Burcher v Auckland Standards Committee 5 of the New Zealand Law Society
[2020] NZHC 43
•31 January 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1262
[2020] NZHC 43
BETWEEN TIMOTHY JOHN BURCHER
Appellant
AND
AUCKLAND STANDARDS COMMITTEE 5 OF THE NEW ZEALAND LAW
SOCIETY
Respondent
Hearing: 31 October 2019 Counsel:
D P H Jones QC for Appellant E Mok for Respondent
Judgment:
31 January 2020
JUDGMENT OF WHATA J
This judgment was delivered by me on 31 January 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
TIMOTHY JOHN BURCHER v AUCKLAND STANDARDS COMMITTEE 5 OF THE NEW ZEALAND LAW SOCIETY [2020] NZHC 43 [31 January 2020]
[1] Mr Burcher has been found guilty of misconduct on the basis that he provided regulated services while suspended.1 This is Mr Burcher’s appeal.
Background
[2] The following narrative is largely based on the background provided by the Tribunal, which is not disputed.
[3] On 18 December 2015, Mr Burcher was suspended from practice for a period of nine months commencing at the close of business, 23 December 2015. This followed his guilty plea on two charges of misconduct and one charge of unsatisfactory conduct. Those charges related to breaches of the rules relating to a nominee company. Mr Burcher was the trust account partner and the partner primarily responsible for the running of the nominee company.
[4] Following the Christmas break, Mr Burcher returned to the firm’s premises on 13 December 2016, at which point he corresponded with the General Manager of Regulatory Services of the Law Society, Ms Olivier, over the suspension order and type of activity he was permitted to undertake. Mr Burcher set out five sorts of activities which he proposed to engage in during the period of his suspension, namely:
(a)Assisting in a search for premises for the firm;
(b)being involved in staff employment and general management of the practice;
(c)archiving of files and ensuring wills and trusts were up to date;
(d)the pursuit of continuing legal education; and
(e)assisting with the final wind-down of a nominee company.
1 Auckland Standards Committee No 2 v Burcher [2019] NZLCDT 12.
[5] Ms Olivier advised Mr Burcher, among other things, that “care will need to be taken that other lawyers do not form the impression that you are continuing to practise, although that seems unlikely from what you have described”.
[6] Shortly after this advice, Mr Burcher sent a further email to Ms Olivier on 26 January 2016. In that email he pointed out that he is a trustee of several trusts and attorney for various people. As recorded by the Tribunal, he said:
I presume I can still talk to the other trustees as long as I disclose that it is only about those specific matters that are not of a legal nature … likewise if people need me to sign documents as to attorney if someone else is providing the legal advice I must surely be able to sign the document.
[7]Ms Olivier responded the next day:
I cannot see any reason why you would need to resign as attorney or trustee by virtue of your limited suspension and there is no reason why you could not sign documentation in your capacity as trustee/attorney. You may wish to advise any affected clients of your suspension.
I note your awareness that you would not be providing legal advice in that capacity.
[8] At about the same time, Mr Burcher’s then partner, Mr Macdonald, raised concerns with Mr Burcher about his conduct. Mr Macdonald stated in an email:
You have been suspended. Despite that, you are in the office every day and not only are you making and receiving many phone calls but you are also giving tapes to [Ms M] to do as well as spending a lot of time in her office directing her on her work. You are also dealing with clients’ funds and have provided a number of trust account records hand-written by you. I have already expressed my concern about the position.
[9] Ms M is a legal executive of more than twenty years’ experience who worked with Mr Burcher for a long time.
[10] On 5 May 2016, Mr Macdonald made a confidential report to the Law Society expressing concern that Mr Burcher was acting in breach of the suspension order. The Law Society followed with an investigation which reviewed in excess of 500 pieces of dictation that Mr Burcher had made during the period in question, addressed to the legal executive, Ms M. The investigator concluded that Mr Burcher may have
provided regulated services and identified specific examples. Most of those examples form part of the charges.
The charges
[11] The charges allege that Mr Burcher provided regulated services on multiple occasions from 15 January 2016 through to 24 May 2016, which were in breach of the Disciplinary Tribunal’s suspension order. These charges correspond to nine particulars. It is convenient to set them out in full.
15 January 2016
[12]On or around 15 January 2016:
(a)Mr Burcher gave legal advice in relation to the direction or management of relationship property proceedings by drafting correspondence to barrister Alan Goodwin (the lawyer for the other party in the proceedings) and Mr Burcher’s client, Michael Matthew. Mr Burcher dictated a letter to be sent by another employee at the firm:
(i)Mr Burcher’s correspondence to Mr Goodwin advised that the client would be in New Zealand in the next couple of months and “we would certainly recommend that he attend a round table meeting in an attempt to finalise relationship property issues”.
(ii)Mr Burcher’s correspondence to Mr Matthew enclosed the correspondence with Mr Goodwin and stated:
I really think a round table informal meeting would be a good idea. We really need to try to shut this down as soon as possible to avoid incurring further unnecessary costs. I know that you are absolutely against paying anything but even making adjustments for per lack of child care contributions etc. there is still a litigation risk and we may well find we are able to get rid of her for a reasonably modest sum.
(b)Mr Burcher provided conveyancing services by drafting correspondence to [CS] on behalf of his client [A] Investments Limited
(to be sent by another employee at the firm) which included detailed comments on, and proposed changes to, a draft management agreement, including that two clauses of the agreement be deleted, and seeking machine rental depreciation costs be included in the agreement.
18 January 2016
[13] On or around 18 January 2016, Mr Burcher dictated letters to a solicitor, Manu Bhanabhai; and firm, Martelli McKegg, in respect of an outstanding leasehold matter following the sale of a property by Tower City Holdings Limited. In particular:
(a)The letter to Mr Bhanabhai advised:
Our client instructs that it asked for the agent to arrange for notice to be given to the tenant in the shop. It thought that this had been done but our client has now on-sold the property and the purchaser says that the tenant alleges that she has not been given any formal written notice. We note that there were no apportionments of rental on the settlement statement and our client relied on your client’s agent to arrange the notice.
Our client has absolutely no knowledge of the terms of the agreement or indeed the name of the tenant. Can you please urgently forward to us a copy of the lease and confirm up until what date the rent has been paid.
(b)The letter to Martelli McKegg advised that the client was “urgently ascertaining the situation from the original vendor” regarding the leasehold.
