Samuels v New Zealand Law Society
[2014] NZHC 3026
•1 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2014-404-2187 [2014] NZHC 3026
IN THE MATTER of the Lawyers and Conveyancers Act
2006
BETWEEN
BERNARD CLAUDE SAMUELS Applicant
AND
NEW ZEALAND LAW SOCIETY Respondent
Hearing: 18 November 2014 Counsel:
M J Kidd for Applicant
M Hodge for RespondentJudgment:
1 December 2014
JUDGMENT OF HEATH J
This judgment was delivered by me on 1 December 2014 at 11.00am pursuant to
Rule 11.5
of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
M J Kidd, AucklandMeredith Connell, Auckland
SAMUELS v NEW ZEALAND LAW SOCIETY [2014] NZHC 3025 [1 December 2014]
The application
[1] Mr Samuels applied to the New Zealand Law Society (the Society) for a certificate of character, for the purpose of an intended application for admission to the New Zealand Bar. The Society declined to issue a certificate. As a result, he applies for an order that he be admitted as a barrister and solicitor of the High Court of New Zealand.1 The issue is whether this Court is satisfied that he is a fit and
proper person.2
[2] All candidates for admission as barristers and solicitors of the High Court of New Zealand must demonstrate they are fit and proper persons to hold that status. Ordinarily, a certificate of character from the Society is be sufficient to meet the “fit and proper person” criterion.3 If no such certificate is issued, it is for this Court to determine for itself whether the candidate should be admitted.
Background
[3] Mr Samuels is currently aged 62 years. From 1991, he practised as an Attorney in South Africa. For reasons I explore later,4 between 8 September 1997 and 25 July 2000, Mr Samuels was suspended from practice in that jurisdiction. The main reasons for the Society’s decision not to provide a certificate of character are Mr Samuels’ failure to disclose that suspension when he initially applied to the Society for a certificate of character, and his (alleged) subsequent lack of candour in providing information about it.
[4] Mr Samuels first applied for a certificate of character, in October 2012. At that time, he did not declare the suspension. Mr Samuels answered “No” to a question on the application form: “Has your right of practice as a lawyer been cancelled or suspended in a foreign country?” When the Society learnt of the
suspension, it declined to issue a certificate.
1 Lawyers and Conveyancers Act 2006, s 52(1) and r 6(3) of the Lawyers and Conveyancers Act
(Lawyers: Admission) Rules 2008.
2 Lawyers and Conveyancers Act 2006, ss 49(3) and 52(2)(a).
3 Ibid, s 51.
4 See paras [14]–[24] below.
[5] A second application was made on 25 March 2013. On this occasion, the suspension was disclosed and a substantial number of documents from the South African Courts’ records were made available to the Society’s Practice Approval Committee (the Committee).5 On 7 June 2013, the Committee, having considered relevant information, decided to decline the March 2013 application.
[6] Mr Samuels applied to this Court on 29 August 2014. The Society opposes his application because Mr Samuels, in its view:
(a) failed to provide timely disclosure of his earlier suspension from legal practice in South Africa,
(b)prepared and pursued his application to the Society in a manner that demonstrated a lack of care and professionalism,
(c) showed a lack of insight and candour in responding to the Society’s
queries about his earlier suspension from practice in South Africa,
(d)evidenced inappropriate personal conduct in a dispute with a former landlord, and
(e) sent an “unprofessional email” to the Society.
Legal principles
[7] Admission and enrolment of barristers and solicitors is governed by Part 3 of the Lawyers and Conveyancers Act 2006 (the Act). There are three categories of persons who may seek admission. Mr Samuels falls into the second, having been previously admitted as an Attorney by a “Superior Court” in South Africa.6
[8] Mr Samuels has acquired the qualifications required for admission in New
Zealand, and otherwise meets the criteria prescribed by rules made under s 54 of the
5 The Society had delegated to the Committee power to make the decision whether to issue a certificate of character.
6 Lawyers and Conveyancers Act 2006, s 49(3)(a).
Act.7 To establish the one remaining criterion, Mr Samuels must demonstrate that he is a fit and proper person to be admitted as a barrister and solicitor of this Court.
