NEW ZEALAND LAW SOCIETY. Discipline of lawyers for conduct outside of legal practice. Mark Treleaven. 24 October

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1 NEW ZEALAND LAW SOCIETY Discipline of lawyers for conduct outside of legal practice Mark Treleaven 24 October Topics Summary of criminal convictions and other conduct we regulate Summary of what we don t usually regulate Two High Court of Australia cases Other case illustrations Difficult questions Conclusion 111 1

2 Criminal convictions we regulate include: Dishonesty convictions Perjury and interfering with the course of justice Corporate fraud and Securities Act breaches Tax convictions Drug related convictions Sexual offending Stalking convictions Repeat traffic offences 112 Conduct outside of legal practice we regulate where no criminal conviction Acts of dishonesty Tax indiscretions Misleading a court as a party to litigation and not as a lawyer Misconduct as a party to litigation and not as a lawyer 113 2

3 What we don t usually regulate Minor criminal offences Traffic tickets, parking fines Minor regulatory breaches False evidence as a party to litigation given by mistake Criminal acquittals Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 at [133] 114 Two High Court of Australia cases Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Manslaughter conviction. Two years imprisonment Drove car on wrong side of road Killed motorcyclist Prior to driving he had been drinking in a hotel Assaulted in the head and body Intoxicated or in shock and concussed? 115 3

4 Ziems (contd): Supreme Court of New South Wales Ziems removed from Roll of Barristers Conviction and sentence constituted grounds for disbarring Should not go behind conviction and review facts High Court Majority Order of Supreme Court set aside Suspended from practice during imprisonment High Court Minority Removal from roll inevitable consequence of conviction (p 287) Can re apply at a subsequent time (p 286) 116 Ziems (contd): High Court Majority (Kitto J at p ) Some conduct and convictions instant demonstration of unfitness Conduct may show defeat of character incompatible with membership of profession Or such stigma unfit to join with Bench and Bar Serious offence unconnected with professional function Isolated occasion, not premeditated No tendency to vice or violence or any lack of probity Consider implications of nature and quality of act on fitness to practise Compare: Craig Andrew Leishman, NZLPDT, 2 April

5 A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 Pleaded guilty to four counts of aggravated indecent assault Victims were children of his partner who he later married Some years later further similar charges were laid Disciplinary proceedings commenced for earlier guilty pleas to four counts Solicitor did not inform the Law Society of the further charges Convicted on further charges but convictions quashed on appeal Only after appeal did he disclose the convictions and appellate decision 118 A Solicitor (contd): Court of Appeal of New South Wales Indecencies in first convictions were professional misconduct Failing to disclose second convictions was professional misconduct Combined effect solicitor not a fit and proper person. Struck off Professional misconduct extends to conduct outside the course of practice If it manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice Test met by serious breach of trust given paternal like role Breached professional duty of candour to the Law Society 119 5

6 A Solicitor (contd): High Court Appeal against striking off order allowed. No further sanction Suspension appropriate but hadn t renewed practising certificate for five years Circumstances of breach of trust in indecency offences so remote from professional practice that not professional misconduct (p 274) Insufficient weight to isolated nature of indecencies (p 275) Powerful subjective case of appellant that behaviour out of character and risk of reoffending minimal Circumstances of breach of candour were extraordinary (p 275) Not unfit to practise 120 Other case illustrations Drug related convictions Barristers Board v Darveniza (2000) 112 A Crim R 438 Convicted of small supplies of speed and ecstasy and fined Applied for a practising certificate in NSW without disclosing convictions Deceived the Queensland Court of Appeal in an affidavit denying he had ever used illegal drugs Ongoing communications with undercover police officer about drug dealing and money laundering Ordered disbarment and removal from Roll of Barristers 121 6

7 Darveniza (contd): Queensland Court of Appeal Ziems could be decided differently today given public disapproval of drink driving Drugs convictions of concern but overtaken by more serious conduct Not disclosing convictions to NSW demonstration of opportunism Deliberate attempt to present untrue picture to Court in affidavit Conduct shows easy familiarity with the drug scene and willingness to take money from it Personal misconduct shows utter disrespect for the law His character is unsuitable for legal practice 122 Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 Senior associate solicitor for a reputable law firm Pleaded guilty to importing 52 grams of cocaine Six month s imprisonment but released after three Used cocaine and addicted to heroin, consumed drugs for ten years Almost four years drug free lifestyle If applies for a practising certificate in 2005 would have been without one for five years Undertook to have three monthly tests for two years to ensure she is not taking drugs No need to strike off, summons dismissed 123 7

8 P (contd): New South Wales Court of Appeal Impressive amount of character evidence that of good fame and character [14] Fame refers to a person s reputation in the relevant community Character refers to the person s actual character Sufficient probability that her rehabilitation is likely to be permanent [29] Needs to inform each prospective employer of her conviction Law Society can impose conditions on practising certificates No need to protect the public or the profession with striking off [34] 124 What happened here? 125 8

