Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee no.2) HC Hamilton CIV 2010-419-1209

[2010] NZHC 2305

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-1209

UNDER the Lawyers and Conveyancers Act 2006

IN THE MATTER OF     an Appeal against order striking name from

Roll of Barristers and Solicitors

BETWEEN  JAMES CHARLES MORRIS PARLANE Appellant

ANDNEW ZEALAND LAW SOCIETY (WAIKATO BAY OF PLENTY STANDARDS COMMITTEE NO.2) Respondent

Hearing:         4 October 2010

Appearances: P J O'Sullivan for Appellant

P N Collins and K J-O Kelly for Respondent

Judgment:      20 December 2010

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

20 December 2010 at 9.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

O’Sullivans Lawyers, Old Taupiri Road, RD2, Taupiri

Glaister Ennor, PO Box 63, Auckland 1140

PARLANE V NEW ZEALAND LAW SOCIETY (WAIKATO BAY OF PLENTY STANDARDS COMMITTEE NO.2) HC HAM CIV-2010-419-1209  20 December 2010

Table of Contents

Para No

Introduction  [1] The charges  [4] The professional misconduct charge  [5]

The factual basis of the professional misconduct charge

Mrs R

Refusal to produce files/obstruction

Complaint by DM Complaint by ABV

[7]

[9] [35] [47] [55]

The decision on penalty  [66] The appeal  [71] Discussion  [83] Result  [114]

Introduction

[1]     On 16 September 2010 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) made an order striking the appellant’s name off the roll of Barristers and Solicitors.[1]   The Tribunal had earlier, in a decision dated

4 June 2010,[2]  determined that Mr Parlane had been guilty of misconduct in his

professional capacity as had been alleged (“the professional misconduct charge”) by the Waikato Bay of Plenty Standards Committee (“the Committee”).

[1] Waikato Bay of Plenty Standards Committee v James Charles Morris Parlane [2010] NZLCDT 26. 

[2] Waikato Bay of Plenty Standards Commiteee v James Parlane [2010] NZLCDT 8.

[2]      There was a further charge, alleging unsatisfactory conduct in Mr Parlane’s professional capacity.  That charge was determined on 22 July 2010.[3]   The Tribunal also found that charge was proved, but in its decision of 16 September it decided not to  impose  a  separate  sanction  in  relation  to  it  because  of  the  order  striking Mr Parlane off the roll on the more serious charge.

[3] Waikato Bay of Plenty Standards Committee v James Parlane [2010] NZLCDT 18.

[3]      Mr Parlane has appealed against the order striking him off the roll.  He claims that it is manifestly excessive and unjust, inappropriate in the circumstances and inconsistent with the outcome of disciplinary proceedings taken in respect of other

legal practitioners.  Mr Collins told me that this is the first time that an appeal to this

Court has been pursued under the Lawyers and Conveyancers Act 2006.

The charges

[4]      Mr Parlane does not challenge the Tribunal’s factual determinations, nor its conclusions that he was guilty of the two charges.   The charge of unsatisfactory conduct concerns statements made to a self-represented person involved in a fencing dispute with a client of Mr Parlane.  It was established that he made disrespectful and discourteous statements about that person in a letter dated 5 June 2009, contrary to r 12 in the Conduct and Client Care Rules 2008.  It is not necessary to discuss the conduct giving rise to that charge any further since no penalty was imposed in respect of it and it is plain that the Tribunal did not rely on it in reaching its decision to strike Mr Parlane’s name off the roll.

The professional misconduct charge

[5]      The  professional  misconduct  charge  was  based  in  part  on  Mr Parlane’s actions in respect of a person, Mrs R, for whom  he acted in relation to the purchase of her home.   Three of the particulars of misconduct advanced by the Standards Committee were rejected by the Tribunal, but it found that the following particular was established:

4During the period June 2007 to July 2009 he wrongly refused to discharge the mortgage granted to him by Mrs R to secure the earlier personal loan and:

(a)      Obstructed  Mrs  R’s  solicitor  in  her  attempts  to  facilitate refinancing and to discharge the mortgage;  and

(b)Relied on his status as mortgagee to demand payments and concessions from Mrs R to which he was not entitled.

[6]      The other particulars of misconduct that the Tribunal found were proved give this case a particular and unusual flavour.  The Tribunal found that Mr Parlane had set out to deliberately obstruct the Standards Committee in the actions that it was

taking to try to deal with Mrs R’s complaint and also in relation to complaints by other  former  clients,  DM  and  ABV.    The  Tribunal  found  that  the  following particulars of misconduct had all been established on the evidence before it:

5In  relation  to  Mrs  R’s  complaint  against  him  to  the  Lawyers Complaints Service, he refused to comply with the requirements of the Standards Committee, that he produce his relevant files and records, such requirements being communicated to him in writing by notices delivered on or about 27 August 2008, 5 October 2008, and

20 May 2009, and he thereby obstructed the Standards Committee in the lawful exercise of its statutory functions and powers.

6.        In relation to the investigation into Mrs R’s complaint during the period February 2008 to April 2009 he communicated in writing with   the   Complaints   Committee,   and   subsequently   with   the Standards Committee, in an unprofessional and belligerent manner and thereby obstructed the Complaints Committee and the Standards Committee in the lawful exercise of their statutory functions.

7.In relation to a complaint by a former client, DM, in October 2008, he communicated in writing with the Standards Committee in an unprofessional and belligerent manner and thereby obstructed the Standards Committee in the exercise of its statutory functions.

8.In relation to a complaint by a former client, ABV, during the period February to June 2009, he communicated in writing with the Standards Committee in an unprofessional and belligerent manner and thereby obstructed the Standards Committee in the exercise of its statutory functions.

The factual basis of the professional misconduct charge

[7]      The  Tribunal  heard  evidence  from  Mrs  R  and  Mrs  Miles,  a  solicitor practising in Te Awamutu as a principal in the firm Gallie Miles, who commenced to act for Mrs R after the dispute with Mr Parlane arose.  It also heard evidence from Ms McDonald, another solicitor, who was employed by Gallie Miles and acted for Mrs R in a summary judgment application that she made in the Hamilton District Court.   The Committee also called evidence from Mr Michael Dixon, a Hamilton solicitor employed part time as the Complaints Standards Officer at the Waikato Branch  of  the  New   Zealand   Law  Society,  and  prior  to  the  Lawyers  and

Conveyancers Act 2006 coming into effect, as the Complaints Officer of the

Waikato Bay of Plenty District Law Society.[4]

[4] Although some of the events referred to in the Tribunal’s decisions arose prior to the 2006 Act coming into force, it is common ground that it is that Act which applies.

[8]      There is no challenge to any of the Tribunal’s findings.

Mrs R

[9]      The genesis of the misconduct charge was Mr Parlane’s dispute with Mrs R. Mrs R and Mr Parlane were friends.  She instructed him in relation to the purchase of a house property.   She needed to obtain mortgage finance on an urgent basis and Mr Parlane offered to help her purchase the property by offering her a bridging loan until longer term finance could be arranged.

[10]     On 23 August an agreement for sale and purchase was executed in respect of the property that Mrs R wished to acquire.  However, the purchaser in the agreement was stated to be Mr Parlane or his nominee.  There was a deed of nomination, signed by Mrs R and her three sons, which authorised Mr Parlane to make the purchase on their behalf.   The deed was dated 25 August 2005.  Mr Parlane had advised that the property should be owned by a family trust, with Mrs R and each of her sons the beneficiaries.   The property was acquired for $178,000, of which $38,000 was advanced by Mr Parlane.

[11]     A dispute arose between Mr Parlane and Mrs R over the sums required to be paid in reduction of the loan, and as to its terms.  As a consequence, Mrs R decided to take independent legal advice from Mrs Miles.  She first met with Mrs Miles on

23 March 2007.  Initially, Mrs Miles found it difficult to understand precisely how the purchase of the property had proceeded.  Mrs R complained to Mrs Miles that she had understood she had a loan from Kiwibank, not from Mr Parlane.   The Tribunal found that in fact Mr Parlane had advanced funds sufficient to enable the purchase to proceed and that Mrs R had subsequently made payments to Mr Parlane in reduction of the loan although she had mistakenly believed that the payments were in fact reducing a loan from the bank.  The property was not in fact acquired by a

family trust, because one of the proposed trustees of the trust, one of Mrs R’s sons, declined to sign the mortgage documents, thus preventing the trust from drawing down a loan from Kiwibank to repay Mr Parlane.  The family made no further effort to progress ownership of the property by a family trust.

[12]     From 11 June 2007 Mrs Miles made various attempts to uplift Mrs R’s file from  Mr Parlane.    She  wrote  to  him  on  a  number  of  occasions,  attempted  to telephone, and visited him at his office.  She obtained a search copy of the mortgage in favour of Mr Parlane and a copy of the title which in fact showed that the property was owned by Mrs R and her three sons as trustees of the family trust.  Mr Parlane was the mortgagee.  The mortgage related to Mrs R’s interest in the property and was for a sum of “up to” $40,000.   Although Mrs R complained that the property had been registered in the name of herself and her sons and believed that it should have been registered in her name alone, the Tribunal found in favour of Mr Parlane that Mrs R had intended to own the property in trust, but that the trust had become derailed  when  one  of  her  sons  declined  to  sign  the  mortgage documents.    The Tribunal said, at [26] of its decision of 4 June 2010:

A search copy of the title shows the mortgage to Mr Parlane for his bridging loan was registered on 22 March 2007, the day before Mrs R approached Mrs M for assistance.  Given that she had taken possession of Blundell Place on 7 October 2005, the Tribunal finds itself drawing the inference that Mr Parlane  held  the  mortgage  documents  unregistered  for  a  period  of  15 months.  This was no doubt because he had been expecting his temporary funding arrangement to be replaced by the proposed Kiwibank loan to the trust.  The property had been registered in the name of a Trust, but of course, once  Jaysen  had  refused  to  sign  the  Kiwibank  loan  documents,  Mrs R decided she did not want the trust to proceed.

