Pomeroy v Auckland Standards Committee 1
[2020] NZHC 1986
•7 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000443
[2020] NZHC 1986
UNDER the Lawyers and Conveyancers Act 2006 IN THE MATTER
of an appeal against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal
BETWEEN
VICKI LEE POMEROY
AppellantAND
AUCKLAND STANDARDS COMMITTEE 1
Respondent
Hearing: 5 August 2020 Counsel:
CJ La Hatte for Appellant
JT Parry and LL Luaitalo for Respondent
Judgment:
7 August 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 7 August 2020 at 2 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
CJ La Hatte, Auckland. Meredith Connell, Auckland.
POMEROY v AUCKLAND STANDARDS COMMITTEE 1 [2020] NZHC 1986 [7 August 2020]
The case
[1] Vicki Pomeroy is a lawyer. The Lawyers and Conveyancers Disciplinary Tribunal1 found Ms Pomeroy guilty of unsatisfactory conduct after she repeatedly failed to provide a file to Auckland Standards Committee 12 for inspection. Ms Pomeroy appeals. She contends the Tribunal erred in finding her guilty; and erred in relation to penalty when fining her $5,000 and ordering costs.
Background
[2] Ms Pomeroy acted for H, who faced serious criminal charges. On 12 January 2017, H complained to the New Zealand Law Society3 about Ms Pomeroy’s handling of his application for electronically monitored bail, High Court bail appeal, and other aspects of Ms Pomeroy’s representation. Ms Pomeroy responded 4 May 2017 with some file attachments.
[3] On 11 August 2017, the Standards Committee decided to ask Ms Pomeroy to provide her “entire file” in relation to H.
[4] On 28 September 2017, Ms Pomeroy expressed “surprise and concern” at the Standards Committee’s request. She declined to provide the file, citing relevance and legal professional privilege.4 Ms Pomeroy said she had already responded to H’s complaint (on 4 May 2017) and provided “copies of all documents relevant to the complaint”. A Legal Standards Officer replied the next day, observing, “it is not unusual for practitioners to be invited to provide their file … as part of the investigation of a complaint”. The officer said he would pass Ms Pomeroy’s concerns to the Standards Committee.
[5] On 30 October 2017, the Standards Committee wrote to Ms Pomeroy. It said it had requested the (entire) file so it could “properly consider and resolve the issues
1 The Tribunal. The Tribunal dismissed a related, more serious charge.
2 The Standards Committee.
3 The Law Society.
4 Neither was raised before the Tribunal or me as vitiating the Standards Committee’s requirement to provide the file under s 147(2)(a) of the Lawyers and Conveyancers Act 2006 (though Mr La Hatte relied on the sequence as mitigating culpability). Concerns ventilated in J v Legal Complaints Review Officer [2019] NZHC 2089 do not arise. For these reasons, I say nothing more about relevance or legal professional privilege beyond the facts.
of competence and timeliness that [H] raised in his complaint”. The Standards Committee asked for the file by 5 pm, 13 November 2017.
[6] On 1 November, Ms Pomeroy telephoned the Law Society. She asked whether she should provide the file digitally or otherwise. Ms Pomeroy also asked whether the Standards Committee required the file. Ms Pomeroy was told s 147 of the Lawyers and Conveyancing Act 20065 had not yet been invoked; this section enables a Standards Committee to require information from a lawyer (and others).
[7]Ms Pomeroy did not provide the file by 13 November 2017, or indeed that year.
[8] On 9 March 2018, the Standards Committee decided to invoke s 147. On 30 May 2018, it wrote to Ms Pomeroy and said:
… pursuant to section 147(2)(a) of the Lawyers and Conveyancers Act 2006,
… you are required to:
Produce for inspection by the Standards Committee the following books, documents, papers, accounts or records which are in your possession or under your control, which are reasonably necessary for the purposes of the investigation:
Your complete client file in relation to [H].
The letter provided a deadline of 5 pm, 20 June 2018.
[9] June 20 came and went. On 25 June 2018, the Standards Committee sent Ms Pomeroy a letter warning non-compliance could constitute an offence. A new deadline of 5 pm, 29 June was given. This day came and went too.
