McConnor v New Zealand Law Society [2024] NZLCDT 13 (16 May 2024)

Last Updated: 27 May 2024

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

[2024] NZLCDT 13 LCDT 024/23

IN THE MATTER of the Lawyers and Conveyancers Act 2006

BETWEEN JAMES JOHN McCONNOR

Applicant

AND NEW ZEALAND LAW SOCIETY

Respondent

CHAIR

Dr J Adams

MEMBERS OF TRIBUNAL

Mr G McKenzie Ms N McMahon Ms M Noble

Ms P Walker MNZM

HEARING 10 May 2024

HELD AT Specialist Courts and Tribunals Centre, Auckland

DATE OF DECISION 16 May 2024

COUNSEL

Mr J McConnor, the applicant in person Mr P Collins, counsel for the respondent

DECISION OF TRIBUNAL ON APPLICATION FOR RESTORATION TO THE ROLL

[1] Mr McConnor asserts that he is a new man, one whose name should be approved by us as fit and proper to be restored to the roll as a lawyer. He has changed his name (formerly Dorbu) and wishes to put the past behind him. His twelve referees endorse him in writing, several mentioning his punctuality, courtesy, and thorough attention to his work. One says: “I have found James to be a person of integrity who I have always trusted implicitly.... James’ previous legal experience, intelligence, compassion, integrity and work ethic make him an ideal person to be admitted to the bar in New Zealand in my view.” Buoyed by this kind of support, Mr McConnor asked us, during submissions, to give him an opportunity to prove himself.

[2] Mr McConnor is intelligent, articulate, and well-educated. He has never offended against the criminal law. No client has complained about his legal work. Understandably, he wishes to distance himself from past professional blemishes, of which only one of his referees was aware. That referee knew Mr McConnor because he had employed him on a part-time basis since 2015. He did not refer to Mr McConnor’s past but said: “...we have come to appreciate, like and respect him for his work ethic, natural enthusiasm and honestly [sic]. We would happily trust James in any capacity we involved him in.” Upon our reading, noting the referee’s knowledge, this recommendation falls short of promoting Mr McConnor for re-enrolment as a lawyer.

[3] The New Zealand Law Society opposes the application. It submits that Mr McConnor has not adequately addressed the issues that led to his strike-off, and that his proposals lack protective measures to guard against the risks arising, especially from consideration of the eleven charges that were proved against him. The New Zealand Law Society submits that on an open-minded, forward-looking assessment, supported by the relevant information, granting this application cannot be reconciled with our duty to protect the public.

[4] We address the following issues:

• What principles guide our assessment?
  
• Has Mr McConnor adequately addressed the risks that arise from his former offending?
  
• Are we satisfied that he is now fit and proper to be re-admitted?
  

What principles apply?

[5] Mr McConnor applies to be re-enrolled as a barrister practising on his own account. The terms of the legislative test are simple. Section 246(3) Lawyers and Conveyancers Act 2006 (LCA) provides that we “may order” that his name be restored to the roll “if satisfied that [he] is a fit and proper person to practise as a barrister....”

[6] That a person has been struck off does not preclude the possibility of reinstatement. Both Leary1 and Hesketh2 exemplify successful applications where the applicants demonstrated they had regained good character.

[7] The leading case of Stanley3, a Supreme Court decision, shows that past wrongdoing (in that case drink driving), need not stain a candidate’s fitness or character for ever. Although Stanley concerns an application for admission by a person who had not been enrolled before, its guidance about approaching the issues, and assessing someone as “fit and proper” for enrolment, apply here. The Stanley decision states, at paragraph [54]:

From this discussion, the relevant principles can be summarised in this way:

(a) The purpose of the fit and proper person standard is to ensure that those admitted to the profession are persons who can be entrusted to meet the duties and obligations imposed on those who practise as lawyers.

(b) Reflecting the statutory scheme, the assessment focusses on the need to protect the public and to maintain public confidence in the profession.

1 Leary v New Zealand Law Practitioner’s Disciplinary Tribunal [2007] NZHC 819; [2008] NZAR 57 (HC).

2 Re Hesketh, NZLPDT 25 May 1999.

3 New Zealand Law Society v Stanley [2020] NZSC 83. Although para [54] was part of the majority decision, the minority decision agreed with the statement (at [105]).