[13]     The Tribunal found that Mr Parlane had taken “great exception” to Mrs R instructing Mrs Miles, and saw her conduct as disloyal.  He repeatedly declined to provide the file and, when a complaint was made to the Law Society,[5] he declined to discharge his mortgage without Mrs R agreeing to withdrawal of her complaint to the Law Society and payment of various sums totalling $5,212.50 which he claimed he was due for legal services:  that total comprised a fee of $787.50 for preparing

[5] The complaint was made on 22 August 2007 and raised a number of issues including failure to action Mrs R’s authority to hand over the file to Mrs Miles, conflict in acting for a client as solicitor and banker and lack of information given to Mrs R about the transaction including bills of cost, statements of account and disclosure pursuant to statutory requirements.

and attending to settlement, a fee for preparing a discharge of mortgage in the sum of

$675, a fee for attending to other loan related issues of $1,462.50 and a sum of

$2,287.50 for unpaid bills previously rendered.

[14]     The  Tribunal  referred  to  another  letter  that  Mr Parlane  had  written  to Mrs Miles on 9 October 2008.  They noted that in the letter, Mr Parlane expressed the  view  that  any  conflict  of  interest  had  been  resolved  by  Mrs R  changing solicitors;[6]   that he was about to embark on litigation with the District Law Society; that such litigation would be at Mrs R’s expense;  that he was able to claim all costs and expenses in relation to the loan and the enforcement of the security because he was acting as a lender only and not as a lawyer, that he intended to apply for summary judgment for outstanding fees;  and that if she did not repay the loan by

10 January 2009 then penal interest at the rate of 14 per cent would be charged and a mortgagee sale would ensue.

[6] In fact, the allegation that he made was that the District Law Society had established that any conflict of interest had been resolved by Mrs R changing solicitors “immediately that she became unhappy”.

[15]     On  9 December  2008  Mr Parlane  wrote  to  Gallie  Miles  in  the  following terms:

I note that the amount required to settle the loan as at 12 January 2009 is

$35,981.19 plus costs and fees of $5,212.50.

This makes a total to settle in the sum of $41,193.69 as per my statement. Upon receipt of that sum I will sign off the discharge of mortgage provided

that there is no more agree[sic] bargee created by you or Mr. M F Dixon and

his cronies at the wbopdls.[7]

[7] From an early stage, both in his correspondence with the District Law Society and with Mrs Miles, Mr  Parlane  adopted  the  practice  of  referring  to  the  District  Law  Society  not  by  name,  or  by abbreviation with capital letters, but by using the lower case.   The approach was a  reasonably consistent one, and I infer that it was followed in order to denigrate the District Law Society.

As you have not tendered the required photocopying fees so that you can receive a copy of the file as per the rules, I will not be sending one to you as per previous correspondence.  I see no need for you to attend my office to view the file.  There is a mechanism in place for you to obtain it and you have failed to follow that simple and clear mechanism.

The Law Society have not found any proper basis for a complaint despite their overzealous involvement to date.

If I receive any more letters from them then I will be requiring you to obtain the sum of $20,000.00 from your client to hold as security for costs in litigation over these matters.   If I am further out of pocket in any way whatsoever as a result of your miserable and unreasonable client telling tales on me when all I have tried to do is help her then she can expect that ultimately it will cost her more and more.  Obviously I will look to her for compensation and costs for enormous extra time and grief she has caused me.

Once you pay me the sum as above you can have the file.

[16]     On  10  December  2008  Mrs  Miles  sought  immediate  provision  of  a breakdown of the costs and fees for $5,212.50 that Mr Parlane was claiming.  She indicated that she wished to call at his office to view the file, Mrs R not being prepared to pay the required photocopying fees so as to receive a copy of the file. She asked for him to provide a reason for her not being able to inspect it.  Although the Tribunal did not refer to Mr Parlane’s response, he wrote on Mrs Miles’ fax and sent  it  back  to  her  indicating  that  he  would  provide  bills  for  the  fees,  and commenting:

The more correspondence the greater the fee.

And that:

The file is held off site to avoid burglary by WBOPDLS.

[17]     Three invoices were subsequently provided in early January 2009;  they came to a total of $2,925.

[18]     On 14 January 2009 Mr Parlane wrote again to Gallie Miles.  Included in his letter was a “loan summary” in which he referred to advances totalling $38,383.59, and a balance outstanding, including interest and the amount needed to settle his fee accounts, of $41,228.  In his letter he said amongst other things:

I confirm that I hold an authority for you to discharge the mortgage electronically, signed and this will be available immediately upon settlement as per my statement.

The discharge of mortgage will be on the basis that it is obviously without prejudice to the personal covenants given in that mortgage that I will be protected from any future claims that may be considered by the borrower, their agents or any third party including any Law Society.

[19]     Gallie Miles wrote to Mr Parlane on 15 January 2009.  Once again, the letter was not referred to by the Tribunal, but it included an assertion that there was no authority for Mr Parlane, as lender, to charge Mrs R for any of the costs associated with her complaint to the Law Society, a matter for which, in one of the invoices he had sent, Mr Parlane had purported to render a fee of $1,300 plus GST.  Mrs Miles pointed out that such a charge was not contemplated by clause 5 of the mortgage. She also made a similar observation with respect to two of the other accounts that had been rendered on 4 January 2009.

[20]     Mr Parlane’s reply of 15 January was referred to in the Tribunal’s decision. He alleged that Mrs R was in default of her mortgage as she had added to the property without his permission as the mortgagee, that she had damaged it and that he required her to reinstate it.  He indicated that he would inspect the property the following day.  He said that if his accounts were not met in full he would commence mortgagee sale proceedings, and that he intended to recalculate the default interest from the date of default which he said would be the date that she had made an addition to the property without his permission.

[21]     The letter concluded with the following paragraph:

One further matter, as part of the settlement requirements I will require written confirmation from both the wbopdls and the NZLS that they have received confirmation that any complaint is withdrawn and an indemnity for all further costs signed irrevocably by Mrs R.   Once settlement funds are received, I will hand you a registrable electronic discharge of mortgage which will be on terms that are such that the discharge is without prejudice to the personal indemnities given to me by the mortgagor.   That has been signed and witnessed and needs only your dealing number to be inserted. My costs will be increased if settlement is late.   I am out of the office tomorrow.

[22]     The Tribunal said at [33] of its decision that Mr Parlane wrote another letter on 15 January 2009.  However, it appears that the letter to which reference was made was a letter that he wrote on 19 January.   On that day, Mrs Miles had written in response to Mr Parlane’s letter of 15 January.   She protested that he was adding conditions to the settlement of the matter without authority, noting that Mrs R was not presently in default and that she wanted to pay the amounts owing to discharge the mortgage.  She proposed that the loan be settled by payment of the principle and

interest claimed and also that the accounts that Mr Parlane had rendered be paid “under  protest”,  with  copies  of  accounts  being  referred  to  the  Law  Society for review.

[23]     In his response of 19 January 2009, Mr Parlane wrote:[8]

[8] The first paragraph is omitted as it is unnecessary for present purposes.

It is quite clear that the costs associated with the mortgage therein provide a wide range of obligations of the mortgagor when it comes to costs and it is also quite clear that your client has by her actions in adding to the property, created an imperfect title and further there is no evidence of a request to the mortgagee to add on to the property and in any event that certainly would not have been given and therefore your client is in default of the mortgage.

The further request that the matter be settled in terms of the Law Society has obviously been required as this has a direct bearing on the issue of costs claimed in relation to the loan.  The whole matter is about a loan ant[sic] the associated security.  Clearly the Law Society personnel who reviewed this matter were totally incompetent and thy[sic] have aggravated the matter beyond belief.  [All] I did was assist your client with what she wanted and they chose to be unreasonable, unhelpful and threatening thus causing extra cost and delay to all parties.

Your client has had her chance to pay the required sum and redeem the mortgage.  She has failed to do that and now is further in default.

You are now on notice that a further $300.00 + GST worth of costs have been added due to the extra letters I have been required to receive and reply to.  From now on your client will be charged the default interest rate.  I have inspected the property and it is not tidy.  The costs claimed now are all in relation to the discharge of the mortgage.   The costs related to the Law Society totally relate to if[sic] or not the matter is to be ongoing.  If it is to be ongoing the mortgage will stay on the property while the matter is litigated and the mortgage will come off once litigation resolves the matter.  If you intend to have the law society to continue to protract this matter then you can expect that I will want a security for the costs associated with that.   The mortgage provides that security.

I am not prepared to give you any undertakings regarding this matter until such time as firstly you have hold of funds to settle and you have previously undertaken  that  you  will settle  with  them and  secondly  that  all  matters outstanding are resolved and that you have “called the dogs off” in terms of the law society.  From the outset, your own performance in this matter has been poor and it warrants, a complaint.

Once you have given your undertakings, I will provide you with a copy of the  discharge  documents  in  the  conventional  way  as  would  any  typical lender.   For the meantime I confirm that I hold them.   As you are not prepared to  settle  without deduction,  your  client,  having had  reasonable notice of demand for payment and who is in default, is not in a position where she is able to settle.   There is no reason why settlement cannot be

personally at my office with a bank cheque.   You will then be given the authority to discharge the mortgage.

From today the interest rate charged will be the default rate of 14% p.a.  As despite what you say, your client is in default and has been for many months.

I am not clogging anything in relation to this matter.  You are.  You decided in your infinite wisdom to involve the Law Society without evidence of any intention to breach the rules.   You therefore are required to remedy that breach brought about entirely by you.

The sum to settle now stands at $41,228.06 + fees of $337.50 = $41,565.56

+ $15.94 per day that you are late.

Every time that you write quibbling about settlement, is simply more costs that will be added to your clients amount to pay.  My understanding is that you want a full and final settlement.  If you want to further involve the law society then go right ahead.   I do not care about them and their unethical ways.

Tomorrow I will instruct counsel to draft an application for summary judgment including an application for specific performance under the mortgage, requiring your client to remedy the defaults in the mortgage and or pay damages.  The costs on a 2.B scale for such an application will be in the vicinity of a further seven to ten thousand dollars.