14 March 2016
[14] On or around 14 March 2016, Mr Burcher prepared a letter for Macky Robertson Limited. That letter involved the provision of conveyancing services (or services incidental to conveyancing services), in that it included comments and advice on terms of an agreement, a priority deed, and the sale of a property.
6 April 2016
[15]On or around 6 April 2016:
(a)Mr Burcher provided services to his client, A Investments, in relation to the reserved areas of work. He did this by dictating a letter to be sent to a solicitor for another party, setting out terms of proposed settlement, and his client’s position on priority arrangements. The letter stated:
Our client is willing to make substantial concessions on dealing with any sale proceeds of the property provided he gets prompt acceptance from yours … Our clients [sic] additional advances are significant already. It is not mine [sic] to make any further contributions as it anticipates shortly having to make the 10% settlement payment. If it paid the costs that your client has incurred it would be entitled to a priority of those. In the circumstances it is perfectly happy for your client to be reimbursed for those current costs that it will attend to payment but no further costs … We believe this is a very fair and generous concession by our client and the offer will not be on the table for very long.
(b)Mr Burcher provided legal advice to one of his clients, Harry Dodson, in relation to the Black Watch Trust. Mr Burcher dictated a letter to Mr Dodson which thanked him for his instructions to review trust documents and prepare a new will and trust documents. The letter stated:
Our review of the trust deed notes that clause 10.01 contemplates an independent trustee before discretions can be exercised on certain beneficiaries who are also trustees. We think in due course that it may be sensible that you also resign as a trustee and appoint Tim Burcher in your place for the moment. However, if it is likely the only distributions from the trust will be in your favour ten [sic] certainly Tom and Cecilia are able to exercise this discretion.
24 May 2016 to 1 June 2016
[16] On the following occasions, Mr Burcher provided the following conveyancing services:
(a)On or around 26 May 2016, Mr Burcher dictated an agreement to surrender and create rights of way, a height covenant and stormwater and sewage easements in relation to properties located at 18, 20, 20A and 26 Selwyn Avenue between the Jones Family Trust, Polywealth Trustee Limited and 161 Tamaki Drive Limited. The dictation recorded
the following (among other things): “Okay if you can do an agreement please, I think pretty much I’m trying to follow the same format as the Kensington Swan draft that I’ve put with this”;
(b)on or around 26 May 2016, Mr Burcher dictated a sale and purchase agreement between the Jones Family Trust and Polywealth Trustee Limited in relation to the property located at 26 Selwyn Avenue, Mission Bay, Auckland, and correspondence to Winston Wang & Associates enclosing the draft easement and sale and purchase agreements. The dictation included the following comments: “Then if you would like to put in the usual subdivision clauses … throw in the usual ones you put in and there may be some of them that I’ll take out”; and
(c)on or around 1 June, Mr Burcher provided conveyancing services by preparing further correspondence to Winston Wang & Associates (to be sent by another employee at the firm) about the agreement for sale and purchase, and documentation about rearranging easements.
[17] Further to the services provided on 15 January 2016 and 6 April 2016 described above in paragraphs 12(b) and 15(a), Mr Burcher also provided legal services in respect of litigation, on or around 24 May 2016, by dictating a “Statement of Evidence” for Mathew Anderson regarding repairs to the roof of a property at 239 Queen Street, Auckland. A Investments was the mortgagee of this property, which was the subject of a court proceeding.
Decision of the Tribunal
[18]The Tribunal identified the issues to be determined as follows:
1Did any of the incidences pleaded fall within the definition of the provision of legal services?
(a)In each instance, was the nature of the work activity “legal work” or “conveyancing” as defined? And
(b)In each instance, was the work carried out “for another person”, particularly if Mr Burcher was a trustee?
2If the legal services are found to have been provided, does this constitute disgraceful or dishonourable conduct?
3Alternatively, if not, is it a wilful or reckless failure to comply with a condition on a practising certificate?
4If not, is it “unsatisfactory” either because it is unbecoming or unprofessional behaviour, or a failure to comply with a condition on a practising certificate?
(Citations omitted)
[19] The Tribunal noted that understanding the phrase “… carrying out legal work for any other person” (per s 6) was very significant to Mr Burcher’s case. The Tribunal observed that Mr Burcher essentially claimed to have been the client, conveying instructions to his legal executive, who then signed the correspondence and drafted the documents as dictated. This claim, however, did not apply to services for Mr H D and his trust (B W Trust). The Tribunal noted that Mr Burcher rightly conceded that the position was different, and he had effectively provided services for another person.
[20] The Tribunal addressed the misconduct claim by reference to specific letters or dictation drafted by Mr Burcher. The Tribunal reviewed nine items in particular. The following is a summary of the Tribunal’s assessment in relation to each of those items.
1Correspondence on behalf of A Investments Limited on 15 January 2016.
[21] Mr Burcher was a trustee of the V Trust, which was a major shareholder in A Investments Limited. The Tribunal observed that the correspondence, which was to go out in the name of Ms M (the legal executive), contained detailed comments on proposed changes to a draft management agreement.2
[22] The Tribunal referred to Mr Burcher’s evidence that he was providing instructions as a trustee to Ms M and that he did not consider he was acting as a lawyer providing regulated services. The Tribunal did not find this a convincing argument,3 and noted the letter was sent for the benefit of A Investments Limited, a company of which he was not a director. It is also noted Mr Burcher was acting as one of two trustees, not just himself. The Tribunal thus concluded the services “[were] clearly
2 At [33].
3 At [36].
legal services ancillary and incidental to ‘advice’ in relation to any legal or equitable rights or obligation” within the definition of ‘legal work’”.4
2 and 3 Dictation on 18 January 2016 to two other solicitors
[23] This dictation is said to have related to a follow-up matter, incidental to conveyancing which Mr Burcher undertook prior to his suspension the previous Christmas, which Ms M then completed in the following January.5
[24] The Tribunal found that this attendance, like the previous one, was incidental or ancillary to conveyancing and thus fell within the definition of provision of legal services. The attendances were on behalf of a client, T C Holdings, for whom Mr Burcher had acted for some time. The Tribunal said Mr Burcher’s evidence was that he was briefing Ms M on the file so as to cause as little disruption to the client as possible. The Tribunal did not consider this argument was sustainable in the face of the correspondence in question.6
4Letter on behalf of A Investments Limited
[25] The Tribunal described this as a further letter on behalf of A Investments Limited where Mr Burcher was one of the trustees of the B Trust, which was a majority shareholder of A Investments Limited. The letter was said to comprise a detailed settlement offer involving considerable sums of money (over $7 million) and to set out the priority mortgage arrangement.
