Wellington Standards Committee No. 2 v Charl Benno Hirschfeld
| Jurisdiction | New Zealand |
| Judge | D F Clarkson,W Chapman,J Gray,K Raureti,P Shaw |
| Judgment Date | 15 August 2014 |
| Neutral Citation | [2014] NZLCDT 48 |
| Docket Number | LCDT 009/13 |
| Court | Lawyers and Conveyancers’ Disciplinary Tribunal |
| Date | 15 August 2014 |
In The Matter of the Lawyers and Conveyancers Act 2006
[2014] NZLCDT 48
Judge D F Clarkson
Members of Tribunal
Mr W Chapman
Ms J Gray
Mr K Raureti
Mr P Shaw
LCDT 009/13
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Decision as to penalty following practitioner's guilty plea to 12 charges of negligence such as would tend to bring the profession into disrepute — practitioner had overcharged the Legal Services Agency by $1,368 — irregularities in billing practices caused by lack of on-the-day electronic time recording — Standards Committee sought two to three year suspension and reimbursement of costs in the prosecution of almost $152,000 — whether a penalty of suspension would be in proportion to the offending — whether a no tolerance of mistakes policy should be adopted towards legal aid billing — whether there had been overcharging in and over — engineering of the prosecution
Mr C Gudsell QC and Ms C Paterson for the Standards Committee
Mr R Harrison QC for the Practitioner
In June 2009, Charl Hirschfeld sent an invoice to the complainant, the Legal Services Agency (LSA), purportedly in respect of services he had carried out for his client. This invoice, and 16 others, proved to be incorrect in a number of material respects. This decision concerns the penalty to be imposed on Mr Hirschfeld as a consequence of these admitted errors.
Mr Hirschfeld, a practitioner of 30 years experience, who has had an unblemished career until now, has pleaded guilty to 12 charges of negligence such as would tend to bring the profession into disrepute. That is an alarming number of charges but arises because the 12 charges, as framed, relate to 12 different clients to whom he was assigned counsel and in respect of whom incorrect invoices were rendered. The types of errors fall broadly into three categories:
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1. Claiming for the payment at the practitioner's own rate for hearings attended not by him personally but by another practitioner who was not identified as a secondary listed provider and, on some occasions, was not yet a listed provider at all.
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2. Claiming for appearances on dates where no hearings had been held. These errors transpired to have been incorrectly dated hearings, rather than hearings which did not occur.
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3. Claiming for payment prior to actual assignment having taken place, in some instances when another listed provider was still assigned counsel.
The Standards Committee submit that these failures amount to “gross negligence” and that the Tribunal should respond to the seriousness of the conduct by suspending the lawyer for 2 to 3 years. They also seek reimbursement of their costs in the prosecution, of almost $152,000.
Mr Hirschfeld submits that this negligence is at the lower end of the scale and that the consequences of the investigation and prosecution, with the attendant publicity have already been severe. He urges the Tribunal to impose a Censure and a modest contribution to the Tribunal's costs.
Proportionality will be assessed both in relation to the level of seriousness of the conduct and as to the disciplinary consequences.
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1. Where on the spectrum of negligent behaviour does this conduct sit?
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2. What, if any aggravating features exist?
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3. What, if any mitigating features exist?
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4. Is deterrence a relevant element to penalty assessment, and if so, in what sense?
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5. Does the public require protection from this lawyer?
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6. In the final assessment, is suspension necessary to reflect a proportionate response to this conduct?
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7. How should costs of the prosecution and hearing be apportioned?
Mr Hirschfeld was a listed provider with the Legal Services Agency (“LSA”) from 2000 when the Agency was formed until he terminated his contract with them on 30 December 2010. He was, for the period in question, the lead provider for Jamaica Chambers from which he and 8 other barristers practised.
He agrees he understood his obligations as a listed provider as set out in the relevant material. 1
In 2004 an audit of Mr Hirschfeld's practice including invoicing, file management and other matters was carried out by an experienced practitioner at the request of the LSA. The report provided to LSA was approving of the standard of work and compliance with obligations to LSA.