[24]     Mrs Miles wrote to Mr Parlane twice on 21 January 2009 in an endeavour to make arrangements for the discharge of the mortgage.  The stance that she adopted on behalf of Mrs R was that she would pay the sums needed to discharge the mortgage together with interest owing, but that claims which did not arise under the mortgage would not be paid.  Nor would there be a letter from the Waikato Bay of Plenty District Law Society or the New Zealand Law Society confirming that any complaint had been withdrawn.  Mrs Miles stated that a written confirmation to that effect was not sustainable as a condition of discharge of the mortgage.  The Tribunal quoted the penultimate paragraph only of a letter which Mr Parlane wrote to Gallie Miles on 21 January 2009.  I consider, however, that it is appropriate to quote the whole of the letter:

I  have  contacted  the  Waipa  District  Council  regarding  Mrs  R  and  the additions to her property.  A building permit was not obtained.  They require one to be obtained prior to any additions or alterations where the window or door lintel is increased in size.  My understanding is that the window size was increased in the lounge of the property when a ranch-slider type door was fitted.  I understand that the front door porch was to be removed, also a permit is required for that.

Not only is Mrs R in default of the mortgage by not obtaining lenders consent for those works, she is also in breach of the building code as no

permit was issued, we are unable to confirm the date on which the work was commenced.  Please provide full details of the building work done and when it was done and by who.

In these circumstances, being the failure of your client to comply with the terms of the mortgage, and her confirmation by changing lawyers that there is no conflict of interest, I will be re-calculating the interest owed to be claimed at the default rate from the date of her instructing you to assist her and complain to the law society, being an obvious safe date by which any potential conflict of interest was over and resolved.  That way it cannot be said that I was acting for her as her solicitor when she has been in default under the mortgage.  While I intended to assist her as she was not able to borrow from Kiwibank due to her other trustees, in particular, JR, refusing to agree to that, My[sic] assistance to her was always on the basis that I would not be disadvantaged in terms of security or in terms of risk to myself other than to advance the money and wait for it to be repaid.  I have never agreed to her being in default under the mortgage either in terms of payment or in terms of the title to the property.

I will re-work the loan summary to include interest at 14% from the date of your intervention, less the 5% paid.  Overall this will mean that another 9% is owed on each years balance.   Of course you will be aware that penalty interest of $15.94 per day is added for today.  This is a weekly amount of

$111.58.

I am in the same position with the same rights as any lending bank and my treatment of this delinquent debtor will be identical to the way a bank would treat her.

We now are charging the default interest rate per day.  I will now estimate the default rate for say the last 12 months, assuming you have been involved with the file for that time.   I will use the opening balance for year 2 of

$37,668.82 as the commencement of default interest.  The extra interest on that sum of $3,390.19.  That can be added to the amount required to settle.

Further penalty interest on that figure is $1.30 per day.

I presume we are now waiting while you cry to Dixon about the mess the wbopdls got your client into.  Tell the law society all of the above as part of your continued winging to them.  Let me give you some friendly advice that may assist you in resolving this matter.  Firstly you will create less heat and more light by not telling tales to the law society on people and secondly, the officials of the law society are incompetent inconsistent, short sighted and unhelpful, rude and above all they have a reputation for cheating.  Their own slackness has been the cause of changes in legislation to get them back under some sort of control.

It would only be an unethical and “bent” law society who tried to prosecute a practitioner who took on a client like yours who was treated generously and knew full well that if she borrowed money and defaulted on the loan, the lender should somehow be to blame.   It is obvious that if people borrow, they must repay.

I suggest that you look at this matter from a professional perspective and accept that defaulting mortgagees such as your client end up in financial ruin.  You have had your chance to settle for a discounted sum.  This is not

the pots and pans court here when solicitors can make up stories and tell lies and get away with it and Judges will feel sorry for the women.  I expect that you did not settle as you did not have the ability to draw down sufficient settlement funds despite me advising you of an acceptable figure.   Instead you tried to be clever and quibble over the loan sum and that has now back fired on you and your client.

I now intend to institute Proceedings which are now being drafted and will be served on your client for my full entitlement.   I am also considering joining the wbopdls as a party due to their tortuous behaviour in this matter. I presume that they will claim against Mrs R due to her misinformation to them.  Please advise if you will accept service or if I will arrange for Mrs R to be served personally with documents.

Just to be clear, Don’t try any of that accord and satisfaction nonsense.  You are on notice that there will be no negotiated settlement.  When you pay the required  sum  the  mortgage  will  be  discharged.    I  now  need  another

$3,390.19 in settlement funds + an extra $1.30 per day or $120.68 per week. Have a nice day.

Remember each letter to and fro, another $300 + GST. Oh and E & OE.

[25]     In another letter written to Mrs Miles on 21 January, Mr Parlane warned her not to come to his office to settle unless all the settlement requirements were to be attended to.  If she came “without all requirements” he would deny her entry, and the police would be called to ensure that she left without incident.  He announced that he did not intend to argue about it any more.

[26]     In a further letter dated 22 January 2009 addressed to Mrs Miles, Mr Parlane accused her of “outrageous and unacceptable unprofessional behaviour”.  He said:

I will now proceed with the steps to sell the property at a mortgagee sale to recover the balance outstanding plus all penalties, costs, interests and costs. Your client can redeem her position at any time by advising that she is willing to tender the correct settlement sum.  In the meantime costs continue to mount.

[27]     On 22 January Mrs Miles sent a restrained response.  She said that in view of the threat to call the police she had not attended at Mr Parlane’s office to effect settlement.  She recorded Mrs R’s desire to pay the amount secured by the mortgage together with the costs that Mr Parlane was able to claim in relation to the mortgage. She sought his confirmation as to the amount required to settle.

[28]     In reply, Mr Parlane stated what the requirements were, “if settled today”:

1.        Confirmation from the Law Society that the Complaint made by Mrs R is withdrawn from the Law Society and that matter is at an end.  Faxed Copy sufficient. To be sent prior to settlement attendance

2.        A deed signed by Mrs R evidencing that she will not complain further or take any proceedings in this matter and that reciting that she is in default of her loan and mortgage.  Faxed Copy sufficient.  To be sent prior to settlement attendance.

3.        Settlement funds in the sum of being the settlement figure + interests to settlement day less an automatic payment received today in the sum of

$282.71, ;

$36,015.56

+ penalty interest $3,390.19

+ penalty interest @ 17.24/day = $51.72

-$282.71 paid today

=$39,174.76

4.        Costs in the sum of; Previous Bills          $2,287.50

Current Bills               $2,925.00

Amounts on account for bills relating to costs yet to be sent –

$787.50

Amount to be billed for today’s attendances (these based on a charge out rate of a mere $300.00 / hour + GST when it should be at least $400.00 + GST / hour as per my standard fees.

$337.50

Total to settle $45,512.26

5.        Settlement attendance to be pre-arranged and no comment to be made at settlement.

Notes;

1.        Penalty interest is $17.24 per day.

2.        Your client has had a 90 day notice and is in default.

3.        Costs of recovering the debt continue to run with the property being listed for mortgagee sale with appropriate advertising tomorrow.

[29]     Mr Parlane wrote a further letter on 30 January 2009 which was in the following terms:

Notice of Sale.

I note that the costs associated with the recovery of this delinquent debt are mounting with another week’s worth of penalty interest now owed.

I am in the process of having the property made ready and marketed for a Mortgagee Sale and If you wish to have an input into that then I suggest that you do that now.

I anticipate that this sale will be in 3 months and one week from Today.

I also note that the dishonest and unethical wbopdls comes to an end at the close of business today, an event that I would not miss for the world.   I presume that you have requested the required confirmation from them that the complaint made by Mrs R has been resolved.  After today they will not be able to resolve it of course.   I have correspondence from the NZLS indicating that the NZLs intends not to continue with the investigation or prosecution of complaints that relate to events prior to the new regime.

I will still require a formal deed evidencing the fact that Mrs R regards the complaint as resolved due to her changing solicitors in this matter and that she accepts that by adding on to the property without permission, she is in default of the mortgage.  Those are the facts as far as I am concerned.

At present I am in the process of drafting formal S. 92 notices which will be served on the registered proprietors of the property in due course.

[30]     Mrs Miles said that from this point onward, she abandoned any hope of an acceptable negotiated settlement with Mr Parlane and she instructed Ms McDonald to pursue a solution by means of litigation.  Mrs R then made a summary judgment application which came for hearing before Judge Wolff in the Hamilton District Court on Wednesday 29 July 2009.

[31]     After  hearing  the  parties  up  to  the  morning  adjournment,  Judge  Wolff indicated that he had formed a clear view.  He said that he would deliver judgment on the matter the following day unless the matter was settled.   He then gave an indication of the form that his judgment would take.   He made it plain that there would be judgment for Mrs R under s 97 of the Property Law Act.  He considered Mr Parlane had no right to withhold the discharge for unpaid fees which were not in direct connection with the discharge of the mortgage;  that he had no right to seek reimbursement for his costs in respect of answering any Law Society complaints and that he had no right to charge penalty interest on the mortgage and that the penalty interest he was claiming was unsupportable.  Further, the Judge was of the view that he had purported to make an excessive claim for $220 in respect of photocopying costs;  that he considered that Mrs R was entitled to solicitor and client costs and that they should be deducted from the amount due under the mortgage or there would be a further “extension and elongation” of the matter;  and that a cross-claim that had

evidently been raised by Mr Parlane seeking that the matter be transferred to the

Disputes Tribunal was inappropriate.

[32]     The following day the Judge was able to record that the matters had been settled and that Mr Parlane would immediately hand over a registrable mortgage discharge in return for payment of $18,759.99.   That settlement figure had been calculated by deducting from the agreed amount presently due under the mortgage a costs award of $16,843 in favour of Mrs R.  The payment of the sum owing by Mrs R under the settlement was made on 13 August 2009.

[33]     At  [72]  of  its  decision,  the  Tribunal  recorded  its  view  that  Mrs  Miles appeared to be a measured, experienced and intelligent practitioner who had been genuinely surprised at the responses she received from Mr Parlane.  It also thought that it was clear that his resistance to her approaches to secure discharge of the mortgage would have created considerable stress and cost to Mrs R.  It considered that the demands that he had made to secure the discharge of mortgage were unjustified.  It also noted that Mrs R had needed to issue proceedings to secure the discharge of the mortgage.   It concluded that the charge was proved, although it noted that the real difficulties concerning discharge of the mortgage had begun in the latter part of 2008, and not from June 2007 as had been alleged in the charge.