(c) The evaluation of whether an applicant meets the standard is a forward looking exercise. The Court must assess at the time of the application the risk of future misconduct or of harm to the profession. The evaluation is accordingly a protective one. Punishment for past conduct has no place.

(d) The concept of a fit and proper person in s 55 involves consideration of whether the applicant is honest, trustworthy and a person of integrity.

(e) When assessing past convictions, the Court must consider whether that past conduct remains relevant. The inquiry is a fact-specific one and the Court must look at all of the evidence in the round and make a judgement as to the present ability of the applicant to meet his or her duties and obligations as a lawyer.

(f) The fit and proper person standard is necessarily a high one, although the Court should not lightly deprive someone who is otherwise qualified from the opportunity to practise law.

(g) Finally, the onus of showing that the standard is met is on the applicant. Applications are unlikely to turn on fine questions of onus.

[8] Thus, there is no scope for punitive response or closed-mindedness in our task. A person with past blemishes should not be deprived from re-enrolment if they can be assessed as having regained a good character. Such a person will not pose a risk to the public, nor will their re-enrolment undermine public confidence in the profession.

[9] Mr McConnor asks us to give him the chance to prove himself. But we cannot experiment. To do so would not be a proper exercise of our duty. There is no mechanism to retrieve the position if our assessment proves wrong. Simply put, we must either arrive at the confident view that Mr McConnor meets the required standard, that he can be entrusted to meet the duties and obligations imposed on those who practise as lawyers, or not.

[10] Mr McConnor represents himself in this application. He suggests the assessments of his referees should be valorised because they are untainted by knowledge of his professional blemishes. In oral evidence he likened his position to that of a defendant in a criminal trial where the jury is not permitted to know of past convictions. The simile is inept. Although we are not in a criminal-related exercise, to answer Mr McConnor’s allusion in like terms, our task is more akin to the deliberations of the Parole Board deciding if, or upon what terms, to release a prisoner. To do our job, we need to consider the full picture.

[11] All the reported cases show the importance, to our forward-looking task, of measuring the present depth of shadow cast by previous wrongdoing. For example, the recent High Court decision in Reid4 offers this guidance:

Part of good character is an ability to acknowledge fully and unambiguously prior wrongdoing. Only once an applicant has arrived at that point will he or she typically be in a position to identify reliably the triggers of previous wrongdoing and the mechanisms necessary to avoid its recurrence.

[12] Various Tribunal, High Court and Court of Appeal decisions concerning Mr McConnor’s wrongdoing and strike-off were produced and analysed via an affidavit by a New Zealand Law Society regulator. Mr McConnor submits that, as evidence, these items are not permitted by s 50 Evidence Act 2006. (Section 50 prohibits using evidence of a finding of fact in a civil proceeding or by a tribunal to prove the existence of that fact in other proceedings.) It seems implicit in his submission that we should take no notice of those items, leaving us to assess his character absent knowledge as to why he was struck off. We disagree that Mr McConnor’s submission has force. In any event, we are not relying on prior proceedings to establish a finding of fact in this proceeding.

[13] Mr Collins concedes that it was inappropriate to tender that material by affidavit. But nothing turns on that because all that material could have been received by us as relevant precedents and submissions. We read it in that light.

What of the risks?

[14] Mr McConnor submitted to the effect that no risks had been identified by the New Zealand Law Society.

[15] Mr McConnor’s application is supported by his reiterated assertion that he is now a new man, with a new name and is of good character. His case is supported by references from his priest and lay people who are customers of his car grooming business which supplements his unemployment benefit. Some of the referees have known him for several years. As far as they go, they are of value to his application but that he failed to alert almost all of them to his professional blemishes reduces their force greatly, for our purposes. Mr McConnor’s application is not supported by any lawyer.

4 Reid v New Zealand Law Society [2023] NZHC 237.

[16] Mr McConnor expresses remorse and asserts that he would not behave in similar fashion again. There is no material to show that since he was struck off, he has been in like situations and resisted temptation to conduct himself as he did then.

