Morahan v Auckland Standards Committee 4 [2015] NZHC 2886 (19 November 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of New Zealand Decisions

UNDER	The Lawyers and Conveyancers Act 2006
IN THE MATTER OF	An appeal against a decision of the Disciplinary Tribunal
BETWEEN	ANTHONY BERNARD JOSEPH MORAHAN Appellant
AND	AUCKLAND STANDARDS COMMITTEE 4 _Respondent

Hearing:	13 November 2015
Appearances:	T J Darby for Appellant S E Cameron for Respondent
_Judgment:	_{19 November 2015}

[1] The appellant, Mr Morahan, appeals two decisions given by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal, the first dated 21 August 2015 and the second dated 21 October 2015.

[2] In its first decision the Tribunal found Mr Morahan guilty of three charges of misconduct, in:

(a) wilfully or recklessly acting for a client without an instructing solicitor in breach of r 14.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008;

(b) misleading the Court, opposing counsel and/or the respondent Standards Committee, by asserting in written correspondence and Court documents that a Mr T was his instructing solicitor, when Mr Morahan was aware that Mr T was not in fact his instructing solicitor, or was reckless as to whether or not Mr T was his instructing solicitor; and

[3] In its second decision, the Tribunal suspended Mr Morahan from practice as a barrister or as a solicitor or as both, for a period of three months, and ordered that he pay a proportion of the New Zealand Law Society’s costs, and its own costs.

[4] The appeal against the Tribunal’s decision of 21 August 2015 was filed out of time. Pursuant to s 253(3)(b) of the Lawyers and Conveyancers Act 2006 and r 20.4(2), any appeal against such a decision has to be brought within a period of twenty working days after the decision appealed against is given. The notice of appeal was not filed until 29 October 2015. Mr Darby, appearing on behalf of Mr Morahan, made oral application for leave to bring the appeal out of time. This application was not opposed by Ms Cameron acting on behalf of the respondent. Leave is granted accordingly.

[7] In or about April 2011, Mr Morahan was approached by a Mr A. Mr A asked Mr Morahan to act for him in relation to litigation that he and his wife were involved in following the breakdown of their marriage.

[8] Mr T is a solicitor based in Auckland. He and Mr Morahan were acquaintances. They met informally and on a social basis from time to time. On occasion, Mr Morahan had referred conveyancing and other transactional work to Mr T and Mr T had instructed Mr Morahan to act as a barrister for his clients.

[9] On 20 April 2011 at 10am, Mr Morahan sent an email to Mr T. The email read as follows:

It involves matrimonial property, domestic violence and a male assaults female charge. [Mr A] asked me if I could take over his file. I explained that you would be my instructing solicitor and would handle any conveyancing. There are two residential properties.

The file may come to me direct, in which case I will let you know. If it arrives at your office, can you let me know?

[10] Mr T replied to Mr Morahan approximately an hour later. His reply email simply stated as follows:

[11] Mr T did not receive Mr A’s file from the other solicitor. Rather the file was sent direct to Mr Morahan. Mr Morahan did not advise Mr T that he had received the file. Mr Morahan treated the above email correspondence as constituting an instruction from Mr T and he proceeded to act for Mr A.

[12] Mr Morahan gave evidence that he did call into Mr T’s offices from time to time, and that he verbally updated him in relation to Mr A’s file. Mr T accepted that

Mr Morahan visited him on occasion but denied that Mr Morahan updated him specifically about Mr A, at least by name. He was adamant that he had not instructed Mr Morahan to act for Mr A.

[13] In the event, Mr A and his wife reached agreement in relation to various of the disputes between them. In September 2011 a consent memorandum was filed at the Family Court in Waitakere. It was signed by Mr A and his wife, and by their respective barristers. It was purportedly filed by Mr T. Mr T says that he knew nothing about it.

This notice is filed by [Mr T], solicitor for the respondent. Barrister acting is

Mr Morahan’s post box and email address was given as the address for service. Again Mr T says that he knew nothing about this document.