[34]     The   Tribunal’s   conclusions   were   inevitable,   having   regard   to   the correspondence that  I have set out above.   There was also evidence before the Tribunal from Mrs R about the stress and anxiety that she had been caused by Mr Parlane’s actions.  The Tribunal’s conclusions have not been challenged on this appeal.

Refusal to produce files/obstruction

[35]     The correspondence which formed the basis of particulars 5 and 6 of the charge was placed before the Court in an affidavit by Mr Dixon.  He recorded that on receipt of the complaint of 22 August 2007 from Mrs Miles on behalf of Mrs R, the matter was referred to the Society’s Ethics Committee.   As a result of that Committee’s consideration of the matter, Mr Dixon wrote to Mr Parlane on 25

February 2008 indicating that the Committee had not been able to resolve the issues concerning conflict of interest, but was of the opinion that Mr Parlane was in breach of his obligation to act on the authority that had been forwarded to him by Gallie Miles.  Mr Dixon sought confirmation within seven days that Mr Parlane had acted in accordance with the authority and provided copies of any relevant statements and trust account records to Gallie Miles.

[36]     In response, by letter dated 27 February 2008 Mr Parlane expressed his view that there had been no conflict of interest until Mrs R had complained to the Law Society.   She had already changed solicitors and by doing so had resolved any potential for conflict before he had been aware that there was one.  He recorded his suspicion that the Ethics Committee were incompetent and indicated that he would not be handing over any file materials until his photocopying costs had been met. He accused Mrs Miles of lying as to the fact that Ms R was in a position to re- finance the loan and sought that his complaint against her be investigated.

[37] After further correspondence between Mr Parlane and the District Law Society, Mr Dixon was instructed to serve a notice on Mr Parlane which he caused to occur on 5 October 2008. The notice was issued under the authority of s 147(2) of the Lawyers and Conveyancers Act and required Mr Parlane to provide to the Standards Committee his full file, mortgage and loan documentation and trust account records relating to Mrs R’s complaint. The notice reminded Mr Parlane that failure to comply with the requirement could constitute unsatisfactory conduct. Mr Parlane did not respond to the notice. However, on 30 January 2009 he wrote to the president of “wbopdls”. The letter of 30 January 2009 was in the following terms:

I note that the tyranny of the wbopdls and it’s incompetent officers comes to an end tomorrow, effectively at the close of business today, in about 2 hours time.

I note that it is due only to the incompetence and cheating behaviour of those officials that the Government has seen fit to legislate them out of existence.

I note that the legendary negligent behaviour and cheating of the complaints committees, the supposed ethics committees and other unprofessional people associated with the wbopdls will now be confined to legend and it will from Sunday next, be powerless to do anything further to continue it’s poorly drafted and incompetent proceedings against other members such as myself.

I now require the return of all files, documents papers and other materials that you hold that relate to me as you have no authority whatsoever to hold these.

I hasten to note that the unacceptable delay that your various prosecutors have caused has made your prosecutions basically invalid and any that are incomplete, must now fail for want of prosecution and a failure of your incompetent   organisation   to   have   the   required   statutory   capacity   to prosecute.

I trust that the Law Society that replaces yours, will not employ such unprofessional cheats as the ones that your supposed law society previously employed to bring bogus ill conceived prosecutions.

Further I hope that any future prosecuting body will not include the same incompetent and unprofessional cheats as the last ones that failed to properly resolve complaints that they claimed, I was required to answer.

I look forward to these incompetent practitioners being kept in the cage that they belong in so that they will not inflict harm on their colleagues in the future.

It is with great pleasure that I do not need to now fund the excesses and incompetence of the wbopdls.

[38]     This letter was not referred to in the charge brought against Mr Parlane. However, I regard it as part of the relevant background and note that it was the first communication that had been sent to the Society since service of the notice under s 147(2).    It  will  be  observed  that  the  letter  made  no  reference  to  the  file  and documents that the notice required Mr Parlane to provide.

[39] Mrs R then wrote to the District Law Society on 10 February 2009 explaining difficulties she was continuing to have with Mr Parlane over the discharge of the mortgage. Subsequently, Mr Dixon was instructed by the Standards Committee to issue a notice to Mr Parlane requiring him to appear before it, under the authority of s 141(b) of the Lawyers and Conveyancers Act.

[40]     The text of the notice was as follows:

Pursuant to Section 141(b) of the Lawyers and Conveyancers Act 2006, you are hereby required to attend a meeting of the No.2 Standards Committee of the Waikato Bay of Plenty Branch of the New Zealand Law Society at 12.15 p.m. on Friday, 6 March 2009 at the Law Society Offices in Hamilton. You are also required to bring with you any papers or records that may be reasonably necessary for the purpose of the meeting.

You  will  be  required  to  answer  the  complaint  received  from  Mrs  R concerning  her  mortgage  from  you  personally  and  the  processes  for repayment of that, details of which matters you are already aware.

You are reminded of the new Statutory Rules and powers of the Standards Committee and in particular that obstruction, hindrance or resistance to any investigation by the Standards Committee may be an offence under the Section 262 of the Lawyers and Conveyancers Act 2006 and liable on summary conviction to a substantial fine.

[41]     Mr  Parlane  responded  on  19  February 2009  asserting  that  there  was  no authority for calling the meeting, and that he would require his costs for attending and the associated correspondence to be pre-paid.   He said that $2,000 should be obtained  for  that  purpose.    He  noted  that  his  charge  out  rate for  attending “to unreasonable demands such as yours” was $400 an hour plus GST.

[42]     Notwithstanding  the  aggressive  and  unco-operative  tone  of  that  letter, Mr Parlane  did  in  fact  meet  with  the  Standards  Committee  on  6 March  2009. Mr Dixon described what then took place in his affidavit of 14 September 2009 and he attached a transcript.   Having considered the transcript, I accept Mr Dixon’s description of the meeting as “characterised by arguments about jurisdiction and authority, Mr Parlane’s refusal to accept responsibility for Mrs R’s difficulties and his continuing condemnation of the Law Society”.

[43] At this point the Standards Committee decided to instruct legal counsel to advise it concerning the possibility of bringing disciplinary charges against Mr Parlane. Following the receipt of advice, the Standards Committee however served a further notice on Mr Parlane requiring him to deliver the file under s 147 of the Lawyers and Conveyancers Act. The notice was delivered to Mr Parlane on

20 May 2009 and read as follows:

COMPLAINT BY [MRS R]

This letter has been issued by No.2 Standards Committee under the powers available to it in s 147 of the Lawyers and Conveyancers Act 2006, for the purpose of its investigation into this complaint.

As  part  of  the  investigation,  the  Standards  Committee  requires  you  to produce to it your client file, original documents, and trust account records in relation to the transactions in which you were acting for Mrs R, from about  August  2005,  in  the  sale  of  her  property  at  Raeburne  Street, Te Awamutu, the information of a trust and in the purchase of her (or the

trust’s) property at Blundell Place.  The inquiry is also concerned with your involvement in the financing arrangements for the property purchase, including a loan you apparently made to Mrs R in the sum of $40,000, and the  mortgage  that  you  subsequently  registered  against  the  title  to  the Blundell Place property.  You should produce all documents and records in relation  to  that  transaction  including  the  proposed  discharge  of  your mortgage.

In reliance on the powers available to it under s 147 of the Lawyers and Conveyancers Act No.2 Standards Committee requires you to deliver to this office, at 109 Anglesea Street, Hamilton, within seven days of the date of this letter, all files, documents, papers, accounts, statements, and trust records relating to Mrs R and the transactions and matters described in this letter.

For convenience, I enclose a copy of s 147 so you are aware of the relevant statutory authority under which this notice is given.  Please ensure that you deliver these materials to the office within seven days.

[44]     Mr Parlane refused to comply with the notice.   He wrote to the Society on

1 June 2009.   In his letter, amongst other things, he noted that Mrs R and he had instituted proceedings against each other in respect of the matters which were the subject of the Society’s investigation.   He said that his file was required for the defence of those proceedings and that he would not be making it available until the proceedings were resolved.   His letter ended by warning all New Zealand Law Society officers to stay off his property, pursuant to the Trespass Act 1980.

[45]     It was at that point, and on the basis of advice that it had received, that the

Standards Committee resolved to proffer disciplinary charges against Mr Parlane.

[46]     In  his  affidavit,  Mr Dixon  said  that  Mr Parlane  had  been  the  subject  of numerous complaints both to the former Waikato Bay of Plenty District Law Society and in more recent times to the Waikato Branch of the New Zealand Law Society. Mr Dixon said that he had processed in excess of ten such complaints.  He said that most involved relatively minor matters, but they were all referred to Mr Parlane for a response,  as  required.    In  all  cases,  Mr Parlane  responded  in  a  belligerent  and aggressive manner.  Two instances were referred to in the particulars of the present charge of professional misconduct.

Complaint by DM

[47]     One  of  them  involved  a  former  client  DM.     DM  complained  about Mr Parlane on 1 October 2008.  He consulted Mr Parlane in relation to a charge of disorderly behaviour.  Mr Parlane successfully defended the charge, but there was an issue concerning a bill of $2,500 costs.  DM thought that he was being charged for evidence which DM had gathered himself.  Also, DM considered that he was eligible for legal aid.  He declined to pay Mr Parlane’s bill, and complained that when he had endeavoured to engage Mr Parlane in discussion about it, Mr Parlane  had made threats.  He alleged that at one stage Mr Parlane said that he would “hunt him down until the day he died”.  DM alleged that Mr Parlane had threatened to seize his car unless he made a payment of $2,000.   DM then commenced making payments of

$50 for a month and half, but complained that Mr Parlane was still stating that he would seize his car.  DM’s complaint was referred to Mr Parlane for his comment.

[48]     Whether  or  not  DM’s  complaint  was  justified,  its  relevance  for  present purposes is Mr Parlane’s response, by letter dated 20 October 2008, addressed to Mr Dixon at “wbopdls”.  The letter said:

You are really scraping the bottom of the barrel now Mr Dixon.

[49]     After  discussing  DM’s  offending,  Mr Parlane  alleged  that  DM  had  been advised about legal aid both by him and a previous duty solicitor, but DM had declined to apply for it and instead instructed Mr Parlane privately.  He was given an estimate of the account prior to doing so.  The letter concluded:

If this matter goes any further the wbopdls and the NZLS will be sued.  This will  simply  be  added  to  the  list  of  cheating  and  tortious  behaviour undertaken by them.  Your flagrant waste of your members money has been well and truly noted.

