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.