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New Zealand Lawyers and Conveyancers Disciplinary Tribunal |
Last Updated: 13 June 2023
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
[2023] NZLCDT 25 LCDT 019/22, 020/22
IN THE MATTER of the Lawyers and Conveyancers Act 2006
BETWEEN WELLINGTON STANDARDS COMMITTEE 2
AND ALWYN O’CONNOR
CHAIR
MEMBERS OF TRIBUNAL
Ms M Scholtens KC Prof D Scott
Dr D Tulloch
HEARING 31 May 2023
HELD AT Remote hearing by MS Teams
DATE OF DECISION 9 June 2023
COUNSEL
Ms N Pender and Ms N Town for the Standards Committee Mr G Paine for the Respondent Practitioner
DECISION OF THE TRIBUNAL ON PENALTY
Opportunity squandered
[1] In November of 2014, after lengthy and careful consideration, the Practice Approval Committee (PAC) of the New Zealand Law Society granted Mr O’Connor a certificate of character so that he could be entered on the roll of barristers and solicitors of the High Court of New Zealand.
[2] The decision to certify Mr O’Connor was a compassionate one, which gave him a second chance at his life, the opportunity to prove that he had reformed, and to redeem himself by service to others.
[3] The decision makers were heavily influenced by the support Mr O’Connor had from “very senior and respected members of the profession” who had provided references and assured the PAC that Mr O’Connor had turned his life around.
[4] Reassurance that the public would be protected was also present, in that his employer was to provide supervision of Mr O’Connor, in whom he had “complete confidence” and considered rehabilitated, despite his background.
[5] Finally, the PAC was also “comforted” by Mr O’Connor’s personal assurances at interview, that he would be “the cleanest most professional lawyer”.
[6] The reasons why the PAC needed to embark on such a comprehensive assessment of Mr O’Connor, before accrediting him to the public as “... a person of good character and a fit and proper person for admission to the profession” was his history of serious criminal offending. Mr O’Connor had disclosed the offending (but not previous bankruptcies, which would also have been relevant) in his application for a certificate of character. We refer to the criminal offending later in this decision.
[7] Having been given this golden opportunity, Mr O’Connor says he intended to help those with similar backgrounds to himself, who might otherwise not have the services of a lawyer. We are told that he did act for many people on a pro bono basis and made himself available for work which other lawyers had declined. Also there was evidence of his generous support of his friends and his community. For example helping Mr Coles to find accommodation when he was homeless and participating in the Meals on Wheels programme.
[8] However, within 18 months of having persuaded the Law Society of his rehabilitation, Mr O’Connor began the offending, taking money from a client’s bank account, in respect of which he has been found guilty of misconduct.1
[9] This decision considers whether he should be allowed to remain a lawyer, having regard to the protective purposes of the Lawyers and Conveyancers Act 2006 (the Act)2 and to disciplinary penalty principles.
Disciplinary interventions to date
[10] On 3 May 2023, having found Mr O’Connor guilty of misconduct on one charge and negligence on another, the Tribunal decided to make an interim order suspending him from practice from 10 May.3
[11] On 8 May 2023, Mr O’Connor applied to revoke the interim suspension order, pursuant to s 245(4) of the Act. That application was heard on 15 May 2023. The application for revocation was refused. In both decisions, the Tribunal recorded that it did not consider Mr O’Connor was currently a fit and proper person to be a lawyer.
Pathway to penalty decision
[12] As his Honour Muir J stated in Ellis:4
[78] The jurisdiction is prophylactic not punitive. The paramount consideration is what is necessary to protect the public adequately in the future.
1 Liability decision, Wellington Standards Committee 2 v A O’Connor [2023] NZLCDT 18, 8 May 2023.
3 The suspension was deferred in order to allow the practitioner to make alternative arrangements for clients who might have upcoming hearings and to refer on to other lawyers.