9 Sexual offending Law Society of South Australia v Rodda (2002) 83 SASC 541 Pleaded guilty to two counts of indecent assault of a minor Imprisonment for 18 months suspended on entering a good behaviour bond Also twice appeared in court without a practising certificate Immature personality and poorly developed social skills Receiving treatment from psychologist, unlikely to reoffend Continued to practise without practising certificate after warnings Struck off the roll 126 Rodda (contd): Full Court of Supreme Court of South Australia (p 546) Offences disclose character defects that affect his capacity and fitness to be a practitioner Damage his ability to maintain professional relationships Public can not be expected to put complete trust in him Serious breach of law even if impulsive and isolated Standing of profession would suffer if he remained a member Professional misconduct and not fit and proper person 127 9

10 Legal Services Board v McGrath (No 2) (2010) 29 VR 325 In 2008 pleaded guilty to knowingly possessing child pornography Sentenced to 12 months imprisonment In 2010 convicted of two counts of knowingly possessing child pornography Sentenced to 290 days imprisonment, 90 days suspended Amount of material was extensive and highly disturbing and serious Acted in legal case involving incest and became intrigued by sexual relations between adults and children No mental disorder Order that defendant be removed from the Roll 128 McGrath (contd): Supreme Court of Victoria Conviction for any serious breach of the law calls into question practitioner s ability to obey the law (p 337) Legal profession demands empathy and insight into victims of crime Serious offences committed with full knowledge of what he was doing (p 339) Although 2010 convictions were being appealed did not disclose them to his regulatory body Possession of child pornography a callous and predatory crime (p 340) Failed to involve himself in the proceeding Fatal lack of capacity to fulfil his obligations (p 341)

11 Tax offending New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 Barrister failed to lodge a tax return for 38 years Undertook many business activities Maintained a busy common law practice Australian Taxation Office sought $1 million in outstanding tax Presented his own debtor s position Retired from practice on medical grounds Returned his practising certificate Removed from Roll of Legal Practitioners 130 Cummins (contd): New South Wales Court of Appeal Professional misconduct includes acts sufficiently connected with actual practice and [p 289] Conduct outside practice showing absence of essential qualities Complete disregard of legal and civic obligations Brought entire legal profession into disrepute Filing tax returns closely related to earnings of professional income Link is sufficiently close to actual practice to be professional misconduct (p 291) Systematic course of improper conduct

12 Law Society of Tasmania v Schouten [2003] TASSC convicted of failing to file tax returns, fined and ordered to file them 1998 convicted of failing to furnish returns as ordered 2000 convicted of failing to file six returns and fined 2001 fines increased on appeal and ordered to file returns 2002 pleaded guilty to Crimes Act charges of breaching orders to file returns 2002 three months imprisonment but released on good behaviour bond Six returns filed six days before sentence imposed Other 2002 tax convictions as well 132 Schouten (contd): Supreme Court of Tasmania Clinically depressed rendering him incapable of filing returns (p 3) Amount of tax involved relatively small Not motivated by desire to cheat the revenue (p 5) Received medical assistance and counselling Declaration that respondent guilty of professional misconduct Limited practising certificate to practice only as an employee Application to strike off dismissed

13 Davidson v Auckland Standards Committee [2013] 3 NZAR 1519 Convicted of ten offences under the Securities Act Sentenced to nine months home detention with $500,000 reparation Chairman of Board of Bridgecorp and Bridgecorp Investments Prospectuses and investment statements issued containing untrue statements Offending did not involve dishonesty or intentional wrongdoing $459m of secured stock outstanding to debenture holders $28.8m owing to public when went into receivership Majority of Disciplinary Tribunal found charge proven and censured him Convictions tended to bring the profession into disrepute 134 Davidson (contd): Auckland High Court Objective test [36] Conduct outside practice did not require moral opprobrium [45] [53] Conduct either reckless or grossly negligent Legitimate to take into account the consequences likely to flow from the offending [75] Disciplinary conviction upheld and suspended for nine months Indicates the profession s concerns Provides a degree of confidence for the public as to the integrity of the disciplinary process [143]

14 Difficult questions How should regulators deal with lawyers who: Are convicted of minor physical assaults Are convicted of minor drug offences Don t file tax returns for a short period Have an altercation with a police officer Make threats to their family when a domestic relationship ends Make dishonest representations in a private commercial transaction 136 Conclusion Consider: Whether lawyer s conduct can be isolated from status as a lawyer Nature and character of conduct Any defect of character essential to legal practice Any tendency to vice, violence or lack of probity The evidence underlying any conviction Public stigma and detriment to profession Implications on fitness to practise Answer question about photograph

15 NEW ZEALAND LAW SOCIETY Discipline of lawyers for conduct outside of legal practice Mark Treleaven 24 October