B v Auckland Standards Committee 1 of the New Zealand Law Society HC Auckland CIV-2010-404-8451

[2011] NZHC 1526

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PLAINTIFF.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-8451

BETWEEN  B Plaintiff

ANDTHE AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY

First Defendant

ANDTHE NEW ZEALAND LAW SOCIETY Second Defendant

ANDTHE LEGAL COMPLAINTS REVIEW OFFICER

Third Defendant

Hearing:         24 May 2011

Court:Winkelmann J Rodney Hansen J

Counsel:         GJ King and FE Geiringer for the Plaintiff

MA Treleaven for the Second Defendant
No appearance for the First and Third Defendants

Judgment:      9 September 2011 at 3:00 PM

JUDGMENT OF THE COURT

This judgment was delivered by me on 9 September 2011 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Nigel Cooke, P O Box 47016, Ponsonby, Auckland 1144

Counsel:            Mr GJ King [email protected]

Mr FE Geiringer

B V THE AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY HC AK CIV-2010-404-8451 9 September 2011

Mr MA Treleaven

Introduction

[1] B, a criminal barrister practising in Auckland, applies to review decisions of the Auckland Standards Committee 1 of the New Zealand Law Society (the Committee) and the Legal Complaints Review Officer (the Review Officer). The Committee determined that B had engaged in unsatisfactory conduct in terms of s 152 of the Lawyers and Conveyancers Act 2006 (the Act). He had been paid

$10,000  to  advise  on  the  feasibility  of  an  appeal  to  the  Privy  Council.    The Committee found he had overcharged for his services, failed to respond to queries and failed to report adequately to his client.  It made orders pursuant to s 156(1) of

the Act:

Reducing his fee to $5,000;

Ordering the refund of $5,000;         Imposing a fine of $2,000;

Ordering B to pay costs of $1,000.

The Committee ordered  that  B‘s  name  and  his  conduct  should  be published in

LawTalk without reference to the names of the other parties involved.

[2]      B  applied  to  review  all  aspects  of  the  Committee‘s  determination.    The Review Officer upheld the finding of unsatisfactory conduct and the orders made. She found the Committee had failed to give B a proper opportunity to make submissions on the issue of publication but, having received submissions from B on that issue, decided the decision should stand.

[3]      B‘s application to review is directed only to the issue of name publication. He submits that the Committee reached its decision by an unfair process, applied the wrong legal test, failed to take proper account of relevant considerations and, finally, that it failed to give adequate reasons.  B says the Review Officer was right to fault

the processes of the Committee but then misdirected herself as to the correct legal test and the proper approach in reaching her own decision on name publication.

Statutory scheme

[4]      The Act came into force on 1 August 2008.  Previously the regulation of the legal profession had been governed by the Law Practitioners Act 1982.   The new statute introduced important changes to the disciplinary procedures of the profession, including a new approach to the publication of decisions and the naming of errant practitioners.

[5]      Under the Act, the New Zealand Law Society (the Society) is required to establish a complaints service to receive complaints about lawyers, law firms and their employees.1    For the purpose of the operation of that service, the Society is required to make rules designed to ensure that complaints are received and dealt with in a fair, efficient, and effective manner.2

[6]      The  first  tier  of  the  complaints  service  comprises  Lawyers  Standards Committees which the Society is required to establish by rules.3     We set out the statutory scheme as it relates to these Committees in some detail as that scheme is of significance to the issues raised on this application.

[7]      Each Committee must consist of at least three persons, one of whom must be a lay member.   The functions of each Committee include enquiring into and investigating complaints; promoting, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation; carrying out investigations of misconduct or unsatisfactory conduct of its own motion; making final determinative motions in relation to complaints; and laying and prosecuting charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Disciplinary

Tribunal).4

1      Section 121.

2      Section 122.

3      Section 126.

4      Section 130.

[8]      There are three courses open to a Committee on receipt of a complaint.  The

Committee may:

(a)       Enquire into the complaint; or

(b)Give a direction under s 143 that the parties explore the possibility of resolving the complaint by negotiation, conciliation or mediation; or

(c)       Decide, in accordance with s 138, to take no action on the complaint.5

[9]      The procedure of a Committee is governed by s 142 which provides:

Procedure of Standards Committee

(1)       A  Standards  Committee  must  exercise  and  perform  its  duties, powers, and functions in a way that is consistent with the rules of natural justice.