[50]     Mr Dixon replied to Mr Parlane’s letter on 22 October 2008.  He asked for a copy of Mr Parlane’s time sheets recording time spent on the file and a copy of any terms  of  trade  that  Mr Mather  had  signed  when  apparently  agreeing  to  the  fee estimate.  He asked Mr Parlane to indicate what the estimate had been.  He reminded him of his obligation to defer any further recovery action until the investigation into the cost was complete.  He said that he would arrange for an assessor to report to the

Standards Committee as soon as he had received any information that Mr Parlane wished to provide.

[51]     His letter concluded with the following:

I make two other comments on your letter which is typical of responses to the Society that do not reflect well on yourself, particularly if I am obliged to forward the response to the complainant in each case:

1)You   continue   to   pretend   ignorance   or   a   complete   lack   of understanding over the mandatory requirement to investigate complaints.   Providing the matter is within the jurisdiction of the statute, there is no power for me to decide the matter in advance and your threats to sue, not only do not help the process but there is a statutory prohibition on that happening.

2)You continue to make any referral of complaint material to you, somehow personal.  I am only processing the statutory requirements, and you have previously tried to criticise me for not referring trivial complaints to you in the first place and conversely you get agitated when any complaint is made to you at all.

I look forward to hearing from you with any other detail to support the extent of the account.  If you or the complainant have nothing further say, then the investigation will simply encompass the paperwork I have to date and (if necessary)  your own file.

[52]     Mr Parlane replied to Mr Dixon’s letter on 22 October 2008.  The first part of

Mr Parlane’s letter was as follows:

Your previous request was complied with by return.   The complaint was answered.

Your latest letter is outrageous.   It deserves an outragous[sic] response. Here it is.

Firstly, Go and jump in the lake.

If you are to make any further gratuitous comments to my ex client or the NZLS then you may as well.   You will no doubt do what you like.   Also advise them that I do not respect bullies and cheats, like the ones that I have previously had to endure starting with yourself and the other officers of the wbopdls and from time to time officers of the NZLS. I am further disgusted when I note that people like Andrew Burger, who failed to properly and fairly investigate my complaint that Olphert cheated “red handed” over the issue of his failure to prosecute me with scrupulous fairness have managed to slither into the NZLS complaints process.  What an absolute joke.  Further I am not convinced that when those types are potentially involved or when there has been a change in legislation, my appreciation of the wbopdls and the NZLS should for any reason change.   Only cheats file affidavits of

previous convictions and make sure that a tribunal sees them before the hearing starts. That is what you did for the NZLS previously.

Just to make it absolutely clear, I am not interested in reflections on me at all.   I do not care about the wbopdls or what they say.   They have zero credibility.   I do care about it’s associated injustices and that they have already established that there has been no improvement in service from them under new legislation.   I am sure that you will tell complainants whatever you like.   Most of that will be a reflection on your own unprofessional behaviour.  That will also include drivel about how clever you are and how dumb I am.  Good, go right ahead.  We both know the reality, you will use your position and the rules to do whatever you want without proper regard for the situation.   You know that I do not trust you and I assume that anything you do is basically wrong at law.  That is due to the reputation I have come to honestly believe that you have. Further the wbopdls simply does whatever they want regardless of any justice or reasonableness.   It’s officers have been able to hide behind legislation and their own cronyism, to get away with cheating.  For all of that it will get no respect from me.  There is another word starting with C which adequately sums them up.  If there is any further verbal abuse that can be hurled toward the wbopdls then consider it done as it is fully deserved.  I cannot wait for it to go out of business.

Now that we have resolved that, I will further consider DM and your correspondence.   Someone needs to put you in your place Mr Dixon.   I assume that I am the only person expected to do that as nobody else will. That is clearly at the bottom of the heap.  In saying that I am reminded that I must consider Rule 6.01.   In these circumstances, I act completely within that rule.   You breach that rule by addressing me with a tone of unprofessionalism, arrogance and conceit.  You get the appropriate response to that.  Your letter is responded to at the same level as you communicate. In case there is any confusion, this is my normal friendly tone of correspondence when I deal with what I assess as cheating people on the other end. Cheats get this response.

[53] Later, Mr Parlane turned to DM’s complaint, which he described as drivel. He compared DM to “another piece of filth who was his friend” a “low life” who had been killed in a car crash due to his “flagrantly stupid behaviour”. He said that any quote that he had given to DM was for work prior to the Lawyers and Conveyancers Act 2006, and consequently it was none of Mr Dixon’s business. He commented:

I have  yet  to  see anything that  gives  you  authority to  investigate these matters under the new Act. Where is your Noddy badge, saying that you are the person entitled to investigate?

[54]     In a parting shot, he referred to wbopdls as a “standing joke”, which “should get outta town”.

Complaint by ABV

[55]     The  final  particular  of  professional  misconduct  that  the  Tribunal  found proved concerned another former client of Mr Parlane, ABV.  Mr Dixon’s evidence was that ABV had consulted with Mr Parlane in about mid-2008.   ABV said that Mr Parlane had seen him at Waikeria Prison, when he undertook to represent him in seeking a judicial review.  The substance of ABV’s complaint was that Mr Parlane had failed to answer telephone calls, or any of eight letters that ABV had sent to him. He asserted that Mr Parlane had been negligent in his duties over a period of some eight months.

[56]     Mr  Dixon  forwarded  the  complaint  to  Mr Parlane  on  27  February 2009, asking for a response.  Mr Parlane replied in a letter dated 2 March 2009.  He stated that he had not taken instructions to apply for a judicial review.  At the end of his letter he said:

I suggest that there are really only two lawyers in New Zealand able to help ABV.  One of those is Michael Dixon and the other is Jon Olphert.  I hasten to add that both should be in Springhill Prison with this client.   Perhaps when they all end up there, Mister Pyke can visit them.

[57]     Mr Dixon  noted  in  his  affidavit  that  Mr Olphert,  who  is  another  legal practitioner, had had no   involvement in the complaint.   Mr Parlane sent a further letter dated 18 March 2009 following a review of ABV’s file.  In his letter, he noted that legal aid had been applied for regarding the proposed judicial review contrary to ABV’s claim.  The letter concluded:

I will be pleased to agree to a re-assignment based on a breakdown of communication between the complainant and myself and now give the great Kiwi suggestion in relation to this file.

[58] ABV’s complaint was referred to the Standards Committee together with Mr Parlane’s responses. On instructions of the convenor of the Committee, Mr Dixon then sent a notice under s 147(2) of the Lawyers and Conveyancers Act. The notice was served on 14 April 2009. It required Mr Parlane to provide his full file and associated papers relating to the complaint by ABV. Mr Parlane did not comply with the notice and Mr Dixon wrote to him on 4 May 2009 asking him to do

so.  Again Mr Parlane did not respond.  Mr Dixon sent a further letter dated 17 June

2009, stating that the Standards Committee would convene a hearing in early July to make a determination on the complaint, and offered him the opportunity to make any submissions by 30 June 2009.

[59]     Mr Parlane replied in a letter dated 25 June 2009.  He began by noting that he had not seen a privacy waiver from ABV, nor had he received the reasonable costs of photocopying the file which amounted to about 50 pages.  He said that as far as he was concerned he had responded to the complaint and done what was required.  He sought full disclosure of any material that was to be presented at the hearing.  He required  Mr Dixon  to  advise  the  statutory  provisions  relied  on,  who  would  be representing the Law Society, what the charges were, what provisions of the Rules he was supposed to have breached, who would be attending the hearing and what witnesses  would  be  called  together  with  their  briefs.    His  letter  included  the following paragraph:

Are we going to have another situation where Mr Dixon files an affidavit of previous complaints designed only to influence or “Knobble” the hearing Committee?  Last time in front of the NZLS his affidavit was supposed to be refused as evidence.  As events have shown, he was actually cheating in his behaviour however the NZLS turned a blind eye to his cheating.

[60] Mr Dixon replied on 26 June 2009. In his letter Mr Dixon said that the “default position” for hearings of the Standards Committee was that they are dealt with on the papers under s 153 of the Lawyers and Conveyancers Act. He noted that Mr Parlane had not been invited to attend a hearing, simply advised of the hearing and requested to provide his file. Mr Dixon advised that if he was not prepared to do that, the Committee would deal with the substantive complaint, Mr Parlane’s failure to provide the file, and the response in his letter of 25 June 2009 purely on the papers. He noted that the Committee could not compel Mr Dixon to make submissions but said that the only material otherwise available would be that which had already been received.

[61]     Mr Parlane wrote a further letter that same day.  He disputed the entitlement of the Standards Committee to hold a hearing and said:

I have never heard of there being a hearing when the person who was the subject of that was not invited to attend and when that person was not given the right to know what the material to be heard was.

Your behaviour in this regard can only be understood to be further cheating as  you fail to have a proper basic understanding as to what a hearing is or what Justice might be.

Clearly without that basic understanding you are not fit to practice law and I

seek an order accordingly …

[62]     The  Standards  Committee  considered  the  complaint  and  Mr Parlane’s correspondence at a meeting on 3 July 2009.  It resolved to refer the complaint to counsel for the purpose of preparing disciplinary charges in relation to Mr Parlane’s refusal to provide the file and the obstructive nature of his responses.   Mr Dixon wrote to Mr Parlane on 8 July 2009, advising him of the decision of the Standards Committee.

[63]     Mr Dixon stated in his affidavit that while Mr Parlane’s personal abuse of him was “unwelcome” the real issue for the Standards Committee had been its inability to properly investigate complaints made by Mr Parlane’s former clients.  He referred to the belligerent tone of Mr Parlane’s responses, and his preference to respond in that manner rather than addressing the issue raised on the complaints.

[64]     Mr Parlane filed an affidavit in response to the charges brought against him. The affidavit was sworn on 20 November 2009.  In it, Mr Parlane referred to various Law Society officials as “cheats” and made other abusive comments.

[65]     It was on the basis of these facts that the Tribunal decided that Mr Parlane was guilty of misconduct in his professional capacity, and it is not now disputed that the Tribunal was entitled to reach that conclusion on the facts.

