Brill v Auckland Standards Committee 2
[2022] NZHC 3036
•21 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000217
CIV-2022-404-000805 [2022] NZHC 3036
UNDER Section 253 of the Lawyers and Conveyancers Act 2006 IN THE MATTER OF
an appeal against a decision of the Lawyers and Conveyancers Disciplinary Tribunal
BETWEEN
BARRY EDWARD BRILL
AppellantAND
AUCKLAND STANDARDS COMMITTEE 2
Respondent
Hearing: 18 October 2022 Counsel:
WC Pyke for Appellant
LP Radich for Respondent
Judgment:
21 November 2022
JUDGMENT OF DOWNS J
This judgment was delivered by me on Monday, 21 November 2022 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Kayes Fletcher Walker, Manukau. WC Pyke, Auckland.
BRILL v AUCKLAND STANDARDS COMMITTEE 2 [2022] NZHC 3036 [21 November 2022]
Introduction
[1] The Lawyers and Conveyancers Disciplinary Tribunal1 found Barry Brill misconducted himself by providing regulated services to the public other than in the course of his employment. Mr Brill acted for his wife and neighbours in litigation while holding a practising certificate as in-house counsel (only). The Tribunal censured Mr Brill; fined him $7,000; and ordered he pay 75 percent of related costs.
[2]Mr Brill appeals both liability and penalty.
Background
[3] The background is extensive, so what follows is confined to an overview. Additional background is provided as the judgment unfolds.
[4] Mr Brill was admitted to the Bar in 1964. Since 28 February 2007, he has practised as an in-house lawyer employed by his own company, B E Brill Ltd.
[5] In 2014, Mr Brill and his wife owned an apartment in a Paihia complex known as Bridgewater. Mr Brill and his wife sought an injunction against the body corporate. They retained a barrister. Mr Brill was solicitor on the record. The owners of four other apartments in the complex joined the case as co-plaintiffs. It was agreed the barrister’s fee would be shared and Mr Brill would act without fee. The barrister withdrew and Mr Brill then acted for his wife and neighbours. The litigation grew and went to the Court of Appeal.2 An unsuccessful application was made to the Supreme Court for it to hear an appeal.3 Mr Brill’s clients lost and suffered significant awards of costs. All this occurred between 2 March 2015 and 20 September 2017.
[6] In September 2018, the Practice Advisory Committee of the New Zealand Law Society4 learned of the Bridgewater litigation. It later referred the
1 The Tribunal.
2 Wheeldon v Body Corporate 342525 [2016] NZCA 247; Butcher v Body Corporate 342525 [2017] NZCA 423; Wheeldon v Body Corporate 342525 [2017] NZCA 423; Butcher v Body Corporate 342525 [2018] NZCA 19; and Wheeldon v Body Corporate 342525 [2018] NZCA 20.
3 Wheeldon v Body Corporate 342525 [2016] NZSC 125.
4 The Society.
issue to the Society’s complaints service. Auckland Standards Committee 25 then began an own-motion investigation.
[7] On 22 May 2020, the Standards Committee charged Mr Brill with misconduct and a related charge of unsatisfactory conduct.
[8]The Tribunal heard the charges 7 September 2020. It reserved its decision.
[9]On 24 September 2020, the Chair of the Tribunal issued this Minute:6
[1]Following the hearing of this matter, the Tribunal members have considered the evidence and submissions in relation to the Charge as currently framed.
[2]We are concerned that there are significant gaps in the evidence, and further that submissions did not fully address all issues which became live at the hearing, some of which were raised late in the piece.
[3]Our concern is that there is potential for each party, in different ways, to be disadvantaged by this.
[4]This is not a criminal proceeding where the burden of proof lies squarely on the prosecution. There is High Court authority for the proposition that the practitioner must fully engage and not merely sit back and put the Standards Committee to proof. The disciplinary hearing is a quasi- inquisitorial process whereby the Tribunal’s public protective role introduces a broader view of matters. It has also been said that it ought not to be a forum for technical point-scoring.
[5]The evidence as to Mr Brill’s status – as an employee, or not, is sketchy. Some Tribunal members raise concerns about the application of ‘eligibility’ status to practice ‘on own account’ via grandfathering provisions as referred to by Mr Brill. This is not a matter which the Standards Committee had adequate time to consider or address.
[6]On the other hand, the s 7(1)(a)(ii) part of the charge is, in our view, in relation to the evidence adduced, pleaded in insufficient detail. We consider Rules 2.5, 2.6, 3.4, 4, 5 and 11.1 of the Conduct and Client Care Rules and Rule 11 of the Practice Rules may well be engaged. There may be others, including Rule 15 which is pleaded in the particulars.
[7]Because of that, Mr Brill has not had the opportunity of fully addressing his compliance with these rules, before the Tribunal.
[8]For the above reasons, we have determined to treat the matter as part- heard and allow each party to file further evidence and submissions.
5 The Standards Committee.
6 Footnotes omitted.
[9]The proposed timetable is:
1. Standards Committee to file and serve further evidence, submissions and any proposed amendments to the Charge within 14 days of this Minute.
2. Mr Brill is to file and serve any further evidence and submissions within a further 14 days.
3. The hearing is to be reconvened at a time at least five weeks hence.
4. If either party wishes to be heard on this timetable, or to seek further directions, a teleconference may be convened.
[10] Mr Brill objected to the case being treated as part-heard and in February 2021, filed a judicial review claim.7
[11] On 17 June 2021, the Tribunal heard argument about whether it could (a) treat the case as part-heard and (b) allow the charges to be amended.
[12] On 23 July 2021, the Tribunal released a decision on both aspects. The Tribunal concluded it could treat the case as part-heard and allow the charges to be amended. One amendment, however, was declined. This assumes importance later.
[13] On 21 January 2022, the Tribunal released its liability decision. It found Mr Brill misconducted himself by providing regulated services to the public other than in the course of his employment: acting for parties in the Bridgewater litigation. The Tribunal also found Mr Brill committed related unsatisfactory conduct.