(2)       A Standards Committee may, subject to subsection (1), direct such publication of its decisions under sections 138, 152, 156, and 157 as it considers necessary or desirable in the public interest.

(3)      Subject to this Act and to any rules made under this Act, a Standards

Committee may regulate its procedure in such manner as it thinks fit.

[10]     Hearings are to be conducted on the papers unless the Committee otherwise directs.   Among those who are entitled to make written submissions are the complainant and the person in respect of whom the complaint was made.6

[11]     Section 131 of the Act stipulates certain matters which must be included in the rules governing the operation of a Committee.   They include rules providing details of the procedures to be followed in relation to complaints; rules specifying the manner in which Committees exercise their functions and powers; and, of particular relevance to the issues arising in this proceeding, rules specifying the circumstances in which the Law Society may publish the identity of a person who

has been censured by a Committee.

5      Section 137(1).

6      Sections 152 and 153.

[12]     Rules have  been made.  Of significance for this application are Rules 30 and

31 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and

Standards Committees) Regulations 2008 which provide:

30       Publication of identity

(1)       If a Standards Committee makes a censure order pursuant to section 156(1)(b) of the Act, the Committee may, with the prior approval of the Board, direct publication of the identity of the person who is the subject of the censure order.

(2)       When deciding whether to publish the identity of a person who is the subject of a censure order, a Standards Committee and the Board must take into account the public interest and, if appropriate, the impact of publication on the interests and privacy of –

(a)       the complainant; and

(b)      clients of the censured person; and

(c)       relatives of the censured person; and

(d)      partners, employers, and associates of the censured person; and

(e)       the censured person.

31       Confidentiality of decisions

Decisions of Standards Committees must remain confidential, unless the Committee makes a direction under section 142(2) of the Act or regulation 30(1).

[13]     After enquiring into a complaint and conducting a hearing, the Committee may:

Determine  that  the  complaint  be  considered  by  the  Disciplinary

Tribunal (in which case it is required  to frame an appropriate charge and lay it before the Tribunal); or

Determine that there has been unsatisfactory conduct on the part of a practitioner, firm or employee of a firm; or

Determine that it take no further action.7

[14]     The  orders  which  the  Committee  may  make  following  a  finding  of unsatisfactory conduct are set out at s 156(1) which provides:

If  a  Standards  Committee  makes  a  determination  under  section  152(2)(b),  that

Standards Committee may –

(a)       order that all or some of the terms of an agreed settlement between the person to whom a complaint relates and the complainant are to have effect, by consent, as all or part of a final determination of the complaint:

(b)       make an order censuring or reprimanding the person to whom a complaint relates:

(c)       order the person to whom a complaint relates to apologise to the complainant:

(d)       where it appears to the Standards Committee that any person has suffered loss by reason of any act or omission of a practitioner or former practitioner or an incorporated firm or former incorporated firm or an employee or former employee of a practitioner or an incorporated firm, order the practitioner or former practitioner or incorporated firm or former incorporated firm, or employee or former employee of a practitioner or an incorporated firm, to pay to that person such sum by way of compensation as is specified in the order, being a sum not exceeding, as the case may require, the amount that is from time to time prescribed for the purposes of this paragraph by rules made under this Act by the New Zealand Law Society or the New Zealand Society of Conveyancers:

(e)       order the practitioner or former practitioner or incorporated firm or former incorporated firm to reduce his, her, or its fees for any work (being work which has been done by the practitioner or former practitioner or incorporated firm and which is the subject of the proceedings before the Standards Committee) by such amount as is specified in the order:

(f)       order the practitioner or former practitioner or incorporated firm or former incorporated firm to cancel his, her, or its fees for any work (being work which has been done by the practitioner or former practitioner or incorporated firm or former incorporated firm and which is the subject of the proceedings before the Standards Committee):

(g)       for the purpose of giving effect to any order made under paragraph (e) or paragraph (f), order the practitioner or former practitioner or incorporated firm or former incorporated firm to refund any specified sum already paid to the practitioner or former practitioner or incorporated firm or former incorporated firm:

(h)       order the practitioner or former practitioner or incorporated firm or former incorporated firm or employee or former employee of a practitioner or an incorporated firm—

7      Section 152(2)(c).

(i)        to rectify, at his or her or its own expense, any error or omission; or

(ii)       where it is not practicable to rectify the error or omission, to take steps to provide, at his or her or its own expense, relief, in whole or in part, from the consequences of the error or omission:

(i)        order the practitioner or former practitioner or incorporated firm or former incorporated firm, or employee or former employee of a practitioner or an incorporated firm, to pay to the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may require, a fine not exceeding $15,000:

(j)        order the practitioner, or any related person or entity, or both to make the practitioner's practice available for inspection at such times and by such persons as are specified in the order:

(k)       order the incorporated firm to make its practice available for inspection at such times and by such persons as are specified in the order:

(l)        order the practitioner or incorporated firm to take advice in relation to the management of his, her, or its practice from such persons as are specified in the order:

(m)      order that the practitioner or any director or shareholder of the incorporated firm undergo practical training or education:

(n)      order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of the practitioner or incorporated firm, to pay to the New Zealand Law Society or the New Zealand Society of Conveyancers such sum as the Standards Committee thinks fit in respect of the costs and expenses of and incidental to the inquiry or investigation made, and any hearing conducted, by the Standards Committee:

(o)      order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of the practitioner or incorporated firm, to pay to the complainant any costs or expenses incurred by the complainant in respect of the inquiry, investigation, or hearing by the Standards Committee.

The decisions in this case

The Committee’s decision

[15]     The Committee heard two complaints together as they concerned the same

matter.   The first complaint in time was by the client‘s mother who had paid B

$10,000 to advise her son on the appeal. A second complaint was made by the client

while the Committee was enquiring into his mother‘s complaint.  Both complaints were set then down for a hearing on the papers and B was invited to make submissions on a number of specific issues.

[16]     In its decision, the Committee was critical of B‘s failure to provide his client with a written opinion.   It said that when a client pays $10,000 to receive legal advice, he or she is entitled to expect written progress reports and a written opinion. The Committee said B was under an obligation to act competently and to take reasonable care in dealing with the matter.  On the evidence before the Committee he did not do so and it found that the fee of $10,000 was excessive for the work done. The Committee concluded:

The Committee was of the view that [B‘s] conduct not only amounted to a lapse in his obligation under Rule 3 to always act competently and take reasonable care and under Rule 10 to promote and maintain proper standards of professionalism in his dealings, but was also unacceptable measured against the standards of ―competent, ethical and responsible practitioners‖ (see B v Medical Council [2005] 3 NZLR 810 per Elias J at 811) and accordingly constituted conduct unbecoming. Against this background the Committee determined pursuant to section 152(2)(b) of the Act that there had been unsatisfactory conduct on the part of [B].8

[17]     The Committee decided that a fine of $2,000 would be ―the appropriate penalty‖ taking into account ―all the relevant facts and circumstances‖.

[18]     On the issue of publication, the Committee‘s reasoning and conclusion was as

follows:

Turning to the matter of publication the Committee was mindful of the following considerations:

(a)       Disciplinary proceeds were taken in the public interest and public interest factors were of primary importance at each level of decision- making.

(b)       The public interest required consideration of the extent to which publication would provide some degree of protection to the public and the profession.  See S v Wellington District Law Society [2001] NZAR 465, at p 469.

(c)       The common law of New Zealand recognises the major interest in openness of proceedings before courts and tribunals.  The value of

8 The rules referred to are the Lawyers and Conveyancers Act (Lawyers: Conduct and Client

Care) Rules 2008 (2008/214) made pursuant to ss 94 and 95 of the Act.

public accountability was one of the values to be imputed by way of parliamentary intention in the absence of clear indications to the contrary and the values of public education and alerting to risk were related and of significance.  See Director of Proceedings v Nursing Council of New Zealand [1999] 3 NZLR 360 at 378.

(d)       The public‘s right to know when practitioners have infringed the standards of the profession.   See  Gill v Wellington District Law Society (HC Wellington, AP120/93, 7 December 1993, Barker, Ellis and Doogue JJ) at p 9.

