Mahvash Ikram
A high-profile lawyer is facing a charge of misconduct for allegedly practising on her own account for five years without the correct practising certificate.
She faces further misconduct charges for failing to adequately supervise and support her junior staff – to the extent that several quit their jobs en masse after one received an unpleasant email from her – and for breaching client-care rules.
In the alternative, the National Legal Standards Committee has proposed charges of unsatisfactory conduct on all three counts, or negligence in the client-care matter.
The practitioner, who has name suppression, is appearing before the Lawyers and Conveyancers Disciplinary Tribunal in Wellington in eight-day hearing that began this week.
Between 2017 to 2022, the lawyer, while employed as senior legal counsel at a law firm, worked without supervision and acted “de facto on [her] own account,” despite not having a certificate to practise independently, the standards committee says.
She is also accused of sending letters of engagement to clients under her name. This gave staff and clients the impression she owned the firm and was the only person supervising work completed by junior lawyers, the tribunal heard. Her own work was not reviewed or supervised.
Heavy workload and inadequate support
Having assumed de facto control of the provision of legal services, the standards committee says the lawyer was duty-bound to supervise and support junior staff.
But she failed to do so, and several employees found working for her to be so challenging that a group of them resigned on the same day.
The “bulk resignations” came as a surprise to the lawyer, although she had noticed the quality of their work had deteriorated in the week prior to the walk-out, she told the committee’s counsel, Timothy Bain.
Prior to resigning, one employee had emailed her, flagging concerns about the weekend roster. The lawyer is said to have told her employee she was disappointed with the message and that the employee was “free to find employment elsewhere”.
Staff were made aware of the workload during the hiring process, the lawyer said, and she was disappointed that the employee had implied in the email that weekend and afterhours work meant staff were being paid below the minimum wage.
Nonetheless, the lawyer said she did not expect several employees to then walk out on the same day.
“I didn’t mean ‘walk out the door and throw your computers in the hallway’. I meant, ‘of course, if you do want to resign, you can give your notice’,” she said.
“The normal thing for people to do would be [to] give the two weeks’ notice or whatever the notice period is, and then there would be discussions and then there would be a handover period… That’s our normal departure process.”
But in a subsequent email to another employee, the lawyer said she was “very happy” and it was a “relief” that some staff had resigned, the tribunal heard.
She also wrote, “I was already aware of what was happening.”
The lawyer is also said to have asked staff to carry out tasks above their skill level without supervision and did not provide sufficient training.
Other complaints against her included providing vague instructions, communicating mostly via Skype or audio messages (occasionally providing handwritten notes) and ignoring questions or delaying her response.
Employees allegedly felt they could not talk to her unless called to her office as she was too busy to deal with them.
The tribunal heard that the lawyer spent most of her time overseas between 2017 and 2020, being present at the office, on average, only a few days each month.
“I undertook some calculations and counted out the actual days, and they were slightly more in favour of being in New Zealand,” she told the tribunal. The lawyer said she was stuck overseas in 2020 because there were no flights available due to covid.
While she was away, the tribunal heard she did not offer alternative methods of support, mentoring and supervision to her juniors.
Certificate to practise on own account
The lawyer was issued a certificate to practise on her own account in 2005 but her firm was shuttered in 2014.
After that, the New Zealand Law Society declined to renew this certificate, but granted her permission to practise as an employed lawyer. She joined another law firm as an employee in 2014, the tribunal heard.
Despite an initial appeal against the Law Society’s decision, and several subsequent applications, her certificate to practise on her own account was not renewed until 2022.
The reasons for the firm’s closure in 2014 were unrelated to the lawyer’s professional conduct, her counsel Karen Feint KC told the tribunal.
“[The lawyer] appealed against the decision to issue her a practising certificate purportedly on her own account… The Law Society has clearly acknowledged the integrity and good character of [the lawyer],” Feint said.
‘Unusual’ charges
On the claims of misconduct, Feint said the first two charges were unusual in that they did not arise from client matters.
“….with the exception of the third charge, there are no client complaints or evidence that the legal services provided by [the law firm and the lawyer] to their clients were inadequate or unsatisfactory.”
The practitioner strongly believed she had not done anything wrong and that the charges would potentially put a lifetime of work under threat, Feint said.
Client dealings
In 2019, it’s alleged the lawyer was contacted by a client in relation to a family court matter involving child custody. She later sent the client a letter of engagement, stating that the practitioner and an assisting lawyer would provide services to the client either pro bono or via legal aid.
These would include legal advice, providing evidence as appropriate and taking the claim to the relevant court or tribunal as required.
But the standards committee alleged there were a number of issues with the way the lawyer engaged with the client: the letter of engagement did not reflect the actual instructions from the client, the lawyer never met the client personally or remotely and despite multiple attempts to contact her, the lawyer refused to speak to the client directly (apart from on two or three occasions).
Communication were delegated to junior lawyers and law clerks but when junior staff left the law firm, the client was not informed.
In 2020, the lawyer ended the retainer, citing a lack of capacity.
The charges
The standards committee said that by practising independently, the lawyer was guilty of misconduct under s 241 (a) of the Lawyers and Conveyancers Act 2006, meaning that under s 7 (1)(a)(i) the conduct would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable.
Under s 7 (1)(a)(ii), the committee alleged the conduct was a wilful or reckless contravention of any provision of the Act or of any regulations or practice rules made under the Act.
In the alternative, the committee has proposed a charge of unsatisfactory conduct under s 241 (b), meaning that under s 12 (b), (c) and (d), the lawyer’s conduct would be regarded by lawyers of good standing as being unacceptable.
The lawyer breached the Act, the committee said, and her conduct showed a failure to comply with the conditions of her practising certificate.
In addition, her failure to supervise the firm’s junior lawyers constituted a wilful or reckless violation of Rule 10 of the Conduct and Care Rules of the Act. This meant she had failed to maintain and/or promote professional standards and this brought the profession into disrepute.
In failing to provide professional services to a client, the lawyer breached Rule 3, 3.1 and 3.2 relating to competence and client services, and Rules 4.2 and 4.2.4 which relate to retainers and the availability of lawyers to the public, Rule 7.1 which relates to keeping the client informed about progress on a retainer and Rule 10, requiring the practitioner to maintain professional standards.
The standards committee also proposed a charge of negligence or incompetence under s 241(c).
The hearing continues.
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