Neil Sands
A lawyer who found himself out of his depth and unintentionally misled the High Court has been censured for misconduct, although he avoided a punitive fine after a disciplinary tribunal took account of the insight and genuine contrition shown towards his offending.
The Lawyers & Conveyancers Disciplinary Tribunal said Mr D, whose name is suppressed, had fully cooperated with the disciplinary process after he self-reported his conduct, resigned from his job and stopped practising as a lawyer.
“To say that he appears to suffer from considerable shame or whakamā is an understatement. Mr D appeared in person at the hearing and spoke directly with members of the tribunal. His remorse and regret over his actions were palpable,” the tribunal said in a decision published this week.
The tribunal described Mr D’s case as “a cautionary tale about the need to pay attention to one’s mental health and engage in productive, rather than avoidant, coping mechanisms”.
In mid-2024, Mr D had recently started work at a law firm and was instructed in a civil litigation matter that involved a discovery process in the High Court which he was unfamiliar with.
As a relatively senior lawyer, fairly recently engaged by the firm, he felt unable to seek assistance. He failed to report to his client and acted without instructions, agreeing to an “unless order” which subsequently led to the proceedings being struck out.
Along the way, he unintentionally misled the court.
Out of character
The tribunal said that at this point, Mr D informed his employers, reported himself to the Law Society and resigned from his employment.
Since then, he had taken time to recover his health and “seek professional assistance to work on the issues which he saw as having led to these events”.
His former law firm rectified matters related to the High Court case, at no cost to the client. A review of the other 40 files he was working on revealed no concerns, leading the tribunal to describe his conduct as “one-off and out of character”.
The tribunal said that Mr D’s insight into his offending allowed it to take a rehabilitative approach and provided reassurance that his conduct would not be repeated if he eventually returned to practice.
It found there was no need to fine Mr D, noting that a two-year absence from the workforce had already resulted in a significant impact on him and his young family.
“By immediately resigning his job he has of course lost income and opportunities for promotion,” it added.
While avoiding punitive measures, the tribunal did order Mr D to pay more than $12,000 in costs, comprising $5,781.00 incurred by the New Zealand Law Society and $6,438.02 by the relevant standards committee (all identifying features relating to Mr D are suppressed, so the standards committee was not named).
It declined to issue an order preventing Mr D from practising on his own account, saying his professional history meant he would need to apply to do so anyway.
The tribunal issued a formal censure, saying: “Mr D, in dealing with a matter you were not experienced in, you failed to advise and report to your client, take informed instructions, and properly carry out the required work.
“You put your client’s interests at risk in doing so and unintentionally misled the court. Your unwillingness to seek support or supervision only exacerbated the problem, as you have fully acknowledged.”
However, it added: “We also express our encouragement to Mr D, when the time is right for him, to move forward from this matter and return to the areas of law that he has previously thrived in.”
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