[9] For the purpose of determining whether or not a person is a fit and proper person to be admitted, this Court may take account of any matters it considers relevant.8 The Act includes, in a non-exhaustive list of “relevant matters”:
(a) Whether the candidate is of good character,9
(b)Whether the candidate has been the subject of disciplinary action in a foreign country,10
(c) Whether the candidate’s right of practise as a lawyer has been
suspended in a foreign country.11
[10] The Court of Appeal has held that the concept of a “fit and proper person” incorporates standards of “integrity, probity and trustworthiness”. In New Zealand Law Society v Mitchell,12 that Court considered the case of a practitioner who, having been admitted to the Bar, had been struck off for failing to disclose 39 criminal convictions at the time he applied for (and obtained) admission and practising certificates. It held that the standard may have been met if he “had … disclosed his convictions promptly in his application for admission”. Mr Mitchell was admitted in 2001. The convictions had occurred between 1989 and 1994.
[11] In each case, a fact-specific inquiry must be undertaken to determine whether the “fit and proper person” standard has been met. The authorities on this issue were considered recently by Keane J, in Gibbs v New Zealand Law Society13 and Faire J,
in Ali v New Zealand Law Society.14
7 Ibid, s 49(3)(b) and (d).
8 Ibid, s 55(1).
9 Ibid, s 55(1)(a).
10 Ibid, s 55(1)(g).
11 Ibid, s 55(1)(i).
12 New Zealand Law Society v Mitchell [2011] NZAR 81, at paras [24] and [25].
13 Gibbs v New Zealand Law Society [2014] NZHC 1141.
14 Ali v New Zealand Law Society [2014] NZHC 1111.
[12] Both Keane and Faire JJ took as their starting point a decision of the Court of Appeal in Re Lundon.15 Delivering the judgment of himself and Herdman, Reed, Adams and Ostler JJ, Skerrett CJ said:
… what we are called upon to do is to decide whether upon the evidence we would be justified upon valid and substantial grounds in holding out to the public that the applicant is a fit and proper person to stand in the ranks of an honourable profession to whose members ignorant people are frequently obliged to resort for assistance in the conduct of their affairs, and in whom they are in the habit of reposing unbounded confidence. …
The relations between a solicitor and his client are so close and confidential, and the influence acquired over the client is so great, and so open to abuse, that the Court ought to be satisfied that the person applying for admission is possessed of such integrity and moral rectitude of character that he may be safely accredited by the Court to the public to be entrusted with their business and private affairs.
[13] In Re M,16 this Court focussed on the approach to be taken to persons who had had previous convictions but had rehabilitated themselves. Panckhurst and Chisholm JJ identified four principles that would be relevant to an inquiry into whether such a person was “fit and proper” to be admitted to the New Zealand Bar:17
(a) The Court’s focus is on likely future conduct. In determining whether an applicant is a fit and proper person to be admitted, it is not part of the Court’s function to punish for past conduct.
(b)A person who has erred professionally after admission to the legal profession bears a heavier onus than is cast upon a candidate for first admission.
(c) Due recognition must be given to the circumstance of youth where errors of conduct occurred when an applicant was immature.
(d) It is necessary to look at the circumstances “in the round”, rather than
paying particular regard to an event in the past, whether it be a previous conviction or (in my view) a suspension from legal practice.
15 Re Lundon [1926] NZLR 656 (CA) at 657–658.
16 Re M (Note) [2005] 2 NZLR 544 (HC).
17 Ibid, at paras [21]–[23].
Factual findings
[14] Mr Samuels was cross-examined before me at the hearing of his application. The following findings are drawn from both the affidavit and oral evidence.
[15] Mr Samuels did himself no favours in the way in which he approached his applications to the Society for a character certificate. Initially, he failed to disclose the period of suspension in South Africa.18
[16] When the circumstances in which the suspension arose assumed importance, Mr Samuels seemed reluctant to provide the necessary information that the Society required. The events that led to Mr Samuels’ suspension were, because of the close link between his personal and professional life, traumatic to him.19 As Mr Samuels deposed, he had tried to put it “out of his mind”. Although I am satisfied that Mr Samuels now understands why the issue was of such importance to the Committee when it considered whether to issue a character certificate, it is clear that he did not grasp the implications of non-disclosure when his applications were made
in 2012 and 2013. I am satisfied that was because Mr Samuels felt aggrieved about the need to revisit these events, given the fact that he was subsequently reinstated to practice in South Africa.20 He considered that reinstatement, of itself, proved his fitness to practice.
[17] It is unfortunate that Mr Samuels felt the need to suppress information about what occurred in South Africa. On reading of the relevant Court papers, I was impressed with the way in which he dealt with a difficult situation. In an affidavit sworn in 2000, in support of an application to lift his suspension, Mr Samuels accepted that from about October 1995, his “practice was out of control”. During April 1996, Mr Samuels and his former wife separated. She had been working for him as an administrator in his office. When she left, together with Mr Samuels then secretary (his former wife’s cousin), his “practice effectively collapsed”. Mr Samuels was left to deal with the emotional and professional consequences of what
occurred.