The decision on penalty

[66]     The  Tribunal  convened  in  Auckland  on  13  September  2010  to  hear submissions on penalty.   Mr Parlane appeared before the Tribunal.   At [13] of its decision of 16 September, it recorded that the focus of Mr Parlane’s submissions was the “cheating” and “malicious” intent of the Standards Committee and the fact that

Mrs R was “a calculating liar” and that her witnesses were also liars.  On the subject of his responses to the Standards Committee, he submitted that it had “asked for it” because of the way it had brought charges.  He claimed to be entitled to $2 million in costs and damages from the Standard Committee on account of its “malice and wilful dishonesty”.  At [15], the Tribunal said:

[15]      The Tribunal notes that not only did the proven facts on which he was found guilty demonstrate an ongoing inability to understand his responsibilities to the public and to the profession at the time of his conduct, which continued over some months, but at the penalty hearing Mr Parlane did  not  demonstrate  any  understanding  or  insight  into  his  professional failings.   His answer to all issues was that everyone else was at fault, including officers of the Standards Committee, counsel for the Standards Committee, the complainants, and the witnesses at the substantive hearing.

[67]     The  Tribunal  also  recorded  that  in  his  written  submissions  on  penalty, Mr Parlane had concluded that it was a pity “the Tribunal cannot impose the death penalty on the informants[sic] malicious and evil officers who have touched this file”.

[68]     The Tribunal recorded its “real concern” that Mr Parlane was practising as a barrister and solicitor of the High Court.   They considered that his conduct and responses to the charges against him demonstrated a lack of insight into his professional responsibilities and failings, and the harm that he had caused to Mrs R as a consequence.

[69]     The  Tribunal  considered  that  the  misconduct  in  relation  to  his  wrongful refusal to discharge the mortgage given to him personally by Mrs R was the most serious of the charges.   However, his responses to the Law Society were also of concern, and his claim that the language he had used was justified because he was dealing  with  an  institution  for  which  he  had  no  respect  also  demonstrated Mr Parlane’s lack of insight and professionalism.  The kernel of the decision was set out at [21] - [22]:

[21] The Lawyers and Conveyancers Act imposes a regulatory regime on legal practitioners for a number of purposes, and importantly, to maintain public confidence in the provision of legal services, and to protect consumers of those services.

[22]      Of concern to the Tribunal is not only the experience of Mrs R, and Mr Parlane’s   extreme   behaviour   when   responding   to   various   other complaints made against him, but the fact that we can have no confidence that Mr Parlane will not do something similar in future.  He has no insight into his professional failings, and continues to make claims that it is the fault of others, and that his actions were justified.  Given the conduct of which he has been found guilty, and his continuing view of matters, we consider that Mr Parlane is not a fit and proper person to be a legal practitioner.   His conduct has been far below the standard required of a barrister and solicitor of  the  High  Court,  and  his  continuing  view  of  matters  is  of  concern, especially given the need to protect the public.

[70]     And at [26] – [28] the Tribunal said:

[26]      In our view Mr Parlane has to be removed from practice to protect the public.  We considered suspension from practice for an extended period, but we have no confidence that such a period of suspension would leave Mr Parlane reconsidering his approach to practice and how he may respond to the public and the Law Society in future.  The risk that something similar may happen again if he came back to practice after a period of suspension, that risk being based on the factors we have noted, militates against suspension and favours striking off.   The Tribunal has no confidence that Mr Parlane recognises his failings and will change his ways.

[27]      We agree with Mr Collins’ submission that Mr Parlane has been shown to be, and continues to present as, someone who is out of control in a professional sense. Mr Parlane’s position is aggravated by his lack of insight and failure to appreciate his misconduct for what it is, together with his claims of justification, based on extreme claims about all others involved.

[28]     In  the  circumstances  striking  off  is  the  appropriate  regulatory response to Mr Parlane’s conduct.   He has fallen well below the required standards of integrity, probity and trustworthiness, and that response is available.

The appeal

[71]     In his notice of appeal, which he filed personally, Mr Parlane alleged that the penalty imposed on him by the Tribunal was manifestly excessive and unjust.  He claimed that the penalty was inappropriate in the circumstances, and inconsistent with penalties imposed on other practitioners.   He asserted that there had been a substantial miscarriage of justice.

[72]     In   written   submissions   filed   prior   to   the   hearing,   Mr O’Sullivan acknowledged on Mr Parlane’s behalf that, at the time of the proven misconduct, and at the time of the penalty hearing, he was “out of control professionally” and had “no

insight into his professional failings”.  Mr O’Sullivan also accepted the protection of the public must be a primary objective of the disciplinary process.

[73]     However, he submitted that that objective could be achieved by a number of measures falling short of striking Mr Parlane off the roll.  These included suspension and/or limitation of   his practice, censure, mentoring measures and “practitioner rehabilitation”.    He  submitted  that  Mr Parlane  was  not  beyond  redemption  or rehabilitation and that such an approach would be consistent with other cases which had involved arguably more serious professional misconduct.

[74]     Having regard to the misconduct charge concerning Mrs R, Mr O’Sullivan suggested  that  Mr Parlane  could  be  suspended  from  practice  as  a  conveyancing practitioner for 12 months or such other period as the Court thought fit.   He also proffered  undertakings  that  Mr Parlane  would  continue  to  undertake  fortnightly psychological counselling sessions with a qualified psychologist who would report regularly to the New Zealand Law Society for twelve months from 4 October 2010 and that he would engage a professional mentor who would also report quarterly to the New Zealand Law Society.

[75]     Mr O’Sullivan amplified his submissions in oral argument.   He submitted that the Tribunal should have been aware from Mr Parlane’s conduct before it that he was out of control.   He accepted that the appellant had not placed anything of substance before the Tribunal and indeed, had continued with his abuse of the members and officers of the Society.  At one stage, Mr O’Sullivan submitted that the Tribunal had erred by failing to make further inquiries in an endeavour to ascertain why Mr Parlane was behaving in that way.  At this point, Mr O’Sullivan referred me to a letter that he had obtained from Tanya Breen, a consultant clinical psychologist. Ms Breen had not sworn an affidavit, but in the absence of any opposition from Mr Collins I read her letter.   Ms Breen recorded her view that Mr Parlane probably suffers from Asperger syndrome, and that, at the time she saw him in late September and early October, he was clinically depressed.  She said that he was not aware of his probable condition prior to her assessment.

[76]     Obviously,  Ms Breen’s  opinion  was  not  before  the  Tribunal  when  it conducted  the  hearing  in  relation  to  penalty.    It  could  not  have  been,  because Ms Breen had not yet been consulted at that stage.  Consequently, when the Tribunal stated that it had no confidence that a period of suspension would lead to Mr Parlane reconsidering his approach to practice and how he might respond to the public and the Law Society in future, it was not aware that Mr Parlane might have Asperger syndrome.  Recognising the difficulty of criticising the Tribunal for not taking that into   account   when   Mr Parlane   had   not   at   that   stage   consulted   Ms Breen, Mr O’Sullivan  was  left  with  his  submission  that  Mr Parlane’s  conduct  was  so extreme that the Tribunal should really have been put on inquiry as to what might be causing it.

[77]     On the question of inconsistency, Mr O’Sullivan placed most weight on the proceedings  concerning  Mr Comeskey.[9]      Mr  Comeskey  pleaded  guilty  during  a hearing of the Tribunal to three charges of misconduct in his professional capacity. The Tribunal ordered that he be suspended from practice as a barrister or solicitor for a period of nine months.  The penalty expressly recognised undertakings given by Mr Comeskey  to  the  Tribunal  dealing  with  the  future  conduct  of  his  practice, including reporting to a chartered accountant, engaging a professional mentor, relinquishing his legal services contract and undertaking not to employ any counsel

in his practice without leave of the New Zealand Law Society.

[9] Auckland Standards Committee v Comeskey [2010] NZLCDT 19.

[78]     The  charges  to  which  Mr Comeskey  pleaded  guilty  alleged  that  he  had wilfully or recklessly contravened the Client Care Rules in relation to his instruction to act as assigned counsel for a party, that he was guilty of disgraceful and dishonourable conduct in rendering a criminal legal aid invoice charging for services that he was not entitled to charge for and that he had made a misleading submission to the Court of Appeal.   In doing so he had been negligent, or incompetent in his professional  capacity  to  such  a  degree  as  to  tend  to  bring  the  profession  into disrepute.

[79]     Mr O’Sullivan submitted that Mr Comeskey’s conduct was more serious than

Mr Parlane’s   and emphasised that there was no allegation of dishonesty in the

present case.  By contrast, Mr Comeskey had admitted that he had provided a false invoice to the Legal Services Agency claiming that he had appeared when other practitioners had done so.  Further, he had admitted misleading the Court of Appeal. There was nothing of that nature in the present case.

[80] For the respondent, Mr Collins submitted that the Tribunal’s decision striking Mr Parlane’s name off the roll of barristers and solicitors was not affected by any legal error and was the appropriate outcome on the merits. He submitted that the Lawyers and Conveyancers Act aimed to protect the public, and submitted that it was not the role of the Tribunal to adopt what Mr O’Sullivan had referred to as a “merciful and rehabilitative approach” where that was not in accordance with what was necessary to protect the public.

[81]     Mr Collins relied on the decision of the Court of Appeal in Waikato/Bay of Plenty District Law Society v Harris,[10]  submitting that this Court should adopt a deferential  approach  to  the  Tribunal’s  decision,  since  it  was  the  statutory body charged with responsibility, for the protection of the public.   He submitted that, having observed Mr Parlane directly, the Tribunal was best placed to evaluate the seriousness of his conduct, the likelihood of any repeat offending and the best means by which to effectively protect the public and promote the reputation and standing of the legal profession.   Mr Collins referred to the well-known observations of Sir Thomas Bingham MR in Bolton v Law Society,[11]  with its emphasis on sustaining public confidence in the integrity of the legal profession.

[10] Waikato/Bay of Plenty District Law Society v Harris [2006] 3 NZLR 755.

[11] Bolton v Law Society [1994] 2 All ER 486.

