LawTalk 867 · 19 June 2015
Lawyers Complaints Service The Tribunal also ordered Mr Currie to pay $9,141.29 standards committee costs and $2,534 Tribunal costs.
Censured for misleading billing practices Order not to employ Paul Brian Currie has been censured by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal for charging office expenses as a set percentage of the fee value and adding an uplift to Land Information New Zealand (LINZ) disbursements without disclosing this to clients. In [2015] NZLCDT 15, the Tribunal also ordered Mr Currie to refund, with an explanatory apology, the specific portions of fees charged as an uplift on LINZ disbursements to each of the clients identified in a schedule attached to a Law Society inspector’s report. Mr Currie did not set out in his invoices as a separate item the “agency” portion of the charge, the Tribunal noted in its decision. “The respondent admitted that he had continued a practice that had been in place when he was an employee of two major Christchurch law firms prior to commencing practise on his own account as a sole practitioner,” the Tribunal said. “The method had been disapproved of by the New Zealand Law Society for some years. Material had been published to educate practitioners about it.” Mr Currie had failed to heed the advice from the Property Law Section and continued to use the outdated system. Mr Currie “immediately ceased the practice once he had been confronted about it. He has readily admitted the charge of unsatisfactory conduct.” The Tribunal noted that the enquiry involved transactions over a period of 12 months where the total expenses charged were $31,661.63 being 9% of total fees of $349,017.50. Those sums, the Tribunal said, justified the lawyers standards committee referring the charges to it. As well as the censure and refund orders, the Tribunal ordered Mr Currie to undergo practical training or education at his own cost, in the form of a personal training session with a Law Society inspector. This training is to address engagement, reporting to and charging fees and disbursements to clients.
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Linda Nalder is not to be employed by a practitioner or incorporated law firm in connection with their practice for 18 months from the time she resigned as a law firm employee, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal has ordered. Ms Nalder resigned from her role as an employed legal executive on 13 November 2013 and so the order not to employ is no longer in force. In [2015] NZLCDT 5, Ms Nalder was charged with misconduct or, in the alternative, unsatisfactory conduct. The Tribunal found her guilty of unsatisfactory conduct. She had accessed and discussed with another person (a family member of the client testator) the contents of a draft will that an employee of her firm had received instructions to prepare for a Mr C. She thereby breached a duty of confidentialty owed to Mr C by the firm that employed her. Ms Nalder completely accepted, from the outset, her fault in disclosing the document, the Tribunal noted. “She immediately resigned her job and apologised to the testator client. In addition her firm provided a full apology and Ms Nalder has provided evidence to the Tribunal, which is unchallenged, that this apology was accepted by the client as an entirely satisfactory outcome of this matter. “She apologised fulsomely to not only the client but her employer and the New Zealand Law Society. She accepts that she knew that the duty of care owed to clients was important and that there was no excuse for her action. “However she sets out the context of her guilt and distress at seeing the will’s provisions. This is offered as an explanation rather than excuse for her lapse in judg[e]ment. “In our Oral decision of 12 February we made it very plain to Ms Nalder that the
Tribunal considers confidentiality to be a core value in legal practice.” However, in the circumstances the Tribunal considered that a one-off lapse of this sort would not have led (were Ms Nalder a lawyer) to strike-off on a first disciplinary offence. The relevant circumstances included that no actual harm was done to any person; that at the time Ms Nalder was both relatively inexperienced and an unregistered legal executive; that Ms Nalder came across the will by accident and not as a deliberate strategy; and that this was an isolated incident for which Ms Nalder immediately acknowledged her wrongdoing and took responsibility for it. It therefore found that the lawyers standards committee had not proved on the balance of probabilities the charge of misconduct. Instead, it made the alternative finding of unsatisfactory conduct. No costs orders were made against Ms Nalder, and the Law Society was ordered to pay $4,898 Tribunal costs.
Censure follows assault conviction Former lawyer Dugal Matheson, of Thames, has been censured by the Lawyers and Conveyancers Disciplinary Tribunal after he was convicted on a charge of male assaults female. A majority of three Tribunal members considered a very short period of suspension would have been proper to mark the seriousness of the matter. However a minority of the Tribunal disagreed, and suspension requires at least five Tribunal members in agreement. Judge Andrée-Wiltens found Mr Matheson guilty on one charge of male assaults female in the Hamilton District Court on 9 May 2013. He was convicted and sentenced on 26 July 2013. The assault occurred in December 2011 when Mr Matheson had a practising certificate. On 3 June 2014, the High Court dismissed Mr Matheson’s appeal against conviction. In [2015] NZLCDT 4, Mr Matheson admitted a charge of having been convicted of an offence punishable by imprisonment that brought the profession into disrepute.