Skagen v Wellington Standards Committee of the New Zealand Law Society

[2015] NZHC 2634

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000061 [2015] NZHC 2634

UNDER

the Lawyers and Conveyancers Act 2006

BETWEEN

CHRISTOPHER KNUTE SKAGEN Appellant

AND

WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	27 October 2015
Counsel:	Appellant in person T J Mackenzie for Respondent
Judgment:	27 October 2015

JUDGMENT OF COLLINS J

Introduction

[1]      This judgment sets out my decisions following an interlocutory hearing in relation to Mr Skagen’s appeal from a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) delivered on 9 December 2014.

[2] In its decision, the Tribunal found Mr Skagen guilty of 11 charges of misconduct pursuant to s 241(a) of the Lawyers and Conveyancers Act 2006 (the Act). The Tribunal ordered the removal of Mr Skagen’s name from the Roll of Barristers and Solicitors of New Zealand and also ordered him to pay $2,533 in

costs.

SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2015] NZHC 2634 [27 October 2015]

Background

[3]      Mr  Skagen  practised  as  an  attorney in  Oregon.    In  2010  he  obtained  a practising certificate from the New Zealand Law Society (the Law Society).   He practised as a barrister in Wellington.

[4]      In June 2011, the Law Society declined to renew Mr Skagen’s practising certificate  because  of  issues  following  from  disciplinary  proceedings  against Mr Skagen  in  Oregon  in  2006.    I  understand  the  Oregon  Supreme  Court  had suspended Mr Skagen from practising as an attorney for 12 months and ordered him to pay $8,000 in costs.  Those costs had not been paid at the time the Law Society decided not to renew Mr Skagen’s practising certificate.

[5]      There  were  three  categories  of  disciplinary  charges  considered  by  the

Tribunal. They were summarised by the Tribunal in the following way: (1)  The “Edmeades Charges”:

(i)     Accepting instructions directly; (ii)        Accepting fees in advance;

(iii)   Failure to pay monies received into a trust account; (iv)   Failing to act in a timely or competent manner;

(v)     Failing to repay monies. (2)        The “Wolvetang Charges”:

(i)       Accepting a fee in advance;

(ii)      Failure to pay money received into a trust account; (iii)          Failing to act in a timely or competent manner;

(iv)     Failing to repay monies, and in the alternative;

(v)Charging a grossly excessive fee.  (This charge was abandoned at the hearing).

(3)       The “Investigation Charges”:

(i)        Failing to permit an investigator to examine accounts; (ii)     Failing to produce records to an investigator.

[6]      After the Tribunal found Mr Skagen guilty, it immediately proceeded to the penalty phase of its deliberations and struck Mr Skagen’s name from the Roll of Barristers and Solicitors.

[7]      Mr  Skagen  has  appealed  both  the  liability  and  penalty  aspects  of  the Tribunal’s decision.   This Court hears the appeal as a rehearing.1    On hearing an appeal the Court may confirm, reverse or modify the order or decision appealed from.2

Interlocutory applications

Security for costs order

[8]      On 9 April 2015, Williams J ordered Mr Skagen to pay $995 as security for costs.    Mr Skagen initially sought to review that decision in this Court. Notwithstanding the lack of jurisdiction, this issue is no longer relevant because Mr Skagen has paid the security for costs ordered by Williams J.

Discovery

[9]      Mr Skagen has sought discovery.  It is highly questionable whether there is any  basis  for  this  Court  to  order  discovery  in  this  type  of  proceeding.    On

questioning Mr Skagen it became apparent he was particularly interested to see

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

2      Section 253(4).

correspondence between the Law Society and the Oregon State Bar.   Those documents may not be relevant to Mr Skagen’s appeal but in the unusual circumstances of this case I urge the Law Society, through Mr Mackenzie, to voluntarily disclose copies of its communications with the State Bar Authorities in Oregon.

Further affidavits

[10]     Mr Skagen has sought leave to file two affidavits, one dated 26 May 2015 and the other dated 21 October 2015.

[11]     Mr Mackenzie takes no issue with the second affidavit.

[12]     I have carefully reviewed Mr Skagen’s first affidavit.   It contains a lot of material that could be classified as legal submissions.  After questioning Mr Skagen, I have concluded Mr Skagen can file an affidavit in substitution for his affidavit of

26 May 2015, which addresses the following two points:

(1)       First, Mr Skagen’s lack of appreciation in July 2011 that the Law

Society had not renewed his practising certificate.

(2)Second, matters relating to Mr Skagen’s state of health at the time of the events giving rise to the charges and at the time the Tribunal decided Mr Skagen’s name should be removed from the Roll of Barristers and Solicitors.  The evidence relating to Mr Skagen’s state of  health  at  the  relevant  times  may  be  important  and  would  be verified by medical reports.

Second amended notice of appeal

[13]     On 21 October 2015, Mr Skagen filed a second amended notice of appeal. No issue is taken with him having done so.   I grant Mr Skagen leave to file that amended notice of appeal.

Hearing time

[14]     Mr Mackenzie estimates a half day hearing is required.   That is a realistic estimate.  The registrar will arrange a half day hearing for this appeal to be heard as

promptly as possible.

D B Collins J

Solicitors:

Wynn Williams, Christchurch for Respondent