O'Boyle v Auckland Standards Committee 4

[2022] NZHC 3141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2269

[2022] NZHC 3141

UNDER

the Lawyers and Conveyancers Act 2006

IN THE MATTER

of  an  appeal  from  a  decision  of  the  New Zealand Lawyers and Conveyancers Disciplinary Tribunal dated 29 October 2021

[2021] NZLCDT 27

BETWEEN

LYNETTE O’BOYLE

Appellant

AND

AUCKLAND STANDARDS COMMITTEE 4

Respondent

Hearing:	7 July 2022
Appearances:	K G Davenport KC and A M Cameron for Appellant L P Radich and M Djurich for Respondent
Judgment:	28 November 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 28 November 2022 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Counsel: K G Davenport KC, Auckland

A M Cameron, Auckland

O’BOYLE v AUCKLAND STANDARDS COMMITTEE 4 [2022] NZHC 3141 [28 November 2022]

Introduction

[1]                 The appellant, Ms Lynette O’Boyle, appeals  against  a  decision  of  the  New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) of 29 October 2021.

[2] In April 2019, the Tribunal found the appellant guilty of misconduct in the sense of s 7 of the Lawyers and Conveyancers Act 2006 (“the Act”).1 In the decision appealed against, the Tribunal imposed various penalties, including that the appellant be suspended from legal practice for a period of six weeks.2

[3]                 The appellant contends that the consequences of the period of suspension are greater than the Tribunal is likely to have understood, and indeed greater than the appellant or counsel understood at the time. This is because the appellant’s practice largely consists of civil legal aid. As it turns out, any period of suspension terminates “provider” status. Accordingly, on completion of the period of suspension, the appellant would need to make a fresh application for provider status. Given that, and given that the appellant derives most of her income from the provision of legal aid services, the process of reapplying will extend the period in which the appellant is not able to earn, or not from her usual source of income, by at least four to five more weeks, and quite possibly longer.

[4]                 The respondent, the Auckland Standards Committee 4 (“the Committee”), opposes the appeal on the basis that the Tribunal did not err in imposing a period of suspension. It submits that a period of suspension was warranted in this particular case. It also submits that it is inevitable a period of suspension will carry incidental consequences and, in essence, that each practitioner must contend with these as best they can.

[5]                 An appeal against a decision of the Tribunal is a general appeal and proceeds by way of rehearing.3 The appellant bears the onus of persuading the High Court to

1      Auckland Standards Committee 4 v O’Boyle [2021] NZLCDT 15.

2      Auckland Standards Committee 4 v O’Boyle [2021] NZLCDT 27.

3 Lawyers and Conveyancers Act 2006, s 253(3).

reach a different conclusion from that reached by the Tribunal.    The Court may confirm, reverse, or modify the order or decision appealed against.4

Background

[6]                 The appellant is a practitioner in the Family Court, undertaking legal aid work in the Whangārei region. The finding of misconduct arises from the following events.

[7]                 A client of the appellant, Ms C, was embroiled in Family Court proceedings with her former partner, Mr C.

[8]                 On 29 May 2018, the Family Court found for Mr C in respect of a child-care application. Mr C was self-represented in those proceedings.

[9]                 One matter traversed in the course of the hearing was Mr C’s criminal history. Almost 10 years prior, he had been charged with four dishonesty related offences. However, he was subsequently discharged without conviction and granted permanent name suppression in respect of those charges. As it is important to what follows, I note that the order for suppression was not entered into the Ministry of Justice system.

[10]             Mr C was questioned about the offences at the hearing of the matter between him and Ms C. Whilst giving evidence under oath, Mr C was asked whether there was one or more charges. Mr C responded that there were four charges. In her handwritten notes, however, the appellant erroneously recorded Mr C’s answer as “one charge”.

[11]             On 18 June 2018, the appellant enquired at the Whangārei District Court as to Mr C’s criminal history. She was advised of the charges Mr C faced and, wrongly, that there was no suppression order in place.

[12]             On 2 and 3 July 2018, and on Ms C’s instructions, the appellant wrote to Mr C’s employer. The letter referred to the criminal charges; alleged that Mr C had not disclosed them to the Family Court and the employer; and alleged that Mr C and his new partner, Ms D, had used their positions in government to access Ms C’s social

4      Section 253(4).

media accounts and had provided the information obtained to Legal Aid in an attempt to have Ms C’s grant withdrawn. The letter supplied several IP addresses from which the accounts were said to have been accessed and suggested that one or more of those were linked to Mr C’s employer.

[13]             The appellant sent the same letter, or copied it, to the Privacy Commissioner and to two further government departments, one of which employed Ms D. The latter two letters were accompanied by covering letters which sought confirmation of whether any of the IP addresses provided were linked to either government department. The covering letters also sought an explanation as to why Ms D had illegally accessed Ms C’s social media accounts and why the relevant government department had allowed that to occur.

[14]             Mr  C’s  and  Ms  D’s  employers  responded  confirming  that  none  of  the IP addresses related to either of them and that there had been no improper use of work devices.