[82]     Mr Collins was critical of the suggestions now made by Mr Parlane that his conduct is attributable to a deterioration in his mental health, describing it as a refuge of convenience.  He invited the Court to doubt its sincerity.  Mr Collins referred to Shahadat v Westland District Law Society[12]  in which it was observed[13]  that it will often be the case that practitioners facing disciplinary proceedings rely on having been overworked or under stress as mitigating features of transgressions.  However,

[12] Shahadat v Westland District Law Society [2009] NZAR 661.

[13] Ibid, at [33].

protection of the public, which had activated the Tribunal’s decision, was more important.  Mr Collins argued that it was unrealistic to suggest that the Law Society should establish and supervise arrangements by which Mr Parlane could continue in practice in a limited way including the provision of regular reports on a course of psychological counselling.

Discussion

[83] The appeal arises under s 253 of the Lawyers and Conveyancers Act. As with its predecessor in s 118 of the Law Practitioners Act 1982, the appeal is by way of rehearing and, on hearing an appeal under s 253(1), the Court may confirm, reverse or modify the order or decision appealed against. The major difference between the present legislation and its predecessor is that appeals to this Court are now heard by one Judge in the ordinary way, whereas previously the appeal had to be heard by “at least three” Judges of this Court.

[84]     In the present case, as has been seen, the appeal relates only to the penalty that was imposed by the Tribunal.  In substance, the argument is that the penalty was manifestly excessive and unjust.  Mr Collins argued that the choice of penalty was a discretionary matter for the Tribunal under s 242 of the Act and the appellant must discharge the burden of showing that the discretion was wrongly exercised.

[85]     In Waikato/Bay of Plenty District Law Society v Harris[14] the Court of Appeal discussed the approach to penalties imposed by professional bodies at [111] – [113]. The Court said:

[14] Harris, above n 10.

[111]    The approach to penalties that should be adopted by an appellate Court was discussed by this Court in Institute of Chartered Accountants of New Zealand v Bevan [2003] 1 NZLR 154 at paras [60] – [61]:

“[60]    We begin with the matter of the approach to the review of penalties. In Bolton v Law Society [1994] 2 All ER 486 Sir Thomas Bingham MR recognised as authoritative this statement from a judgment of the Privy Council in McCoan  v  General  Medical Council [1964] 1 WLR 1107 at p 1113:

‘Their Lordships are of opinion that Lord Parker CJ may have gone too far in Re a Solicitor [ [1960] 2 QB 212 at p

221],  when  he  said  that  the  appellate  court  would never differ from sentence in cases of professional misconduct, but

their  Lordships  agree  with  Lord  Goddard  CJ  in  Re  a Solicitor [ [1956] 1 WLR 1312 at p 1314] when he said that it would require a very strong case to interfere with sentence
in such a case, because the Disciplinary Committee are the best  possible  people  for  weighing  the  seriousness  of  the

professional misconduct.’

[61]     That deferential approach was not challenged in the hearing before us, in particular by Mr Strauss, for Mr Bevan. The approach arises directly from the nature of the issues involved in the fixing of penalties  and  from  the  character  of  the  disciplinary  body  that imposes them. There is a further factor supporting a deferential approach in the present case which is brought by way of an application for judicial review. Bolton, McCoan and the cases quoted are all appeals (and all but McCoan are appeals to Courts from bodies made up of lawyers). Greater deference is to be expected in judicial review cases. (In the United Kingdom the difference may recently have become larger, given the wider view of its appellate powers adopted by the Privy Council in hearing health professional discipline  appeals  in  response  to  the  European  Convention  on Human Rights; see, for example, Ghosh v General Medical Council [2001] 1 WLR 1915.)”

[112]    In Ghosh v General Medical Council [2001] 1 WLR 1915, Lord Millett, who delivered the judgment, stated that the Board was fully entitled to substitute its own decision for that of the committee (of the General Medical Council) if the appellant had demonstrated some error in the proceedings or the decision. He recognised, however, that the Board’s powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in appeals against sentence. The Board would account an appropriate measure of respect to the judgment of the committee but will not defer more than is necessary in the circumstances. Lord Millett referred (at p 1923) to the reasons for deference set out in Evans v General Medical Council (Privy Council, No 40 of 1984, 19 November 1984):

“The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee . . . The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.”

[113]    The question, therefore, for this Court is whether, in terms of the principles set out above, there were in this case circumstances which would

justify the High Court departing from the specialist tribunal’s decision on penalty.

[86] That discussion of course, took place in the context of the Law Practitioners Act 1982, but there is nothing in the Lawyers and Conveyancers Act 2006 which suggests that a different approach should be taken on appeals under s 253 of the new Act. It suggests that this Court, on an appeal, would need a strong reason to reach a different view on the appropriate penalty than that of the Tribunal. However, it is now necessary to take into account what was said by the Supreme Court in Austin,

Nichols & Co Inc v Stichting Lodestar.[15]     In that case, Elias CJ referred to the

[15] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

requisite approach to general appeals at [16] – [17]:

[16]      Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[17]      In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from. The case entailed no question of credibility. It turned on a judgment of fact and degree, not the exercise of discretion entrusted to the tribunal. We are of the view that the Court of Appeal was not correct to suggest that, because the decision turned on a value judgment apparently open to the Assistant Commissioner, “the High Court Judge ought not to have embarked on a reconsideration of the issue without considering, and giving weight to, the Assistant Commissioner’s conclusion”. The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.

[87] This suggests that the general stance of deference historically afforded to the views of the Tribunal and its predecessors in cases involving the conduct of legal practitioners may require re-evaluation. There is no doubt that an appeal under s 253 of the Lawyers and Conveyancers Act is a general appeal. That fact, and the broad powers given by s 253(4) to confirm, reverse, or modify the order or decision appealed against means, in accordance with Austin, Nichols, that an appellant is entitled to the view of this Court on the issue raised.  I note that in  Dr E v Director

of  Proceedings[16]   Ronald  Young  J  took  the  view  that  the  previous  approach  to appeals involving medical disciplinary proceedings would need to be reconsidered, on account of the decision in Austin, Nichols.

[16] Dr E v Director of Proceedings (2008) 18 PRNZ 1003.

[88]     If a decision can be classed as truly discretionary in nature then it will not be appropriate for the Court to review the matter and simply make the decision that it would have made had the issue been before it at first instance.   If the order made involves the exercise of a pure discretion then the criteria for a successful appeal may well be more onerous.  In such a case the appellant may need to establish one of the normal grounds for upsetting a discretionary judgment, namely error of law, taking into account irrelevant considerations, failing to take  account of relevant considerations or arriving at a decision that is “plainly wrong”.  As has recently been

observed in Kacem v Bashir[17] the distinction between a general appeal and an appeal

from a discretion may not be easy to describe in the abstract, and the fact that a case involves a factual evaluation and a value judgment does not of itself mean that the decision is discretionary.[18]

[17] Kacem v Bashir [2010] NZSC 112, [2010] NZFLR 884.

[18] Ibid, at [26] per Blanchard, Tipping and McGrath JJ.

[89]     Section 253 confers the right of appeal in respect of any order or decision made under Part 7 (“Complaints and discipline”) of the Act.   Obviously the right extends  to  decisions  made,  under  s 241,  that  a  practitioner  has  been  guilty  of misconduct, or unsatisfactory conduct, or negligence or incompetence in his or her professional capacity or that a practitioner has been convicted of an offence punishable by imprisonment.  Once such decisions are made, then there is a range of orders that may be made under s 242 of the Act, and they are also clearly subject to the right of appeal in s 253.  The power to strike the name of a practitioner from the roll  is  set  out  in  s 242(1)(c),  and  there  is  a  power  in  s 242(1)(e)  to  suspend  a practitioner from practice as a barrister, or solicitor, or both for such period not exceeding 36 months as the Tribunal thinks fit.

[90]     Section 244(1) of the Act provides that the Tribunal may not make an order striking the name of a practitioner off the roll unless it is of the opinion that the

practitioner is, by reason of his or her conduct, not a fit and proper person to be a practitioner.  Under s 244(2), except by consent, an order striking the practitioner off the roll (or suspending the practitioner from practice) cannot be made unless five members of the Tribunal are present and vote in favour of the order.

[91]     It follows from s 244(1) that the Tribunal has to make a decision that the practitioner’s conduct means that he or she is not a fit and proper person to be a practitioner, before it can order that the practitioner’s name be struck from the roll. That is an evaluative exercise and not one which is happily described as “discretionary”.  The need to characterise the practitioner’s conduct under s 244(1) makes it difficult to draw a direct analogy between a decision to strike off and a decision on sentence in a criminal case, which could more readily be described as discretionary in nature.

[92]     I have concluded that the implication of Austin, Nichols is that the Court on appeal must itself be satisfied that the conduct of the practitioner means that he or she is not a fit and proper person to be a practitioner and the Court should not “defer” to the Tribunal’s view on that matter.

[93]     Having said that, it is also necessary to apply what was said in Elias CJ’s judgment in Austin, Nichols at [5]:

[5]       The appeal court may or may not find the reasoning of the tribunal persuasive  in  its  own  terms.  The  tribunal  may  have  had  a  particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand.  But  the  extent  of  the  consideration  an  appeal  court  exercising  a general power of appeal gives to the decision appealed from is a matter for its judgment.

[94]     A conclusion by the Tribunal that a practitioner’s conduct was such that he or she was not a fit and proper person to be a practitioner may well be one which the Court will find persuasive, and which it will hesitate to conclude is wrong.  It may not just be a matter of “technical expertise” or the “opportunity to assess the credibility  of  witnesses”  which  persuades  the  Court  to  favour  the  Tribunal’s

decision.  In the context of professional regulation, it may well also be a perception that the Tribunal’s view deserves explicit attention.  On this approach, the difference between a frankly deferential approach and the wider scope of appellate supervision contemplated by Austin, Nichols may not be very significant in terms of the ultimate outcome.

[95]     It seems to me that this way of approaching appeals under s 253(1) in the end does not depart significantly from what was said in Waikato/Bay of Plenty District Law Society v Harris.  In that case, in his dissenting judgment Chambers J said[19] that once the High Court had re-evaluated a particular transaction which had been the subject of the charge against the practitioner it was bound to reassess the penalty imposed on the practitioner.  Glazebrook and O’Regan JJ accepted[20] that if the Court arrived at a different evaluation of the facts, that could lead to the penalty being revised if the difference was sufficiently significant.   They disagreed with the conclusion of Chambers J that it was.  The reasoning of both the majority and the minority acknowledges the need on appeal for the Court to reach its own view of the character of the practitioner’s impugned conduct.