[10] The Standards Committee again wrote to Ms Pomeroy on 12 July, 15 August, 17 September, 16 October and 5 November 2018. The later correspondence told Ms Pomeroy the Standards Committee was now investigating her failure to provide the file. Ms Pomeroy was invited to respond by 2 November, and when she did not, by 12 November 2018. Ms Pomeroy did not respond to any of this correspondence either.
5 The Act.
[11] On 14 December 2018, the Standards Committee referred the case to the Tribunal.
[12] On 24 May 2019, the Standards Committee charged Ms Pomeroy with two alternative offences. The first alleged conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or constituting a wilful or reckless contravention of s 147(2)(a) of the Act. The second alleged unsatisfactory conduct. Both charges concerned Ms Pomeroy’s failure to provide the file to the Standards Committee following its 9 March 2018 direction and later directions under s 147(2)(a).
[13] The Tribunal scheduled a telephone conference for 26 July 2019. That day, Ms Pomeroy filed a memorandum in which she said she had not been practising “since early 2018 due to acute stress disorder”; and had been unable to respond. Ms Pomeroy questioned the legitimacy of the Standards Committee’s demand for the “full file”. However, Ms Pomeroy said she would provide some material to the Standards Committee within seven days.6 Ms Pomeroy did not do so until the morning of the hearing, two months later, when she surrendered the file.7
The Tribunal’s hearing
[14] The Standards Committee filed a single affidavit in support of the charges. Warwick Hickman described the background above.
[15] Ms Pomeroy appeared for herself. She did not require Mr Hickman for cross-examination, and acknowledged the facts were “not in contention”.
Ms Pomeroy then made several submissions intermingled with unsworn evidence:8
(a)She “hit the wall and … ceased to practise” for a time after being “bullied” by the Legal Services Agency, trading at a loss, and getting into significant difficulties with the Inland Revenue Department. These
6 Material Ms Pomeroy said was inadvertently missing from her 4 May 2017 response.
7 On 26 September 2019.
8 Ms Pomeroy said she drafted an affidavit but had not brought it to the hearing.
and “a noise issue” exacerbated her acute stress disorder. She could not cope.
(b)She made “a lot of attempts to try and collect” the file but was in “a distressed state of mind”.
(c)She moved to Piha in or about August 2018 and had not practised while there, save for two “minor matters”.9
(d)She accepted a “failure to provide the file” but said she had not acted wilfully or recklessly.
(e)She received the Standards Committee’s correspondence. However, much of this had gone unopened, unread, or both. Some email had gone “to strange places” within her computer system; and an “enormous pile of mail” remained “unopened in my boat shed”. She did not know the Standards Committee required the file “until I read Mr Hickman’s affidavit”.
(f)She acted reasonably when questioning relevance and legal professional privilege in September 2017.
[16]Ms Pomeroy did not adduce any sworn evidence, medical or otherwise.10
[17] The Standards Committee abandoned the first alternative of the first charge— alleging disgraceful or dishonourable conduct—“having heard from Ms Pomeroy ... and … given her engagement and provision of the file”. The Standards Committee did not challenge Ms Pomeroy’s submissions or unsworn evidence.
[18] After brief deliberation, the Tribunal said it found proved the lesser, alternative charge of unsatisfactory conduct. The Tribunal said it would give reasons later.
9 Ms Pomeroy said she maintained her practising certificate throughout.
10 Ms Pomeroy filed an affidavit before the penalty hearing annexing a 2006 report from a psychologist.
The Tribunal’s reasons
[19]The Tribunal gave these promptly.11 The important aspects are these:12
Having accepted the respondent’s explanation for the failures we concluded that a finding of unsatisfactory conduct was the appropriate conclusion to reach.
In making that finding, we have noted that the respondent did, in the course of the complaint, hold an honest belief as to the objections raised. There was a recognition of failure to cope, but no advice given to the Committee of the situation or sustained help sought about the disorder. Practitioners have a duty to communicate with the professional body when there is an objection to, and/or inability to respond to the complaint process. Not to have done so, in even the broadest terms, is unsatisfactory.
Given the history of the matter, we understand why the Committee brought the charge of misconduct. Persistent failure to comply with a proper request by a Standards Committee or other deliberate actions that frustrate the operation of the professional disciplinary regime may often lead to a finding of misconduct. In the present case we determined, by a narrow margin, that the lesser finding of unsatisfactory conduct was appropriate for two principal reasons.