4 Ellis v Auckland Standards Committee 5 [2019] NZHC 1384.
Deterrence also has a legitimate place. So too is the opportunity to foster rehabilitation in appropriate cases. ...
[13] His Honour then went on to quote the following passage from Daniels,5 which we consider to be important in the present case:
[22] ... Tribunals are required to carefully consider alternatives to striking off a practitioner. If the purposes of imposing disciplinary sanctions can be achieved short of striking off then it is the lesser alternative that should be adopted as the proportionate response. That is “the least restrictive outcome” principle applicable in criminal sentencing. In the end, however, the test is whether a practitioner is a fit and proper person to continue in practice. If not, striking off should follow. If striking off is not required but the misconduct is serious, then it may be that suspension from practice for a fixed period will be required.
[14] Bearing those principles in mind, in determining a proportionate response, the Tribunal must begin with the assessment of the seriousness of the conduct. Following that there is a consideration of aggravating and mitigating factors.
[15] Often there will also be a need to consider penalties imposed in previous comparable cases in order to achieve consistency, where possible, having regard to the individual nature of the context in which offending can occur. We record the submissions in respect of each step of this process and discuss them in turn.
Seriousness
[16] In finding Mr O’Connor guilty of misconduct, the Tribunal listed 17 failures.6 These range from, at the lower end of the scale, a failure to provide a letter of engagement and confusion of professional and personal relationships to, at the more serious end, manipulating and accepting a loan from a vulnerable client who was in prison, without ensuring he had received independent legal advice concerning the loan which was unsecured and interest free; the treatment of his client’s money as his own and the failing to account to the client for his use of the client’s bank account; his failure to provide proper financial records to the Law Society inspectorate; his failure to place any funds into a trust account; his use of an EFTPOS card to a total amount of over
$22,000 without repayment of the funds to the client; and finally, the finding that he lied to the Tribunal in the course of his evidence.
5 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] NZLR 850, at [22].
6 Liability decision, above n 1, at [30]–[31].
[17] Added to that is the second charge where a finding of negligence, which had potentially serious consequences for a client in an employment related matter, takes the overall assessment of the practitioner’s conduct to the most serious end of the misconduct scale.
[18] On behalf of Mr O’Connor, Mr Paine submitted that there was not wilful and calculated dishonesty and that this was not at the highest end of misconduct. For her part, Ms Pender, for the Standards Committee, submitted that the behaviour described above, as found by the Tribunal, in itself would justify striking off, as being at the most serious end of misconduct but that certainly, in combination with the aggravating features, that strike off was the only possible outcome to protect the public and to maintain the reputation of the profession in the public’s eyes.
[19] We prefer the submissions of Ms Pender, at least in so far as a starting point for penalty is concerned, as will be apparent from our comments in the non-revocation decision7 where we held:
... It is axiomatic in any case where serious misconduct is found to have involved the misuse of client funds and lack of accounting, that strike off will be the starting point ...
Aggravating factors
[20] Five separate aggravating factors are pointed to in the submissions of Ms Pender, and we deal with these in turn.
1. Previous convictions
[21] The criminal offending history referred to earlier in this decision, and revealed by Mr O’Connor in his application for a certificate of character, is set out in the tabular form provided by Ms Pender in her submissions:
7 Non-revocation decision, Wellington Standards Committee 2 v A O’Connor [2023] NZLCDT 21, at [33.6].
|
Offence
|
Year conviction
|
Age at time of offending
|
Sentence
|
|
7 x dishonesty offences (Theft/Use of document/Other false pretences)
|
2000
|
18–19 years
|
Community Service Fine
Reparation
|
|
9 x dishonesty offences (Use of document for pecuniary advantage)
|
2005
|
22–24 years
|
Community Work Supervision Reparation
|
|
3 x assault of a child
|
2006
|
25 years
|
Imprisonment (concurrent)
|
|
Ill treatment/neglect of a child
|
2008
|
25 years
|
Imprisonment (concurrent)
|
[22] The significant number of dishonesty convictions accumulated by Mr O’Connor are of serious concern for any person, but more so for a lawyer who has access to client funds and is in a privileged position and therefore must be able to be “trusted to the ends of the earth”.8
[23] In sentencing Mr O’Connor for the 9 dishonesty offences in July 2005, his Honour Judge Behrens QC described him as a “con man”, “...who quite coolly and calmly goes around taking money from people ...”. Later, his Honour pointed out that “it is that aspect of your character that really concerns me that you are prepared to in effect rob people quite coolly without considering apparently the circumstances or the consequences”. In its liability decision, the Tribunal independently (and without knowledge of the previous convictions) reached a similar view of Mr O’Connor’s unprincipled approach to other people’s money.
[24] The offending against a three-year-old child, who was [redacted] is significant. The description of Mr O’Connor’s assaults on this child, including those to which he later pleaded guilty in 2008, could be described as shocking. Mr O’Connor was sentenced to 1 year and 9 months imprisonment. The offending also represented a significant breach of trust, which is relevant when one looks at patterns in Mr O’Connor’s conduct. The misconduct currently under consideration was found to have been against a vulnerable person in respect of whom Mr O’Connor also stood in a position of trust.
8 Bolton v Law Society [1993] EWCA Civ 32; [1994] 2 All ER 486.
[25] Mr Paine submits, on the authority of Hart 9 and Daniels,10 that while the Tribunal is entitled to take into account “... the entire conduct of the practitioner ...”, we ought not to in this instance.
[26] Prior offending of a disciplinary nature has always been regarded as a fact which can be taken into account in the overall assessment of whether someone is a fit and proper person to practise as a lawyer. It cannot be that the particular prior criminal offending ought not to be taken into account in an assessment of fitness of this practitioner.
[27] As stated in the non-revocation decision,11 had this misconduct not occurred, Mr O’Connor’s previous criminal offending may well have been able to have been left in the past.
[28] However, in this case, examination of the offending exposes the same pattern of dishonest behaviour and taking from other people without thought as to consequence.12 Mr O’Connor withdrew a total of $156,375.41 from his imprisoned client’s account (the client having previously agreed to loan him $25,000) and repaid
$155,950. There is a small balance outstanding in respect of those funds and there is a further $22,251.39 unaccounted for in cash withdrawals from the same client’s account, which the Tribunal found could be attributed to Mr O’Connor. When asked about an accounting to his client in respect of all the funds used, he simply stated in his evidence that his client could follow the bank accounts and calculate it for himself. This continues the pattern of offending that began in 2000 and ended with the last criminal conviction in 2005.
[29] As indicated in the introduction to this decision, Mr O’Connor’s taking from his client’s bank account began only 18 months after he had persuaded the Law Society of his rehabilitation and reformed character.
9 Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83; [2013] 3 NZLR 103 (full court).
10 Daniels, above n 5, at [32].
11 Above n 7.
12 We refer to the liability decision, above n 1, at [21].
[30] We also reject Mr Paine’s submission that taking account of his previous criminal offending “puts the practitioner at risk of a double jeopardy claim where something already taken into account is revisited for this purpose” is, with respect, misconceived.
[31] Mr O’Connor was not in any way penalised for the previous offending when being granted a certificate of character by the Law Society and is not being repenalised for that offending at this point. His offending is being taken into account as assessment of his overall fitness to be a lawyer, as outlined above.
2. Failure to disclose bankruptcies
[32] When Mr O’Connor completed his form applying for a certificate of character, he answered a question of whether he had at any time been adjudicated bankrupt with the answer “no”. In February 2018, Mr O’Connor applied to practice on his own account. Having advertised that application, the Law Society received a confidential objection which referred to a bankruptcy in 2000. The Law Society then searched records which confirmed two bankruptcies of Mr O’Connor in 2000 and 2006.
