Mahvash Ikram
A senior Auckland lawyer has been censured, ordered to pay nearly $20,000 in compensation and costs, write off tens of thousands of dollars in unpaid legal fees and barred from practising on his own account, after the Lawyers and Conveyancers Disciplinary Tribunal found serious failures in his handling of High Court litigation and his management of client funds.
The charges arose from a case in which Michael Locke’s client, who has name suppression, sought to claim, on equitable grounds, an interest in a property owned by his former in-laws. But the claims failed because essential legal and evidential requirements were not met.
The tribunal found that with Locke’s ongoing encouragement, his client advanced property claims that ultimately failed for lack of proof of fundamental facts on every aspect of the case.
Although the High Court judge made some credibility findings in the client’s favour, the tribunal said the case was deficient at a more basic level and was never able to meet predictable jurisdictional and evidential requirements.
According to the tribunal’s decision released earlier this month, Locke remained “upbeat” throughout the litigation, despite the mounting weaknesses in the case.
The tribunal said he failed to sufficiently reflect on whether the necessary elements of the claim could be established, failed to revise his assessment as the matter progressed and failed to give his client a meaningful opportunity to step back and reconsider the risks of continuing with the claim.
The tribunal said the problem was not how the case unfolded at trial, but that the claims should not have been pursued without clear and refreshed advice about their prospects, given the way the case was being managed.
The litigation relied on equitable causes of action, including constructive trust and estoppel. However, the tribunal found there was no valuation evidence to support the claims, no proper proof of qualifying contributions to the property and no reliable evidence of promises made by the property owners themselves.
The case therefore failed not because of adverse credibility findings, but because the necessary legal foundations were never in place.
The charges
The proceedings were brought about by the Auckland Legal Standards Committee, which laid three charges against Locke, all of which he admitted.
The first was negligence or incompetence of such a degree as to reflect on his fitness to practise or to bring the profession into disrepute, after failing to provide competent advice and failing to review and refresh that advice as the litigation progressed.
The committee also alleged Locke had engage in unsatisfactory conduct for greatly exceeding his costs estimate, particularly given how close to trial the estimate had been provided.
The tribunal noted that the extent of the cost overrun was closely linked to the underlying deficiencies in the way the case was assessed and managed.
The third charge was misconduct, after Locke solicited an advance payment of $11,500 without issuing an invoice and without paying the funds into a trust account, in breach of trust account obligations. Locke admitted that this amounted to misconduct.
The findings
The tribunal found the three charges were proved and, taken together, amounted to moderate professional wrongdoing by a senior litigator.
While the conduct was described as disappointing, the tribunal emphasised that it was far from the most serious misconduct it encounters. It also took into account Locke’s cooperation with the standards committee, his apology to the client and his admissions.
The tribunal considered Locke’s disciplinary history, noting a 2021 finding that involved widespread but low-level competence issues across multiple files. While that earlier finding was treated as moderately aggravating, a 2011 finding of unsatisfactory conduct was not considered relevant.
In addressing penalty, the tribunal said it was satisfied that suspension was not required and that Locke was not unfit to practise.
It also declined to impose a fine, instead concluding that a more appropriate and proportionate response was a public-protective order restricting the way Locke may practise in future.
The tribunal imposed an order under s 242(1)(g) of the Lawyers and Conveyancers Act 2006, prohibiting Locke from practising on his own account, whether as a sole practitioner or in partnership, unless and until authorised by the tribunal.
The tribunal said that while Locke had taken paid employment and would therefore have professional scaffolding around his work, the restriction had a necessary and enduring protective quality.
As part of the penalty package, the tribunal imposed censure, recording the following comments:
“You failed to provide a client with competent advice and failed to review the case and give refreshed advice, resulting in a predictable and expensive loss for your client. You gave an inadequate fees estimate. You took an advance on un-invoiced fees into your own account instead of paying into a trust account. For these significant shortcomings, you are censured.”
The tribunal ordered Locke to write off all unpaid legal fees, amounting to tens of thousands of dollars, and to pay $5,000 compensation to the complainant for emotional harm and stress arising from the poor professional service provided.
Locke was also ordered to contribute $12,500 toward the standards committee’s costs, representing almost half the costs incurred, and to reimburse the New Zealand Law Society $2,263 for tribunal costs.
The tribunal said no apology order was required, noting that Locke had already apologised.
Permanent non-publication orders remain in place for the name of the complainant, the names of others involved in the complaint and the litigation that gave rise to it, and details of Locke’s financial circumstances. The suppression orders were made under s 240 of the Lawyers and Conveyancers Act 2006.
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