The email went on to record the partial agreement between Mr A and his wife, and to record that Mr A was then living overseas and had not been properly served in relation to other matters still in dispute. It then concluded as follows:

It looks as though a property application will need to be brought in the High Court, because the most valuable property is held by a trust, and further negotiation seems fruitless. Are you happy to continue as instructing solicitor for High Court proceedings?

Did I see any papers or do anything. It may be that its me – I have just come back from a holiday and maybe my mind is not fully engaged yet.

If it is going to the High Court and there needs to be an instructing solicitor that will be fine providing he signs a letter of engagement, a retainer is given for you and me and kept topped up and I am kept in the loop with documents and involvement. Our duty is firstly to the Court and we must observe this

carefully and be on top of it. Sorry to sound pedantic but as lawyers we have to be thorough and careful – too many complaints and problems now for lawyers under the new regime.

It is me who should be apologising to you, for not keeping you in the loop. I kept hoping for a property settlement which I would then flick over to you to complete the conveyancing. ...

I agree that a retainer before filing in the High Court is necessary. Do you have a figure in mind?

The essence of the claim in the High Court is that personal and trust funds have been so intermingled as to make the trust a sham. ...

In the meantime, I am trying to extinguish the silly applications to the Family Court to renew that D Orders, protection, occupation and possession of furniture.

Communication with [Mr A overseas] is poor, apart from email. I have been trying to get original signed instructions through the ordinary mail. They seem to keep going astray. Do you wish to send [Mr A], via me, a letter of engagement?

[19] In December 2012 a memorandum of issues in relation to the protest to jurisdiction was filed on Mr A’s behalf in the Family Court. It was signed by Mr Morahan and it recorded that it was filed by Mr T. Again Mr T says that he was unaware of it.

[20] A notice of defence and an interlocutory application for a stay and strike out were filed in the Family Court in early March 2013. Each recorded that the solicitor was Mr T, and that he had filed the document. Both were signed by Mr Morahan and again Mr T was not aware of either. Later in March 2013 a memorandum was filed by Mr Morahan on behalf of Mr A. Again, it purported to be filed by Mr T; he says he was unaware of it. It was signed by Mr Morahan.

barrister retained by Mr A’s wife. Mr T was asked whether he could accept service

of various Court documents on Mr A’s behalf. He declined to do so, saying that he

[23] On 19 February 2014 Mr Morahan rang Mr T. During the course of the conversation, Mr T says that Mr Morahan admitted to him that he had kept him “in the dark”. Mr T kept a file note of this conversation. Later in the day Mr Morahan sent a copy of the complaint and an email to Mr T. The email read as follows:

This is my man who has been [overseas], and about whom I have had a couple of discussions with you, and exchanged a couple of emails.

I have been waiting for details to get a letter of engagement out for signing and funds in on account of the file.

I need his details, contact and identification along with funds. Remember I said to you I need to do this but nothing has happened so I thought it was oof (sic) the boil and been waiting.

I normally open a file when taking a brief and need to see the papers and have a copy on file.

He needs to urgently provide me with confirmation of the instructions and funds.

What is this one about? Is it a separation that has gone wrong. I have no information and I am in the dark.

Can you have your client contact me so I can write to him and get the above before I confirm the acceptance. He needs to be good for the costs and everything else before I confirm him as a client.

On my behalf, please instruct Mr Anthony Morahan to represent me in the property dispute with my ex wife ....

In order for me to accept an instruction, open a file and to attend upon a legal

Mr T then listed his requirements, namely a summary of the matter in dispute, photo identification, letter of engagement and a retainer. It continued:

Once I have the four matters above are attended to to my satisfaction, I will confirm acceptance of the instruction.

Until then I do not accept the instruction. I reserve my position pending the above.

[27] Mr A did not respond to Mr T. Rather he responded to Mr Morahan. He signed and sent the letter of engagement to Mr Morahan but instructed him not to release it to Mr T until he had had time to consider Mr T’s advice in relation to the basis on which he would take over the file. Eventually Mr A decided not to instruct Mr T. Rather he instructed another solicitor.

