find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
View details
Disciplinary Tribunal erred in not guilty finding

Disciplinary Tribunal erred in not guilty finding

A BARRISTER who intentionally signed solicitor’s certificates on two separate occasions has been found guilty of professional misconduct by a Full Court of the High Court, with the Court…

A BARRISTER who intentionally signed solicitor’s certificates on two separate occasions has been found guilty of professional misconduct by a Full Court of the High Court, with the Court overturning a decision by the New Zealand Law Practitioners Disciplinary Tribunal (Tribunal).

In Complaints Committee No 1 of The Auckland District Law Society v APC (29 April 2008, High Court, Auckland CIV 2007-404-4646), Justices Randerson, Williams, and Winkelmann, in a decision given by Justice Winkelmann, found that “C” had “purported to act as a solicitor when he was not the holder of a solicitor’s practising certificate”. Satisfied that C did not believe that, as a barrister, he was entitled to issue solicitor’s certificates, the Court held that his conduct “fell well below the required standards of professional conduct for a legal practitioner and amounted to misconduct in his professional capacity” (at [49]).

C had been brought before the Tribunal on five charges of professional misconduct arising out of the signing of two solicitor’s certificates. However, the Tribunal took the view that the charges needed to be looked at together, and the substance of them was that C had conducted himself as a solicitor when he was not.

In assessing the evidence before them and C’s demeanour and his evidence given during the hearing, the Tribunal found that while he had breached section 56(2) of the Law Practitioners Act 1982 (Act), and while his conduct was unacceptable, he had not engaged in intentional wrongdoing so as to amount to professional misconduct.

The Complaints Committee No 1 of The Auckland District Law Society disputed this, and appealed on the grounds that the Tribunal had applied the wrong threshold test to determine whether there was misconduct in a professional capacity, and that the Tribunal was plainly wrong in finding the conduct did not amount to professional misconduct.

The threshold test adopted by the Tribunal was that stated in Auckland District Law Society v Atkinson, a decision of the Tribunal dated 15 August 1990: “a test of gravity of conduct”, which stated that “the default must be of sufficient gravity to be termed ‘reprehensible’ (or ‘inexcusable’, ‘disgraceful’ or ‘deplorable’ or ‘dishonourable’) or if the default can be said to arise from negligence such negligence must be either reprehensible or be of such a degree or so frequent as to reflect on his fitness to practise.”

Finding that C had been drawn into the conveyancing transaction more through irresolution rather than guile, the Tribunal said that while C’s conduct was inexcusable and unacceptable, it was not persuaded that the gravity of his conduct justified a finding of professional misconduct. Although it felt his inquiries were shallow and insufficient, the Tribunal did not consider it was able to find to the standard required that C had engaged in intentional wrongdoing.

The Court disagreed, stating at [33] that the Atkinson test incorrectly included within the definition of professional misconduct conduct falling within section 112(1)(c) and, in other respects, was not particularly helpful. Furthermore, said the Court, the Tribunal erred in directing itself that intentional wrongdoing is an essential element of a charge under section 112(1)(a): “While intentional wrongdoing by a practitioner may well be sufficient to constitute professional misconduct, it is not a necessary ingredient of such conduct.”

The matter has been referred back to the Tribunal for the penalty phase and for costs.

This story first appeared in New Zealand Lawyer.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Disciplinary Tribunal erred in not guilty finding
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...