Wellington Standards Committee 2 v Morahan
 NZLCDT 24
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Judge BJ Kendall (retired)
MEMBERS OF TRIBUNAL
Mr J Bishop
Mr W Chapman
Mr S Maling
Mr K Raureti
Mr D La Hood and Mr I Auld for the applicant
Mr A Beck for the respondent
Law Practitioners — the respondent was charged with misconduct and in the alternative conduct unbecoming of a barrister and solicitor and negligence or incompetence under the Law Practitioners Act 1982 (“LPA”) and Lawyers and Conveyancers Act 2006 (“LCA”) — whether the charge under the LPA should be struck out on the grounds it breached s351 LCA (complaints about conduct before commencement of section — no person was entitled to make a complaint in respect of conduct that occurred more than 6 years before the commencement of this section) — whether R had engaged in misconduct — conflict of interest between clients
Held: The charge under the LPA could be proved only on findings made in respect of conduct alleged to have occurred after 1 August 2002. Consideration of related conduct prior to that date was relevant in establishing context. Due to the lack of direct evidence the Tribunal could not conclude that B was adequately advised in a way which would have put her in a position to understand the implications of the transfer and thus give an informed consent.
While no finding was made against R in respect to any of his conduct prior to 1 August 2002 the Committee was satisfied that his actions had fallen well short of his duty to his client at that time and had ongoing implications for what was to follow. R would have been aware that no-one else was acting for B and it should have been obvious that he had an irreconcilable conflict because his former client, B, was now exposed to risk on a transaction and that needed to be disclosed and explained. Without her informed consent it had been inappropriate for him to act for any of the parties involved.
R had not breached r 8.7 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“the Rules”) (use of confidential information prohibited) in continuing to act for PJ and the trust in Family Court proceedings. Personal information held by R did not amount to a breach having regard to the length of time that had passed since he had acted for B personally. However, in most cases it would not be appropriate for a lawyer who had acted for both parties to a marriage to continue to act for one party against the other in subsequent contested relationship property proceedings. R should not have acted in the contested relationship property proceedings given the additional circumstance that he was a party to the Family Court proceedings as well. R had also breached r 13.9 the Rules (discovery and privilege) by failing to ensure that discovery obligations were fully complied with.
Both charges were proved. The Tribunal found that R's conduct reached the threshold of negligence or incompetence in his professional capacity, to such a degree that it reflected on his fitness to practise or tended to bring the profession into disrepute pursuant to s112 LPA and s241(c) LCA.
REASONS FOR THE DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL CONCERNING CHARGES
The respondent has pleaded not guilty to two disciplinary charges brought by the applicant.
The first charge is under s 112(1)(a) of the Law Practitioners Act 1982 (the 1982 Act). That charge alleges that between 1 August 2002 and 1 August 2008 the respondent engaged in conduct that constituted misconduct in his professional capacity. He is charged in the alternative with conduct unbecoming of a barrister and solicitor (s 112(1)(b) of the 1982 Act). There is a further alternative charge of negligence or incompetence in his professional capacity (s 112(1)(c) of the 1982 Act).
The second charge is under s 241 of the Lawyers and Conveyancers Act 2006 (the 2006 Act). That charge alleges that he engaged in conduct after 1 August 2008 that constituted misconduct pursuant to s 241(a) of the 2006 Act. He is also charged in the alternative with unsatisfactory conduct. (s 241(b) of the 2006 Act). There is a further alternative charge of negligence or incompetence (s 241(c) of the 2006 Act).
Full details of the charges and particulars of the charges are attached as appendix A.
At the commencement of the hearing of the charges on 17 August 2017, counsel for the respondent applied for Charge 1 to be struck out on the ground that it had been laid in contravention of s 351 of the 2006 Act and alternatively for lack of evidentiary foundation.
The Tribunal heard argument from both counsel. It retired to consider the application. It advised counsel that it had declined the application and that it would record its reasons for doing so.
The relevant parts s 351 of the 2006 Act provide:
“(1) If a lawyer or former lawyer… is alleged to have been guilty, before the commencement of this section, of conduct in respect of which proceedings of a disciplinary nature could have been commenced under the Law Practitioners act 1982, a complaint about that conduct may be made after the commencement of this section, to the complaints service established under section 121(1) by the New Zealand Law Society.
(2) Despite subsection (1), no person is entitled to make under this Act—
(b) a complaint in respect of —
(i) conduct that occurred more than 6 years before the commencement of this section;”
The section commenced on 1 August 2008 (cl 2 Lawyers and Conveyancers Act Commencement Order 2008 SR 2008/182).
Mr Beck submitted that paras  to  of the particulars relating to Charge 1 concern events that occurred before 1 August 2002 and were relied on by the applicant in relation to that charge (para (a) to (c)). His submission was that by so doing, Charge 1 is a complete charge which includes conduct occurring before 1 August 2008. He said that the applicant had refused to separate out the disparate conduct included in charge 1 and that the result must be that the whole of charge must stand or fall together and be dismissed.
The alternative argument for dismissal of Charge 1 was that the applicant had not laid an evidentiary foundation for the charge. With reference to paras (d), (e), (f), (g), and (h)] relating to alleged breaches of the rules, the submission was:
(a) That the complainant had not provided evidence that the respondent was acting for her;
(b) That the applicant had not provided any evidence of the respondent's prior knowledge about the complainant's affairs;
(c) That there was no evidence of any advice given by the respondent in respect of relevant transactions.
Counsel for the applicant emphasised that Charge 1 made it clear that it covers only conduct occurring after 1 August 2002 and that the “particulars of the charge” being the “facts and matters relied on” to prove the charge are distinct from the charge itself, (Form A of the Schedule to the Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008).
He accepted that the charge can only be proven by conduct that post dates 1 August 2002. He argued, however, that conduct prior to that date is relevant to consideration of the charge because it would be artificial and inappropriate for a course of conduct to be looked at by only considering evidence relating to part of that course of conduct. He said that the Tribunal's view of the nature and effect of that conduct needs it to consider the full context of that conduct, which cannot be considered in isolation from, and without reference to, the earlier conduct. He referred the Tribunal to the Court of Appeal's decision in . 1 That decision was cited by Judge Clarkson in her pre-trial direction of 9 March 2017 on this matter as allowing a course of conduct or a cumulative approach to charging a single charge of misconduct. There was emphasis on the need for such a charge to be appropriate to the width of the case and for the decision maker to transparently consider the gravity of the conduct overall.
The Tribunal reminds itself that the charge can be proved only on findings made in respect of conduct alleged to have occurred after 1 August 2002. It finds that a consideration of related conduct prior to that date is relevant in establishing context. To decline to consider that relevant conduct would create artificiality of the kind contended for by counsel for the applicant. See also 2.
As to there being no evidential foundation for the charge, the matter can be dealt with directly by saying that the application is premature and should await the hearing of the evidence. We agree with Judge Clarkson's comment in her direction of 9 March “that pleadings are not evidence”. There has been no challenge that the amended charges fail to inform the respondent of the substance of the allegations made against him.
For the reasons set out here...
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