[28] In July 2014 the respondent Standards Committee resolved to commence an own motion investigation into the matters raised by Mr A’s wife. It found that Mr Morahan had not been retained by Mr T. Ten charges were laid against Mr Morahan. Three were subsequently withdrawn. On 21 August 2015 the Tribunal issued its decision on the six remaining charges. As already noted it found Mr Morahan guilty of three of them.

[29] The Tribunal briefly set out the background and detailed the charges. It recorded that it had received evidence from both Mr Morahan and Mr T, and it briefly summarised the evidence given by both of them. It expressed the view that

Mr T was a careful and prudent practitioner, who was aware of his obligations and insisted on certain minimum requirements before instructing a barrister. It noted that Mr T was not prepared to act as a mere “letterbox”, and that he took the view (in the Tribunal’s view, properly) that he was bound to receive and review correspondence and documents. It noted that Mr T wanted to be in a position where he could evaluate and have oversight over the conduct of the case by Mr Morahan.

[30] The Tribunal noted that Mr Morahan had prepared his own letter of engagement, and that the same had apparently been signed by Mr A in April 2011. It noted however that this letter of engagement was not provided to Mr T, notwithstanding that it purported to bind him as well.

[31] The Tribunal noted that it was common ground that Mr Morahan and Mr T met informally, and that there were several such meetings. It recorded that Mr Morahan and Mr T were at odds as to whether or not they discussed Mr A’s file. The Tribunal did not express a view on this dispute, because it did not consider that it was directly pertinent to the charges.

[32] The Tribunal expressed the view that there was “nothing magic” in the concept of a reverse brief, and that the expression simply denoted the manner of introduction of a client to a solicitor. It considered that this does not alter the requirement that no contract of retainer can be concluded between a solicitor and a client until they are ad idem on its elements. It took the view that Mr Morahan could not sensibly contend that a contract of retainer had been concluded. It considered that he knew or ought to have known of Mr T’s attitude and approach to the intervention rule, and his requirements for a contract of retainer. It observed that the only time that Mr A had been notified of Mr T’s requirements was by Mr T’s email dated 20 February 2014 (above para [26]), and that that was well after the events of concern. It also noted that Mr T did not receive an answer from Mr A. It observed that Mr A had signed a letter of engagement prepared by Mr Morahan, but that Mr T had not given authority to Mr Morahan to prepare that letter of engagement. It considered that Mr Morahan simply served to introduce Mr A and Mr T. It expressed the view that Mr Morahan could not bind Mr T in any unilateral way by his own letter of engagement. Nor was the fact of the letter of engagement ever communicated to Mr T. The Tribunal found that it should have been evident to Mr

Morahan that there had been no meeting of the minds about any retainer from Mr T’s

[33] The Tribunal observed that Mr Morahan was aware of his obligations under the intervention rule. It considered that there was no reasonable ground for Mr Morahan to believe that there was a retainer in place, and that the early email correspondence, referring to the possibility of a retainer, was ambiguous at best. It noted that it was Mr Morahan’s decision not to pass on his form of letter of engagement to Mr T, and that there would have been no need for him to subsequently apologise to Mr T had he truly thought that a retainer had been put in place. The Tribunal formed the impression that Mr Morahan’s attitude – namely that there was a relaxed approach to the intervention rule in the family law area – led him to turn a blind eye to the requirements he otherwise acknowledged.

[34] The Tribunal noted that there was no contest to the fact that Mr Morahan lodged documents with the Family Court asserting that Mr T was his instructing solicitor. Given the Tribunal’s view that Mr Morahan had no reasonable ground to believe that Mr A had a retainer with Mr T, and given that Mr T had given no instructions for Mr Morahan to act and had no knowledge of the documents, or copies of the same on his file, it was unacceptable for Mr Morahan to file substantive documents in Court in Mr T’s name.