First, we are satisfied that this is not a case where the respondent wilfully frustrated the disciplinary process; rather, the respondent was overwhelmed by broader circumstances which, notwithstanding the lack of medical evidence, we are satisfied were linked to a medical condition.
Second, the respondent did ultimately, albeit very belatedly, comply with the Committee’s request by bringing the full file to the Tribunal hearing.
The penalty hearing
[20] The Tribunal held this 17 December 2019. The Standards Committee sought censure; a fine between $3,000 and $5,000; and costs.
[21] Ms Pomeroy again appeared for herself. She stressed her conduct was not deliberate; and expressed confidence she could practice safely.
[22] On 14 February 2020, the Tribunal concluded Ms Pomeroy should be censured; fined $5,000; and ordered to pay costs.13
11 On 4 October 2019.
12 Auckland Standards Committee 1 v PV [2019] NZLCDT 27 at [16]–[20].
13 Auckland Standards Committee 1 v Pomeroy [2020] NZLCDT 7.
H’s complaint is dismissed
[23] A final event should be recorded. On 11 December 2019, the Standards Committee dismissed H’s complaint about Ms Pomeroy. It noted the “significant delays” in receiving the file about H.
Appellate approach
[24] An appeal in this context is a rehearing,14 but an appellant must demonstrate error or persuade the appeal Court to a differing conclusion.15 The Tribunal’s expertise can attract deference.16 This Court may confirm, reverse or modify the decision of the Tribunal; so too its orders.17
Ms Pomeroy’s case in relation to liability
[25] Mr La Hatte’s written submission on behalf of Ms Pomeroy contended the Tribunal erred in relation to liability, for, on its own conclusions, Ms Pomeroy did not act wilfully. The submission appeared to assume a charge of unsatisfactory conduct requires wilfulness or recklessness. I issued a (pre-hearing) Minute inviting clarification. Mr La Hatte filed a fresh submission observing the earlier submission could not be pursued; but contending Ms Pomeroy’s “health difficulties” remained incompatible with a determination of unsatisfactory conduct.
[26] Though recalibrated, Mr La Hatte’s submission remains unchanged. Essentially, it is that Ms Pomeroy did not act wilfully or recklessly because she was unwell; therefore, her conduct was not unsatisfactory conduct. In oral argument, Mr La Hatte emphasised Ms Pomeroy “was not defying” the Standards Committee. I do not doubt that. But, again, the submission presupposes unsatisfactory conduct requires wilfulness or recklessness, a mental element the Tribunal concluded was absent in relation to Ms Pomeroy.
14 The Act, s 253(3)(a).
15 Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 at [12], citing Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
16 As above.
17 The Act, s 253(4).
Analysis
[27]Mr La Hatte’s submission is unsustainable for six reasons.
[28] First, the Act draws a distinction between misconduct and unsatisfactory conduct. The former is more serious. It requires disgraceful or dishonourable conduct; a wilful or reckless contravention of the Act; a wilful or reckless failure to comply with a restriction in relation to a practising certificate; or grossly excessive charging of a client.18 The latter is less serious. It requires conduct falling short of reasonable competence and diligence; unacceptable conduct; conduct contravening the Act; or a failure to comply with a restriction in relation to a practising certificate.19
[29] To constitute misconduct, any contravention of the Act must be wilful or reckless.20 So too any failure to comply with a restriction in relation to a practising certificate.21 No such requirement exists for unsatisfactory conduct in relation to a contravention of the Act,22 or a failure to comply with a restriction in relation to a practising certificate.23 Indeed, both species of unsatisfactory conduct are expressly excluded from the ambit of misconduct.24
[30] This distinction—between misconduct and unsatisfactory conduct—permeates the Act. Only the Tribunal can deal with the former.25 Misconduct risks a practitioner being struck off (when he or she is not a fit and proper person); suspension from practice; and a fine of $30,000.26 Unsatisfactory conduct risks censure; the requirement to pay compensation; and a fine of $15,000.27
[31] Second, the learned authors of Ethics, Professional Responsibility and the Lawyer say this about unsatisfactory conduct:28
18 The Act, ss 6 and 7.
19 Sections 6 and 12.
20 Section 7(1)(a)(ii).
21 Section 7(1)(a)(iii).
22 Section 12(c).
23 Section 12(d).
24 Section 12(c) and 12(d).
25 Sections 152, 154, 156, 227, 241 and 242.
26 Sections 242 and 244.
27 Section 156.
28 Duncan Webb and others Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at 105 (emphasis added).
… any breach of the (many) rules and regulations or statutory provisions touching on the provision of legal services will amount to unsatisfactory conduct.
