Mahvash Ikram
A lawyer is asking a disciplinary tribunal to permanently halt misconduct proceedings arising from a family loan, arguing the dispute has effectively been hanging over him for 16 years and can no longer be fairly determined.
At an interlocutory hearing before the Lawyers and Conveyancers Tribunal on Tuesday, the practitioner – who has interim name suppression – sought a stay on a charge relating to a 2005 loan he received from his parents.
The charge, brought by the Waikato Bay of Plenty Legal Standards Committee, alleges the lawyer failed to meet a requirement to register security over the property, leaving the loan unsecured.
The loan subsequently fell into default, and it is alleged the lawyer, while managing his parents’ financial affairs in a fiduciary capacity, failed to adequately protect their financial interests by not ensuring the loan was properly secured.
He is also accused of breaching fiduciary obligations in relation to family trusts and estate matters, including acting alone as trustee in circumstances where joint action was required and making payments from his parents’ accounts between 2017-2019.
The tribunal must determine if the lawyer’s alleged behaviour was of such a level that he was not a fit and proper person to practise at the time.
History of complaint
The loan was first the subject of a complaint in 2010, when one of the lawyer’s siblings raised concerns about its unsecured nature and his management of their parents’ financial affairs.
That complaint was later withdrawn another was lodged in 2013 concerning the same loan and related dealings.
In 2014, the standards committee resolved to take no further action, relying in part on correspondence from the practitioner’s mother indicating she was comfortable with the arrangements.
The matter resurfaced in November 2019, when a fresh complaint revived the loan issues and expanded to include the trustee and payment allegations. That complaint ultimately led to the present charge being filed in 2021.
The lawyer’s counsel Felix Geiringer submitted that the proceedings had been marked by significant delay and procedural error.
He argued the delay should not be measured from the latest complaint in 2019 but from earlier proceedings concerning the same subject matter. Even if measured from 2019, he said the passage of time was excessive, telling the tribunal that prolonged exposure to unresolved allegations, professional uncertainty and reputational harm can amount to prejudice.
In arguing for a stay, Geiringer also criticised the procedure adopted by the tribunal when dealing with an earlier complaint, saying they had not been handled properly.
The tribunal raised concern that aspects of the current charge may overlap with earlier complaints that had previously been dismissed. Counsel for the standards committee, Sam McMullan, said a written response could be provided clarifying whether the same matters had been raised before.
Stay ‘only effective remedy’
A significant portion of Geiringer’s argument focused on missing documents which he said reflected the parents’ wishes and independent legal advice obtained in relation to the loan. Geiringer’s said the loss of the documents prejudiced the defence’s case.
A summons issued to a law firm produced limited material from 2007–2008, but nothing from later years. McMullan submitted the tribunal could not assume documents were improperly taken or that they would materially assist the defence and said any credibility findings would require evidence at a substantive hearing.
McMullan opposed the stay, submitting the tribunal’s task was to determine whether a stay was a proportionate remedy, not to assign blame for past errors. He argued any prejudice could be addressed through penalty reduction, costs or other remedies if misconduct were established, emphasising the tribunal’s role in protecting the public protection and maintaining standards.
Geiringer said alternative remedies were speculative and might prove ineffective, and said a stay was the only effective remedy for the delay.
The tribunal is expected to release its decision before further substantive hearings scheduled for April.
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