[14] The penalty hearing was 27 April 2022. The Tribunal released its penalty decision 16 May 2022. As observed, Mr Brill was censured; fined; and ordered to pay 75 percent of costs.
The appeal
[15] Mr Brill advances multiple grounds of appeal. These are best understood as giving rise to these questions:
7 This he later abandoned.
(a)Did the Tribunal have the power to treat the liability hearing as part-heard? If so, did it err by proceeding this way?
(b)Did the Tribunal have jurisdiction to amend the charge?
(c)What is the correct interpretation of “being an employee”?
(d)Did the parties represented by Mr Brill comprise “the public” in terms of s 9 of the Lawyers and Conveyancers Act 2006?8
(e)Was Mr Brill entitled to practise on his own account so he could invoke s 31(1) of the Act?
(f)Did Mr Brill commit unsatisfactory conduct by breaching rr 3.4, 3.5 and 5 of the Client Care Rules?
(g)Should the Tribunal have considered Mr Brill’s communications with the Society as an aggravating feature?
(h)Did the Tribunal err in relation to penalty?
[16] An appeal under s 253 of the Act is by way of rehearing.9 This is so whether against liability, penalty, or both.10 The appellate Court must consider the merits of the case afresh. It may be guided by the specialist Tribunal’s expertise. But, if the appellate Court’s opinion differs from the Tribunal, the decision below was wrong.11 The Court may confirm, reverse, or modify the order or decision appealed against.12
8 The Act.
9 Hong v Auckland Standards Committee No 5 [2020] NZHC 1599.
10 At [54].
11 At [56].
12 Lawyers and Conveyancers Act 2006, s 253(4).
Did the Tribunal have the power to treat the liability hearing as part-heard? If so, did the Tribunal err by treating the case as part-heard?
[17] The background to this aspect lies in the Minute of the Chair at [9]. Mr Brill had represented himself at the hearing on 7 September 2020. He retained Mr Pyke after the Minute was issued.
[18] Mr Pyke contends it was not open to the Tribunal to treat the hearing as part-heard, at least in the manner in which it did. He contends:13
The term “part heard” was a misnomer. The September Minute did not direct a resumption of the hearing, but instead invited both parties to file new evidence and submissions on matters of their own choosing, with little restriction. It further proposes that the Standards Committee file amendments to the Charge. In substance and effect, the Tribunal proposed that the entire proceeding against the Practitioner (including the laying of an amended or new charge) be conducted afresh and for a second time.
[19] I begin with the uncontroversial. The Tribunal is a creature of statute, and by it, “may determine its own procedure”.14 Related regulations allow the Tribunal of its own motion, or on an application by any party, to adjourn the hearing to a time and place and on terms and conditions it thinks fit.15
[20] Like other Courts and Tribunals, the Disciplinary Tribunal also possesses inherent powers. These include the power to regulate its own procedures, to ensure fairness in trial and investigative procedures; and to prevent an abuse of its own processes.16 As is also well recognised, cases before the Tribunal are “neither strictly adversarial nor inquisitorial in nature”.17 Rather, they are “sui generis”.18
[21] This matrix leaves no room for the contention the Tribunal lacked the power to treat the case as part-heard. That the Tribunal had said it would reserve its decision does not change the analysis. It is not uncommon for Courts and Tribunals to conclude, after reserving a decision, they need additional help on a point of procedure, law, or evidence. Sometimes a further hearing is needed. In other words, the mere
13 Appellant’s submissions, para 87.
14 Lawyers and Conveyancers Act, s 252.
15 Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008, reg 23.
16 Orlov v National Standards Committee [2013] NZHC 1955 at [18].
17 At [30].
18 At [30].
fact a decision is said to be “reserved” does not preclude a case from being treated as part-heard.
[22] That the Tribunal also invited additional evidence does not affect the analysis either. If, as I have concluded, the Tribunal had the power to treat the case as part-heard, it must also have had the power to receive further evidence, provided it observed the rules of natural justice—a statutory obligation—in receiving that evidence.19
[23] This leaves the related question: did the Tribunal err by treating the case as part-heard? Mr Pyke contends the answer is yes. He says the Tribunal wrongly afforded the Standards Committee a “second bite at the cherry”. As observed earlier, Mr Pyke also contends “the Tribunal proposed that the entire proceeding against the Practitioner … be conducted afresh and for a second time”.
[24] These characterisations do not capture what happened, at least fairly. The Tribunal invited further evidence and submissions on two discrete topics, each of which was of legitimate interest to it. The Tribunal also expressed concern at the lack of particularisation of the unsatisfactory conduct charge, about which more shortly. The Tribunal did not rehear the case afresh.
[25] Perhaps anticipating these responses, Mr Pyke asks rhetorically if a second process can be initiated, “then why not a third or a fourth—until through attrition a party eventually succeeds?”. The answer to this contention is that it is not open to any Court or Tribunal to continue hearing a case indefinitely. It is beyond argument that, at some point, a Court or Tribunal must decide the case. It is another answer to Mr Pyke’s submission that the Tribunal did not re-open the case a third or fourth time.
[26]This leads to the next related ground of appeal.
19 Lawyers and Conveyancers Act, s 236.
Did the Tribunal have jurisdiction to amend the charge?
[27] This ground of appeal relates only to the unsatisfactory conduct charge. A little more background is needed.
[28] The Standards Committee sought to amend this charge by adding particulars of the rules of the Lawyers: Conduct and Client Care Rules 200820 that Mr Brill allegedly breached when acting for his wife and neighbours in the Bridgewater litigation. The Standards Committee said Mr Brill breached rr 3.4, 3.5 and 5 of the Client Care Rules. Put briefly, it alleged Mr Brill did not provide information in writing on the principal aspects of his service and failed to be independent and free from compromising influence when providing regulated services. The Tribunal allowed the charge to be particularised in both ways.