A further audit was begun in 2008 by another experienced practitioner. Visits to the chambers took place between October 2008 and May 2009 (that is just before the first of the invoices which are the subject of these charges). The second audit report was provided on 6 October 2009 and once again was largely complimentary. The auditor did refer to some deficiencies in the capturing of time in that there was no electronic system. Although the practitioner's current practices were recorded as “… satisfactory particularly given the nature of the work and practical difficulties which arise in recording time except for the timing of the compilation of the records …” it was recommended that “… an electronic system of recording time ‘on the day’ with narrations” be adopted.
Unfortunately that suggestion was not immediately taken up and this has provided some of the background to the difficulties now faced between LSA and the practitioner, ultimately leading to these charges.
That is because the invoices for criminal legal aid assignments were based on a number of sources from which the practitioner's personal assistant compiled an invoice. 2 After that, the practitioner would discuss the draft account with his personal assistant, making any necessary amendments, then sign and submit to LSA.
In outlining the method of construction of invoices, Mr Hirschfeld has been clear that this was explanatory only and not put forward as an excuse for the errors, which he acknowledged immediately in his formal Response to the charges.
“Neither these particular invoices nor any of the legal aid invoices the subject of the charge were in fact completed by me personally. However, I fully accept that I signed them off and am professionally responsible for their content.” 3
In relation to the 12 clients whose legal aid assignment invoices formed the basis for each charge; there were various errors in the practitioner's billing for the attendances. In some he claimed for appearing when he had in fact instructed an
On other occasions Mr Hirschfeld claimed an appearance, having sent a junior barrister (fully briefed) from his chambers to make the appearance on his behalf, but had failed to name that practitioner in his invoicing as “listed provider B” as required.
In some instances the invoice claimed for an appearance for the practitioner when in fact the previous assigned counsel had made the appearance. The change of assignment occurred because the client had elected trial by jury, and the originally assigned counsel was not listed as a provider who could carry out work at that level so either recommended that Mr Hirschfeld take over, or the client had requested that he or she be represented by Mr Hirschfeld. In those cases the responsibility was on both practitioners to promptly advise the LSA of the need for a reassignment to the more senior practitioner, namely Mr Hirschfeld. On the occasions claimed in the charges (and admitted by Mr Hirschfeld) this was not done promptly by either counsel and resulted in an inaccurate claim being made by Mr Hirschfeld and a double payment made by the LSA who clearly had no means of cross referencing claims for one client from different counsel. It is notable that full responsibility appeared to have been laid at the feet of Mr Hirschfeld rather than the practitioner who was handing over the assignment, against whom no action has been taken.
In some instances where the appearance was delegated to a junior who did not at that time have provider status, the practitioner was not entitled to claim any payment whatsoever.
At times when the practitioner claimed for his own hourly rate rather than the secondary provider's rate, the difference was between $143 per hour and $105 per hour.
The total overcharging across the 17 invoices (which covered 32 hearings) was agreed (by conclusion of the submissions) to be $1,368.
The evidence as to quantum was provided by a well-qualified defence witness, Ms Lauaki. Ms Patel, the witness for the (complainant) LSA, disputed this figure. However, in her six affidavits she did not provide any alternate figure.
Instead, she made a point of stating the total gross fee paid to the practitioner during the currency of his contract to be “… over $17,277,000”. The practitioner did not dispute this figure, but noted it covered other counsel who were paid from this fund, and also included very large disbursements for expert witness reports and travel and other expenses.
While it is a somewhat misleading figure, we do consider that it gives some context to the earlier (clear) audits, and to the level of invoicing carried out by the practitioner.
For completeness, we record that all 12 charges were originally laid as “Misconduct”, but that this alternative was withdrawn on the plea of guilty to Negligence, that lesser alternative having been laid some 8 months after the original charges.
Mr Gudsell QC reminded us of the deficits in the invoicing, which were only discovered after an investigation by LSA and which...
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