[26] The Tribunal noted that the letter referred to a recent meeting between “our respective clients”. The Tribunal did not accept Mr Burcher’s argument that he was purporting to act as the client (being a company of which he is not even a director).
5Further dictation on 6 April 2016
[27] The Tribunal said Mr Burcher sent a letter to Mr D thanking him for his instructions to review his trust documents and prepare a new will. The letter enclosed
4 At [37].
5 At [40].
6 At [41].
a deed of retirement for Mr D as trustee and appointed Mr Burcher in his place. It also enclosed a new will and authorities to uplift the deeds from previous solicitors. The Tribunal found that Mr Burcher clearly provided the legal advice to Mr D, an old family friend, and properly conceded this in cross-examination and closing submissions.7
6Dictation around 26 May 2016
[28] The Tribunal noted Mr Burcher dictated an agreement to surrender and create rights of way, a height covenant, and a stormwater and sewage easement in relation to properties in which the three trustees of the J Family Trust had an interest. Mr Burcher was a trustee of this trust and his evidence was that he had fiduciary obligations to ensure his knowledge, as a professional trustee, was utilised to the fullest possible extent.8
[29] The Tribunal noted the documents dictated ran to a number of pages and represented a multi-party agreement, intended to create legal rights and obligations. The Tribunal said: 9
The dictation quite clearly sets out step by step and word for word what Ms M, the legal executive, was to construct in the agreement.
[30] The Tribunal referred to Mr Burcher’s evidence that he was instructing Ms M on what he believed was the best course of action for the trust to undertake. He said it was over to her to carry out or challenge his instructions as she saw fit.
[31] The Tribunal found that the evidence disclosed in the transcript or the dictation went well beyond instructing Ms M as to “the best course of action for the trust to undertake”, and also went well beyond mere client instructions.10
7 At [47].
8 At [48].
9 At [49].
10 At [50].
7Dictation on 26 May 2016
[32] The Tribunal referred to further dictation on 26 May 2016 in which Mr Burcher is said to have dictated a draft agreement for sale and purchase in a letter to solicitors in relation to property of the J Family Trust. The Tribunal found that this was clearly conveyancing work or a legal service in relation to conveyancing work.
8Dictation on 1 June 2016
[33] The Tribunal noted dictation from 1 June 2016 which involved correspondence to solicitors (to be sent by Ms M) and concerned the redrafting of documents. The Tribunal found this was conveyancing work and/or a legal service provided to the three trustees of the J Family Trust.
9Dictating a statement of evidence on 24 May 2016
[34] The Tribunal noted this brief of evidence related to repairs required for a property in Auckland, of which A Investments Limited was a mortgagee. There were court proceedings. The Tribunal said it appeared Mr Burcher had prepared the brief. The Tribunal found that in preparing a brief of evidence, Mr Burcher was acting for another person and was undertaking legal work incidental to reserved areas of work as defined by the Act. The Tribunal did not find the issue of charging or not to be determinative.
[35] The Tribunal also referred to expert evidence filed by Mr C Moore. Mr Moore agreed with Mr Burcher’s analysis, which was that he had simply provided his services as a trustee and that he was better qualified than anyone to do so. However, the Tribunal noted that when challenged, Mr Moore accepted if there was more than one trustee, the other person was being rendered a service for the trust, and appeared to accept the fact that “the client” could not be only one of the trustees.
[36] The Tribunal was also critical, it appears, of Mr Moore’s expressions in evidence that Mr Burcher was “extraordinary” and “wonderful”. The Tribunal said it raised questions about the degree of independence of the witness.
[37] The Tribunal noted even Mr Moore referred to the attendances of Mr H D as “a grey area”. It also noted Mr Moore referred to Mr Burcher as having “overstepped the mark” later in his evidence and added that Mr Burcher had mistakenly thought he was abiding by the rules.11
[38] The Tribunal also noted Mr Moore appeared to accept that there was a fair degree of truth in that the approach he promoted would lead to a point where a trust lawyer could simply continue to act as previously while suspended. The Tribunal therefore disagreed with Mr Moore’s analysis of Mr Burcher’s actions.
[39] The Tribunal then examined whether Mr Burcher’s conduct was disgraceful or dishonourable conduct. Referring to suspension, the Tribunal noted:
[73] As such a significant sanction, with multiple purposes, it must not be treated lightly by any practitioner. It was absolutely clear to Mr Burcher that he could not undertake legal work. His further enquiries of the New Zealand Law Society emphasised at least two matters. One, that he should not undertake file-specific or client-related work and, two, that he should take great care not to give the impression to the outside world, including other lawyers, that it was “business as usual”.
[74] Whilst we note Mr Burcher’s evidence that he was open with his clients about his suspension and attempted to clarify his role when attending meetings, it is clear that at least his partner Mr Macdonald was concerned that Mr Burcher was flouting the suspension order. Mr Macdonald said that two other lawyers spoke to him about their situation but they did not give evidence and we have not relied on this.
[40] The Tribunal repeated its findings that his work went well beyond the parameters he had discussed with the New Zealand Law Society and they regarded his “pushing of the boundaries” and attempting to justify his actions as merely those of a trustee, the order.12
Grounds of appeal
[41] Mr Burcher appeals the Tribunal’s decision on the basis that it erred in finding that:
11 At [65].
12 At [75]-[76].
(a)Mr Burcher breached the order suspending him from practice.
(b)Mr Burcher was acting in the capacity of a lawyer in relation to the conduct at issue.
(c)The appellant provided regulated services during the period of suspension.
(d)Legal services had been carried out “for any other person” when the appellant was a trustee and was acting in that capacity.
(e)The nature of the work or activity, the subject of the charge, was “legal work” or “conveyancing” as defined in the Act.
(f)The appellant was guilty of misconduct under s 7(1)(a)(i) or s 7(1)(a)(iii) of the Act; and
(g)that he Tribunal failed to properly consider or take into account the expert evidence of Mr Moore, both as the capacity Mr Burcher was acting in and whether or not his behaviour was disgraceful or dishonourable.