The provision [s 12] excludes a breach which amounts to misconduct under s 7. Importantly, s 7 provides that where a breach of rules is “wilful or reckless”, it will amount to misconduct. The upshot of this is that a breach of the rules which is merely negligent will amount to unsatisfactory conduct. There is, therefore, no mental element required; rather, the matter is effectively one of strict liability.
[32] Third, Mr La Hatte advances no justification for adding a significant gloss to the (statutory) definition of unsatisfactory conduct. This is unsurprising. To do so would be inconsistent with text and purpose. I do not overlook s 241(1)(b) which, in context, provides:
241 Charges that may be brought before Disciplinary Tribunal
If the Disciplinary Tribunal, after hearing any charge against a person who is a practitioner or former practitioner or an employee or former employee of a practitioner or incorporated firm, is satisfied that it has been proved on the balance of probabilities that the person—
(a) has been guilty of misconduct; or
(b) has been guilty of unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct; or
(c) has been guilty of negligence or incompetence in his or her professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his or her fitness to practise or as to bring his or her profession into disrepute; or
(d) has been convicted of an offence punishable by imprisonment and the conviction reflects on his or her fitness to practise, or tends to bring his or her profession into disrepute,—
it may, if it thinks fit, make any 1 or more of the orders authorised by section 242.
[33] This provision does not change or colour the definition of unsatisfactory conduct. Rather, it recognises some instances of such conduct may encompass wilful or reckless behaviour. Again, Ethics, Professional Responsibility and the Lawyer is instructive:29
The discussion so far has proceeded on the basis that unsatisfactory conduct will generally be conduct which is less egregious than misconduct, though still
29 At 120.
falling foul of the standards set out in s 12 of the Act. This is, however, a generalisation. While the words of the Act support such an interpretation (for example, by the fact that wilful acts are misconduct but negligent acts may be merely unsatisfactory), it may be that there is some necessary overlap between the two concepts.
One reason for this suggestion is that the definition of misconduct found in s 7 can include conduct to which a severe disciplinary response would not be appropriate. There may be situations — for example, a knowing breach of the Rules of Conduct and Client Care (by definition misconduct) — which require little response beyond a censure. One example might be a breach of the courtesy rule (r 3.1). Bay way of comparison, there will be instances where unsatisfactory conduct is a serious matter. For example, it might be that a lawyer who made an inappropriate proposition to a client is considered not guilty of misconduct, but is found to have engaged in conduct unbecoming and therefore guilty of unsatisfactory conduct. Such a wrong might properly be met by a fine or requirement to take advice. If the two wrongs were to be ranked in terms of seriousness, it might reasonably be said that the latter was more serious than the former.
It is therefore suggested that it would be inappropriate to see misconduct starting where unsatisfactory conduct stopped (or vice versa). Rather, the two concepts refer to distinct professional lapses. In general, unsatisfactory conduct will be the less serious wrong, but not always.
Further support for this can be found in s 241(b) of the Act, which provides that a charge may be laid before the Disciplinary Tribunal that a lawyer has been guilty of “unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct”. Inherent in that statement appears to be the fact that there is some unsatisfactory conduct which might be so gross, wilful, or reckless as to also amount to misconduct.
[34] Fourth, the facts amply demonstrate how Ms Pomeroy’s conduct was unsatisfactory. Ms Pomeroy was first asked for the file on or about 11 August 2017. After raising concerns about relevance and legal professional privilege in September 2017, then implying the file might be forthcoming in November the same year, Ms Pomeroy failed to respond. On 30 May 2018, the Standards Committee required the file under s 147(2)(a) of the Act. Ms Pomeroy failed to comply with this statutory direction. She also failed to respond to all subsequent correspondence. On 26 July 2019, Ms Pomeroy told the Tribunal she would provide material from the file within a week. She failed to do so until the morning of the hearing (when she surrendered the file). I summarise. A file initially requested by the Standards Committee on a voluntary basis was not produced by Ms Pomeroy until two years later. That is unsatisfactory conduct.
