New Zealand Law Society v M HC Wellington CIV-2009-485-1944

[2010] NZHC 2460

PENDING THE COURT OF APPEAL'S DETERMINATION OF THE APPLICATION: A) INTERIM ORDERS ARE MADE SUPPRESSING THE NAME AND IDENTIFYING PARTICULARS OF THE DEFENDANT AND THE DEFENDANT'S EMPLOYER; AND B) AN ORDER IS MADE THAT THE COURT FILE MAY NOT BE INSPECTED WITHOUT THE COURT'S LEAVE.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-1944

BETWEEN  NEW ZEALAND LAW SOCIETY Plaintiff

ANDM Defendant

Hearing:         3 May 2010

Appearances: Mr D Laurenson for the plaintiff

Mr B Corkill QC for the defendant

Judgment:      4 May 2010         at 11.45 am

JUDGMENT OF MALLON J

Introduction

[1] The New Zealand Law Society applies under s 266 of the Lawyers and Conveyancers Act 2006 for the name of M to be struck off the roll of barristers and solicitors.

[2]      Usually allegations  against  lawyers  are  dealt  with  under  the  profession’s disciplinary procedure.  However, in cases of considerable gravity or where (in a rare

or  unusual  case)  the  profession’s  disciplinary  procedure  is  inappropriate  or

NEW ZEALAND LAW SOCIETY V M HC WN CIV-2009-485-1944  4 May 2010

unsuitable for some reason, the s 266 avenue is available.1    In this case the Law Society has utilised the s 266 procedure because the transitional provisions in the Act would likely only allow M’s conduct subsequent to obtaining a practising certificate to form the basis of any disciplinary action when an important part of the conduct of concern to the Law Society pre-dates this.  M accepts that the threshold for utilising the s 266 procedure is met.

[3]      By s 267 of that Act, I am empowered to dismiss the application or, if I am of the opinion that the application ought to be granted or that it is doubtful whether the application should be dismissed or granted, to reserve the case for the consideration of  the  Court  of  Appeal.    M  does  not  oppose  this  Court  concluding  that  the application ought to be granted, and that the case should be reserved for the consideration of the Court of Appeal.

[4]      This Court therefore does not make the decision to remove the person from the roll.  But it appears from the wording of s 267 that, if I am not to dismiss the application, I must form an “opinion” that the application “ought to be granted” or that it is doubtful whether it ought to be dismissed or granted.  If I am required to form an opinion, some reasons for that opinion must be necessary even though the decision is ultimately one for the Court of Appeal.  At the conclusion of yesterday’s hearing I said that I was satisfied that the application should not be dismissed and should be reserved for the Court of Appeal.  I now set out my reasons.

The facts

[5]      M has 39 convictions for offences committed between 1989 and 1994.  The offending comprises:

a)        theft (x2);

1 This was the view of the summary jurisdiction to suspend practitioners in the former legislation in B v Canterbury District Law Society (1997) 11 PRNZ 196 at 201 but the same approach seems appropriate in respect of a s 266 application.

b)drinking liquor  under  aged  in  a  public  place/being  under  aged  in licensed premises (x 2);

c)        disorderly behaviour in a public place (x 6);

d)       intentional damage to property/intentional damage to a motor vehicle

(x 13);

e)        intentional obstruction of constable (x 1);

f)        failing to attend periodic detention (x3);

g)        driving  a  motor  vehicle  when  forbidden  to  do  so/driving  when disqualified (x 2);

h)        driving a motor vehicle with excess breath or blood alcohol (x 4);

i)         burglary (x 1);

j)         providing false particulars to a police officer (x 1);

k)        use of offensive language in a  public place (x 1);

l)         assaulting a constable (x 1);

m)       breach of bail (x 1); and

n)        possession of cannabis (x 1).

[6]      Many  of  these  offences  resulted  in  fines  (as  was  the  case  for  the  two convictions for theft and the one conviction for supplying false particulars to a police officer) or the imposition of periodic detention.   On two of the offences M was convicted and discharged.  However some of the offending resulted in sentences of imprisonment.  This included a five month sentence of imprisonment on the burglary conviction imposed on 24 October 1991.