Mr Jones QC submits the main questions that arise in the appeal are:
(a)What capacity was the appellant acting in when engaged in the conduct, the subject of the nine particulars?
(b)Were legal services carried out “for any other person” when the appellant was acting as a trustee?
(c)Did his conduct amount to providing regulated services on any of those occasions, such that he breached the suspension order?
(d)Did his conduct amount to misconduct under s 7(1)(a)(i) or s 7(1)(a)(iii) of the Act?
[43] I am content to frame my judgment so as to address the issues identified by Mr Jones. Before doing so, however, it is necessary to review the legislative scheme, particularly as to the effect of suspension and the meaning of regulated services.
Effect of suspension
[44] Section 7 of the Lawyers and Conveyancers Act 2006 defines “misconduct” (relevantly) as follows:
7Misconduct defined in relation to lawyer and incorporated law firm:
(1)In this Act, misconduct, in relation to a lawyer or an incorporated firm:-
(a)means conduct of the lawyer or incorporated firm that occurs at a time when he or she or it is providing regulated services and is conduct –
(i)that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable …
[45]A “lawyer” is defined as:13
A person who holds a current practising certificate as a barrister or as a barrister and solicitor.
[46] Mr Jones contended that the order for suspension, coupled with the surrender of the practising certificate itself, appears to mean that the lawyer can no longer be said to be “a person who holds” that certificate and on a plain reading of the Act, a person who is suspended from practice is not considered to be a lawyer as they are not the holder of a current practising certificate. He goes on to submit that, given that the ambit of the misconduct provisions, it may have been the legislative intent that the conduct of such persons be dealt with separately to those lawyers who hold practising certificates and are thereby practising under the Act.
[47] I disagree. While it is true that a person who is suspended from practice must deposit his or her current practising certificate (if any) with the Law Society that issued
13 Criminal Procedure Act 2011, s 5.
the certificate,14 a suspended practitioner is not removed from the roll of barristers and solicitors. Self-evidently, therefore, suspension does not mean that the barrister no longer holds a practising certificate. It only means that he or she cannot practise pursuant to it. This interpretation also aligns with the clear protective purpose of the Act insofar as concerns the provision of legal services. I return to this below.
Meaning of regulated services
[48] Mr Jones submits that a trustee who performs legal work on behalf of the trust is not performing or providing regulated services “for any other person”. In this regard, he notes:
(a)The client is the only person who can give instructions. Mr Burcher must have been acting as a trustee to do what he did.
(b)Giving instructions to a legal executive is not providing advice to that person, or anyone else. It is telling the legal executive what the client wants done.
(c)Legal advice is given and received before decisions are made and instructions provided to a law firm. The Tribunal conflated these issues as there was no suggestion that Mr Burcher provided advice to the other trustee.
(d)There was clear evidence that the other trustees (Messrs Moyes and Jones) dealt with Mr Macdonald when legal advice was needed, not Mr Burcher.
(e)Lawyers charge clients fees for providing regulated services. Mr Burcher did not charge, nor did he receive any fees.
[49] I agree with Mr Jones that that the question of whether a person is providing regulated services will depend on the facts in each case. But I do not accept that a
14 At s 6.
trustee undertaking legal work is presumptively not providing regulated services. As I said in Young, it is necessary to examine the provisions dealing with the provision of legal services in light of the purposes of the Act.15
[50]Regulated services is defined as follows:
“Regulated services” means-
(a)In relation to a lawyer or an incorporated firm –
(i)legal services; and
(ii)conveyancing services; and
(iii)services that a lawyer provides by undertaking the work of a real estate agent; and
(b)In relation to a conveyancing practitioner or an incorporated conveyancing firm –
(i)conveyancing services; and
(ii)services that a conveyancing practitioner provides by undertaking the work of a real estate agent.
[51]Legal services is then defined as follows:
“Legal services” means services that a person provides by carrying out legal work for any other person.
(Emphasis added.)
[52]Legal work is then defined as follows:
“Legal work” includes:
(a)the reserved areas of work:
(b)advice in relation to any legal or equitable rights or obligations:
(c)the preparation or review of any document that—
(i)creates, or provides evidence of, legal or equitable rights or obligations; or
15 Young v National Standards Committee [2019] NZHC 2268 at [53].
(ii)creates, varies, transfers, extinguishes, mortgages, or charges any legal or equitable title in any property:
(d)mediation, conciliation, or arbitration services:
(e)any work that is incidental to any of the work described in paragraphs (a) to (d).
[53] Given the reference to “any other person” in the definition of “legal services”, s 7(1)(a) literally refers to conduct by a lawyer “at a time” when he or she is providing “legal work” for “any other person”. However, the purposes and scheme of the Act must inform the interpretation of s 7.
[54]Those purposes are set out at s 3, which states:
3Purposes
(1)The purposes of this Act are:
(a)to maintain public confidence in the provision of legal services and conveyancing services:
(b)to protect the consumers of legal services and conveyancing services:
(c)to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.
[55] The “legal services” referred to at (a) and (b) is presumably as defined in the Act, that is, “carrying out legal work for any person”. Furthermore, subs (2) of s 3 states (most relevantly):
(2)To achieve those purposes, this Act, must among other things –
…
(d) state the fundamental obligations with which, in the public interest, all lawyers and conveyancing practitioners must comply in providing regulated services.
[56]The fundamental obligations of lawyers are then set out at s 4, which states:
4Fundamental obligations of lawyers
Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:
(a)the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:
(b)the obligation to be independent in providing regulated services to his or her clients:
(c)the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:
(d)the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.
[57] To my mind, in light of the clear purposes of the Act and the fundamental obligations of lawyers, s 7 should be construed broadly to include practicing lawyers who are undertaking “legal work” as trustees. To hold otherwise would enable practicing lawyers to avoid sanction for incompetence by simply invoking the status of trustee, even though such lawyers regularly charge for their time. Furthermore, it would be perverse to exclude a solicitor trustee from s 7 sanction because he or she was suspended at the time. The entire purpose of the suspension is to ensure that person does not perform such legal work because they are deemed unfit to practice while under that suspension.
Assessment
[58] With this frame in mind, I turn to examine each of the particulars upon which the Tribunal based its finding of misconduct.