[29] Mr Pyke contends there was no power to amend the charge in these ways because s 152(1)(b) of the Act identifies what a Standards Committee must do before a charge reaches the Tribunal: inquire into “the matter”, that is, the subject of its own motion investigation, and conduct “a hearing with regard to that matter”.21 Mr Pyke contends because the Standards Committee did not examine whether Mr Brill had breached the Client Care Rules relied on to sustain the particulars of the charge, the “precondition prescribed by s 152(1)(b) had not been met”.
[30] This contention presupposes the term “matter” in s 152 should be interpreted narrowly, in the sense all possible charges referable to the “matter” must be considered by the Standards Committee before it may refer the case to the Tribunal. This sits uneasily with an orthodox understanding of the term “matter”, which may be thought an inherently elastic concept.
[31] It also sits uneasily with reg 24 of the Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008, which provides:
20 The Client Care Rules.
21 Lawyers and Conveyancers Act, s 152(1)(b).
24 Amendment of or addition to charge
(1)At the hearing of a charge, the Disciplinary Tribunal may of its own motion or on the application of any party, amend or add to the charge if the Tribunal considers it appropriate to do so.
(2)The Disciplinary Tribunal must adjourn the hearing if it considers that the amendment or addition would—
(a) take the person charged by surprise; or
(b) prejudice the conduct of the case.
[32] As will be apparent, by reg 24(1) the Tribunal may amend or add to the charge of its own motion, or on an application of any party. As will also be apparent by reg 24(2), the mandatory remedy to potential surprise or prejudice is an adjournment of the hearing, not more.
[33] Regulation 24 was considered by the Court of Appeal in Deliu v National Standards Committee of the New Zealand Law Society:22
[27] First, there is no question that the Tribunal has power to amend a charge laid before it by a Standards Committee under the Act. This power may be exercised by the Tribunal before or at the hearing. Indeed at the hearing the Tribunal has power to amend the charge “of its own motion”.
[28] Second, the Tribunal’s power to amend a charge is discretionary, but must be exercised fairly and in order to ensure that the person charged faces the appropriate charge. If the Tribunal decides an amendment to a charge is necessary, fairness may require an adjournment of the hearing to avoid the person charged being taken by surprise or the conduct of the case being prejudiced.
[29] Third, beyond the requirements to exercise the discretionary power to amend a charge fairly and for the purpose of ensuring that the person charged faces the appropriate charge there is no other relevant “test” or “standard”. Whether the Tribunal will exercise the power in a particular case will depend on all the relevant circumstances of the particular case. This is shown by the decisions relied on by Mr Deliu to suggest that there is an inconsistency in approach. An examination of these decisions discloses no such inconsistency.
[30] Fourth, the amendments by the Tribunal to the 12 charges against Mr Deliu in this case were entirely appropriate. They were correctly made to ensure that Mr Deliu faces appropriate charges. In this respect we agree with the approach of the Full Court of the High Court in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal where similar amendments were approved as appropriate ...
22 Deliu v National Standards Committee of the New Zealand Law Society [2015] NZCA 399 at [27]-[31] (footnotes omitted).
[31] Fifth, the fact that the amendments to the charges may make them easier to prove is, as Thomas J held, not relevantly prejudicial. In one sense a person facing misconduct charges of this nature will always have feelings of “prejudice”, but that does not mean the Committee should be precluded from laying, and the Tribunal from determining, appropriate charges. The fact that the appropriate charges are amended charges which are easier to prove is not a reason for declining to approve the amendments. It is in the public interest that a person charged before the Tribunal should face appropriate charges.
[34] I recapitulate. The term “matter” in s 152(1)(b) of the Act is an inherently elastic one. Section 152 does not facially require all possible charges referable to the “matter” be considered by the Standards Committee. If it did, the power of the Tribunal to add to a charge under reg 24 would be compromised, perhaps even undone. That regulation appears deliberately broad—an interpretation supported by Deliu— and again, an adjournment of the hearing is, by the regulation, the mandatory remedy for surprise or prejudice. Drawing these threads together, it was therefore open to the Tribunal to allow the unsatisfactory conduct charge to be amended by the provision of particulars. Doing so did not contravene s 152(1)(b) or prejudice Mr Brill.
What is the correct interpretation of “being an employee”?
[35] The primary charge against Mr Brill was one of misconduct under s 9 of the Act, which reads:
9 Misconduct defined in relation to provision of regulated services by employees
(1)A lawyer is guilty of misconduct who, being an employee, provides regulated services to the public other than in the course of his or her employment—
(a) by a lawyer; or
(b) by a partnership comprised entirely of lawyers; or
(c) by an incorporated law firm; or
(d) by a community law centre; or
(e) by the Ministry of Justice; or
(f) by Public Trust; or
(g) by the Maori Trustee; or
(h) by a trustee company; or
(i) by an employer organisation; or
(j) by a union.
(1A) Despite subsection (1), a lawyer is guilty of misconduct if, in the course of his or her employment—
(a) by an employer organisation, he or she provides—
(i)legal services to a person other than the organisation or a member of the organisation; or
(ii)legal services to a member of the organisation that are not relevant to his or her or its membership of the organisation; or
(iii)regulated services that are not legal services to any person; or
(b) by a union, he or she provides—
(i)legal services to a person other than the union or a member of the union; or
(ii)legal services to a member of the union that are not relevant to his or her or its membership of the union; or
(iii)regulated services that are not legal services to any person.
...
[36] Mr Brill was alleged to have contravened the provision by providing regulated services to the public—acting for his wife and neighbours in the Bridgewater litigation—other than in the course of his employment. As observed, the charge was proved.