[35] The Tribunal recorded the respective submissions of the parties. It noted that complaints about Mr Morahan had previously been before the Standards Committee on three separate occasions. The Tribunal did not consider it necessary to discuss the details of those complaints. Rather it considered that what was relevant was Mr Morahan’s responses to some of those complaints, and to the charges in respect of which the penalty was being imposed.

[36] The Tribunal considered the seriousness of Mr Morahan’s conduct. It found that he had turned a blind eye to the requirements of the intervention rule, and that he had consciously elected to breach it. It nevertheless concluded that Mr Morahan’s conduct was “at the lower end of seriousness”, which would not of itself invite a

penalty of suspension. It noted that his offending did not involve dishonesty or personal gain, and that it did not penalise any client or third party with the exception of Mr T. It went on to take into account other circumstances in making the decision whether or not to suspend Mr Morahan. It noted his absence of remorse, his failure to accept responsibility, and his lack of insight. It considered these matters relevant in determining the appropriate penalty. It took the view that Mr Morahan’s response to the charges in respect of which he was being sentenced continued a theme which had been evident in some of the earlier complaints. It noted that he had displayed a belligerent attitude, and that he was decidedly uncooperative with the investigation of the complaints made against him. It considered that there was no remorse evident on Mr Morahan’s behalf, and that he demonstrated a lack of insight into his conduct and a lack of understanding of his wrongdoing. It considered that it had no option but to suspend him from practice, and found that a three month period was necessary in all of the circumstances to give Mr Morahan time to reflect on his conduct, and realise that proper professional standards must be upheld.

[37] The Tribunal noted that Mr Morahan is impecunious, and therefore it did not order him to pay compensation to Mr T. It did fix the costs of the Law Society at

$27,512.79, and directed Mr Morahan to pay 20 per cent of those costs, pursuant to s

249 of the Act. It certified its own costs at $6,916 pursuant to s 257, and again ordered Mr Morahan to refund to the Law Society 20 per cent of those costs.

[38] Mr Darby submitted that both the liability and penalty decisions were erroneous in fact and law. He took me through r 14.4, and submitted that the Tribunal’s finding in relation to the last two charges in respect of which Mr Morahan was found guilty, can only be justified if the first charge was established – i.e. that r 14.4 was breached. He noted that the rule speaks about the acceptance of instructions, and that it does not say anything about the ongoing barrister/solicitor relationship once instructions have been given by a solicitor. He noted Mr Morahan’s evidence that he was instructed, albeit acknowledging that the instruction was not carefully recorded. He argued that those who wrote the rule did not see fit to say how the rule should be complied with, and that the relatively informal arrangements between Mr Morahan and Mr T sufficed.

[39] He also argued that the Tribunal focussed unduly on the retainer between Mr T and Mr A, and that in effect the Tribunal concluded that, because no retainer was put in place, the intervention rule had been breached. He submitted that the Tribunal erred in confusing the contract of retainer between Mr T and Mr A, and the acceptance of instructions by Mr Morahan from Mr T. He argued that the Tribunal failed to address the situation of a reverse brief. He put it to me that the emails referred to in paragraphs [9] and [10] above constituted the instruction, or at least that they were reasonably understood by Mr Morahan to be an instruction from Mr T.

[40] In relation to penalty, he submitted that the Tribunal had failed to address Mr Morahan’s personal circumstances. He noted that Mr Morahan is in his sixties, and he outlined the likely consequences for Mr Morahan in the event that he is suspended. He suggested that an appropriate sentence would have been one of censure, reprimand, or a statutory apology.

[41] Ms Cameron referred to the relevant evidence. She noted that Mr Morahan had accepted at the Tribunal hearing that he did not send a copy of his barrister’s terms of engagement to Mr T, and that Mr Morahan’s sole reason for believing that Mr T had instructed him was the email from Mr T saying “noted” in response to Mr Morahan’s email saying that Mr T might (possibly) get a file from another solicitor. She submitted that that email could not reasonably have satisfied Mr Morahan that Mr T was instructing him. She noted that in subsequent discussions, Mr T made clear his requirements if he was to instruct Mr Morahan. She noted that Mr T’s evidence was consistent with the contemporaneous email correspondence. She referred to Mr Morahan’s apologies proffered to Mr T for failing to keep him in the loop. She submitted that the respondent Committee did not need to present evidence as to how the intervention rule might be complied with, and that the evidence given to the Tribunal by Mr T was that he was not Mr Morahan’s instructing solicitor. She submitted that there was a clear breach of the intervention rule, and that no issue arose as to how the intervention rule could be complied with.