[15]             Not only was the appellant’s correspondence entirely inappropriate, assertions made in the letters as to Mr C having lied to the Family Court and his employer were incorrect. The correspondence was also highly embarrassing to Mr C and Ms D.

[16]             Mr C laid a complaint with the New Zealand Law Society (“NZLS”) and the matter was referred to the Committee for investigation. During the course of the investigation, the appellant maintained that the notes of evidence from the Family Court hearing supported her claim that Mr C had lied. That was incorrect.

Tribunal decision on liability

[17]The Tribunal issued its decision on liability on 29 April 2021.

[18]             The Tribunal acknowledged that lawyers can at times make honest mistakes, and that advocacy involves putting the client’s best case forward. However, it said what distinguished this case was:5

5      Auckland Standards Committee 4 v O’Boyle, above n 1, at [117].

… the intent to harm the opposing self-represented party in an unrelated sphere… [t]he lie, the wilful or reckless extent of allegations and inferences, the scattergun of toxic material, [and] the reckless failure to check material or question her own sources before going on such a strong attack.

[19] The Tribunal was therefore satisfied the appellant’s conduct in sending the letters constituted misconduct under s 7(1)(a)(i) and (ii) of the Act. That section provides:

7Misconduct defined in relation to lawyer and incorporated law firm

(1)In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—

(a)means conduct of the lawyer or incorporated law 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; or

(ii)that consists of a wilful or reckless contravention of any provision of this Act or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm or of any other Act relating to the provision of regulated services; or

Tribunal decision on penalty

[20]             The Tribunal issued its decision on penalty on 29 October 2021. It imposed the six weeks’ suspension to which I have referred; supervision  for a minimum  of 12 months and a maximum of two years at the appellant’s cost; awarded compensation of $3,000 to each of Mr C and Ms D; and ordered the appellant to pay costs totalling approximately $32,000 to the Committee and Tribunal.

[21]             I record here that the Tribunal ordered that the appellant should observe the period of suspension  over what  was then  the forthcoming  holiday period, being  18 December 2021 to 29 January 2022. This period was identified for the express purpose of minimising the loss of income the appellant would sustain, and particularly to assist the appellant in meeting the substantial monetary penalties the Tribunal was imposing.

[22]             The Tribunal said it considered its orders provided a “composite, balanced response which marks our disapprobation accompanied by rehabilitative and compensatory aspects”.6

[23]             The appellant is well advanced in the period of supervision. In an updating affidavit, she states that she is finding this beneficial and that she intends to continue in this process beyond the imposed minimum period. The appellant has also paid the sums due by way of compensation and costs. This appeal is brought only against the period of suspension.

[24]             On 25 November 2021, the Tribunal granted the appellant’s application for a stay of the suspension (and the order for costs for that matter), pending the outcome of her appeal to this Court.7

Effect of suspension

[25]             What follows is a summary of the effect of suspension vis-à-vis a practitioner’s approval to supply legal aid services. I record that this information came before me by way of fresh evidence from the appellant. I grant leave to adduce the evidence, Mr Radich for the Committee consenting to the same.

[26]             Suspension causes an automatic cancellation of an existing grant of approval as a legal aid provider. This appears from s 103 of the Legal Services Act 2011 (“the LSA”) which provides:

103     Cancellation

(1)The Secretary [for Justice] must cancel a provider’s approval if—

…

(e) the Disciplinary Tribunal has made any of the following orders under section 242(1) of the Lawyers and Conveyancers Act 2006:

…

(ii)      suspending the practitioner from practice:

6      Auckland Standards Committee 4 v O’Boyle, above n 2, at [12].

7      Auckland Standards Committee 4 v O’Boyle [2021] NZLCDT 30.

(2)The effect of a cancellation is that the person ceases to be approved to provide the relevant service, and the Secretary is not obliged to pay for any services of that kind provided after the date on which the cancellation takes effect.

…

[27]             Accordingly, if the order for suspension remains, the appellant will need to reapply for legal aid provider status at the end of the six week period.

[28]             A practitioner must surrender their practising certificate at the commencement of a period of suspension. The certificate is regained after the period of suspension is served. Thus, to apply for (re)approval as a provider thereafter, the practitioner must obtain a fresh “certificate of standing”. This is obtained on application to the NZLS. All going well, the certificate should be issued within a fortnight. The application for approval may then be lodged with the Secretary for Justice. Overall, the best the appellant could hope for is to be reapproved as a legal aid provider within four to five weeks of the suspension ending, but it may be a longer period.

[29]             The financial consequences of this for the appellant will be significant. This appears from the fact that she derived 98 per cent of her income from undertaking legal aid work in the most recent financial year.

[30]             The appellant and her counsel, Ms Davenport KC, were unaware of these consequences at the time of the penalty hearing. I do not know whether Mr Radich, who appeared for the Committee before the Tribunal, knew of them but the Tribunal does not refer to the point in its penalty decision. That said, Mr Radich submits that the Tribunal often has legal aid providers before it and that it can be assumed it knew the consequences that would follow from the suspension.