[19] Harris, above n 10, at [180].

[20] Ibid, at [115].

[96]     It remains the case, of course, that whatever the approach, the Court in the end must be persuaded that the Tribunal’s decision was wrong.

[97]     Mr  Collins  relied  in  the  present  case  on  the  judgment  of  Sir  Thomas Bingham MR in Bolton v Law Society.[21]    The judgment has often been referred to and  applied  in  cases  involving  professional  misconduct  by  lawyers  in  New Zealand.[22]  In a well known passage, Sir Thomas Bingham said:[23]

[21] Bolton v Law Society, above n 11.

[22] See for example Shahadat, above n 12;   Wellington District Law Society v Cummins [1998] 3 NZLR 363; L v Canterbury District Law Society [1999] 1 NZLR 467.

[23] Bolton, above n 11, at 491.

Any solicitor who is shown to have discharged his professional duties with anything  less  than  complete  integrity,  probity  and  trustworthiness  must expect  severe  sanctions  to  be  imposed  upon  him  by  the  Solicitors Disciplinary  Tribunal.  Lapses  from  the  required  high  standard  may,  of course, take different forms and be of varying degrees.   The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no

matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors . . . If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of  integrity,  probity  and  trustworthiness,  his  lapse  is  less  serious  but  it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case.

[98]     In accordance with this approach, the most serious conduct of a practitioner involves proven dishonesty and the consequences of that will be striking off in a majority of cases.  Short of that, a failure to meet the required standards of integrity, probity and trustworthiness, although less serious, may result in a striking off order. On the other hand, it may not.   The question of whether it should is a matter of judgment which must be made in the first instance by the Tribunal.

[99]     Consistently with that, the striking off jurisdiction has been described in the following terms:

Striking  off  (variously  termed  “removal”  or  “disbarment”)  is  the  most serious   professional   sanction,   exercised   where   the   tribunal   or   court determines that the lawyer is not a fit and proper person to remain a member of the profession.   The gravity of a lawyer’s misconduct may mean that nothing short of removal from practice can properly protect the public and/or preserve the reputation of the profession …[24]

[24] G E Dal Pont Lawyers’ Professional Responsibility (3rd ed, Law Book Company, Pyrmont, 2006) at 23.95]. 

[100]   Reference can also be made to the discussion in Webb, Ethics, Professional

Responsibility and the Lawyer:[25]

[25] Duncan  Webb  Ethics,  Professional  Responsibility  and  the  Lawyer  (2nd  ed,  Lexis  Nexis, Wellington, 2006), at [4.3.6].

The most serious sanction that the professional body may impose on a practitioner is to strike the practitioner from the roll (also known as disbarment).   Many instances of misconduct will warrant a far less severe sanction, which may range from mere censure to a period of suspension. The New Zealand law Practitioners Disciplinary Tribunal will invoke the power to strike from the roll only when the misconduct shown is serious and demonstrates that the offender is not a fit and proper person to practise as a barrister or solicitor.

The test is the same as that applicable when considering whether a candidate for admission is a fit and proper person.  It has been recognised that such a standard  is  impossible  to  clearly  define.    While  misconduct  involving

dishonesty is usually required to warrant striking off, there may be cases where such an order is appropriate in the absence of dishonesty. …

[101]   As I have already noted, Mr O’Sullivan sought to distinguish this case from those in which there have been findings of dishonesty against a practitioner.   He maintained that, for that reason, the decision to strike Mr Parlane off the roll was excessive.

[102]   The Tribunal took the  view that the most serious of the charges proven against  Mr Parlane  was  that  concerning  his  wrongful  refusal  to  discharge  the mortgage granted to him by Mrs R, his obstruction of her solicitor in her attempts to facilitate refinancing and to discharge the mortgage and his reliance on his status as a mortgagee to demand payments and concessions from Mrs R to which he was not entitled.

[103]   In the decision on penalty, the Tribunal described Mr Parlane’s conduct as unacceptable.  It said that his refusal to release the mortgage unless Mrs R withdrew her complaint against him to the Law Society, and indemnified him for all his costs associated with the complaint was “extraordinary”.  The intervention of the District Court had been required to ensure that she received the discharge of mortgage, and Mr Parlane’s various demands had been dismissed.   The Tribunal considered that this was a serious breach of his responsibilities, and that it had caused significant distress and damage to Mrs R.

[104]   The Tribunal’s decision  fell short of a finding that Mr Parlane had been dishonest.   It may be that to characterise his behaviour as dishonest would not be accurate, although to make demands of a former client asserting entitlements which a practitioner must know he has no right to make must come close to dishonesty. Even if the behaviour is not so described, however, dishonesty is not a prerequisite for a finding that a practitioner is not a fit and proper person to be in practice.  As the observations of Sir Thomas Bingham in Bolton indicate, short of dishonesty, conduct may fall so far below the required standards of integrity, probity and trustworthiness that a decision to strike off is justified.

[105]   I consider this was such a case.  The conduct involving Mrs R was serious, and must be seen in the context of the other charges proven against Mr Parlane.  I am in no doubt that collectively they justified the decision to strike him off the roll.

[106]   I was not referred to any case with similar facts to the present.  Bolton does not specifically refer to conduct such as that of Mr Parlane in refusing to comply with the requirements of the Standards Committee to produce relevant files in response to the lawful requests that he do so, thereby hindering its ability to carry out the statutory function of inquiring into complaints.  I have set out above the record of what took place extensively, because it demonstrates not only Mr Parlane’s wilful refusal to comply with the lawful requirements of the Standards Committee, but also shows the truculent and abusive nature of his dealings with the representatives of the Law Society.

[107]   That conduct was maintained over a period of over a year as noted in the various charges brought against him.   In my view, the conduct was such as can properly be characterised as a failure to meet the standards of integrity that ought to be met by all practitioners.

[108] The purposes of the Lawyers and Conveyancers Act include maintenance of public confidence in the provision of legal services, protection of consumers of legal services and recognition of the status of the legal profession.[26]    To achieve those purposes the Act provides for what it described as “a more responsive regulatory regime in relation to lawyers and conveyancers”.[27]    The provisions of Part 7 of the Act dealing with complaints and discipline are central to achieving the purposes of the Act.  I consider that legal practitioners owe a duty to their fellow practitioners and to the persons involved in administering the Act’s disciplinary provisions (whether as members of a Standards Committee or employees of the New Zealand Law Society) to comply with any lawful requirements made under the Act.  There must also be a duty to act in a professional, candid and straightforward way in dealing with the Society and its representatives.  It is completely unacceptable for a

practitioner to engage in what appears to have been an abusive campaign such as

Mr Parlane conducted here.

[26] Lawyers and Conveyancers Act 2006, s 3(1).

[27] Ibid, s 3(2)(b).

[109]   The duties to which I have referred do not exist to protect the sensibilities of those involved in administering the Act’s disciplinary provisions.  While courtesy is a normal aspect of professional behaviour expected of a practitioner, it is not an end in itself.   The purpose of the disciplinary procedures is to protect the public and ensure that there is confidence in the standards and probity met by members of the legal profession.   It is therefore axiomatic that practitioners must co-operate with those tasked with dealing with complaints made, even if practitioners consider that the complaints are without justification.  Not only did Mr Parlane fail to co-operate with the various inquiries which were required to take place under the legislation, but he chose to vilify those who were carrying out their statutory duties.  The result was obviously  to  put  obstacles  in  the  way  of  the  performance  of  those  duties. Mr Parlane’s conduct was egregious.

[110]   While  I  have  received  and  considered  the  further  material  provided  by Mr O’Sullivan in relation to Mr Parlane’s mental condition it does not in my view establish that the Tribunal erred when it decided that Mr Parlane should be struck off the roll.

[111]   I do not accept Mr O’Sullivan’s submission that the Tribunal should have been  placed  on  notice  that  Mr Parlane  was  not  well  mentally  by  virtue  of  his behaviour, including his behaviour at the hearing on penalty, and as a consequence, that it had some duty to inquire into the reasons for that and make a decision taking them  into  account.    Clearly it  will  be  appropriate  for  the  Tribunal  to  listen  to whatever appropriate material is put before it by a practitioner, including, if relevant, material concerning the practitioner’s mental state.   However, the function of the Tribunal in a case such as this is to hear and determine charges against a practitioner

and fashion an appropriate penalty if the charges are proved.[28]   The penalty should

reflect the conduct that has occurred, and recognise the purposes of the Act set out in s 3(1). In the present case the Tribunal took the view that Mr Parlane’s performance

before it demonstrated a lack of insight and lack of control.   It mentioned, in particular, his description of Mrs R as a calculating liar, his references to cheating and the malice of the Standards Committee, his statement that it was a pity the Tribunal could not impose the death penalty on the malicious and evil officers who had been involved in his file, and his assertion that he was entitled to $2 million in costs and damages from the Standards Committee for its “malice and wilful dishonesty”.  Overall, it was left with a real concern that Mr Parlane was practising as a barrister and solicitor of the High Court.

[28] Lawyers and Conveyancers Act 2006, s 227(b).

[112]   I consider that the Tribunal’s concern was valid.   In the circumstances, I reject the suggestion that it would have been appropriate for the Tribunal to allow him to continue to practise, subject to conditions requiring regular reporting as to his mental health.  Nor could there have been any confidence that a period of suspension would have been sufficient, especially having regard to the protective purposes of the Act.

[113]   In the end the Tribunal decided for the reasons it gave that Mr Parlane was not a fit and proper person to be a practitioner.  I have not been persuaded that that decision was wrong.  If Mr Parlane diligently attends to whatever treatment may be required to deal with the condition lately diagnosed by Ms Breen it may be that in the future he is able to satisfy the Tribunal that his name should be restored to the roll under s 246 of the Act.  As matters presently stand, however, there is no basis on which the Court could reverse or modify the Tribunal’s decision.

Result

[114]   The appeal is dismissed.

[115]   If there is any issue as to costs which cannot be agreed between the parties I

will receive memoranda.  The respondent should file its memorandum on or before

28 January 2011 and Mr Parlane may respond by 21 February 2011.