(e)       The  maintenance  of  the  reputation  of  the  legal  profession.    See

Bolton v Law Society [1994] 2 All ER 486.

(f)       The  deterrent  and  educative  value  of  publication  to  the  legal profession.

Having regard to all the facts and the circumstances the Committee  orders that the name of the practitioner and facts of this matter should be published in LawTalk without reference to the names of the other parties involved.

Review Officer’s decision

[19]     As he was entitled to, B applied for a review of the Committee‘s finding that

there had been unsatisfactory conduct and its order that his name be published.9

[20]     The parties were present for the hearing before the Review Officer.   She heard from both complainants and B.   In her decision she addressed and rejected detailed criticisms of the Committee‘s finding of unsatisfactory conduct before considering the decision to publish the facts and B‘s name.

[21]     B had objected that he had not been given a realistic opportunity to ―properly and fully‖ address the possibility of a publication order in the context of an adverse finding.   He submitted that he should have been afforded an opportunity to make further submissions on publication in the light of the Committee‘s reasons for an adverse finding. The Review Officer agreed.  She said:

This submission has some force and I consider it appropriate to give a direction to  Standards Committees in  relation to  procedures surrounding publication orders.  As a matter of natural justice it is my view that, when contemplating a publication order, the Standards Committee should inform the practitioner of its finding on the substantive complaint and provide the practitioner an opportunity to make submissions on the matter of publication

9      Section 194.

order.  The Notice of Hearing could be modified to indicate that this is the process that will be followed.  While appreciating that this two-tiered step will delay conclusion of the matter, I am of the view that the potential impact of publication on the lawyer may be considerable (regardless of the fact that it is not a ‗penalty‘) and as such a practitioner should be allowed an opportunity to make submissions which may be pertinent to issues arising in the adverse finding.

[22]     As B had had an opportunity to make submissions to her on the issue, the Review Officer went on to review the Committee‘s decision.  B‘s argument against publication of his name was summarised as:

(a)       that the conduct complained of was at the minor end of the scale,

(b)      that  the  adverse  effects  of  publication  would  far  outweigh  the relative insignificance of such minor conduct, and

(c)       that the Committee had not identified the public interest factors that explained the order.

[23]     The Review Officer rejected the submission that the conduct was at the minor end of the scale, pointing to the adverse finding of the Committee and what she described as ―the  accumulation of failures‖.   She accepted that B‘s public profile may result in greater interest than would otherwise be the case but did not see that possibility as a significant factor weighing against publication ―if there is a proper basis for publishing‖.   She also declined to give weight to a submission that publication of B‘s name ―... may encourage a floodgate of minor complaints around work for relatively small fees and minor transgressions‖.  She said that should more complaints follow, the Committee was capable of dealing with them.

[24]     The Review Officer then addressed a submission that, as the proceedings of the  Committee  are  presumptively private,  compelling  public  interest  factors  are required to support a departure from the presumption. We set out in full her response to this submission, leading to her conclusion to uphold the Committee‘s decision:

[44]     The fact that the statutory provision (section 142(2) of the Act) is made for publication of decisions in otherwise private hearings suggests that publication is not confined only to cases of the most serious wrong doing but may  apply  to  other  professional  breaches  where  publication  considered

―necessary or desirable in the public interest‖.  The relevant principles have been  discussed  in  many  cases,  some  of  which  are  mentioned  in  the

Committee‘s decision.    If  it is suggested  that the public  interest factors

justifying publication would need to be more ‗compelling‘ than is normally

the case, I do not agree.   The majority of cases that are dealt with by Standards Committees involve matters that would not lead to a publication order.  Where such an order is considered appropriate I see no reason for not applying the same test that applies to all such cases.

[45]     I  observe  that  I  am  reviewing  the  decision  of  the  Standards Committee (rather than making a decision on a new finding of professional breach), and while the decision of a Standards Committee can be revisited on review, I also recognise the fact that the Standards Committee comprised of fellow lawyers and a lay member has concluded that publication is proper. In this case the Committee‘s finding of unsatisfactory conduct was based on multiple failures by the Applicant in meeting his professional obligations, and the breaches had a significant impact on the clients.