[17] The New Zealand Law Society opposition to this application explicitly notes:

• A pattern of disrespectful behaviour to fellow practitioners and the judiciary;
  
• A pattern of dishonesty to his clients and to the court;
  
• A pattern of misunderstanding or ignoring the obligations required of lawyers.
  

[18] In written submissions and cross-examination, Mr Collins targeted those matters identified in the passage from Reid quoted above in para [11] of this decision. He was explicit in testing whether Mr McConnor had faced up to the underlying issues, and whether he could substantiate that he was no longer a risk in the relevant areas.

[19] Although the Tribunal found Mr McConnor guilty of twelve charges (8 June 2010 following an eleven-day hearing in late 2009), one charge was set aside on judicial review and, although that charge was remitted for rehearing, it was not pursued. The resultant position is that Mr McConnor was struck off on 30 September 2011 based on eleven proved charges.

[20] Among the proved charges were instances of disrespectful behaviour. Mr McConnor said that a High Court judge was racist and that the judge had perjured himself. He expressed himself in arrogant terms to lawyer colleagues. There was no sound basis for his actions. Mr McConnor recognises the temptations of hubristic and intemperate behaviour. He gave evidence that it is because of that risk that he does not have a significant personal social media profile. On one occasion early in cross- examination, he reacted angrily, and unwarrantedly, to Mr Collins. Our impression is that, although often affable and urbane, Mr McConnor is prone to hubristic and intemperate reactions.

[21] Mr McConnor accepts that he was swept up in a scheme to deprive a person of their rights under an agreement to purchase a property. He claims the scheme was not of his devising. He says his clients pressured him. He felt if he did well for one

client, others would come to him. Because he yielded to that pressure, he acted for parties whose interests conflicted, and he undertook work (such as signing documents correct) that, as a barrister acting on his own account he was not authorised to do.

[22] In the context of these circumstances, he wrote to a party who was represented by another lawyer, he swore misleading or false affidavits, and he unjustifiably attacked the reputation of another practitioner. His conduct resulted in two High Court judges referring his conduct to the Law Society.

[23] He was found to have acted wilfully or knowingly, for example in failing to discover documents in an affidavit, and in swearing a false affidavit of service. He acted for clients whose interests conflicted. The course of his wrongdoing extended in time. He either failed to recognise his multiple errors or chose to continue his erroneous path. The proposition that these concerns amount to patterns is fairly made out.

[24] As previously noted, Mr McConnor asserts that he is a new man, and would not behave in these ways again. The members of this Tribunal panel have had no previous dealings with him, and have no desire to frustrate his wish provided he can demonstrate he has gained a good character – or what was referred to in Reid as “a moral compass.”5 What is lacking in his case is persuasive evidence that he has fronted up to his past wrongdoing, that he has gained understanding of what caused him to err, and that he can show how he will avoid repeating his errors.

[25] Instead of fronting up to those things where he had been criticised in the past, Mr McConnor avoided and obfuscated them. While accepting that he had to acknowledge the findings of wrongdoing, he fudged by answers such as “The past wasn’t me,” “That wasn’t me,” or “I was in a context irreconcilable with my professional standards.” He denied, in our hearing, having sworn a misleading affidavit deliberately although that was the earlier Tribunal’s finding. He put his extensive and varied wrongdoing down to the comment, “I was an inexperienced fool.” We formed the view that he would prefer to close his mind to this uncomfortable material, and for the rest of the world to do likewise. In his last affidavit (filed only three days before the hearing) he indicated he wanted his name suppressed in our eventual decision. When it was pointed out that it would create problems for him if he were permitted to be enrolled but

5 See above n 4 at [18].

no-one was to be allowed to know the identity of the person, he withdrew that application.

[26] Mr McConnor falls well short of satisfying us that he has adequately admitted and faced up to the factors that drove or permitted his past wrongdoing - necessary steps if he is to avoid repetition. We believe he does not yet appreciate the reasons underpinning the rules which he broke. Many of his answers in cross-examination focused on relationships between lawyers, or between lawyers and judges, and showed little comprehension of the public purposes underpinning the rules. For example, he related the non-contact rule as protecting boundaries between lawyers instead of its protective purpose for clients so they can enjoy the privileged relationship with their lawyer undisturbed by attacks from opposing interests.