[59] As Mr Jones submitted, the particulars of the charges can be broken down into four categories, namely:
(a)Particulars 1, 4 and 9 – these are related to the V Trust;
(b)Particulars 2 and 3 – these are related to the letters sent by MBC Law regarding a client for whom Mr Burcher had acted on a conveyancing matter prior to suspension.
(c)Particular 5 – this is correspondence which was to be sent by MBC Law to Mr D, a family friend of Mr Burcher.
(d)Particulars 6, 7 and 8 – these are forms of correspondence which were to be sent by MBC Law; and documents, including an agreement to surrender and create rights of way, height cover, and an easement and agreement for sale and purchase (relating to the J Trust, of which Mr Burcher was a trustee).
[60] Particular 1 relates to dictation made by Mr Burcher on 15 January 2016. It records what appears to be an instruction to Ms M to prepare an email to a third party on behalf of A Investments Limited about a draft agreement between the third party and the client. The dictation refers to, among other things, the absence of Mr Burcher, a commencement date for the agreement, parking information, the client’s lack of knowledge as to likely identified costs, and the fact the client was not prepared to be committed to any firm arrangement beyond the monthly tenancy. The dictation also records an instruction to Ms M to send an email to another third party referring to (among other things) payments that had not been received, and the client’s preparedness to accept a new rental of $1,500 per week (plus GST) on a monthly basis from 1 January 2016.
[61] Mr Jones submits this dictation contains no legal “advice” given as to “legal or equitable rights or obligations” (being the definition of “legal work”), and that there are no other matters within the file notes which are “work incidental to such advice”. Furthermore, he says the dictation was not “carried out for any other purpose”: he says it was an instruction on behalf of a client to a law firm. He further submits that any letter sent by Ms M for MBC Law had to be sent with Mr Burcher’s approval as client (being one of two trustees).
[62] Mr Hodge submits that the file note includes detailed comments on and proposed changes to a draft management agreement, including that two clauses of the agreement be deleted and seeking rental and depreciation costs be included in the agreement. He submits this amounted to provision of legal services incidental to or ancillary to “advice in relation to legal equitable rights or obligations”. He says, as
the Tribunal also noted, the dictation made was of such a nature that the legal executive could simply transcribe it and send it in an email or letter without any further action on her part.
[63] I agree with Mr Hodge and with the Tribunal. The dictation records an instruction to a legal executive to correspond in relation to a client matter. On its face, that matter involved not only an understanding of the background facts, but of the significance of particular provisions of an agreement which, in turn, affected the legal and equitable rights of the client. It is the type of correspondence one might expect from a reasonably experienced commercial property lawyer. Furthermore, it is evident from the dictation the legal executive was expected to transpose the dictation onto a letter and put it in her name. That dictation therefore falls within the definition of legal work.
[64] I do not accept Mr Jones’ argument that because Mr Burcher was simply giving instructions as a trustee of the trust, the dictation did not amount to the provision of regulated services. In addition to the fact that the instruction bore directly on the contents of an agreement which determined the rights and liabilities of the client, there was nothing in the dictation that placed any expectation on Ms M to evaluate and provide advice on the suggested correspondence and the implications of the draft agreement.
[65] In his evidence, Mr Burcher said he considered he was acting in the capacity of a trustee and not a lawyer providing regulated services. He said, given a lawyer or legal executive has to act on the instructions of a client, he was in the position of the client and provided instructions accordingly. While Mr Burcher may have believed that to be case (I return to this issue later), he was nonetheless engaged in performing legal work when he provided those instructions, the content of which, as I have said, bear directly on A Investments Limited. Furthermore, as Mr Burcher accepted under cross-examination, he was one of two trustees on the V Trust and the subject matter of the dictation (A Investments Limited) is 99 per cent owned by that trust, and one per cent owned by a Mr M. It follows that in giving the “instructions” to Ms M (no relation of Mr M), he is affecting the interests of a third legal person. Mr Burcher also accepted under cross-examination that he reviewed the draft agreement to manage before
beginning the dictation. Though, he emphasised there was nothing particularly complex about it. But that apparent lack of complexity is the view of an experienced commercial property lawyer, not a layperson. The reviewing and settling of terms of an agreement are very much the work of a lawyer and qualify, in my view, as legal work. It is relevant to note Mr Burcher, in responding to questions about making judgement calls, said:
That’s what I’m employed for as a trustee, to be able to give competent instructions to anybody when it’s required. That’s the value of a solicitor trustee.
[66]I agree. It is also why the dictation was legal work.
[67] I am satisfied that Particular 1 was proven and I, therefore, agree with the Tribunal’s conclusion about it. Whether or not this apparent breach of the suspension qualifies as misconduct will be addressed below at [95].
[68] As Mr Jones noted, Particular 4 comprises instructions for correspondence which were to be sent out by MBC Law. It involves dictation which refers to priority arrangements between A Investments Limited and a third party. Mr Jones submits the dictation is in the nature of instructions by a client as to a commercial settlement. He submits no legal advice was given. He also says there was no work incidental to legal work rights. Mr Hodge submits in response that drafting the relevant correspondence involved work incidental to reserved areas of work. These areas include giving advice to any other person in relation to the direction or management of proceedings or, alternatively, the provision of advice in relation to legal or equitable rights or obligations.
[69] With respect, and contrary to the conclusion of the Tribunal, I do not consider that the contents of the dictation to which Particular 4 relates includes legal work, even when applying the broad definition I have outlined above. Given this is my conclusion, I repeat in full the relevant dictation here (anonymised to maintain the privacy of the clients):
As discussed at the recent meeting between our respective clients, our client is willing to make substantial concessions on dealing with any sale proceeds of the property provided he gets prompt acceptance from yours. There are
some unacceptable terms in the proposed Settlement Agreement which we are still working through with Grove Darlow. Assuming, however, that all differences can be resolved we advise as follows:
1. Although our client is owed north of $7,000,000 on its original loan plus interest it is prepared for the purpose of this settlement to accept $6,000,000.
2. In addition of course it is underwriting and funding the $1,725,000 to settle all arrears with the Body Corporate.
3. It has paid $116,150 inclusive of GST to have urgency repairs done to protect the unit.
4. It has had significant other costs already in assisting funding your action against the Body Corporate and also making good the premises and fighting an action with [K]. It also has solicitors costs and the likely costs of scale which are all factored into this equation. All of these costs and anticipated costs but excluding the marketing costs, and of course agent’s commission could be rounded out at
$350,000 (at $475,000?)
