Regulator seeks long suspension for senior practitioner whose conduct was found to be ‘disgraceful’ and ‘dishonourable’

Mahvash Ikram

A senior practitioner found guilty this week on three charges of misconduct and one of unsatisfactory conduct for her “appalling” treatment and supervision of junior staff, for failing to meet client obligations and for breaches of court undertakings has requested that suspension, if imposed, be delayed until the end of January next year.

But a four-month deferral was the longest delay she had heard of, Dale Clarkson, chair of the Lawyers and Conveyancers Disciplinary Tribunal, said at the practitioner’s penalty hearing on Wednesday.

The National Standards Committee (No 2), which brought the charges in relation to the practitioner’s conduct between 2017 and 2021, is seeking a nine-to-12-montrh suspension and an order prohibiting her from practising on her own account or, alternatively, an order requiring her to take advice about the management of her practice. It also wants a contribution to costs.

But the practitioner’s counsel, Karen Feint KC, pushed back on such a lengthy suspension, calling it “disproportionately severe and punitive in nature”.

“Seeking a suspension for such a long period… is more in line with cases where dishonesty has been an issue, which we say is not the case here,” she told the tribunal.

Sanctioning a practitioner serves a different end, she said.

“The purposes of imposing sanctions are not explicitly to be punitive, but rather to reflect the statutory objectives of protecting the public and upholding standards in the legal profession.”

Suspension was not the only route open to the tribunal, Feint said.

“The other approach that the tribunal could take is to provide an opportunity for redemption… That approach would be more constructive and focused on rehabilitation.”

Public protection

The tribunal must decide whether the lawyer is fit to practise now, not when the conduct at issue occurred, Clarkson said.

“[A suspension order] requires us to find that the practitioner is not currently fit to practise for various reasons, and some of those might relate to her mindset now.”

The standards committee’s lawyer, Timothy Bain, said it came down to what the tribunal made of the improvements the practitioner says she has made since 2021. Unless the tribunal affirmatively found the problem was no longer an issue, he said, “there’s a real protective purpose of an order prohibiting [the lawyer] from practising on her own account.

“At the end of the day, a client deserves to know that any lawyer who is running a firm that they are going to for legal advice is running the firm well and is running the firm in accordance with their professional obligations,” Bain said.

A supervision order, or an order requiring the practitioner to take advice on the management of her practice, might address the risk, Clarkson said.

But whether the tribunal could impose conditions on such an order was another matter. Clarkson said she could not recall conditions ever being attached requiring a supervisor to have “access to speaking with staff and, if necessary, clients to corroborate or cross-check matters of concern”.

Bain pointed to the power under s 156 of the Lawyers and Conveyancers Act 2006 to order that a lawyer’s practice be made available for inspection.  The ability to speak with staff “would seem like a necessity if you’re inspecting”, Clarkson said.

But Feint was having none of it. There is no evidence of current risk, she told the tribunal. If there were problems, they would be showing up as client complaints, staff complaints or issues raised by the courts, and none of that was happening.

Protection pointed the other way, she said. A lengthy suspension or the loss of own-account status risked the closure of the firm and its clients were entitled to be properly represented.

“It is likely that [her law firm] may collapse if she is taken out of commission for a long period of time because the team leaders just aren’t ready yet to take over completely by themselves.”

‘Things have improved’

The practitioner, who has interim name suppression as is known only as Ms A, told the tribunal the firm has changed for the better. It now has eight lawyers and one law clerk, three of them senior lawyers who supervise junior staff and run their own files. Each staff member has a daily one-to-one session with their supervisor in place of a group meeting, and the practitioner meets the team leaders daily.

The firm has an onboarding checklist, a chronological list of every court and tribunal deadline and a capacity assessment for new instructions. There are 16 policies and checklists in total.

“You can have all the policy documents in the world, but if you don’t have good practices, then nothing is going to change,” the practitioner said.

The biggest improvement was that she was no longer working alone.

“The isolation at the time where it was just me meant that I just didn’t have anybody to bounce ideas off or to talk to about things.”  She now has a senior team of five and is “called to account by them sometimes”.

On the supervision finding itself, she refused to budge.

“The clear evidence was that no work left the firm without my approval and review,” she said. But she accepted that she took on too much work and should have seen her staff were unhappy with the hours they were working and done something about it.

Under cross-examination, the practitioner accepted that two of the systems she relies on – the client allocation list and the firm task list – are not new, and that she no longer reviews everything before it goes out.

However, the firm had grown faster than her ability to supervise it, Bain argued. Open files are up from about 100 to 300, and the number of staff she is personally obliged to supervise under r 11 of the Client Care Rules has risen along with them.

Pushing back, the lawyer said her review time had dropped by about three-quarters because of the quality of the work she was getting.

Taken at face value, that did not help her, Bain said. The file load had tripled while the time saved was per file. Two of the three team leaders “grew up in the firm, so they’ve learned from her”, and the firm had team leaders before.

“It just cannot be the case that [the lawyer] has less to do now that she has three times as many case files and two to three times as many juniors. That’s just not how supervision obligations work.”

Feint objected to the whole discussion. This was a hearing to determine sanctions for historical charges, she said, not an inquiry into contemporary concerns, and it was “fundamentally a breach of natural justice to make wide-ranging and very vague allegations without filing charges in relation to it”.

Clarkson rejected this, saying Bain was drawing attention to the assessment of fitness the tribunal had to make, particularly when it was considering an order that required it to find the practitioner not currently fit to practise.

The evidence relied on was thin and stretched, Feint said, and the standards committee was dismissing the positive evidence of the practitioner’s current employees, three of whom filed affidavits about being well supervised and whom Bain chose not to cross-examine.

The 300-file figure misunderstood the jurisdiction, she said, because a single inquiry can generate multiple client files. If there were problems, they would be surfacing as complaints or as concerns raised by the courts, and there were no recent incidents of missed deadlines or failures in relation to the court.

Clarkson said the failures in the current case ought not to be discounted. Feint accepted the point but said since she had been involved everything had been filed on time.

Name suppression declined, practitioner to appeal

The tribunal declined the practitioner’s application for continued non-publication of her name. It did not consider the application reached the threshold or got past the public-private balance, Clarkson said, with full reasons to follow in the penalty decision, which is expected next week.

However, Ms A cannot yet be named because Feint indicted that her client planned to appeal the tribunal’s decision to the High Court. Clarkson extended the existing suppression order for five days.

The tribunal found the lawyer guilty of misconduct on three charges and she pleaded guilty to a fourth charge of unsatisfactory conduct in a decision issued on 14 August.

She worked as a senior legal counsel at a firm where another lawyer held the sole director’s title. The tribunal found she had given the New Zealand Law Society an implied undertaking to practise only as an employee and had breached it, running the firm herself with minimal oversight from the directors.

By “effectively thumbing her nose” at the restrictions her regulator had imposed, her conduct was disgraceful and dishonourable, the tribunal found. It considered she had regarded the need for a director as “little more than ‘window dressing’.”

Almost all the firm’s employees were recent graduates and turnover was “extraordinarily high”. Juniors were rostered on weekend days and evenings, and five resigned en masse on the same day in March 2020 after one pointed out the hours would leave them paid less than the minimum wage and received an unpleasant email from the practitioner in return.

“There is no doubt that [the lawyer] is a committed and hardworking practitioner,” the tribunal found. “However, her treatment of her junior staff at that time was at times appalling.”

The firm’s sole director at the time, referred to as Mr B, was found guilty of unsatisfactory conduct for failing to supervise the practitioner.