[37] Mr Pyke contends it could not be because “being an employee” in s 9(1) must mean “as part of his or her duties to an employer”. Mr Pyke says in providing legal services to his wife and neighbours in the Bridgewater litigation, Mr Brill was not “being an employee” of B E Brill Ltd. He did not appear in the litigation “qua in-house counsel for B E Brill Ltd; instead, he acted in his capacity as a part-time in-house lawyer for the Bridgewater minority”. Mr Pyke argues the object of s 9(1) is to prevent legal work by an employed lawyer who provides legal services to others “as part of his or her duties to the employer”. Mr Pyke says this interpretation is consistent with a brochure published by the Society for in-house lawyers:
There are strong public policy reasons for the prohibition. If an in-house lawyer, as part of his or her duties to the employer, provides legal services to someone else, the contract for the provision of those services is between the client and the non-lawyer employer rather than between the client and the lawyer. The provision of legal services by non-lawyers through the intermediary of employed lawyers has the effect that the “clients” are not protected by client protection and fiduciary obligations in the legislation.
The provision of legal services by a lawyer in a non-law firm to clients of the non-lawyer employer is prohibited under the legislation – it is a facet of the prohibition on multidisciplinary practice.
[38] Mr Pyke contends the prohibition recognises there is no privity of contract between the lawyer and the client, thus the relationship cannot be appropriately regulated by the Act or Society.
[39] I do not accept this analysis. Section 9(1) means what it says: a lawyer is guilty of misconduct who, being an employee, provides regulated services to the public other than in the course of his or her employment. The section creates a general prohibition against in-house lawyers providing regulated services to the public. It ensures lawyers who provide regulated services to the public are either qualified to do so on their own account or supervised as an employee. Public protection, not privity of contract, is the decisive concern; a point the Tribunal has itself made:23
… Section 9 addresses concerns where an employed lawyer acting outside that employer might, for example, lack supervision by an experienced lawyer, might avoid the trust accounting protections otherwise available, including access to the Lawyers Fidelity Fund. There is also said to be a risk of confusion and potential to mislead the public about the role of in-house lawyers who are only able to provide services to their non-lawyer employer and not to the public in general.
[40]The Society brochure identified by Mr Pyke is no more than that.
[41] It follows the Standards Committee did not need to establish Mr Brill was acting in the course of his employment with B E Brill Ltd when he acted in the Bridgewater litigation. Indeed, Mr Brill’s liability arose under s 9 because he provided regulated services other than in the course of his employment with that company.
23 Auckland Standards Committee 2 v Vujnovich [2021] NZLCDT 1 at [11].
[42] This leaves a related factual point. Mr Brill told the Tribunal he was a part-time employee of the parties to the Bridgewater litigation. The Tribunal rejected this aspect of Mr Brill’s testimony:24
[59] We regard this construction of the arrangement as entirely artificial and as an after the event justification on his Mr Brill’s part. Indeed, in his own evidence before the Tribunal Mr Brill said:
A. I believed that I was entering into an in-house lawyer relationship with the plaintiffs. I now believe as a matter of law that I might have been mistaken.
Q. So I just want to be clear of your position now, are you saying that you were never in a relationship of in-house lawyer with the plaintiffs?
A. In my opinion I was not.
[60] Mr Brill went on to discuss having an oral contract with the plaintiffs to represent them.
[61] There is no evidence, apart from Mr Brill’s belated assertion, that any of the plaintiffs considered that they were so engaging Mr Brill.
[43] Mr Pyke contends the Tribunal was wrong to disregard Mr Brill’s evidence on this point as “belated”, for, Mr Brill described himself as a “part-time employee” of the Bridgewater parties in a letter to the Society 21 March 2019, that is, before the liability hearing.
[44] The Tribunal’s use of the term “belated” may not have been entirely apt for the reason identified, but Mr Brill’s 21 March 2019 letter was hardly illuminating. It said no more about the point than what is recorded above. The issue was quintessentially one of credibility. It was open to the Tribunal to reject this aspect of Mr Brill’s evidence. Like it, I consider the assertion implausible.
Did the parties represented by Mr Brill comprise “the public” in terms of s 9?
[45] Mr Pyke contends the answer to this question is no as the phrase “the public” carries its usual meaning of “people in general, rather than a particular group”. Mr Pyke contends Mr Brill’s wife and neighbours would not ordinarily be regarded as members of the public given their connection to Mr Brill and each other. Mr Pyke
24 Auckland Standards Committee 2 v Brill [2022] NZLCDT 3.
says this interpretation is consistent with the purpose identified in s 3(1)(a) of the Act, namely the maintenance of “public confidence in the provision of legal services”.
[46] The Act does not define the phrase, “the public”. In the context of s 9(1), I consider it means anyone other than the employer of the lawyer. To conclude otherwise would undermine the purpose of, and protection afforded by, s 9. As observed earlier, s 9 prohibits a lawyer from provided regulated services to the public other than in the course of his or her employment. The prohibition protects consumers of legal services—another explicit purpose of the Act.25
[47] This interpretation is consistent with s 10(3), which provides that nothing in s 9 prevents a lawyer who is both an employee and a lawyer practising on his or her own account from providing regulated services to the public in his or her capacity as a lawyer practising on his or her own account.
[48] The interpretation offered by Mr Pyke on behalf of Mr Brill would allow an employed lawyer to offer regulated services other than to their employer whenever the lawyer could identify a connection with the client or some common interest, for example, members of family, friends, neighbours, a member of a group sharing a common interest, and so on. In short, Mr Brill’s contention would drive a truck through s 9.
[49] This conclusion makes it unnecessary to consider the phrase’s construction in other contexts.26
Was Mr Brill entitled to practise on his own account so he could invoke s 31(1) of the Act?
[50] Mr Pyke contends Mr Brill had an answer to the charge as he was entitled to practise on his own account. The argument is best explained in Mr Pyke’s own words:27
25 Lawyers and Conveyancers Act, s 3(1)(b).
26 See, for example, Downes v Waring HC Wellington AP30/94, 22 July 1994; and Munhwa Broadcasting Corporation v Young International 2009 Ltd HC Auckland CIV-2010-404-203, 17 December 2010.