5. This means a total priority of $3,200,00 what did I say $8,200,000.
Our clients additional advances are significant already. It is not mine to make any further contributions as it anticipates shortly having to make the 10% settlement payment. If it paid the costs that your client has incurred it would be entitled to a priority of those. In the circumstances it is perfectly happy for your client to be reimbursed for those current costs that it will attend to payment but no further costs.
We believe this is a very fair and generous concession by our client and the offer will not be on the table for very long.
Yours etc.
[70] The matters referred to herein appear to simply record the basis upon which A Investments Limited was prepared to settle a matter. While undoubtedly Mr Burcher, who was acting as a trustee, drew on commercial property law experience in forming a view about the terms of settlement, there is nothing in the dictation which suggests that he was doing anything other than recording the position of the client on the terms identified at paras 1 to 5.
Particular 9
[71] Particular 9 is a dictation comprising a draft brief of evidence. Mr Jones says Mr Burcher simply had knowledge of the facts set out in the statement from his position as a trustee. He says the contents are not “legal advice in relation to the
direction or management of proceedings” or even “incidental” to such advice. He also noted another firm filed the brief.
[72] Contrary to Mr Jones’ submissions, this is plainly legal work. The dictation is headed, “Okay can you just please do a Statement of Evidence of Mathew […] Anderson”.
[73] I accept Mr Hodge’s submission that, whether acting as a trustee or otherwise, Mr Burcher was engaged in legal work that was at least incidental to reserved areas of work. Reserved areas of work are defined in the Act as follows:
reserved areas of work means the work carried out by a person—
(a)in giving legal advice to any other person in relation to the direction or management of—
(i)any proceedings that the other person is considering bringing, or has decided to bring, before any New Zealand court or New Zealand tribunal; or
(ii)any proceedings before any New Zealand court or New Zealand tribunal to which the other person is a party or is likely to become a party; or
(b)in appearing as an advocate for any other person before any New Zealand court or New Zealand tribunal; or
(c)in representing any other person involved in any proceedings before any New Zealand court or New Zealand tribunal; or
(d)in giving legal advice or in carrying out any other action that, by section 21F of the Property (Relationships) Act 1976 or by any provision of any other enactment, is required to be carried out by a lawyer
[74] In the result, I am satisfied that Particulars and 1 and 9 are proven. However, I disagree with the Tribunal as to Particular 4.
Particulars 2 and 3
[75] Particulars 2 and 3 relate to a dictation within which there appears to be an instruction to send a letter to a solicitor, the contents of which are as follows:
You will recall that our client settled this matter just before Christmas. Our client instructs that it asked for the agent to arrange for notice to be given to
the tenant in the shop and thought that this had been done but our client has now on-sold the property and the purchaser says that the tenant alleges that she has not been given any formal written notice. We note that there were no apportionments of rental on the settlement statement and our client relied on your client’s agent to arrange the notice.
Our client has absolutely no knowledge of the terms of the agreement or indeed the name of the tenant. Can you please urgently forward to us a copy of the lease and confirm up until what date the rent has been paid. Yours etc
[76] The dictation also appears to have instructed Ms M to write a letter to another law firm. The letter was to read as follows:
Thank you for your letter of 15 January. As you are aware, our client completed the purchase of this property just prior to Christmas and tells us that it instructed the agents and prior owners to arrange notice to be given to the tenant. They thought that this has been done. They have no knowledge of the tenant either and are urgently ascertaining the current situation from the original vendor, and we will be in touch further as soon as we can.
Yours etc
[77] Mr Jones submits the Tribunal was straining the words “incidental to” conveyancing in suggesting the above-mentioned dictation was a provision of conveyancing services. He says it was clearly “wash-up work” which the appellant had knowledge of and, had he remained silent, he could well have breached his obligations to the client.
[78] Mr Hodge notes Mr Burcher had acted as solicitor for T Holdings Limited. He maintains that by undertaking the above work, Mr Burcher was undertaking legal work incidental to and ancillary to conveyancing, and the correspondence related to the property which was subject to the property transaction carried out.
[79] I agree with Mr Hodge and the Tribunal. This was work incidental to a property transaction Mr Burcher previously handled. However, as I think Mr Hodge ultimately accepted, had this been the only transgression of the suspension order, it would have been characterised as de minimis, and would not have been worth pursuing. For my part, it is only relevant insofar as it provides another example of breach, albeit very minor in the circumstances.
Particular 5
[80] Particular 5 relates to dictation dated 6 April 2016, wherein an instruction was given to compose a letter to a Mr H. The content of the letter relates to a trust and will. In his dictation, Mr Burcher thanked H for his instructions to review trust documents and to prepare a new will. He referred to an existing independent trustee who was to retire and the appointment of a new trustee. He also referred to a review of a trust deed. He appears to have provided advice as to what was sensible to do, namely, that H resign as a trustee and appoint Mr Burcher in his place. Enclosed for consideration are (among other things) a deed of retirement and appointment of trustee, and a new will.
[81] This was provision of legal services. Mr Jones did not seriously contend otherwise. He insisted, however, that this was a minor transgression, given that Mr Burcher was simply assisting a longstanding friend. I do not consider it material that the legal work was undertaken for a close friend. Mr Burcher plainly breached the suspension by providing these services while suspended.
Particulars 6, 7 and 8
[82] Particulars 6, 7 and 8 relate to a dictation which includes an instruction to create an agreement, wherein Mr Burcher noted:
I think pretty much I’m trying to follow the same format as that Kensington Swan draft that I’ve put with this.
[83] The dictation then goes on to set out the agreement to surrender and create rights of way, height covenant, and stormwater and sewerage easements. Relevant terms are also identified as are their definitions. The relevant rights of way are also defined. The terms of the easement consent are then specified, as are the terms of the formation of a right of way and covenant. Other conditions are also noted. The dictation refers to the preparation of other documents and other relevant clauses that might have been included. That was in relation to dictation dated 26 May 2016. There is also dictation dated 1 June 2016. This was a response to a law firm. There are various detailed comments on clauses.
[84] Particular 7 relates to further dictation on 26 May which refers to an instruction concerning a standard agreement for sale and purchase, which set out the terms and recorded the presence of easements.