Submissions on appeal

[31] Ms Davenport contends that the true effect of suspension in this case is disproportionate to the wrongdoing. She submits that a suitable alternative would be to accept the appellant’s undertaking that she would not practise for six weeks and that she would refrain from taking instructions during this time. Counsel submits that the Tribunal’s power under s 106 of the Act, to order an inspection of a practice, could be

exercised to ensure the appellant complies with her undertaking. Another alternative would be to censure the appellant. This has been recognised as a serious penalty for a practitioner and would sufficiently record the Tribunal’s disapproval.8 The appellant is also willing to pay such fine as is ordered up to $30,000 and to undertake further supervision.

[32]             Mr Radich submits that none of these alternatives is suitable, and that a period of suspension was and remains necessary to mark the seriousness of the appellant’s conduct. Mr Radich also submits that, had the Tribunal known of other disciplinary findings against the appellant, it is likely that it would have imposed a greater period of suspension. This is a reference to four findings of unsatisfactory conduct by the NZLS against the appellant. Neither counsel for the appellant or the respondent were aware of these at the time of the hearing before the Tribunal. The appellant’s evidence is to the effect it did not occur to her these would be relevant. This is, I suppose, possible given that none of these other disciplinary findings were made prior to the misconduct in the present case, and the matters are quite unrelated. In any event, the Tribunal proceeded on the basis that the appellant had no disciplinary history.

[33]I mention these other findings briefly for the sake of completeness:

(a)The first two related to the appellant’s dealings with fellow practitioners on occasions between 2013 and 2018. In November and December 2018, the Committee found the appellant had failed in her duty to treat these practitioners with respect and courtesy, and in both instances ordered the appellant to pay a $2,000 fine and make a $1,000 contribution to costs.

(b)The third finding concerned a breach of confidentiality requirements in relation to a May 2019 decision of the Committee. In February 2020, the appellant was fined $3,000 and ordered to pay costs of $1,000.

(c)The fourth finding related to several breaches of employment obligations by the appellant in respect of her former personal assistant.

8      National Standards Committee 1 v Reed [2021] NZLCDT 31.

Taking into account orders already made by the Employment Court, the National Standards Committee in August 2021 censured the appellant and ordered her to pay $1,000 in costs.

[34]             Mr Radich submits that this disciplinary history exhibits a pattern of the appellant failing to treat others with sufficient respect and courtesy, and failing to maintain adequate records. Mr Radich submits this is plainly relevant in determining whether there is a risk the appellant’s conduct may be repeated.

Discussion

[35]             I have considered the parties’ submissions, and the leading cases to which they referred, including Daniels v Complaints Committee 2 of the Wellington District Law Society in which the Court discussed the purposes of suspension.9 Ultimately, however, in my view this appeal comes down to the following.

[36]             For this practitioner, the consequences of the period of suspension imposed are not confined to the period of suspension itself. There is nothing on the face of the Tribunal’s decision to suggest it knew of this. On the contrary, as I have said, the Tribunal identified the period in which the appellant would serve the suspension for the reasons mentioned in [21] above.

[37]             In the usual course of events, I would refer the matter back to the Tribunal for reconsideration. This would have been the ideal course, given the Tribunal’s special expertise, its familiarity with this particular case, and the care it took in arriving at the orders it considered best. Referring the matter back would also have meant the Tribunal could take into account the other disciplinary matters involving the appellant. However, the orders I might make on appeal do not on their face permit me to remit the matter back to the Tribunal for further consideration. As I mentioned at the outset, the Court’s jurisdiction on appeal is confined to confirming, reversing, or modifying the Tribunal’s order.

9      Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850 (HC).

[38]             I have considered whether to retain the suspension regardless, as Mr Radich proposed. Ultimately, however, I am not confident the Tribunal would have done likewise and consider the appellant must have the benefit of the doubt. I therefore allow the appeal and modify the decision appealed against, as follows. I shall quash the period of suspension. I do not propose to impose a fine or extend the period of supervision. As the Tribunal said, it arrived at its orders after careful consideration, and I do not consider either a fine or an increased period of supervision an alternative to suspension in this instance.

[39]             In the circumstances of this case, a censure seems the most appropriate substitute. This, in combination with the supervision that has already been ordered (and undertaken in part), strikes the best balance between punishment, deterrence and rehabilitation. It is also a course the Tribunal has itself adopted on occasion.10 Most importantly, censure sends a clear and public message to the appellant and to others in the profession.

[40]             Counsel are to liaise on the exact form of censure. I expect they will agree on the appropriate wording, and then submit it to the Court for approval.

Result

[41]             I modify the decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal of 29 October 2021 by quashing the period of suspension imposed in [35] of that decision. I substitute a censure in terms to be submitted to the Court by counsel.

[42]             Although the appellant has had a measure of success, she is to pay the costs of this appeal on a 2B basis. In the unlikely event of disagreement as to quantum, counsel may submit memoranda not exceeding three pages in length.

Peters J

10     National Standards Committee 1 v Reed [2021] NZLCDT 31; and National Standards Committee 1 v Peters [2020] NZLCDT 3.