18 See para [3] above.
19 See paras [17] and [18] below.
20 See paras [21]–[24] below.
[18] When Mr Samuels came to appreciate, by December 1996, that he could not continue in practice, he made arrangements with a firm of Attorneys to take over his current files.
[19] On 8 September 1997, on the application of the Natal Law Society, the High Court of South Africa made an order suspending Mr Samuels from practice “until such time as he satisfies [the Court] that he is a fit and proper person to resume practice as an Attorney”.21
[20] When that order was made, Mr Samuels’ books of account passed to the Attorneys’ who had taken over his practice. No claims were made against either Mr Samuels or the Attorneys’ Fidelity Fund, arising out of his practice to the time of suspension.
[21] In 2000, having addressed the personal difficulties with which he had earlier been faced, Mr Samuels applied to the High Court of South Africa for an order lifting the suspension. As the Court had made clear in its suspension order, Mr Samuels bore the burden of satisfying the Court that he was a “fit and proper” person to go back into practice.
[22] In support of his application, Mr Samuels filed a detailed affidavit in which he responded to a number of complaints from clients that had led to his cessation of practice, and for the Court to make a suspension order. The evidence before the Court was sufficient to satisfy it that Mr Samuels was a “fit and proper person” who could resume practice as an Attorney, albeit on conditions.
[23] On 25 July 2000, the High Court of South Africa, without opposition from the Natal Law Society, made the following order.22
That the suspension of [Mr Samuels] from practising as an attorney in terms of the order granted by the above Court on 8 September 1997 under Case No. 344/97, be and is hereby uplifted and leave be and is hereby granted to [Mr Samuels] to resume practising as an attorney provided however that:
21 Natal Law Society v Samuels High Court of South Africa Case 344/97, 8 September 1997 (van der Reyden and Meskin JJ).
22 Samuels v Natal Law Society High Court of South Africa Natal National Division Case
1798/2000, 25 July 2000 (van der Reyden and Kondile JJ).
(a) [Mr Samuels] shall before he practises as an attorney for his own account, practise as a professional assistant, employed by another attorney or firm of attorneys, for a minimum period of 2 years; and
(b) [Mr Samuels] shall attend a Practice Development Course offered or approved by the Natal Law Society, before he commences practice for his own account.
[24] Mr Samuels practised under those conditions for a period of two years. Thereafter he was entitled to practise on his own account, and did so. Until he immigrated to New Zealand in 2006, he remained on the Roll of Attorneys in South Africa and was regarded, throughout that period, as a fit and proper person to practise.
Analysis
[25] The first ground on which the Society opposes Mr Samuels’ application is that he failed to provide timely disclosure of his earlier suspension from legal practice in South Africa. I agree that Mr Samuels did not disclose the suspension proceedings when he first applied for a character certificate in 2012. However, there is evidence that he advised the Society earlier than that: in a letter dated 4 April
2008. That letter was sent in support of what Mr Samuels called an “application for assessment of overseas qualifications and experience”. Various documents together with an affidavit concerning his suspension were provided. The letter was sent to Mr Andrew Burger, Director of Regulatory Services, at the Society, and was produced (without opposition from the Society) as an exhibit at the hearing before me.
[26] The fact that Mr Samuels disclosed his suspension to Mr Burger in 2008 suggests that his failure to refer to it in his 2012 application for a certificate of character is more likely to have been an oversight. If Mr Samuels had been intent on concealment, his 2008 disclosure seems odd. It may well be that, as Mr Samuels says, he incorrectly “ticked the wrong box”.23 I am prepared to give Mr Samuels the benefit of the doubt on that point. In those circumstances, it cannot be said that he failed to provide timely disclosure of the suspension.
[27] The second point made by the Society is that the manner in which he prepared and pursued his application for a character certificate demonstrated a lack of care and professionalism. That concern can be seen as merging with the next complaint, namely a lack of honesty and candour in responding to queries about the suspension.
[28] Mr Samuels’ dealings with the Society in relation to the requests for further disclosure fell below the standard that ought to be expected of a candidate for admission. But, there are significant mitigating factors.
[29] As previously indicated, Mr Samuels had found the circumstances that had led to his suspension so traumatic that he was unprepared to reveal detail.24 He was loathe to provide further detail in circumstances where it was clear that his fitness to act as an Attorney in South Africa had been confirmed both by the lifting of the suspension order in 2000, and his subsequent practise without incident between 2000 and 2006.