[85] Mr Jones submits that because the appellant was one of three trustees of the J Trust, he was a client of MBC Law. He says a client can give specific instructions or not. He says a trustee is obligated to use their skills and abilities. That is what Mr Burcher did, he says. He notes:
(a)The proposed documents were not final documents. Although the documents were documents relating to land owned by the V Trust, they did not in the form dictated, “have the purpose of effecting or documenting any transaction that would create, vary or extinguish a legal or equitable estate, interest or right in real property”. Those documents were to be completed by MBC Law.
(b)If the appellant sat in a meeting with his two trustees and stated the same information, that could not fairly have been said to be the provision of regulated services.
(c)Mr Burcher also had fiduciary obligations to the Trust to use his professional knowledge.
[86] Mr Hodge acknowledges that at all times Mr Burcher was a trustee of the relevant affected trust. He submits Mr Burcher was nevertheless undertaking conveyancing work and legal services incidental to that work by preparing the documents and related correspondence.
[87] I agree with Mr Hodge. Mr Burcher undertook legal work together with instructions to Ms M to carry the work out. There is no suggestion that Ms M was approached to give advice or add value to the instructions given to her. I also agree with the Tribunal that it should have been obvious to Mr Burcher he was engaged in legal work when he provided documentation of such detail in relation to sale and purchase and other dealings in property.
Dishonest, dishonourable or disgraceful?
[88] Mr Jones submits, in any event, the conduct was not dishonest, dishonourable or disgraceful. He says there was no “flouting” of the order as suggested by the Tribunal. He says this is plain from the number of instances of transgression, compared to the number of dictations/recordings reviewed. He also refers to the expert evidence which speaks of the very real difficulties in differentiating the roles and obligations of trustees to act and use their legal experience for the benefit of the trust. Mr Jones refers to various authorities dealing with the meaning of misconduct.16 He says it is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It may range from actual dishonesty through to serious negligence. But he says Mr Burcher was doing no more than performing his duties as a trustee or acting on behalf of a friend and/or taking relatively minor steps in respect of a property transaction that had just settled prior to his suspension.
[89] Mr Hodge, in contrast, submits that it is well established that professional misconduct does not solely consist of intentional wrongdoing but, rather, captures a range of conduct from actual dishonesty through to serious negligence of the type that evidences an indifference to an abuse of the privileges which accompany registration as a legal practitioner.17 He submits such orders also help to ensure that proper professional standards are upheld, and serve as a deterrent. He submits that this is to ensure that, citing Daniels:18
Only those who are fit, in the wider sense, to practice are given that privilege. Members of the public who entrust their personal affairs to legal practitioners are entitled to know that a professional disciplinary body will not treat lightly serious breaches of expected standards by a member of the profession.
[90] Mr Hodge submits further that respect for the disciplinary process in compliance with orders by lawyers who are subject to such processes is fundamental
16 Complaints Committee No 1 of the Auckland District Law Society v C [2008] 3 NZLR 105; Auckland Standards Committee No 3 and 4 v Banbrook [2017] NZLCDT 35; Deobhakta v Waitako Bay of Plenty Standards Committee [2015] NZHC 965; Ellis v Auckland Standards Committee No 5 [2019] NZHC 1384; Mr A v Canterbury Westlands Standards Committee No 2 [2015] NZHC 1896; Waikato Bay of Plenty Standards Committee v M [2016] NZLCDT 24.
17 Citing Auckland District Law Society v C [2008] 3 NZLR 105 HC at [31] and [33].
18 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850 (HC) at [24].
to ensuring public confidence in the profession and efficacy of disciplinary processes.19
[91] He notes the appellant was found to breach the suspension order on a number of occasions over a period of six months, and that the position is aggravated by the fact that Mr Burcher must have known that he was acting in breach of the suspension, having conferred with Ms Olivier about the scope of what he could do while under suspension.
[92] Responding to Mr Jones’ submission, Mr Hodge submits that Mr Macdonald’s perceptions about the defendant’s conduct were given due weight. He submits his perceptions provided context for why Mr Macdonald submitted a confidential report to the Law Society. He further submits the fact that the evidence of Mr Moyes and Mr Jones, in support of Mr Burcher, was not referred to in the Tribunal’s decision, does not mean the Tribunal failed to take that evidence into account.
[93] Mr Hodge also submits that, had the Tribunal not found Mr Burcher’s conduct to be disgraceful and dishonourable, it still would have been open to the Tribunal to find Mr Burcher had engaged in misconduct under s 7(1)(a)(ii) on the evidence. That is, he had recklessly or wilfully failed to comply with a conditional restriction to which a practising certificate was subject. The restriction in this case was failure to comply with the suspension.
[94] Finally, Mr Hodge also submits that, in the alternative, the conduct was unsatisfactory. That is, the conduct was unbecoming of a lawyer or would constitute conduct consisting of a failure to comply with a condition or restriction to which practise is withheld by the lawyer.
Assessment
[95] I propose to address the particulars individually to assess whether any of them amount to disgraceful or dishonourable conduct. As a preliminary observation, I agree that disgraceful and dishonourable conduct is not limited to intentional wrongdoing.
19 Citing Auckland Standards Committees No 3 and 4 v Bambrook, above n 18; Central Standards Committee v Meyrick [2018] NZLCTD 28.
But, it is clear from the authorities that the presence or absence of an intentional breach of expected standards, together with the presence or absence of harm (including financial and/or emotional harm) to a client or third person, will be relevant to the assessment.20 Having said that, we are dealing here with the performance of legal work while suspended. Limited tolerance only is to be afforded to such conduct.
Particular 1
[96] As will be evident from my review, I consider this particular to be on the borderline of breach. While, by necessary implication, it required Mr Burcher to draw on his legal training and experience, I accept that the instructions were largely of a perfunctory nature, and might be expected of a solicitor/trustee acting in his role as a mere trustee only. I therefore do not consider this amounts to misconduct. I do, however, consider it to be unsatisfactory conduct insofar as it should have been obvious to Mr Burcher that a bright line separation between his role as a trustee and any work as a lawyer needed to be clearly drawn and he failed to do that.
Particular 4
[97] As noted, I have found this particular does not infringe or breach the suspension because, to my mind, it was clearly in the nature of instructions by a trustee concluding the terms of an agreement. However, if I am wrong about that, like Particular 1, I would not consider this misconduct. Also, for the same reasons explained in relation to Particular 1, it would have been unsatisfactory conduct.