[33] Mr O’Connor’s explanation for his incorrect and misleading answer is that he had voluntarily declared himself bankrupt and therefore did not consider that he had been “adjudicated bankrupt”. What this attitude demonstrates is that Mr O’Connor has simply no conception of his obligations to be completely candid and open with his professional body. We accept Ms Pender’s submission that his failure to disclose his previous bankruptcies is “inconsistent with the essential attributes of honesty, trustworthiness and integrity that are expected of practitioners”.13
3. Non-compliance with the disciplinary process
[34] Although Ms Pender asks us to treat this as an aggravating feature, it is probably better expressed as the lack of a mitigatory factor. There is no doubt that Mr O’Connor repeatedly breached directions for filing of his evidence and indeed never filed a formal response to the charges. We do not accept Mr Paine’s submission that the multiple
13 New Zealand Law Society v Stanley [2021] NZLR 50, at [42].
breaches were primarily the result of the intervention of the holiday period after the service of the charges and difficulty locating and instructing counsel.
[35] After the proceedings had been on foot for six months and only three days prior to the commencement of the hearing, he filed an affidavit which was subsequently found to be inadequate by the Tribunal. It failed to address the allegations about the approximately $22,000 which had been withdrawn in cash from the client’s account and that was not addressed by Mr O’Connor until put to him in cross examination. The Tribunal found he lied about it. Mr O’Connor also prevented a full investigation of his banking records by the Inspectorate by withholding or heavily redacting such records he provided. Nor was he fulsome in his response to the Standards Committee, omitting information that he later sought to rely on before the Legal Complaints Review Officer.
[36] Such demonstration of his disregard for the integrity of the disciplinary processes of his professional body gives little hope of rehabilitation in this practitioner.
[37] We do consider the Tribunal’s findings of his lying to it under oath to be an aggravating feature.
4. Lack of insight or accountability
[38] Ms Pender submitted that this is demonstrated by Mr O’Connor’s descriptions of his conduct as friendships going sour, or errors of judgement due to inexperience. We certainly accept that his failure to comprehend the seriousness of his action is a factor for consideration.
[39] His counsel put to the Tribunal that risk to the public could be excluded by placing Mr O’Connor under some form of supervision. As an employee when these events occurred, we would expect him to have already been under supervision. His failure to direct client monies through a trust account also indicates that any provisions as to supervision are likely to be ineffective.
[40] Mr O’Connor’s excuse-making and lack of insight also persuades the Tribunal that any conditions as to supervision would likely fail.
5. Previous disciplinary history
[41] Mr O’Connor cannot claim the mitigation of coming to the Tribunal with an unblemished disciplinary record. He has had a previous finding of unsatisfactory conduct, which was also related to his misunderstanding of the boundaries between clients and friends, and involved disrespectful and offensive behaviour towards a client.
[42] It is notable from that decision that increased costs were awarded because of Mr O’Connor’s lack of engagement and unnecessary elongation of the investigative process arising out of his requests for extensions, as occurred in the present case.
6. Length of time over which conduct occurred
[43] The conduct in using client funds was not a spur of the moment or one-off decision. It took place over almost two years. That Mr O’Connor did not think better of it over that time, or even belatedly arrange independent advice is seriously problematic. It is an aggravating factor. So is the means by which he repaid Mr Coles, which was by borrowing from another client.14 In this manner, Mr O’Connor has proven himself to be utterly unable to be trusted with client funds.
Mitigating factors
[44] The main mitigating feature is Mr O’Connor’s pro bono attendances for people who might otherwise not receive legal assistance. We take account of that fact and that those clients will be disadvantaged by his unavailability. We also remind ourselves of the community services undertaken by Mr O’Connor and detailed earlier in this decision.
