LawTalk 884 · 24 March 2016
position, the Judge said, “is also compromised to a degree by the various interests he is serving” and that “there are obvious conflicts of interest which, when combined with the lack of file notes, suggest his evidence should be the subject of careful scrutiny”. G denied any mismanagement of the potential conflicts of interest. He said the caveat was registered five years after the purchase of the property and that he had not acted for Mr E and Ms F since they purchased the property.
Determinations The committee determined that: ▪▪ it was satisfied G held confidential information regarding Mr E and the circumstances in which he received the $50,000 from Mr H; ▪▪ it was satisfied that this information would be likely to affect Mr E and Ms F’s interests in relation to the caveat that G lodged on Mr H’s behalf; ▪▪ there was a more than negligible risk that the information could be disclosed in relation to the caveat and that this would undermine the fiduciary obligations that G owed Mr E and Ms F; and ▪▪ there was a significant risk that G may be required to give evidence about the circumstances in which the $50,000 payment was made, in relation to the caveat and any proceedings that may have arisen in relation to it. The committee said it was not satisfied that the lapse in time was sufficient to resolve the existence of the conflict and the issues raised as bullet pointed above. It therefore found that G’s conduct had been unsatisfactory.
Astounded In his judgment, the District Court Judge said: “What is his explanation for the absence of any file notes? [G] says ‘he does not believe in them’ and that ‘they can be easily concocted after the event’. I am astounded by his evidence on this point and his self-justification for his practice.” G told the committee he did not recall stating that he did not believe in file notes. He said that he did not need file notes to recall matters and that there were other, more cogent forms of evidence.
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The committee said it could find no record in G’s files relating to the property transaction or any record of whether the $50,000 was a gift or a loan. “The standards committee was concerned that [G] continued to express a belief that file notes were unnecessary. “It found that, had [G] kept notes in this matter, then Court proceedings may have been unlikely to have occurred. It was also satisfied that contemporaneous records would have greatly assisted the Court in the proceedings.” G’s standard of record keeping was “inadequate and he had not maintained proper professional standards in this regard,” the committee said in making a finding of unsatisfactory conduct. As well as the censure and fine, G was ordered to take professional advice and make his practice available for inspection by the advisor. He was also ordered to pay $1,000 costs. The LCRO on review found that G had not breached rules 8.7.1 and 13.5.1 of the RCCC, but upheld the determination of unsatisfactory conduct under s 12(a) of the Lawyers and Conveyancers Act 2006. ▪
Failure to disclose liquidations Wellington lawyer Quentin Duff has been censured for failing to disclose to the Law Society circumstances that might make him not a fit and proper person to hold a practising certificate. The New Zealand Lawyers and Conveyancers Disciplinary Tribunal, in [2015] NZLCDT 45, also ordered Mr Duff to pay the Law Society standards committee costs of $5,000 and Tribunal costs of $2,011. “Mr Duff, the signing of a declaration in which you state that the matters contained in the application are true and correct when they are not, is viewed seriously when the person who made the declaration is an officer of the court as you are,” the Tribunal’s censure states. “While it is accepted that you did not intend to act dishonestly, you were nevertheless reckless in signing the declaration. You are deserving of censure.”
Charge admitted Mr Duff admitted a charge of unsatisfactory
conduct by failing to disclose to the Law Society circumstances that might make him not a fit and proper person to hold a practising certificate. He had completed an application for a practising certificate on or about 7 August 2014. He declared in that application that he had not been a director of a company that had been put into liquidation in New Zealand.
Incorrect declaration That declaration was incorrect as Mr Duff had been a director of three companies all of which had been put into liquidation. A lawyers standards committee referred Mr Duff ’s conduct in relation to making an incorrect declaration to the Tribunal. Counsel for the standards committee submitted that: ▪▪ it was important that an application for a practising certificate be filled out accurately so that the Law Society can properly consider whether the applicant is a fit and proper person to hold a practising certificate; ▪▪ the importance of that is highlighted by the fact that applicants are required to sign a declaration at the end of the application that the contents of the application are true and correct; ▪▪ Mr Duff candidly acknowledged the importance of such a requirement; and ▪▪ Mr Duff had been the subject of a disciplinary sanction in 2005 by the Wellington District Law Society Practitioners’ Disciplinary Tribunal for failing to produce files relating to a cost revision. He was censured, fined $750 and required to pay costs. Counsel for Mr Duff said that he had filled out the application for a practising certificate in haste and had immediately acknowledged his conduct, saying that he could not defend the indefensible. “The signing of a declaration that said the contents of the application referred to were true and correct when some of its contents were in fact not correct is a serious matter,” the Tribunal said. The Tribunal noted that the applicant standards committee had made a finding of unsatisfactory conduct on another matter and had fined Mr Duff $3,000 plus costs and expenses of $1,000. “We have considered that penalty should be taken into account and have decided that we should not impose a fine,” the Tribunal said. ▪