Brill v Auckland Standards Committee 2 - [2023] NZCA 465

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA274/2023
[2023] NZCA 465

BETWEEN	BARRY EDWARD BRILL Applicant
AND	AUCKLAND STANDARDS COMMITTEE 2 Respondent

Court:	Miller and Mallon JJ
Counsel:	Applicant in person L P Radich for Respondent
Judgment: (On the papers)	22 September 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThe applicant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Brill is a solicitor who was admitted in 1964 and at all material times practised as an in-house lawyer employed by his own company, B E Brill Ltd. He held a practising certificate as an in-house lawyer. It did not entitle him to practise on his own account.
Between March 2015 and September 2017 Mr Brill acted as solicitor and counsel for himself, his wife, and four neighbours in a dispute with the Body Corporate of the Gateway complex in Paihia, in which they all owned apartments. The litigation did not go well.
A Standards Committee of the New Zealand Law Society began an investigation of its own motion and charged Mr Brill with misconduct. The Lawyers and Conveyancers Disciplinary Tribunal found that Mr Brill had misconducted himself by providing regulated services to the public other than in the course of his employment, contrary to s 9(1) of the Lawyers and Conveyancers Act 2006.[1] The Tribunal censured Mr Brill, fined him $7,500 and ordered that he pay 75 per cent of related costs.[2]
[1]Auckland Standards Committee 2 v Brill [2022] NZLCDT 3 [Tribunal decision].
[2]Auckland Standards Committee 2 v Brill [2022] NZLCDT 13.
Mr Brill appealed liability and penalty to the High Court. Downs J dismissed the liability appeal but quashed the censure, noting that Mr Brill had not solicited the role of solicitor for the parties in the litigation or benefitted financially from it and there was no need for personal deterrence.[3]
[3]Brill v Auckland Standards Committee 2 [2022] NZHC 3036 [High Court judgment] at [91]–[96].
Section 254 of the Act permits a second appeal, by leave, to this Court on a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for its decision.
Mr Brill sought leave to appeal from the High Court. Downs J listed the proposed questions of law for this Court:[4]
a.Whether s 9(1) extends to a lawyer who is not “being an employee” (ie is acting in a different capacity) in providing the regulated services in question?
b.Whether a co-owner and/or a co-litigant of an employed lawyer comprises “the public” within the meaning of s 9(1)?
c.Whether a legal practitioner may enter two or more part-time in-house contracts at the same time?
d.Whether an in-house lawyer is entitled to practise on his or her own account if so authorised under s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZCA 465
Decision Date: 22 September 2023 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application for leave to appeal by Barry Edward Brill against the Auckland Standards Committee 2. Mr Brill, a solicitor admitted in 1964 and employed as an in-house lawyer by his own company, B E Brill Ltd, faced disciplinary charges for providing regulated services outside the scope of his employment. The Lawyers and Conveyancers Disciplinary Tribunal found Mr Brill guilty of misconduct, fining him $7,500 and ordering him to pay 75% of related costs. The High Court upheld the Tribunal’s finding on liability but quashed the censure. Mr Brill appealed to the Court of Appeal on several proposed questions of law, which the High Court had rejected as not meriting leave. The Court of Appeal found that Mr Brill's arguments did not warrant leave to appeal as they did not present questions of general or public importance. The appeal was declined, and Mr Brill was ordered to pay the respondent's costs for a standard application on a band A basis, along with usual disbursements.

The legal issues in the case centred around the interpretation and application of section 9(1) of the Lawyers and Conveyancers Act 2006, which prohibits lawyers from providing regulated services to the public outside the course of their employment. The primary questions were whether section 9(1) extends to lawyers who are not "being an employee," whether co-owners and co-litigants of an employed lawyer constitute "the public," and whether an in-house lawyer can enter multiple in-house contracts. Additionally, Mr Brill argued that rule 15.1.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 provides a complete defence. The Court of Appeal examined these issues in the context of Mr Brill's conduct and found that they did not present significant legal questions warranting appellate review.

The Court of Appeal considered the arguments presented by Mr Brill but found them unconvincing. The court held that section 9(1) clearly applies to lawyers who provide regulated services outside the scope of their employment, and Mr Brill had done so. The court also noted that the public, for the purposes of the legislation, included the neighbours for whom Mr Brill acted. The proposed questions of law did not merit leave as they did not address issues of general or public importance. The court further noted that Mr Brill had not sought to practise on his own account or met the necessary requirements, making his argument that he was entitled to do so misconceived. Consequently, the application for leave to appeal was declined, and Mr Brill was ordered to pay the respondent's costs.

Orders