[7]      According to M’s affidavit, in the 1994 to 1996 period, M took steps to turn his life around.   This included a shift from his home town and the successful completion of an alcohol and drug treatment programme.   In 1995 M commenced study for a Bachelor of Arts which he completed in 1997.  In 1998 M commenced a Bachelor of Laws which he completed in 2001.  Throughout this period M stayed out of the courts.  The only further incident occurred in early 2001.  According to M, he was  charged  with  obstructing  the  police  when  a  fellow  student  was  arrested following an altercation with a night club bouncer.  M was given diversion and no conviction was entered in relation to this incident.

[8]      Following completion of his Bachelor of Laws, M applied for admission as a barrister and solicitor.  In support of his application he filed with (what was then) the Wellington District Law Society (now the Wellington Branch of the New Zealand Law Society) a declaration dated 18 October 2001.   The Wellington District Law Society provided a form for this declaration.  It required, amongst other things, the applicant to declare whether the applicant had or had not been convicted in New Zealand or elsewhere of any offence and whether the applicant had or had not been the  subject  of  any  Police  Diversion  Scheme.    M’s  declaration  referred  to  his diversion in 2001 but included the following statement: “I have not been convicted in New Zealand or elsewhere of any offence”.

[9]      At a meeting with M  on 25 October 2001, the Wellington District  Law Society made further enquiries of M concerning the diversion and he was asked to provide a further reference.  M did not mention his convictions at this meeting.  For its part, the Wellington District Law Society did not carry out independent enquiries of M’s conviction history and accepted his declaration.

[10]     M’s explanation now for not disclosing his conviction history from the 1989 to 1994 period is that he “assumed” it must have been “expunged”.  That is because it was his understanding that he could not have got diversion in 2001 if he had previous convictions.

[11]     In any case M was admitted as a barrister and solicitor of the High Court on

18 December 2001 and his name has been on the roll of barristers and solicitors

since then.  Since being admitted M has worked primarily in the employment law area.   He has been with his current employer since October 2003.   He was not initially in the legal team with his current employer, but when he moved into this team he was encouraged to obtain a practising certificate.

[12]     He made the application for a practising certificate to the Wellington District Law Society on 13 September 2006.   His application said that he had not been charged or convicted of any criminal offence since admission and that “[t]here are no other matters the Council should be aware of in determining whether I am a fit and proper person to practice”.  He was issued with a practising certificate for the year ending 31 January 2007.  Since then he has been issued with practising certificates for the years ending 31 January 2008 and 31 January 2009.

[13]     M’s explanation now for not disclosing his convictions when applying for his practising certificate was that he did not understand his convictions to be outstanding issues about which the Law Society needed to be aware.

[14]     In   early  March   2008   the   Wellington   District   Law   Society  received information to the effect that M had criminal convictions and might have served time in prison.   Mr Clarke, the then secretary of the Wellington District Law Society, telephoned M but, when M was unavailable, spoke to M’s employer.  M’s employer appears to have been confused about what Mr Clarke said.   She understood the complaint was that M had spent some time in prison for assaulting a barrister.  That appears not to have been what Mr Clarke actually said, because it was not what he says he had been told in the complaint.

[15]     The employer passed on her understanding of what had been said to M. There is a dispute in the evidence as to whether M then spoke to Mr Clarke later that same day.  Mr Clarke says that he did whereas M says he did not. The Law Society had intended to cross-examine M about this at the hearing before me but in view of M’s position on this application it has elected to proceed with this factual dispute unresolved.

[16]     There is no dispute that M wrote to the Wellington District Law Society on

18 March 2008.  In this letter M said:

It has been brought to my attention via my employer that a complaint has been made to the society involving my personal background.  In light of this complaint, there is concern that I may have concealed information from the society when I was admitted to the Bar as a barrister and solicitor.

I understand that this complaint alleges that I was convicted for assaulting a barrister resulting in a period of imprisonment, and then subsequently changed my name by deed poll.  I reject these allegations as being entirely without substance.  My response to each follows.

[17]     The letter went on to refer to details about M’s name and then to the 2001 incident for which he received diversion.  It concluded:

I do understand that the society has a duty to act on the complaint.  However, I do consider this complaint to be malicious, and am at a complete loss as to why the individual concerned has raised it.   At the stage I am unable to provide further comment, as I have not been provided with any specific information regarding the complaint.

[18]     M and Mr Clarke agree that later on in the day on 18 March 2008, Mr Clarke telephoned him and asked whether M had been to prison and M replied that he had not.  Mr Clarke has a note on the 18 March 2008 letter confirming that he spoke with M that day and recording “OK on his assurance never been to prison”.