[46]     The overriding factor is whether publication will serve the public interest, and whether that interest is greater than opposing interests such as the privacy interests of the lawyer.   The relevant principles have been discussed in many cases (including those referred to by the Standards Committee and by counsel) and it is not necessary to set these out in detail. The  decision  to  publish  is  one  that  can  be  made  where  a  Standards Committee considers it appropriate in the public interest.

[47] The failures that concerned the Committee in this case were directly relevant to the fundamental purposes of the Lawyers and Conveyancers Act

2006  and  the  professional rules contained in the Lawyers:  Conduct  and Client Care Rules.  It was open to the Committee to convey to the profession and to the public, by means of publication of the decision, that compliance is

expected, and that failure to do so will not be excused by lawyers whose practice fails to comply with the required professional standards.  To that I

will add that having heard from the Applicant, I had concerns about whether he has a sound appreciation of the application of the Rules to his practice. Having reviewed the Committee‘s decision to publish in the light of all of

the information it is my view that it was open to the Committee to have made the order it did.

[48]     I further note that a publication order is not imposed as a penalty although it would be naive to suppose that publication of a practitioner‘s name would have no adverse impact.  While the overriding factor will be the public interest, this is nevertheless to be weighed against other factors, including the impact on the lawyer or third parties of such publication.   I have considered all the submissions made by and for the Applicant in this regard  but  I  do  not  consider  that  those  interests  should  prevail  in  this instance.  Having canvassed the same issues as did the Standards Committee I can find no basis for questioning the Committee‘s to publish in this case.

Grounds of review

[25]     The principal argument advanced by B in support of his application to review the decision is that there is no power to direct publication of a practitioner‘s name unless an order censuring the practitioner has been made and the procedures associated with publication of a censure order followed.  As no order of censure was

made,  it  is  said  both  the  Committee  and  Review  Officer  erred  in  directing publication.

[26]     It  was  also  argued  that  the procedure before the Committee was  flawed because, after an adverse finding was made, B was not given an opportunity to be heard as to the possibility of a publication order.   Although the Review Officer accepted that this was a breach of the Committee‘s obligations she erred in failing to consider the issue of publication afresh and reach her own view on it.  B says she did no more than enquire whether in the circumstances the Committee‘s decision to publish was open to it.

[27]     It  was  further  argued  that  the  Committee  failed  to  give  reasons  for  its decision  to  publish.    Having  listed  six  considerations  affecting  the  decision  to publish it gave no explanation as to how those factors weighed in the circumstances of the case.

[28]     Moreover some of those considerations were said to be irrelevant given the new  disciplinary procedures  under  the Act.    Given  the  strong  emphasis  on  the disciplinary processes being private at the Committee stage, it was said that both the Committee and Review Officer erred in drawing on case law which related to the presumption of openness in the old legislation.

Statutory power to order publication

[29]     The issues of procedural fairness raised by B can be shortly dealt with.  B has now been heard on the issue of publication before both the Review Officer and this Court.  Although we are not persuaded that the Committee failed to give adequate reasons for its decision to publish, any such defect was cured by the fresh consideration the Review Officer gave to the issue of publication.  Contrary to B‘s submissions, it is clear the Review Officer considered the issue afresh.  She reviewed all arguments in relation to publication before concluding that publication was appropriate.

[30]     B is on firmer ground with his argument that the Committee and the Review Officer erred in proceeding on the basis that the Committee‘s power to order publication does not materially differ from the powers available to the Disciplinary Tribunal under the old Act.   The Committee and the Review Officer based their decisions on principles that had become well established in cases, including S v

Wellington  District  Law  Society10   and  Gill  v  Wellington  District  Law  Society.11

Those cases concerned the power of the New Zealand Disciplinary Tribunal and the High Court to make orders under the Law Practitioners Act 1982 prohibiting publication of a practitioner‘s name.12   It was clear from s 111 of that Act that there was a presumption that hearings and the result of hearings should be public.