[42] In relation to penalty, she referred to the decision of this Court in Daniels v

_{Complaints Committee 2 of the Wellington District Law
Society.}¹_{She noted that Mr}

Morahan had demonstrated a belligerent attitude to both the respondent Standards Committee, and to the Disciplinary Tribunal. She referred to various examples apparent from the documents which were before the Court. She argued the Tribunal’s hands were effectively tied by the submissions made on Mr Morahan’s behalf that he had no funds from which to pay costs or a fine, that the penalty imposed was fair, and that it appropriately reflected the seriousness of the charges, particularly given the obstructive way in which Mr Morahan responded to the investigation, and had responded to prior investigations into his conduct.

(b) must be made within such time and in such form as may be prescribed by rules of court; and

(4) On hearing an appeal under subsection (1), the High Court may confirm, reverse, or modify the order or decision appealed against.

[44] Where an appeal relates to professional misconduct issues, and the findings of the Tribunal on liability, the approach on appeal is by way of rehearing, and the Court is required to come to its own view on the merits. The weight the Court gives to the decision of the Tribunal is a matter of judgment.²

[45] Where an appeal relates to a penalty imposed by the Tribunal, there are diverging views as to whether the penalty decision is one made in the exercise of a discretion or is a value judgment. In Auckland Standards Committee 1 v Fendall,³I

_{canvassed the various authorities, and preferred the view adopted by a
full bench in}

²_{Austin, Nichols & Co Inc v Stichting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141 at [5].}

³Auckland Standards Committee 1 v Fendall [2012] NZHC 1825, (2012) 21 PRNZ 279 at [32].

this Court in Bhanabhai v Auckland District Law Society,⁴namely that a penalty decision involves the exercise of a discretion, and that an appeal can only succeed if the Tribunal erred in law or principle, or if it took into account an irrelevant consideration, or failed to take into account a relevant consideration, or if its decision was plainly wrong. More recently, in Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society,⁵a full bench, also in this Court, preferred the view that both misconduct findings and the resulting penalty decision require an assessment of fact and degree and entail a value judgment - i.e.

that both are general appeals. Similarly, in Hart v Auckland Standards Committee 1 of New Zealand Law Society,⁶a full bench of this Court again accepted that the approach on appeal is that set out in Austin, Nichols, whether or not the appeal challenges the liability decision, or the penalty decision.

[46] I do not consider it necessary to attempt to resolve this divergence in the present case. My view would be the same whether or not the approach to the appeal is by way of a general appeal, or the penalty decision is treated as being a discretionary decision.

[47] Mr Darby invited me to prefer Mr Morahan’s evidence over that of Mr T, where there was a direct conflict in the evidence. Ms Cameron noted that, at the Tribunal hearing, both witnesses give evidence, and that it had found against Mr Morahan on issues of credibility.

[48] I am not persuaded that the Tribunal, in its liability decision, made any direct findings on credibility. I accept that in its penalty decision, it did record that it had found against Mr Morahan when he asserted that there was an informal practice in the Family Court which either ignored or glossed over the intervention rule.

_{[49] I have read the affidavits filed with the Tribunal and
considered the transcript.}

⁴_{Bhanabhai v Auckland District Law Society [2009] NZHC 415; [2009]
NZAR 282 (HC).}

⁵Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law

⁶Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013]

3 NZLR 103 at [12], and see also Cooper v Waikato Bay of Plenty Standards Committee 2 of

Subject to rr 14.6, 14.7 and 14.8, a barrister sole must not accept instructions to act for another person other than from a person who holds a practising certificate as a barrister and solicitor.