27 Appellant’s submissions, para 71–74 (footnotes omitted) (emphasis original).
The Practitioner was admitted in 1964, under the Law Practitioners Act 1955. He practiced for a time on his own account under the 1955 Act, becoming a partner in a law firm; he retired from firm practice in Wellington in 1978. After a period serving as an MP and in government, he was readmitted to practice in 1984. He worked as in-house counsel for the next 20 years; he has kept his practising certificate current throughout that period of time, up to the present day.
Section 31 of the Act provides that any lawyer is entitled to practice on his or her own account if he or she would have been entitled to do so under s 55 of the Law Practitioners Act 1982. Section 55 of the 1982 Act in turn uses the same word formula to preserve the entitlements of lawyers under s 22 of the Law Practitioners Act 1955. This schema has preserved Mr Brill’s entitlement to practice on his own account since he was first lawfully entitled to do so under the 1955 Act.
Section 22(1) of the 1955 Act provides:
... no person who has become qualified for admission as a solicitor of the Court after the first day of May, nineteen hundred and thirty-nine
... shall commence practice as a solicitor on his own account, whether in partnership or otherwise, unless during the five years immediately preceding the date of his so commencing practice he has had at least three years’ legal experience in New Zealand.
Provided that this subsection shall not be construed to restrict the right of any solicitor to resume practice if at any time previously he has lawfully practised as a solicitor of the Court on his own account.
The Practitioner met the requirements of s 22(1) in 1964. It is common ground that he practised on his own account for some 15 years. His right to resume such practice is solely governed by the proviso above, as carried over by the 1982 and 2006 legislation; any conditions or restrictions applying to practitioners admitted under either the 1982 or 2006 statutes are inapplicable, and none were noted on his practicing certificate.
[51]The contention requires a close analysis of the Act and related rules.
[52] The starting point is s 30(1) of the Act, by which no lawyer may commence practice on his or her own account unless they meet requirements with regard to both practical legal experience and suitability imposed by rules under the Act, and any other criteria prescribed by rules under the Act.28
[53] The rules contemplated by s 30(1) are the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008, which I call the Practice Regulations.
28 Or unless by s 30(1)(b) of the Act, the lawyer is given permission by the High Court to practise on his or her own account on grounds set out in rules under the Act.
[54] Regulation 12 of the Practice Regulations establishes the criteria for a lawyer to practise on their own account. Regulation 12(1) provides that for the purpose of s 30(1), clauses (3) to (6) set out the requirements and other criteria that must be met before a lawyer who applies to do so on or after 1 October 2012 may commence practise on their own account.29
[55] By reg 12(3) of the Practice Regulations, a lawyer must have had at least the “required minimum amount of recent legal experience” in New Zealand. The “required minimum amount of recent legal experience” is defined in reg 3 as legal experience occurring in at least three years in the five years immediately preceding the date of a person commencing practice on their own account; and counts only up to a maximum of 40 hours per week; and is, in total, 4830 hours.
[56] “Legal experience” is also defined in reg 3 and includes “legal work as an employee of a company or other body”.30
[57] Under reg 12(4) of the Practice Regulations, during the two years immediately preceding the date of commencing practice on their own account, a lawyer must have completed all mandatory assessments in a course approved by the Society as providing adequate instruction. Currently, this is the Stepping Up course (previously the Flying Start course).31
[58] Under reg 12(5), a lawyer must have satisfied the Society that they are a suitable person to practise on their own account as a barrister and solicitor or as a barrister sole, having regard to all relevant considerations, including:
(a)If the lawyer intends to practise as a barrister and solicitor or barrister, how they intend to practise on their own account.
29 Prior to its amendment in 2012, there existed a distinction in reg 12 between the criteria to be met for applications to practise as a barrister and solicitor, and applications to practise as a barrister sole.
30 Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008, reg 3(1).
31 Second affidavit of Sarah Inder at [4.6]. Pursuant to reg 14(b), if the course referred to was commenced by the lawyer before 1 October 2012, the lawyer would have had three years rather than two years in which to commence practice on his or her own account following completion of the course.
(b)The areas of law in which the lawyer intends to practise.
[59] Under reg 12(6), the lawyer must also have paid any levy under s 74 of the Act in respect of their intended practice on their own account.
[60] As observed, s 30 precludes a lawyer from practising on their own account unless identified criteria are met. Section 31 provides exceptions to s 30. It reads:
31 Exceptions to section 30
(1)Despite anything in section 30, a lawyer may, at any time, commence practice on his or her own account, whether in partnership or otherwise, if, immediately before the commencement of this section, he or she would have been entitled to do so under the Law Practitioners Act 1982 had this Act not been passed; and, for the purposes of this subsection, section 55 of that Act has effect as if it had not been repealed.
(2)Section 30 does not restrict the right of a lawyer—
(a) to practise as a barrister and solicitor on his or her own account, if at any time previously (whether before or after the commencement of this section) he or she has lawfully practised on his or her own account as a solicitor or as a barrister and solicitor; or
(b) to resume practice as a barrister on his or her own account, if at any time previously (whether before or after the commencement of this section) he or she has lawfully practised as a barrister on his or her own account.
(3)Despite subsection (2), if,—
(a) in the case of a lawyer to whom subsection (2)(a) applies, more than 10 years have elapsed since that lawyer last practised on his or her own account as a solicitor or as a barrister and solicitor; or
(b) in the case of a lawyer to whom subsection (2)(b) applies, more than 10 years have elapsed since that lawyer last practised on his or her own account as a barrister,—
that lawyer is not entitled to practise on his or her own account as a barrister and solicitor or as a barrister until he or she has received adequate instruction to the satisfaction of the Council of the New Zealand Law Society in the duties of a barrister and solicitor or of a barrister, as the case may require.