[31]     Although the Act substantially re-enacts the provisions for the Disciplinary Tribunal‘s proceedings to be heard in public and to be published,13  it provides that the proceedings of the Committee take place in private and creates strict confidentiality requirements.14     Care therefore needs to be taken in applying the principles established in cases such as S to the question of publication under s 142.

[32]     That takes us to the principal argument advanced for B – that there is no power to direct publication of a practitioner‘s name unless an order censuring the practitioner has been made. We referred earlier to s 142(2) which enables the Committee to direct such publication of its decisions as it considers necessary or

desirable in the public interest. We also referred15 to the rule-making power in s 131,

and the particular requirement for rules specifying the circumstances in which the identity of a person who has been censured may be published.   In this case, the Committee did not censure B.  The question then arises whether it had the power to publish his name at all and, if it did, what constraints there were on that power.

[33]     For B, Mr King submitted that there is no power to publish the name of a practitioner in connection with the decision or findings of a Committee unless it has

exercised the power to censure.  Mr Treleaven argued that, when the Committee has

10     S v Wellington District Law Society [2001] NZAR 465 (HC).

11     Gill v Wellington District Law Society HC Wellington AP120/93, 7 December 1993.

12     Law Practitioners Act 1982, s 111(2).

13     Sections 238 and 240.

14     Section 188.

15 At [11].

not made an order for censure or, has made a censure order and a further order under s 152, s 142(2) applies to permit the Committee to order publication of the practitioner‘s name without following the r 30 procedures if it considers that necessary or desirable in the public interest.  It is when the only order made is one of censure that the r 30 procedures are engaged.  Mr Treleaven acknowledged that the position he was advocating before us differs from the view expressed by the Law Society in  a Practice Note made under  r 28  which assumes  that  r 30  must  be followed whenever a practitioner is censured by the Committee.   It states at para

12.5:16

The publication of a censured lawyer‘s name must first be approved by the NZLS Board.  Since a censure is likely to be ordered in most cases where publication is being considered, any publication involving the disclosure of the lawyer‘s identity is likely to need Board approval.

[34]     We are unable to accept the position advanced on behalf of the Law Society. In our view, the decision to require rules governing name publication when the power to censure is exercised shows an intention to permit publication of the practitioner‘s name in connection with an adverse finding against that practitioner only when the power of censure is exercised.

[35]     The range of orders available to a Committee under s 156(1)(a)-(o) allow the Committee to tailor its response according to its assessment of the culpability of the practitioner and by reference also to other relevant circumstances such as the impact of the conduct on a client or the risk of repeat offending.  It can make orders without punishing the practitioner in any way.  Only subparas (b) and (i) specify orders with a punitive effect.  The Committee may mark a finding of unsatisfactory conduct by censure or reprimand and/or by imposing a fine of up to $15,000.  The other powers provided  for  in  s  156(1)  are  of  a  remedial  nature,  including  payment  of compensation for loss (subpara (d)); a fee reduction or cancellation (subparas (e) and (f)); and, in subparas (j)-(m), a range of orders for the inspection of a practitioner‘s

practice and for management advice and training or education.

16     New Zealand Law Society Practice Note Concerning the Functions and Operations of Lawyers

Standards Committees.

[36]     It is clear that a censure will convey a greater degree of condemnation than a reprimand.   The terms  are not  synonymous.   The power to  reprimand  was  not available to the District Disciplinary Tribunal under the Law Practitioners Act and plainly is intended to give Committees greater flexibility in dealing with relatively minor matters.  The Committee‘s powers are much more circumscribed than those of a District Disciplinary Tribunal under the Law Practitioners Act 1982 which had power to make findings that a practitioner had been guilty of conduct unbecoming or of negligence or incompetence affecting fitness to practise or tending to bring the profession into disrepute.  Under the Act, any allegations of sufficient seriousness to require findings of serious misconduct or which may lead to suspension or striking off are dealt with by the Disciplinary Tribunal.

[37]     The distinction between a censure and reprimand is well recognised.   The

definitions in Black‘s Law Dictionary confirm this:17

censure, vb. To reprimand; to criticize harshly.

reprimand, n.  In professional responsibility, a form of disciplinary action – imposed after trial or formal charges – that declares the lawyer‘s conduct improper but does not limit his or her right to practice law; a mild form of lawyer discipline that does not restrict the lawyer‘s ability to practice law. – reprimand, vb.