Particular 9
[98] The actions in relation to Particular 9, as I have said, were clear breaches of the suspension order and thus expected standards. This particular provides sufficient grounds for disgraceful and dishonourable conduct. Mr Burcher should have known that providing a draft brief of evidence was plainly the job of a lawyer and one he should not have undertaken, even if he had knowledge of the relevant events. He has
20 See Complaints Committee No 1 of the Auckland District Law Society v C, above n 18; Auckland Standards Committee No 3 and 4 v Banbrook, above n 18; Deobhakta v Waitako Bay of Plenty Standards Committee, above n 18; Ellis v Auckland Standards Committee No 5, above n 18 at [42]; Mr A v Canterbury Westlands Standards Committee No 2, above n 18 at [71] to [79]; Waikato Bay of Plenty Standards Committee v M, above n 18.
clearly crossed the bright line here. The absence of harm is not sufficient to mitigate and thereby enable a different, more lenient result.
Particulars 2 and 3
[99] While, again, the steps Mr Burcher took in relation to Particulars 2 and 3 involved a breach of the suspension order, I consider that breach to be relatively minor. The “instructions” were largely perfunctory and, in any event, served only to ensure the client’s interests were properly protected. I would not categorise this as misconduct or unsatisfactory conduct, given the particular circumstances of the breach.
Particular 5
[100] This involved a clear breach of the suspension. Mr Burcher was obligated not to undertake legal work of this type. I acknowledge, however, that the breach involved work for a close friend. I also acknowledge that it was not done for gain, pecuniary or otherwise, and it did not cause harm to the friend. Given these factors, I would not find this conduct to be disgraceful but, rather, unsatisfactory.
Particulars 6, 7 and 8
[101] Mr Burcher’s primary defence to this charge was that he was acting as a trustee. But the work he was undertaking was clearly, as he put it, in his capacity as a “solicitor/trustee”. He has crossed the bright line here again and, given the scale and content of the work, it amounts to disgraceful conduct warranting censure. I acknowledge, however, that minor refinements to the approach taken, namely, the active engagement of a senior lawyer rather than a legal executive and the giving of instructions in a transparent way with a senior lawyer present, would have avoided this issue. It is a matter for the Committee, but I consider this should be relevant to penalty. This is also where Mr Moore and Mr Darlow’s evidence is particularly helpful. While there has been a breach here, it might be said to be a breach of form rather than substance, particularly given the roles taken by solicitor/trustees in their role as trustees. It nevertheless should sound a salutary warning to solicitor/trustees
to be careful insofar as their advice to the trust and their actions require the performance of legal work of any nature.
[102] Overall, I am satisfied there was a proper basis for finding disgraceful and dishonourable conduct in relation to Particulars 6, 7, 8 and 9. I am also satisfied that Particulars 1 and 5 both amount to unsatisfactory conduct. I would otherwise dismiss the charges.
The evidence of Christopher Patrick Eisdell Moore
[103] Mr Jones also submitted the Tribunal’s assessment of Mr Moore’s evidence was wrong. Mr Moore is a very experienced practitioner specialising in property law. He provided evidence in support of Mr Burcher to the Tribunal and he has provided a further brief to this Court. Where relevant I have referred to Mr Moore’s evidence above. Contrary to the Tribunal’s findings, I have found Mr Moore’s evidence substantially helpful insofar as it explains the role played by solicitor/trustees and the common practice of a solicitor/trustee. The following passages were particularly helpful:
18Where a solicitor is a trustee and is intimately involved in the affairs of his trust/clients, as certainly seems to have been the case here, the solicitor will generally be operating in two capacities: as a trustee, and as a professional adviser. Most trustees recognise this dual role, and provide for a professional trustee to be remunerated for his or her efforts on behalf of the trust, ie in their trustee roll. It goes without saying that they must also be remunerated for their professional role, in the present case, for legal services provided. It will be seen that a solicitor who is also a trustee may be both the client, and the legal adviser to the client.
19In my experience few solicitors who are active trustees would make much (or any) distinction between their role as a professional trustee and their role as a solicitor, and would bill for time spent on the matter as though the distinction did not exist. ….
[104] Mr Moore’s descriptions of Mr Burcher’s quality as a lawyer were not substantially helpful, but nor did they act to disqualify his evidence. To my mind, those comments simply reflected his opinion of Mr Burcher without revealing any lack of independence. It is not strictly necessary therefore for me to say more. However, there is one aspect which I think requires further comment.
[105]Mr Moore observed:
21If Mr Burcher could provide assistance to the trust having ceased to be a lawyer (so long as he did not seek to be remunerated), as a suspended lawyer he should also have been able to provide such assistance to the trusts, on an unpaid basis.
[106] With respect, Mr Moore is wrong about this. It highlights an underlying problem with Mr Burcher’s case; that is an assumption that a suspended solicitor/trustee does not provide regulated services when he or she performs legal work for the trust. A suspended lawyer is still a lawyer, but is deemed to be unfit to practice and, for that reason, is suspended. The entire object of the sanction was to ensure that the suspended lawyer (here, Mr Burcher) did not perform those services while suspended.
[107] I wish to add in this regard that the protective object of suspension relates not only to lawyers that act in good faith. It also relates to lawyers that might act in bad faith. While there is no issue of bad faith in this case - Mr Burcher was, in effect, looking to the best interests of the trusts upon which he was a trustee, for his clients, and his friend - the object of s 7 is to ensure proper standards are met, whatever the lawyer’s intentions.
Outcome
[108] The appeal is allowed in part. Particulars 2, 3 and 4 do not amount to misconduct or unsatisfactory conduct. Particulars 1 and 5 do not amount to misconduct, but amount to unsatisfactory conduct. I am satisfied, however, that there was a proper basis for finding disgraceful and dishonourable conduct in relation Particulars 6, 7, 8 and 9.
[109] I make two further observations. It is plain to me that Mr Burcher was acting at all times in the best interests of the persons for whom he was engaged in legal work, but he overstepped the mark in doing so. In addition, it appears that for the most part, Mr Burcher did not intend to breach the suspension order. While not exculpatory, the absence of intentional breach is relevant to the assessment of the seriousness of the breach, as is the fact that there was no harm done. In some cases that might mean the
conduct does not amount to misconduct. In others, it will be, as here, relevant to penalty.
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