[51] There is no suggestion that rr 14.6, 14.7 and 14.8 have a bearing on the issue, and it is clear that Mr Morahan did accept instructions to act for Mr A. Indeed he took a number of steps pursuant to those instructions.

[52] The question in issue is whether or not Mr Morahan accepted instructions direct from Mr A, in which case he breached the intervention rule, or whether he received them from Mr T, being a person who holds a practising certificate as a barrister and solicitor, in which case he did not breach the intervention rule.

[53] Here, Mr Morahan asserted – in reliance to the emails referred to in [9] and

[10] above – that he was instructed at the outset by Mr T. [54] I do not accept this submission.

[55] In my view the email which Mr Morahan sent to Mr T on 20 April 2011 was very much an exploratory email. It indicated no more than that Mr T might receive a file from another solicitor, and if that occurred, Mr T might instruct Mr Morahan. Mr Morahan asked Mr T to let him know if he received the file. Mr Morahan did not directly ask Mr T whether or not he was prepared to instruct Mr Morahan. Rather it seems that Mr Morahan simply assumed that he would be instructed by Mr T if the file was received.

[56] Mr T did not respond affirmatively to the email. In his reply, he simply noted the contents of Mr Morahan’s email, and thanked him for it. This is understandable. He had no file at the time. He had not concluded his own contract of retainer with Mr A. This was clearly necessary before Mr T could instruct Mr Morahan, because, absent agreement by Mr Morahan, in instructing him Mr T would be accepting an obligation to pay Mr Morahan’s fees, whether or not he was in funds from Mr A.

[57] No responsible barrister could, in my view, properly conclude that the email correspondence which occurred amounted to an instruction by Mr T to Mr Morahan to act for Mr A. It is specious to suggest otherwise.

[58] Nor in my judgment can Mr Morahan contend that he thought he had been instructed by Mr T. His emails of 30 October 2012 (paras [15] and [17]) and the telephone conversation of 19 February 2014 (para [23]) compel the conclusion that Mr Morahan was proceeding to act for Mr A direct, without involving Mr T or keeping him informed. This is inconsistent with any suggestion that Mr Morahan thought he was instructed in April 2011.

[59] Mr Darby asserted that Mr Morahan had liaised with Mr T from time to time in the course of their informal meetings. He reminded me that Mr Morahan gave evidence that he had updated Mr T about Mr A’s file. Ms Cameron referred me to the evidence.

[60] In his affirmation, Mr T did recall that Mr Morahan had mentioned a file involving a messy separation that he might want Mr T to become involved in. He could not recall the client’s name, and said that he did not believe Mr Morahan had mentioned it during the discussions they had. He said that he did recall telling Mr Morahan very clearly that if his client wanted him to instruct Mr Morahan, that the client had to contact him, sign a letter of engagement, and provide a retainer. He said that he repeated this at a number of their social chats, and that he was clear in his insistence on his requirements. He thought that the chats were during 2012, but he could not be sure.

[61] When he was being cross-examined in relation to this issue, Mr T accepted that Mr Morahan would drop into his office from time to time. He said that they were social calls, and that they would talk about various matters pertaining to the Family Court generally, Mr Morahan’s views on that Court and difficulties Mr Morahan had had representing husbands, and the unfairness which Mr Morahan thought had occurred from time to time. He also said that Mr Morahan spoke to him about his own personal situation. Mr T was adamant, that in the course of these conversations, he made it clear to Mr Morahan that if he was to be his instructing solicitor, he needed to have a letter of engagement, and funds to cover Mr Morahan’s

fees and his own fees. Mr T said the calls were simply social calls, that they were convivial, pleasant and enjoyable from his point of view, and that they gave him time out of his day as a busy lawyer.

[62] Mr Morahan denied much of this. In his affidavit he asserted that he verbally updated Mr T in relation to Mr A’s file and that Mr T did not suggest to him that he wished to formally supervise the file, or duplicate correspondence, documents and the like. He repeated those assertions when he was cross-examined.

