Mahvash Ikram
A former lawyer facing a charge of misconduct after allegedly failing to keep his clients properly informed about critical court orders affecting their case – including judicial warnings and costs consequences – has been censured by the Lawyers and Conveyancers Disciplinary Tribunal.
The practitioner, who has name suppression, has also been accused of misleading the court and acting without client instructions. The tribunal was told the practitioner filed incomplete and non-compliant discovery documents and took procedural steps – including filing memoranda – without obtaining authority from his clients (the defendants) in a High Court civil matter in 2023.
The defendants’ initial affidavits were said to have been filed late, incomplete, unsworn or otherwise not compliant with the High Court rules.
The tribunal says these lapses served as ‘background’ to the misconduct charge, which was laid after the lawyer kept his clients in the dark about several requests and orders from the court. Among these were critical developments in their case, including court applications, judicial warnings, cost consequences and orders that directly affected the clients’ legal position.
The practitioner told the tribunal the errors occurred because he was out of his depth and failed to ask for help. It was not a deliberate attempt to mislead the court, he said.
The practitioner’s lawyer, Matthew Francis, said his client accepted the charge of misconduct. The practitioner was experienced but new to High Court civil litigation. His conduct was out of character and he started making amends as soon as the matter came to light, Francis said.
“There was an immediate apology. [He] self-reported to the Law Society.”
The practitioner also resigned from his law firm and surrendered his practising certificate.
Although the High Court proceeding was briefly struck out following the failures in discovery, the position was later corrected and the clients did not suffer lasting harm, Francis told the tribunal.
Counsel for the standards committee which laid the misconduct charge acknowledged the practitioner’s handling of the matter.
“It is important to note that there were a large number of references that speak quite highly of him and that really is to his credit, as is the way he’s handled this whole process,” he said.
The charge
The tribunal heard that the practitioner lost control of the discovery process and filed incomplete documents. He then confirmed to the court that all discoverable material had been provided. But several months later he gave the plaintiff’s counsel access to more than 400 previously undisclosed documents, forcing the court to step in and reset the process.
The plaintiff’s counsel asked for further information, but the practitioner did not inform his clients about the request, meaning they had no opportunity to respond. He kept his clients in the dark about the costs that the judge had awarded to the plaintiff because of discovery failures.
The practitioner also signed a joint memorandum with the plaintiff’s counsel without instructions from his clients but told the court he had the authority to act on their behalf. The memorandum included an ‘unless’ order, meaning their defence would be struck out if discovery was not properly completed.
As a result of these errors, the clients had to instruct new counsel and successfully applied for relief from the ‘unless’ order, which could have been avoided had they been properly informed and instructed.
The standards committee said these errors amounted to misconduct under s 4 (c) of the Lawyers and Conveyancers Act 2006, which requires a lawyer to act in accordance with all fiduciary duties of care owed to clients. The committee said the practitioner’s conduct also contravened the Conduct and Client Care Rules 2008: r (3) – to act competently, in a timely way and take reasonable care; r (5) – once aware a client may have a claim against the lawyer, the lawyer must advise the client to seek independent advice; r (7) – promptly disclose all relevant information; r (7) (1) – keep clients informed about progress; r (13) – overriding duty to the court; r (13.1) – absolute duty of honesty, must not mislead the court; r (13.3) – obtain and follow client instructions on significant litigation decisions; and r (5.43) of the High Court Rules, which requires lawyers to provide clients with court orders or directions.
The tribunal decided to censure the lawyer and order him to reimburse the standards committee’s costs in full, pay the tribunal’s costs and to reimburse the New Zealand Law Society.
A written decision will be issued in due course.
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