(4)Section 30 does not restrict the right of a lawyer who is not entitled to practise on his or her own account, to act in any community law centre whose employing body comprises 1 or more lawyers qualified to practise on his or her own account, under the direct supervision of a lawyer qualified to practise on his or her own account and employed by
that community law centre, or with the approval of the Secretary for Justice.
[61] Section 31(2) and (3) apply to lawyers who have previously practised on their own account “lawfully”, and who “resume” practise on their own account after an absence from practise, or after a period of practising other than on their own account (for example, practising in-house). A lawyer may practise on their own account under s 31(2) and (3) if they hold a current practising certificate and it has been less than 10 years since they last practised on their own account.
[62] Another exception to s 30 lies in s 31(1). A lawyer may practise on their own account if “immediately before the commencement of the provision, he or she would have been entitled to do so under the Law Practitioners Act 1982”.32 Section 55 of the 1982 Act is similar to ss 30 and 31 and retains eligibility for a lawyer to practise on their own account under s 22 of the Law Practitioners Act 1955 Act.33
[63] Section 22(1) of the 1955 Act provides that no person shall commence practice as a solicitor on their own account unless during the five years immediately preceding the date of commencing practice, they have had at least three years’ legal experience in New Zealand. The provision ends with the following:
… provided that the subsection shall not be construed to restrict the right of any solicitor to resume practice if at any time previously he has lawfully practised as a solicitor of the Court on his own account.
[64] I pause to restate Mr Pyke’s argument, which is that because Mr Brill met the requirements of s 22(1) of the 1955 Act, he was therefore entitled to practise on his own account under s 31(1) of the Act.
[65] On behalf of the Standards Committee, Mr Radich contends s 31(1) needs to be read with s 31(2) and (3). Mr Radich contends s 31(1) is a narrow, confined exception:34
In contrast to ss 31(2) and (3) which apply to lawyers who have previously lawfully practised on their own account, the exception in s 31(1) applies to
32 The 1982 Act.
33 The 1955 Act.
34 Respondent’s submissions, para 10.17 (footnotes omitted).
lawyers who would have been entitled to commence practise on their own account immediately before 1 August 2008. In other words, they were entitled to commence practice immediately before 1 August 2008 but had not previously lawfully practised.
[66] Mr Radich says if Mr Brill was entitled to rely on s 31(1) despite not having practised on his own account for more than 10 years, it would make “s 31(3) meaningless ... and be inconsistent with the overarching consumer protection focus of the Act”.
[67]I agree, for just the reason Mr Radich gives.
[68] This interpretation is consistent with the recent decision of the Court of Appeal in Little v New Zealand Law Society.35 Mr Little practised as a barrister in New South Wales in 2012. He applied to the New Zealand High Court for admission as a barrister and solicitor under the Trans-Tasman Mutual Recognition Act 1997 and was so admitted. However, Mr Little did not apply for a practising certificate to practise on his own account until 2020, by which time he no longer held a practising certificate as a barrister in New South Wales. The Society declined to allow Mr Little to practise on his own account because holding a practising certificate in Australia was a prerequisite to the issue of one under the Trans-Tasman Mutual Recognition Act. Mr Little unsuccessfully sought judicial review. He then appealed to the Court of Appeal. The Court dismissed his appeal.
[69] The Court observed the issue of a practising certificate is a separate procedural step to admission as a barrister and solicitor of the High Court.36 It held a person who wishes to practise on their own account must satisfy the requirements in s 30 of the Act, and a lawyer is not entitled to the issue of a practising certificate permitting them to practise on their own account merely because they had, in the past, been entitled to such a certificate.37
35 Little v New Zealand Law Society [2022] NZCA 121.
36 At [6].
37 At [11] and [76].
[70] I summarise this issue. Mr Brill was governed by s 31(3), not s 31(1). He was not entitled to practise on his own account when he practised in the Bridgewater litigation.
Did Mr Brill commit unsatisfactory conduct by breaching rr 3.4, 3.5 and 5 of the Client Care Rules?
[71] This ground of appeal concerns the charge of unsatisfactory conduct, which was discussed earlier in the context of the Tribunal’s decision to allow the charge’s particularisation. Rule 3.4 of the Client Care Rules provides:
A lawyer other than a barrister sole must, in advance, provide in writing to a client information on the principal aspects of client service including the following:
(a) the basis on which the fees will be charged, when payment of fees is to be made, and whether the fee may be deducted from funds held in trust on behalf of the client (subject to any requirement of regulation 9 or 10 of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008):
(b) the professional indemnity arrangements of the lawyer’s practice. This obligation is met if it is disclosed that the practice holds indemnity insurance that meets or exceeds any minimum standards from time to time specified by the Law Society. If a lawyer or a practice is not indemnified, this must be disclosed in writing to the client:
(c) the coverage provided by the Lawyers’ Fidelity Fund and if the client’s funds are to be held or utilised for purposes not covered by the Lawyers’ Fidelity Fund, the fact that this is the case:
(d) the procedures in the lawyer’s practice for the handling of complaints by clients, and advice on the existence and availability of the Law Society’s complaints service and how the Law Society may be contacted in order to make a complaint.
[72]Rule 3.5 provides:
A lawyer other than a barrister sole must, prior to undertaking significant work under a retainer, provide in writing to the client the following:
(a) a copy of the client care and service information set out in the preface to these rules; and
(b) the name and status of the person or persons who will have the general carriage of, or overall responsibility for, the work; and
(c) any provision in the retainer that limits the extent of the lawyer’s or the practice’s obligation to the client or limits or excludes liability. The terms of any limitation must be fair and reasonable having regard to the nature of the legal services to be provided and the surrounding circumstances.
[73]Rule 5.4 provides:
A lawyer must not act or continue to act if there is a conflict or a risk of a conflict between the interests of the lawyer and the interests of a client for whom the lawyer is acting or proposing to act.