Conclusion
[45] Ms Pender submitted to us that “few practitioners have proven themselves to be more unfit to practice law than Mr O’Connor”. She noted that having been given a second chance, he had squandered it and demonstrated that any faith placed in his
14 A witness, Ms S confirmed that she was a client who had loaned $50,000 to Mr O’Connor. We have not considered this to be further offending, because the Standards Committee process is incomplete, but have considered it as background information.
rehabilitation was misplaced. She submits that a strike off order is “the only sanction that could conceivably be perceived as sufficient to protect the public from harm and maintain confidence in the legal profession”.
[46] While Mr Paine has valiantly attempted to direct the Tribunal to another path which would allow Mr O’Connor to remain in practice, we cannot accept that we would be fulfilling our statutory obligations of protection of the public and the maintenance of standards of the profession were we to impose any sanction that allowed Mr O’Connor to remain in practice. We accept that this is a sanction of last resort, but the nature of the conduct, and the track record of the practitioner, suggest that point has been reached.
[47] We have considered whether a long period of suspension might be sufficient to allow rehabilitation and further reformation of Mr O’Connor. We are struck by the comments of Judge Behrens back in 2005:
You have previous convictions for the same sort of thing and I suppose it is an indication of the sort of person you are that you have been sentenced in the past in August 2000 and in July and May of 2000 for theft, credit by fraud, false pretences, you have been ordered to pay reparation and you have paid it. You have been ordered to do community work and you have done it and that indicates to me that you seem to take these sentences in your stride but in effect they make no difference to you, you go out and do it again.
[48] On that occasion, Mr O’Connor was given a further opportunity and was not sentenced to imprisonment, which was stated by his Honour to be the expected outcome. He failed to take advantage of that opportunity and went on to offend against the child in the horrendous manner disclosed by the indictments and the summaries of facts.
[49] Sadly, we do not consider that we can take the risk of further exposing this practitioner to the public. We do not consider, at this stage, that he is capable of the level of rehabilitation necessary for him to be trustworthy in the role of a lawyer. For all of those reasons, we propose to order that he be struck off the roll. That is the unanimous view of all five members of the Tribunal.15
15 Section 244(2).
Compensation
[50] The Standards Committee seeks the maximum order under ss 156(1)(d) of the Act. The Tribunal has found that Mr O’Connor has not accounted for the two amounts of $61.75 and $22,251.39 respectively. Ms Pender also points out that the client, Mr Coles, has not received any interest. For that reason, she seeks a compensation order in the maximum sum of $25,000. We consider that in the circumstances, as found by us on 3 May, such an award is well justified. Mr Coles is out of pocket, due to the actions of Mr O’Connor.
[51] We do not consider that any compensation is appropriate in relation to the second charge. We could not be sure that, absent Mr O’Connor’s delays and negligent approach to Mr Allerton’s employment matters, Mr Allerton would necessarily have ended up in a better financial position. He may have decided against taking the voluntary severance package even if he had been properly advised in a timely manner.
[52] Mr Paine did not specifically address us on compensation but pointed out that any award of costs or compensation would be difficult for his client to meet if he is not able to continue in practice. However, he also pointed to the fact that Mr O’Connor could practise as an employment advocate even if suspended or struck off. Thus, Mr O’Connor will not necessarily be without income.
Costs
[53] The Standards Committee seek costs in the sum of $115,690 together with witness’ expenses of $499.76. It is conceded that this is very high, however, there have been two files which were combined and heard together. There was a three-day hearing required, as well as a further hearing in respect of the revocation application. There have been additional attendances because of the three extensions and the number of case management conferences which had to be held because of Mr O’Connor’s non-compliance.
[54] For those reasons, we do not consider it proper to challenge the amount sought.
[55] Mr O’Connor did not provide us with any details of his income, assets or other financial circumstances and therefore we cannot weigh that in making costs orders. We direct that he pays the full Standards Committee costs and then reimburse the Tribunal costs to the New Zealand Law Society.
Orders
$116,189.76, pursuant to s 249 of the Act.
DATED at AUCKLAND this 9th day of June 2023
D F Clarkson Chair
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