[35] Fifth, that Ms Pomeroy was unwell does not justify her repeated failure to provide the file when required by statute to do so. Were it otherwise, the public interest in the maintenance of professional standards would be compromised; so too, potentially, the protection of consumers of legal services.30 It is important to be clear what is argued for, and what evidence there is to support the argument. Ms Pomeroy gave no sworn evidence. Her unsworn evidence is intermingled with submission. Ms Pomeroy adduced no medical evidence, sworn or otherwise. In short, Ms Pomeroy seeks to avoid the lesser conclusion of unsatisfactory conduct—conduct not requiring a mental element—based on a self-reported condition, absent any medical evidence, when all she was required to do was provide a file.
[36] Sixth, prosecutorial discretion is an appropriate vehicle to deal with borderline cases in which a medical or psychological condition calls into question the need to adjudicate allegedly unsatisfactory conduct.
Penalty
[37] Mr La Hatte contends the penalty is too severe, in that Ms Pomeroy should not have been fined or ordered to pay costs. He argues Ms Pomeroy’s conduct was not serious because (a) she believed the request to provide the file too broad for the reasons explained earlier; (b) H’s complaint was ultimately dismissed; and (c) Ms Pomeroy was unwell. Mr La Hatte argues deterrence is not required; the Tribunal’s focus should have been restorative.
[38] The Tribunal regarded Ms Pomeroy’s unsatisfactory conduct “at the lower end of the scale” but “not a minor or insignificant breach”. Expressed more fully, the Tribunal said:31
We find that Ms Pomeroy’s unsatisfactory conduct is at the lower end of the scale. The conduct was nevertheless not a minor or insignificant breach of Ms Pomeroy’s professional obligations. Ms Pomeroy failed to respond to requests from the Committee over a long period. In doing so, she impeded the Society’s disciplinary processes which are important to the reputation and functioning of the profession. We consider unsatisfactory conduct of this nature should result in a fine and censure.
30 The Act, s 3(1)(b).
31 Auckland Standards Committee 1 v Pomeroy, above n 13, at [13].
[39]I agree with this assessment for the reasons below.
[40] That Ms Pomeroy believed the request too broad is not greatly mitigating. Ms Pomeroy raised this concern at the beginning of the process, but then failed to engage with the Standards Committee. Moreover, when the Standards Committee required her to provide the file—the critical event underlying the unsatisfactory conduct charge—Ms Pomeroy again failed, utterly, to engage. As the Tribunal observed, her inactivity “impeded the Society’s disciplinary processes which are important to the reputation and functioning of the profession”.32
[41] Mr La Hatte contends if a practitioner refuses to provide a file in the hope of concealing something, this is aggravating. If follows, he contends, a practitioner not providing a file with nothing to hide is mitigating. I disagree. The absence of an aggravating factor is not synonymous with the presence of a mitigating one. And, if a practitioner refused to provide a file in the hope of concealing something, their conduct would almost certainly constitute the more serious disciplinary offence of misconduct.
[42] Similarly, it is not mitigating that H’s complaint about Ms Pomeroy was ultimately dismissed. The Standards Committee was entitled to examine the file to assess H’s complaint about Ms Pomeroy. Its power to require the file goes to the heart of the complaints system, for, it could not assess the complaint without it. Therein lies the whole point.
[43] Clearly, Ms Pomeroy’s ill health is mitigating. However, some qualification is required. Having found the charge proved, the Tribunal did not immediately move to penalty. Instead, the Tribunal fixed the penalty hearing for a later date. It did so—at least in part—so Ms Pomeroy could provide a plan in relation to her wellbeing and fulltime return to practice. Its liability decision makes this clear:33
We express concern about the respondent’s underlying health condition and the impact that it has on the ability to continue in practice. In the interval, the respondent is invited to engage with the Law Society in the expectation that a plan can be settled upon to manage the future wellbeing of the respondent and advise it what is being undertaken presently in that regard including involvement with professional help.