[74] Mr Pyke contends Mr Brill did not breach rr 3.4 and 3.5 of the Client Care Rules because of an exception to their application created by r 3.7(d) “in respect of regulated services rendered by an in-house lawyer to his or her employer where the in-house lawyer is engaged under an employment agreement”. Mr Pyke contends the Tribunal wrongly rejected Mr Brill’s evidence that he was a part-time in-house lawyer employed by the Bridgewater parties.
[75] I have already rejected this contention; see [42]–[44]. It is worth adding Mr Brill accepted at the hearing he might have been mistaken about this aspect:
I believe that I entered into an oral contract with the plaintiffs, but in the course of this proceeding in researching the law I have come to the opinion that the word employee throughout the legislation is used in its ordinary sense because it’s not defined here, and that its ordinary sense is to be found in employment law. So I went to the definition of employee in section 6 of the Employment Relations Act 2000 and find there that volunteers are expressly excluded, and that it is an element of an employment relationship that is must be hire and reward. Now as this representation of my wife and the co-plaintiffs was pro bono it appears to me now that I did not bring myself within the definition of an employment relationship as set out in that Act.
[76] Mr Pyke observes Mr Brill’s apparent concession should not be treated as controlling as Mr Brill then represented himself. The argument is unpersuasive. Most people know whether they are an employee or not. That must be especially true of an experienced lawyer. It follows the exception in r 3.7(d) of the Client Care Rules was not made out.
[77]In relation to r 5 of the Client Care Rules, the Tribunal observed:38
38 Auckland Standards Committee 2 v Brill [2022] NZLCDT 3 at [66]–[68].
It is apparent that the quoted Rules deal with the risk of compromising influences or potential conflicts of interest as well as actual established conflicts. A lawyer needs to avoid both. Mr Brill was clearly in a close personal relationship with his wife. We have no evidence of how this might have, or indeed did influence decisions which he might make and the advice given to the other co-plaintiffs. It would seem Mr Brill was drawing attention to close personal relationships, because that was the very basis on which he asserted that he was not providing services to members of “the public”.
It must be obvious that when pursuing litigation in which a lawyer has a personal and pecuniary interest, that he or she cannot represent someone else, even if the interests appear aligned at the outset. Conduct of litigation involves dozens of choices and decisions. Litigation is always contentious, and the interests of the lawyer and the client may not necessarily correspond in all respects where there is a personal interest.
The point is, and he acknowledged it himself in his own affidavit, that an independent voice for the co-plaintiffs would have been wise and protective of them. The parties represented by Mr Brill incurred adverse costs awards of, on his evidence, between $100,000 and $130,000. This was a 50 per cent uplift, imposed by Muir J, because of the manner in which the proceedings had been conducted by Mr Brill on behalf of the plaintiffs.
[78] Mr Pyke contends the Tribunal erred in finding this aspect established because:39
a.No complaint or mention was made by anyone about any conflict.
b.The [Standards] Committee elected not to charge any conflict of interest arising from its inquiry.
c.The evidence shows that all interests, including of the Bridgewater Minority, were aligned.
d.There is no evidence of divided loyalties, nor is there any allegation that Mr Brill actually compromised the interests of any of the co-parties.
e.As the Committee no doubt recognised, there must be a factual basis for a conflict to be alleged: abstract conflicts are insufficient. No factual foundation exists.
[79] Rule 5 precludes a lawyer from acting or continuing to act if there is a conflict of interest or a risk of such a conflict. This case involved obvious risk of a conflict of interest. I give one example only. The Court of Appeal increased the costs awarded against Mr Brill, noting his arguments “bordered on being vexatious and frivolous”.40 In advancing these arguments, Mr Brill’s interests did not necessarily align with those
39 Appellant’s submissions, para 119.
40 Butcher v Body Corporate 342525 [2018] NZCA 19 at [83].
for whom he acted. Mr Brill might have been better placed financially to meet a cost award than one or more of his neighbours.
[80] The obvious in this context should also be stated. Mr Brill could not be objective about his own interests or those of his wife, and that lack of objectivity was necessarily borne by his clients. It should not have been.
Should the Tribunal have considered Mr Brill’s communications with the Society as an aggravating feature?
[81] This ground of appeal requires some introduction. The Standards Committee sought to amend the misconduct charge by alleging, among other things, that Mr Brill engaged in “misleading or deceptive” conduct when (a) renewing his practising certificate and (b) in correspondence with the Society. In other words, the Standards Committee sought to make an aspect of the charge that Mr Brill repeatedly misled the Society about the scope of his legal practice.
[82] The Tribunal disallowed the amendment on the basis it “cast a broader light” than the charges alleged.41 However, the Tribunal said if the charges were proved, it would take this aspect into account when deciding penalty.42 The Tribunal did just that. It said this when determining penalty:43
[15] …. Mr Brill engaged in correspondence with the NZLS over a period of five-and-a-half years in relation to the status of his practising certificate. This extended well into the period when Mr Brill was conducting the litigation. He nevertheless failed to advise the NZLS of his involvement in the litigation, a matter that was plainly relevant to the very topic he and the NZLS were debating. Mr Brill’s lack of candour with the NZLS must bear on our assessment of his knowledge of his obligations.
[16] We have therefore had regard to Mr Brill’s extensive chain of correspondence with the NZLS, set out in the evidence, and in particular the written communications in September 2010, July 2013, August 2013, and March 2016. It is hard to understand how Mr Brill could not have turned his mind to the current work he was undertaking on the litigation.
...
41 Auckland Standards Committee 2 v Brill [2021] NZLCDT 22 at [51].
42 At [52].
43 Auckland Standards Committee 2 v Brill [2022] NZLCDT 13 (emphasis in original).
[21] Whether intended to mislead or not, the fact is that the NZLS was misled by Mr Brill’s failure to disclose his involvement in the litigation. That ought not to happen.
[83] Mr Pyke contends the Tribunal erred by treating this aspect of Mr Brill’s conduct as aggravating, as the Tribunal declined the charge’s associated amendment and yet relied on the conduct as if it had been proved.