[19]     M says that he took Mr Clarke to be referring to a complaint that he had been to prison for assaulting a barrister and that is why he replied in the way that he did (in his letter and in the telephone call).

[20]     Mr Clarke decided to make further enquiries.   On 21 May 2008 he sought information from the police as to whether M had convictions.   By email dated

17 July 2008 the police provided a comprehensive summary of M’s 39 convictions. The summary included that he had been sentenced to imprisonment in 1991, 1993 and 1994.

[21]     On  29  July 2008,  Mr  Clarke  and  Mr  Fowler  (the  then  President  of  the Wellington District Law Society) met with M.  M was shown the police summary of M’s convictions.  M said that he was not the person who had the convictions referred to in that summary.  Mr Fowler said that the matter could be put beyond doubt.  The

meeting ended on the basis that M was to get some proof that he did not have the convictions referred to in the police summary.

[22]     At a meeting on 26 August 2008 M admitted to Mr Fowler and a Wellington District Law Society Complaints Standards Officer that he had misled the Society in that he did have criminal convictions and that he had been to prison.

Procedure

[23]     I am satisfied that the s 266 procedure is appropriate because it enables all relevant information to be considered.  The Act came into force on 1 August 2008. By s 350 of the Act, from that date no complaint or investigation can be made under the former legislation.  By s 351 of the Act complaints for conduct occurring before

1 August 2008 can be made under the Act but not for conduct that occurred more than six years ago.   M’s convictions and his admission application occurred more than six years ago (quite apart from the Law Society’s further point that the application for a practising certificate might not be able to be pursued through the disciplinary procedures either).

Requirement to be a fit and proper person

[24]     One of the criteria for admission as a barrister and solicitor (under the Act2 and the former legislation3) is that the person is a “fit and proper” person to be admitted. One of the things the Court can consider in making this determination is whether  a  person  has  been  convicted  of  an  offence.4    Had  M  disclosed  his convictions at the time of his application for admission an assessment would have been made as to whether M’s convictions meant that he was not a fit and proper

person.

2 Section 49 of the 2006 Act.

3 Section 46 of the Law Practitioners Act 1982.

4 Section 55 of the 2006 Act. This was not explicitly provided for in the 1982 Act.

[25]     Likewise (under the Act5  and the former legislation6) a practising certificate may be refused to a person on the ground that they are not a fit and proper person to hold a practising certificate.  Had M disclosed his convictions when he sought his practising certificates an assessment would have been made as to whether his convictions, and their non-disclosure when he applied for admission, meant that he was not a fit and proper person.

[26]     Under s 266 of the Act the name of a person can be struck off the roll “for reasonable cause”.  Reasonable cause will arise if the conduct is such that the person is not fit to be an officer of the Court.7    The Law Society says there is reasonable cause because:

The cumulative effect of the Convictions, and his subsequent repeated dishonesty in failing to disclose the Convictions, is such that [M] cannot be considered to have the integrity, honesty or trustworthiness necessary to satisfy the fit and proper person test.

It is accepted that [M] is to be commended for turning his life around from the 5 year period (1989-1994) during his late teens and early twenties when he received the Convictions.   However, regardless of this, [M]’s overall conduct is such that he quite simply cannot be trusted to the extent necessary to satisfy the high standard of the fit and proper person test:

(a)     three of the Convictions involved offending involving at least some degree of dishonesty – burglary, theft and providing false particulars to a police officer;

(b)     the Diversion Offence was committed in January 2001;

(c)the Admission Declaration (October 2001) stated he had not been convicted of any offence;

(d)the  Practising  Certificate  Application  (September  2006)  did  not disclose the Convictions and stated there were no other matters the Council should be aware of in determining whether he was a fit and proper person to practise, when he must have known the Convictions were highly relevant to that issue;

(e)during 2008 [M] failed to disclose the Convictions, or that he had been in prison, to Mr Clarke in circumstances which he ([M]) must have known required the disclosure of that information;

5 Section 41 of the 2006 Act.

6 Section 58 of the 1982 Act.

7 As discussed in Auckland District Law Society v Leary CA 200/86, 15 April 1987 at p 79.

(f)during the meeting with Mr Fowler and Mr Clarke on 29 July 2008, even when a summary of Convictions was put to [M], he denied they related to him;

(g)     the only reason [M] finally admitted he had the Convictions was when he realised he had no option other than to do so.

[27]     M accepts it is open to the Court to reach the view presented in these two paragraphs of the Law Society’s submissions.