32 Auckland Standards Committee 1 v Pomeroy, above n 13, at [13].
33 Auckland Standards Committee 1 v PV, above n 12, at [21].
[44] After the liability hearing, the Law Society wrote to Ms Pomeroy outlining how it may be able to help her. It invited Ms Pomeroy to respond. She did not. The Law Society wrote again 28 November 2019. On 2 December 2019, Ms Pomeroy told the Law Society of steps she would take to ensure she could practice safely. Ms Pomeroy said should she would put this in writing. She did not.
[45] This aspect appears to have troubled the Tribunal, which is hardly surprising. Having placed great weight on her ill-health at the liability hearing, Ms Pomeroy might have been expected at the penalty hearing to identify what steps she was taking to protect her health, and related steps to return, safely, to full-time practice. Again, she did not do so.
[46] I do not overlook Ms Pomeroy’s affidavit, which she swore the day before the penalty hearing. In this, Ms Pomeroy more fully outlines the stressors in her life, and her responses.34 However, I do not consider the following constitutes the type of plan anticipated by the Tribunal, or one that might reasonably be expected in the circumstances:
5. A WAY FORWARD:
5.1. I apologise, I received a letter from the Law Society dated 30 October, and a follow-up call from Neil Mallon.
5.2. I did mention to Mr Mallon but did not follow it up in writing.
5.3. The way forward for me, which I would be very grateful for assistance from the Law Society in, is:
(a)Continuing to heal. I believe that just being a normal person, and the conclusion of these proceedings, will be enough. I may need therapy but I cannot afford it and it would not be helpful at present. I need to focus on resolving the issues which are outstanding.
(b)Obtaining payment from legal aid and possibly damages for the treatment of me. As I see it will involve,
(i)Obtaining a forensic psychiatrist report of the effect of the treatment on me.
(ii)Funding to complete the outstanding invoicing. (I have an invoicer who can probably do it).
(iii)Funding/representation for legal proceedings.
34 The affidavit appends a 2006 report from a psychologist.
(c)Finalising the IRD issues:
(i)Finalising the 2010 agreement (which the IRD refused to carry out).
(ii)Correcting the IRD records (they have never corrected them).
(iii)Seeking damages from the IRD for the inappropriate treatment in bad faith, which led to closing down my practice and inability to deal with legal aid.
(iv)A decent accountant! I have had very poor luck with the ones I have instructed.
(d)I had previously made enquiries about family court Law mentoring. I would like to follow this through. I also had an extremely difficult family court case during 2016 2017 where the lawyer for the child was misleading the court, and also influencing Oranga Tamariki. I ceased to act for that client but her case has not been resolved and she has been unable to locate any legal aid lawyer who will challenge the lawyer for the child (due to the advancement structure in the family Court). I would like to assist her with that case pro bono. But I do not have the strength to do it on my own.
(e)I shall also be seeking relief under the standard procedures for my practising fees over the last 2 years, a small matter.
5.4. Aside from that, I respectfully consider that I am in a position to give advice regarding management of practice.
(a)There have been no problems with the Law Society audits.
(b)With the exception of Mr H’s complaint (which I deny) I have been running my practice for 30 years, undergoing CLE and of course researching cases on a daily basis. So I do not consider there to be any benefit in making my practice available for inspection, taking advice in relation to my practice management, or undergoing any practical training or education.
[47] This is a most unusual case.35 Ms Pomeroy did not intend to be obstructive, but her lack of engagement had just that effect, and for quite some time. Ill-health mitigated the seriousness of Ms Pomeroy’s conduct, but did not justify it. Like the Tribunal, I am anxious Ms Pomeroy does not truly appreciate her wrong. Censure and a modest fine were, if anything, lenient in the circumstances.
35 Precedent is of little help for this reason.
[48] Mr La Hatte contends the costs order is plainly wrong.36 I disagree. If Ms Pomeroy had engaged with the Law Society, it is unlikely she would have been prosecuted.
Result
[49]Liability and penalty are affirmed. The appeal is dismissed.
Costs
[50] I incline to the view Ms Pomeroy should pay 2B costs for this appeal. If Ms Pomeroy disagrees, she should file and serve a memorandum by 5 pm, 24 August 2020. The respondent is to file and serve its memorandum by 5 pm, 7 September 2020.
……………………………..
Downs J
36 This issue attracts appellate deference; see Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850 (HC) at [43].
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