Neil Sands
An immigration lawyer who threatened migrant workers with penalties of up to $100,000 for breaching “onerous” contract conditions pleaded guilty to misconduct on Friday, after previously admitting only to the lesser charge of unsatisfactory conduct.
Auckland-based barrister Yong Keun (Ken) Oh changed his plea on the second and final day of a Lawyers & Conveyancers Disciplinary Tribunal hearing, where he is facing allegations of grossly overcharging his clients and failing to put their interests first.
The charges stem from complaints made by nine clients – all from the Philippines or Sri Lanka – who engaged Oh between July 2018 and October 2023.
Oh, principal lawyer at Kenton Chambers, offered his clients a package deal, which involved obtaining a work visa and securing a “match” with a suitable employer in New Zealand, as well as other support services.
Counsel for the Auckland Standards Committee, Milan Djurich, described the complainants, eight hospitality workers and a nurse, as vulnerable and open to exploitation by Oh, who also operated under the name KCL Consulting.
The tribunal heard evidence that Oh made his clients sign a “services agreement” preventing them from making complaints to the NZ Law Society, using other lawyers or revealing the contents of their visa applications to a third party.
Anyone breaching the restrictions on complaints or confidentiality would face a penalty of “at least US$50,000 [NZ$83,000]”, although this was lifted to $100,000 for one of the clients.
Seven of the complainants were also told that they would be penalised $1,000 a month if they did not stay with the employer that Oh had matched them with for the entire duration of their visa.
Skills ‘not good enough’
When questioned about the requirement to stay with the same employer, Oh said it was merely a recommendation, a description that tribunal Deputy Chair John Adams pushed back on.
“It seems like a condition. You can’t get a person to pay you $1,000 by recommending they do that. It’s a straightforward penalty. How is that term in the interests of your client?” Adams asked.
Oh said he now accepted the conditions imposed on the complainants were “totally wrong” and “not a good, proper way” to deal with his clients.
“I’m sorry. This is my English… I maybe shouldn’t use these terms and conditions in this case. I’ve now found that out,” he said.
But he said that at the time, he believed the conditions were in the long-term interests of his clients because they were designed to prevent them moving from job to job, keeping their initial employer onside.
“It’s for the benefit of my clients because if they work long term, it yields trust, [a] good relationship with an employer. Then next time the visa renews, or when they apply for a residence visa, they get the benefit. Otherwise there’s no support from the employer,” he said.
Asked by the panel if he understood that he was acting only for his client, not the employer, and he had to follow client instruction even if he did not agree with them, Oh replied: “Immigration is a little different, because I’m caring for them… I’m like a guide here [in New Zealand] for them.”
When asked why one of his clients was told that he could be penalised $100,000 for showing his visa application to anyone else, Oh said he copied the amount from an Immigration NZ form detailing potential penalties for submitting fraudulent information.
“My drafting skill, my legal skill, wasn’t good enough. I’m sorry,” he said.
Questioned by his counsel, barrister Andrew Gilchrist, Oh said he had never enforced any of the penalties in the clauses or received any money from clients arising from penalties.
‘Unique’ business model
With the admission of misconduct in relation to the conditions imposed on clients, the tribunal’s attention turned to the allegation of gross overcharging.
At the beginning of the hearing, Oh admitted to unsatisfactory conduct in relation to gross overcharging, but he then applied to change his plea to not guilty mid-way through proceedings.
Djurich opposed the application and the panel did not make an immediate finding, with Adams saying they would deal with it in their written decision.
Evidence from Djurich was that Oh charged clients an upfront fee of $500, followed by an invoice of around $26,000 after they had been offered employment, to be paid off weekly over two years.
There were variations in fees, one client was invoiced $77,025 for processing several visa and other services, while another was charged $16,400 after his employer complained to Oh that the original amount was excessive.
An expert witness told the tribunal that typical legal fees for processing a work visa were $3,800 to $6,000.
However, tribunal members said they had difficulty assessing whether the charges were fair because Oh’s package for clients did not only include legal fees. There was also the job match, settlement care, transportation and other non-legal services.
Gilchrist said the tribunal had not received expert legal advice on these non-legal services and Oh’s “unique” business model meant it was unable to establish a yardstick for how much should be charged.
“I would submit to the tribunal that if you don’t even know what a fair and proper fee is, how can you assess an overcharge, let alone one that meets the level of misconduct?” he said.
The tribunal hearing adjourned and the panel will release a written decision, followed by a separate hearing into the penalty Oh will face.
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