[84]Mr Radich contends it was open to the Tribunal to approach the issue this way:
[Mr Brill] was clearly placed on notice about the distinction between being an in-house lawyer and practising on his own account. He was also clearly placed on notice that the NZLS’ view was that he was only permitted to act as an in- house lawyer.
[85] The sequence is instructive in relation to this ground of appeal. The Practice Approval Committee referred Mr Brill to the Society’s complaints service because it was concerned Mr Brill had been practising beyond the terms of his practising certificate by acting in the Bridgewater litigation. The Standards Committee opened an investigation into that allegation. That Committee later determined the same allegation should be considered by the Tribunal. Charges were then framed. These did not encompass an allegation that Mr Brill had misled the Society, repeatedly or otherwise, about the scope of his legal practice.
[86] This allegation was first ventilated during Mr Brill’s cross-examination at the liability hearing. This exchange occurred:44
Q. And yet you said nothing to Ms Inder about your recent appearances in the High Court and the pending –
A. No I didn’t raise it, no.
Q. And again can you tell us why you didn’t raise it?
A. Well I was – I saw her questioning as being related to my relationship with B E Brill Limited. It may have been wider than that but my answer under B E Brill Limited there focuses on the letterhead, what my practice is and the reason I wanted to keep my practising certificate. Yes, if I was writing it again I would have put an additional reason was that I was engaged in a current litigation but I didn’t mention it then and I’m not sure whether it was present in my mind as related to this inquiry
44 Auckland Standards Committee 2 v Brill LCDT 010/20, 7 September 2020, notes of evidence p 29 line 15 to p 30 line 10.
or not. If it was I might have decided that it was best to say nothing. I imagine if I did embark on that subject it would be a long explanation because I was acting for my wife and I in the name of another person. It would all have been a, you know, a long story and so that may have been why I didn’t think it was necessary to talk about it.
Q. Well I suggest that any explanation about your involvement in the Bridgewater proceedings could simply have been summarised in a sentence or two, do you accept that?
A. Not really because I think on the face of it, it would look as if I had no interest in the proceedings. It would have been necessary to say: “I am acting for myself in a certain case and I have some piggy-backed other persons”, but I really think that didn’t seem to me to be the direction of the questioning, the questioning would have been raised effectively the way I saw it: “What is an old man like you want a practising certificate?” and my response was, which is true, that I had considered giving it away a few years ago but I thought: “Oh hang on until I take it to 50 years.”
Q. I suggest that you were aware that Ms Inder was seeking information about your general legal practice and you deliberately withheld the information relating to the Bridgewater proceedings, do you accept that?
A. No.
[87]Mr Brill was self-represented at the liability hearing.
[88] As will be recalled, the Chair of the Tribunal later issued the Minute at [9]. Later again still, the Tribunal disallowed an amendment of the charge that Mr Brill repeatedly misled the Society about the scope of his legal practice. But, as observed, the Tribunal allowed the allegation to inform (and aggravate) penalty as if it had been established.
[89] This aspect of the case has gone awry for reasons apparent on the face of the sequence. The Tribunal treated as aggravating something Mr Brill disputed; which was not governed by a charge; that had been raised for the first time at the liability hearing itself, indeed, during Mr Brill’s cross-examination; and in relation to which the Tribunal had already declined charge-amendment because it would “cast a broader light”.45 The combination was, with the utmost respect to the Tribunal, procedurally unfair.
45 Auckland Standards Committee 2 v Brill [2021] NZLCDT 22 at [51].
[90] This ground of appeal succeeds. In determining penalty, the Tribunal should not have considered Mr Brill’s alleged misleading conduct.
Did the Tribunal err in relation to penalty?
[91]Penalty must be reconsidered given [90].46
[92] Censure is an unremarkable response to a practitioner who has misconducted themself. This case is unusual, however. While Mr Brill should not have acted for parties in the Bridgewater litigation, he did not solicit that role or benefit financially from it. The combination diminishes seriousness.
[93] There is no need for personal deterrence. Mr Brill is, I gather, 82. He is on the cusp of, if not beyond, retirement. There is little prospect he will misconduct himself again.
[94] Mr Brill has been a member of the legal profession for more than 50 years. His disciplinary record is otherwise blemish free.
[95] Mr Brill has led a life of service. Among other things, Mr Brill has been the President of the New Zealand Manufacturers Federation, President of the New Zealand Employers and Manufacturers Association, Chairman of Power New Zealand, an executive member of the New Zealand National Party and a Member of Parliament. Mr Brill’s contributions to the community have been recognised in honours. In 1990, Mr Brill was awarded the Queen Elizabeth II Silver Jubilee Medal and New Zealand Commemoration Medal. In 1996, he was made an Officer of the Order of the British Empire.
[96] Excision of alleged misleading conduct leaves an unusual case in which censure is no longer warranted. The other penalties should endure. I did not understand Mr Pyke to argue otherwise.
46 Penalty is typically determined by considering: (a) the nature and quality of the misconduct;
(b) previous disciplinary history; (c) evidence of remorse or insight; (d) the need for deterrence; and (e) other aggravating and mitigating factors; see, for example, Hong v Auckland Standards Committee No 5, above n 9, at [164].
Result
[97]The liability appeal is dismissed.
[98] The penalty appeal is allowed. Mr Brill’s censure is quashed. All other orders endure.
Costs
[99] I am minded to let costs on the appeal remain as they are: the Standards Committee has succeeded on liability (despite Mr Brill’s many challenges) but Mr Brill has succeeded on penalty.
[100]If counsel disagree, they may file memoranda of not more than five pages each:
(a)On behalf of Mr Brill, on or before 5 December 2022.
(b)On behalf of the Standards Committee, on or before
12 December 2022.
[101]I thank both counsel for their excellent submissions.
……………………………..
Downs J
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