[30] That is the only explanation for somewhat sharp responses to reasonable questions from the Society. Mr Samuels’ conduct contrasts unfavourably with the commendable way in which he had dealt with the problems in South Africa between
1996 and 2000. I consider that Mr Samuels was so defensive to any queries that he found himself unwilling to provide information in an appropriate manner.
[31] While Mr Samuels’ contemporary correspondence with the Society demonstrates a lack of insight into the importance of the suspension order to his fitness to practice as a barrister and solicitor in New Zealand, I am satisfied from the evidence he gave to me that he now understands that he ought to have responded more appropriately.
[32] Ultimately, I must focus on Mr Samuels’ likely future conduct. It is not my function to punish him for past conduct. The fact that the suspension order was lifted only three years after it was made and Mr Samuels continued to practise without incident in South Africa suggests that there is no need for further sanction.
Viewing Mr Samuels’ circumstances “in the round”, as indicated in Re M,25 I am satisfied that his conduct in dealing with the application is not a disqualifying factor.
[33] Two further points were raised by Mr Hodge, for the Society. One involved “inappropriate” personal conduct in a dispute that had arisen in relation to a former rental property in which Mr Samuels and members of his family lived. The other concerned an “unprofessional email” that Mr Samuels’ allegedly sent to the Society.
[34] As to the first, Mr Samuels assured me that he intended to abide by an order made by a Tenancy Tribunal in relation to a dispute that had arisen between a former landlord and his daughter in law. There is no reason why I should go behind that assurance.
[35] As to the “unprofessional email”, the circumstances are strange. On its face it appears to have been sent from an email address which could be linked to Mr Samuels. It contains inappropriate comments about the Society and the New Zealand judicial system. If Mr Samuels were the author of that email, I would have significant doubts about whether he should be regarded as a fit and proper person to be admitted.
[36] Subsequent to the hearing, I received a further affidavit from Mr Samuels. It was sworn and filed pursuant to an invitation from counsel for the Society, who had alerted him to an email address used by his present wife that was similar to the one from which the “unprofessional email” was sent. Mr Hodge had suggested that Mr Samuels respond to the point because, in the course of oral evidence before me, he had maintained that he had not used an email address which was the same or similar to that from which the “unprofessional email” was sent. In his further affidavit, Mr Samuels maintains the position he took at the hearing: namely, that the email was forged by a third party to discredit him, and that he had made a complaint to the Police about that. As to the existence of a similar email address, Mr Samuels accepts that his wife has used a similar (but not identical) address.
[37] I am conscious that, on at least two occasions, Mr Samuels has denied (on oath) authorship of the “unprofessional email”. There is some evidence that one particular person might have used the address in issue to discredit Mr Samuels. That person may have known of the address used by Mr Samuels’ wife; if he did it is not surprising that a similar address would be used for dishonest purposes. For the purposes of the present application, I accept Mr Samuels’ denial of authorship.
[38] If Mr Samuels were admitted to the Bar and it subsequently became clear that he had sent the email, not only would he be likely to be struck off the Roll immediately, but he would also be at serious risk of prosecution for perjury. I think it unlikely that Mr Samuels would deliberately lie to the Court in those circumstances.
[39] Having considered all of the factors to which the Society referred in opposing the application, I have come to the view that Mr Samuels can properly be regarded as a “fit and proper person to be admitted as a barrister and solicitor of the High Court”, and to uphold the fundamental obligations cast upon lawyers by s 4 of the Act.
[40] I do not criticise the Society for opposing the application. In the circumstances in which the Committee found itself, it had little option but to reject the application for a character certificate and to leave the issue for the Court to determine, after having the benefit of hearing and considering all relevant evidence.
[41] Mr Samuels has been offered employment by Dr Kidd, a sole practitioner. I draw to their attention the provisions of s 30 of the Act and the prohibition on Mr Samuels from commencing practice on his own account, unless the requirements of s 30(1) are met. In my view, there is a need for supervision, at least in the short term.
Result
[42] Before an order for admission can be made, a candidate must take the oath set out in s 52(2) of the Act. The Registrar is directed to arrange an admission ceremony as soon as possible for the purpose of enabling Mr Samuels to take the oath as
required by law. The application is adjourned to a date to be fixed by the Registrar for that to be done.
[43] As the Society acted responsibly in opposing the application, there will be no order as to costs.
[44] If any information in conflict with my views about the “unprofessional” email26 were to come to the Society’s attention from the Police investigation (or otherwise) before the oath was taken, leave is reserved for the Society to apply for
me to recall this judgment.
P R Heath J
Delivered at 11.00am on 1 December 2014
26 See paras [37] and [38] above.
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