See also New Zealand Oxford Dictionary:18

censure, vb & n.  Criticise harshly, reprove

reprimand, n & vb.  [often foll. By for] an official or sharp rebuke (for a fault, etc.)

[38]     To censure a practitioner is to harshly criticise his or her conduct.  It is the means by which the Committee can most strongly express its condemnation of what a practitioner has done, backed up, if it sees fit, with a fine and remedial orders.  It is understandable that when such a response is justified, the legislature should have provided for publication of the practitioner‘s name, subject to compliance with rules

governing the basis on which a decision to publish should be made.

17 Bryan A. Garner (ed) Black’s Law Dictionary (9th ed, Thomson Reuters, St Paul, 2009) at 253 and

1417.

18 The New Zealand Oxford Dictionary (online ed.) < We have considered an argument (not advanced by Mr Treleaven) that a finding of unsatisfactory conduct, allied with a direction to publish the practitioner‘s name amounts to an order of censure.   If that were so, then a practitioner‘s name could be published in connection with an adverse finding if the r 30 procedures were followed, although no formal censure had been made.   That analysis gains some

support  from  a  decision  of  this  Court  in  B  v Auckland  District  Law  Society.19

Venning J held that a finding of misconduct under s 112(1) of the Law Practitioners Act 1982 was equivalent to a censure of the practitioner and that it was unnecessary to formally censure him under s 112(2).  He said:20

For the Tribunal to form an opinion the practitioner was guilty of misconduct but not to impose any other penalty would be to censure the practitioner in that sense.  It is not necessary to formally use the word censure.

[40]     However that discussion arose in the context of a very different disciplinary framework.    The  range  of  orders  available  under  s  156  and  the  Committee‘s discretion to choose which, if any, to make, demonstrates that the findings in B cannot be translated to the situation we are considering.

[41]     Having so circumscribed the power of publication in cases of censure, it would be  anomalous were s 142(2)  interpreted as conferring on the Committee the power to order publication of a practitioner‘s name in connection with   adverse findings against that practitioner, and limited only by consideration of the public interest.  Even though the practitioner may thereby be subject to harsh criticism, by simply omitting to make a formal order of censure the procedures under r 30 could be effectively sidestepped.

[42]     For  these  reasons  we  have  concluded  that,  in  the  absence  of  an  order censuring B, the Committee had no power to publish his name and the Review Officer erred also in confirming the order.  We do not see this as creating problems for Standards Committees in practice.   As the Law Society recognises in its own practice note,21  in cases where adverse findings are made against a practitioner and

which are serious enough to justify publication of that practitioner‘s name, a formal

19     B v Auckland District Law Society (2008) 19 PRNZ 19 (HC).

20 Ibid, at [12].

21     New Zealand Law Society, above n 16, at para 12.5

order of censure will likely be made.  In such circumstances, the r 30 processes will be called into play.  Decisions in other cases can still be published as long as steps are taken to anonymise the practitioner‘s name.

Remedy

[43]     The Committee plainly viewed B‘s conduct as involving a serious breach of his professional obligations.   Its decision to fine him and order name publication suggests that the Committee saw his actions as warranting harsh criticism.  It seems that, having decided on this course of action, the Committee did not turn its mind to the question of whether the conduct was deserving of censure or reprimand.  It may have regarded its finding of unsatisfactory conduct as in itself conveying censure as B v Auckland District Law Society had found was an available course.  Whatever its thinking, in our view, it should have the opportunity to reconsider that aspect of its decision in the light of this judgment.   We bear in mind that the Committee was acting under new and untested legislation and plainly did not have a full appreciation of the options available to it or the practical implications of the duty to act in accordance with the rules of natural justice.

Result

[44] The decisions of the Committee and the Review Officer ordering the publication of B‘s name are quashed. The matter is remitted to the Committee to enable it to reconsider the orders made under s 156 of the Act and, if necessary, to separately determine the issue of name publication in accordance with r 30 of the Lawyers and Conveyancers Act (Lawyers: Complaints, Service and Standards Committees) Regulations 2008.

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Winkelmann J

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Rodney Hansen J