[63] Unfortunately the Tribunal did not express a view on this evidential conflict. It is difficult for me to do so, not having observed the witnesses. Nevertheless, I observe that Mr T’s assertions are consistent with the contemporaneous email correspondence, and the telephone conversation, where Mr Morahan accepted that he had kept Mr T “in the dark”. If Mr Morahan’s version of events is correct, those concessions would not have been necessary. Further, Mr T’s evidence was consistent with his contemporaneous email of 30 October 2012 (para [16]), in which he set out his expectations if he was to be Mr Morahan’s instructing solicitor. I also note that in May 2013 Mr T advised Mr A’s wife’s counsel that he did not have a file on the matter (para [21]). It is also noteworthy that in February 2014 Mr Morahan sent an email to Mr T saying that he had had a couple of discussions with Mr T about Mr A, and exchanged a couple of emails with him (para [23]). In response, Mr T in his email recorded what he had said to Mr Morahan about his requirements if he was to instruct him (para [24]). It is noteworthy that Mr Morahan did not himself reply to that email. Mr T’s email is consistent with his evidence that he had verbally told Mr Morahan about his requirements if he was to be Mr Morahan’s instructing solicitor. The evidence of Mr T on this issue seems to be supported by the contemporaneous correspondence.

[64] In support of his argument, Mr Darby also suggested that Mr T had previously instructed Mr Morahan on an informal basis. However Mr T denied this in the affirmation which he filed with the Tribunal. He was questioned on this matter when he gave evidence before the Tribunal. He denied that he had previously acted as Mr Morahan’s instructing solicitor and not first required that a letter of engagement be signed by the client. He said that on all occasions he had required a prior letter of engagement. The same issue was put to Mr Morahan by one of the

Tribunal members. Mr Monahan was unable to detail how many instructions he had previously received from Mr T. Further he was unable to give a specific example or examples of previous informal instructions.

[65] The Tribunal placed considerable emphasis on the fact that no contract of retainer was put in place between Mr A and Mr T. Given Mr T’s potential liability for Mr Morahan’s fee, and his insistence on a contract of retainer before he was prepared to instruct Mr Morahan, that is understandable. The evidence is quite clear that there was at no stage any contract of retainer between Mr T and Mr A.

[66] Mr Morahan did require Mr A to enter into a letter of engagement with him, and the letter of engagement purported to bind Mr T. Legally Mr Morahan could not do so. Mr Morahan was not Mr T’s agent for the purposes of putting a contract of retainer in place. He did not have Mr T’s authority to put in place a contract of retainer between Mr T and Mr A.

[67] Mr T only detailed his express requirements relatively late in the day, when he sent emails, first to Mr Morahan on 19 February 2014 (para [24]), and then to Mr A direct on 20 February 2014 (para [26]), outlining his requirements. Those requirements were not met. In any event, they were well after the event. By this stage Mr Morahan had taken a number of steps in the Court proceedings, in which he had named Mr T as his instructing solicitor, and as the solicitor on the record.

[68] In my judgment, the Tribunal was correct when it found that Mr T had not instructed Mr Morahan to act on Mr A’s behalf. I consider that there was a clear breach of the intervention rule. As a consequence, Mr Morahan misled the Court and others when he filed documents in Court asserting that Mr T was his instructing solicitor. It is clear from the materials which were before the Tribunal, and which are now before this Court, that the documents which Mr Morahan filed which bore Mr T’s name, were filed without Mr T’s knowledge or consent. In my judgment, the Tribunal’s finding that Mr Morahan was guilty of the charges was correct. The appeal as to liability is dismissed.

[70] Mr Morahan accepted before the Tribunal that he was aware of the intervention rule.