[28]     On the basis of the evidence before me I am not satisfied that the Law Society’s application should be dismissed.  Rather I agree that M must have known that he was misleading the Wellington District Law Society, and the High Court when it made the order for his admission, about his previous convictions.  Likewise he must have known that he was misleading the Wellington District Law Society when he applied for his practising certificates and again when the enquiries were made subsequent to the complaint.

[29]     M says he “assumed” his previous record had been expunged because he had been granted diversion.  M does not say how he thought that might have occurred. At this time the Criminal Records (Clean Slate) Act 2004 had not been enacted and, in any event, M would not have been eligible under that Act because he had received

custodial sentences.8    The required declaration for the admission application asked

about any convictions – no time period was specified.   The answer M gave was incorrect.

[30]     The application  for  the  practising certificate  was  also  misleading.    As  a lawyer, M would have been able to check the criteria for a practising certificate and to have appreciated the potential relevance of previous convictions.  He would also have been able to check the Criminal Records (Clean Slate) Act 2004 to see that he was not eligible for a “clean slate”.   He chose to tell the Wellington District Law Society that there was no other relevant information.

[31]     M had a number of opportunities in 2008 to advise the Wellington District

Law Society of his previous convictions and that he had been to prison.  Instead he

8 Section 7(1)(b).

confined his answers to what he thought the particular complaint was about.  Again he must have known that the Wellington District Law Society would have wanted to know if he had served any term of imprisonment whether it related to an assault on a barrister or not.  When confronted with the police summary, M initially denied that it related to him when he must have known that it did.

[32]     As the authorities make clear,9  integrity, honesty and trustworthiness  are necessary qualities of a member of the legal profession.  Unfortunately, despite the very real credit that is due to M for turning his life around, the cumulative effect of his conduct is that he let himself down and did not display the necessary integrity, honesty  and  trustworthiness  when  it  came  to  his  dealings  with  the  Wellington District Law Society.  I am of the opinion that the application ought to be granted and accordingly I reserve the question of whether there is reasonable cause to strike M off the roll for the consideration of the Court of Appeal.

Suspension

[33]     By s 267(2)(b) of the Act I may order that M be suspended from practice as a barrister or a solicitor or both until the decision of the Court of Appeal is given.  M is not practising as a barrister and solicitor (his present employment does not require him to be admitted or to hold a practising certificate) and he has surrendered his practising certificate.   The Law Society has not sought an order under s 267(2)(b) and I do not make one.   I reserve leave for the Law Society to make such an application if it subsequently decides that it ought to do so.

Suppression

[34]     Pending   the   Court   of   Appeal’s   consideration   of   the   Law   Society’s application, M seeks:

9 Pou v Waikato/Bay of Plenty District Law Society CIV-2004-463-0511 HC Rotorua, 10 May 2006 summarises some of these authorities at [40] to [42].

a)        the continuation of the interim suppression order of M’s name and identifying particulars which is currently in force;

b)on behalf of his employer, an order for interim suppression of their details; and

c)        an order that the Court file not be inspected.

[35]     All of these orders are sought on the basis that it is ultimately the Court of Appeal, and not this Court, which makes the decision as to whether M is to be struck from the roll.  If M is to be struck from the roll, by s 269 of the Act, notice must be published in the Gazette.  In the hearing before the Court of Appeal, if M is to be struck from the roll, then M intends to seek a limited form of publication.  M seeks the suppression orders to preserve the position pending the Court of Appeal’s consideration.   The Law Society does not oppose any of these orders pending the Court of Appeal’s consideration of the application.  After discussion with counsel I am persuaded that I should not do anything which might interfere with the Court of Appeal’s consideration of this issue and I therefore make the orders that are sought (and as are recorded in the header of this judgment).

Costs

[36]     The Law Society intends to seek costs in this Court on a 2B basis.  M asks that costs be considered after the Court of Appeal’s determination of the application. The Law Society does not oppose this.  Accordingly costs in this court are reserved pending the Court of Appeal’s application.

Result

[37]     The  Law  Society’s  application  that  M’s  name  be  struck  off  the  roll  of barristers and solicitors is reserved for the consideration of the Court of Appeal pursuant to s 267(1)(b) of the Lawyers and Conveyances Act 2006.

Mallon J

Solicitors:

M E Ollivier, New Zealand Law Society, Wellington, [email protected]

J Miller, John Miller Law, Wellington, [email protected]