees had been incurred, and he signalled that his (estranged) wife was concerned about this. On being told that the time recorded came to approximately $4,000 the client asked Ms Bean “what she could do for cash”. Ms Bean told the client the fee would be $2,500.
Ms Bean acknowledges that cash jobs were not something that the firm for whom she worked would approve of, but that she had discretion to write off time, and had general independence concerning billing of fees.
However, when the client returned the next day with the $2,500 cash, instead of invoicing him for that amount, she raised an invoice for $500 and took $2,000 for herself.
Ms Bean, who described herself as being at a very low ebb and highly stressed at the time, almost immediately regretted this act of dishonesty, but seemed unable to put it right. Within four to five days her deception was discovered by her employer and she was confronted about it. She immediately acknowledged her wrongdoing, returned the money, resigned and apologised.
Shortly after this, she self-reported to the New Zealand Law Society (“NZLS”), and handed in her practising certificate on 17 July 2015. She has not sought to practice law since.
The Standards Committee laid charges and Ms Bean, through her counsel, admitted these at the earliest opportunity and fully cooperated with the process. In advance of the hearing, counsel reached agreement as to the main penalty which should be imposed and sought the Tribunal's approval.
They disagreed on two issues: contribution by the practitioner to costs; and final name suppression.
A period of three years was agreed as the proper penalty and the Standards Committee further agreed that the period from 17 July 2015, when the practitioner handed in her practising certificate, could be taken into account. This penalty, we are satisfied, is proper based upon the principles which have been applied in previous cases before the Tribunal and the Courts.
The starting point is . 1 That decision held that where deliberate dishonesty is involved, the Tribunal will almost inevitably strike-off the practitioner from the roll of Barristers and Solicitors. However 2). itself proved an exception to that principle and the Courts have repeatedly noted that where a lesser penalty will suffice to mark the seriousness of the conduct and to protect the public, that that ought to be considered (
In 3, a full bench of the High Court held:
“… The question posed by the legislation is whether, by reason of his or her conduct, the person accused is not a fit and proper person to be a practitioner. Professional misconduct having been established, the overall question is whether the...
To continue readingREQUEST YOUR TRIAL