[71] I agree with the Tribunal’s finding that Mr Morahan turned a blind eye to the

[72] While breach of the intervention rule of itself is not necessarily a particularly grave offence, consciously electing to breach the rule is rather more serious and misleading the Court is very serious indeed. In my judgment, Mr Morahan deliberately and wilfully misled the Family Court at Waitakere, by representing that he had an instructing solicitor when he did not have one. This was serious misconduct on the part of Mr Morahan, and in my view akin to wilful dishonesty.⁷I note and agree with the observations of Venning J in Cooper v Waikato Bay of Plenty Standards Committee 2 of New Zealand Law Society.⁸

It is a serious matter for counsel to mislead the Court. Judges properly place reliance on counsel’s advice and often act on the basis of it. It is a serious matter to breach the trust that Judges place in counsel’s advice.

Misleading the Court was the lead offence, and the Tribunal correctly identified suspension as the appropriate penalty.

[73] Further, Mr Morahan’s attitude to the complaint was belligerent from the outset. By way of example, he referred to the Standards Committee as being a “secret committee”. He expressed doubt that the Committee knew the meaning of the requirement in s 142(1) of the Act to behave in a way that was consistent with the rules of natural justice. He commented that the Committee behaved more like a “secret inquisition or secret Star Chamber” than a judicial tribunal, and he referred to its investigation as a “witch hunt”. He referred to the complainant as a “vengeful shrew”. He alleged that the Committee and/or the investigating officer, a Mr Christie, had redacted exhibits. He failed to abide by timetable orders set by the Committee. He did not provide explanations for these failures. He failed to bring all

_{relevant files to hearings despite a written request that he do so. In
the submissions}

⁷In this regard I disagree with the Tribunal. It found that there was no dishonesty by Mr

made on his behalf in relation to penalty, he asserted that the Standards Committee submissions were directed at besmirching him rather than being truthful. He said that the Standards Committee had made “vile, unprofessional claims”, and that the prosecution counsel had set out to trap him. He alleged the prosecution had coached Mr T to give his evidence.

[75] Absence of remorse, failure to accept responsibility and showing no insight

into misbehaviour, are matters which can touch upon a person’s fitness to practice.⁹

A practitioner cannot expect that disreputable correspondence, or belligerent conduct, will be ignored in the exercise of the Tribunal’s power. That is because character – good or bad – can be very relevant to what sanction or penalty should be imposed.¹⁰When determining ultimate fitness to remain in practice, whether limited by suspension or by striking off, the Tribunal is entitled to review the entire conduct of the practitioner, and transgressions the subject of earlier proceedings which go to the general behaviour of the practitioner.¹¹It cannot regard poor behaviour as justifying a more severe penalty, but it is an aggravating personal factor, and relevant to balancing matters of character.¹²

[76] In my view, the Tribunal did not err in imposing a sentence of suspension for three months. The order was an appropriate and necessary response given the wilful misconduct of Mr Morahan. The primary purpose of suspension is to advance the public interest. That includes that of the community and the profession. Proper professional standards must be upheld and there must be deterrence. Suspension serves to remind the practitioner and the profession that only those who are fit, in the

wider sense, to practice, are given that privilege.¹³Indeed the suspension could well

have been for a longer period. The Standards Committee did not however suggest that it should be increased, and accordingly I have not taken that step.

⁹_{Daniels v Complaints Committee 2 of the Wellington
District Law Society, above n 1, at [29].}

¹²_{Daniels v Complaints Committee 2 of the Wellington
District Law Society, above n 1, at [32].}

[78] For completeness, I note that there was no challenge to the costs orders made by the Tribunal.

[79] The appeal against liability and the appeal against a suspension of three months are dismissed. The Tribunal’s orders are upheld. The period of suspension, for a period of three months, will now commence on Monday 30 November 2015. Mr Morahan is fortunate that the Christmas vacation will mean that the suspension is, in reality, for a lesser period.

[80] The respondent Committee is entitled to its reasonable costs and disbursements. If it wishes to pursue the same, it is to file a memorandum within ten working days of the date of this judgment. Any response from Mr Morahan is to be filed within a further ten working days. I will then deal with the issue of costs on the

High Court of New Zealand Decisions

Morahan v Auckland Standards Committee 4 [2015] NZHC 2886 (19 November 2015)