[27] In his third affidavit, Mr McConnor also stated:

“I have recognized that lack of emotional control and inaccuracies of communication were personal and professional weaknesses that I had. Accordingly, I have sought and received ongoing support from Dr. John C. McEwan, a respected health practitioner, to enable me to address these issues. I hereby authorize the Tribunal to contact Dr. McEwan for any further information they may require about my therapy and progress.”

Although, as impartial agents, we have no business frustrating Mr McConnor’s application, it is his burden to satisfy us: Stanley. It is inappropriate for Mr McConnor to engage us to pursue additional material to enable his application to succeed. That is his task.

[28] In cross-examination it appeared that although Mr McConnor had heard of Dr McEwan, who seems to practise as a stress counsellor, about five years ago, he only contacted Dr McEwan recently and has only seen him twice. Although Mr McConnor says otherwise, we infer that the engagement was undertaken to bolster his case, belatedly.

[29] During his closing submissions, Mr McConnor made an oral application for leave to file a report from Dr McEwan. We adjourned to consider his request and, upon return, gave reasons for refusing to do what would have required a resumed hearing on previously undisclosed material.

[30] In other respects, Mr McConnor’s case appeared to be ad hoc or loose. When asked in cross-examination about his not having secured any mentor should he be reinstated, he volunteered names of well-known practitioners but conceded that he had not spoken to any of them about it. He accepted that those lawyers might well be surprised to know that he had mentioned their names to the Tribunal as a means of advancing his case. In similar manner, he mentions the current Prime Minister in his first affidavit, in these words: “Our discussions on faith and aspirations were profoundly inspiring.” There is no indication that the Prime Minister knows of, or supports, his application. We are unimpressed by a suggestion of support when there is none. We find Mr McConnor continues to lack candour.

[31] Mr McConnor is presently a litigant in person, suing Auckland Transport and Baycorp for defamation and seeking judicial review. The proceedings were removed from the District Court to the High Court. Mr McConnor concedes that this was, in part, because he sought relief that was beyond the jurisdiction of the District Court. The case erupted because he was fined $150 for driving in a bus lane. (He says he was lawfully in the bus lane because he was turning left.) We have no further detail about this, but we are inclined to agree with Mr Collins that, whatever the rights and wrongs of the litigation, it has the appearance of hubris and disproportionality about it, both traits that concern us.

[32] During cross-examination, Mr McConnor seemed to appeal to the Tribunal to direct him towards areas of practice that might make his application more attractive. He mentioned such disparate areas as tax barrister or duty solicitor. While we have no wish to be unhelpful, it is inappropriate for us to offer him career advice of this kind, or to be drawn into a partisan position, during the hearing.

[33] Following the hearing, we permitted Mr McConnor to file an email in which he says he had approached a law firm “just before the hearing,” about the possibility of employment. He failed to mention this in the hearing itself. We do not challenge this late-filed information, but he gave no hint, during the hearing, of any plan other than that specified in his application, namely to practise as a barrister on his own account.

[34] Mr Collins questions the safety, for the public and the profession, in Mr McConnor’s application to practise as a barrister on his own account. Whether he practised as a tax barrister or as a duty solicitor, he would be free to pursue any work

as he saw fit. It would be difficult to impose any suitable oversight or accountability. In endeavouring to build a practice and please clients, he could well be as much at risk as before when it came to crossing boundaries. We have no reliable evidence to the contrary beyond the passage of time and his assertions.

Are we satisfied?

[35] This is not a borderline case. No substantial basis has been demonstrated to move us from a neutral position to one that endorses Mr McConnor’s case. Having weighed all the material, we have moved to a position where we find it would be unsafe for the public and for the reputation of the profession to permit Mr McConnor, on this presentation, to be re-enrolled.

[36] Mr McConnor has not established his case. We dismiss the application.

[37] Mr McConnor is in tight financial circumstances. Despite his intelligence and prior legal experience, he chose to act for himself. Although he has read relevant cases, he does not seem to have grasped the salience of matters raised unambiguously in opposition. Given that, his pursuit of this matter to a hearing was wrong-headed and he has put all lawyers to the expense of funding the opposition. We invite memoranda regarding costs - Mr Collins within 10 days; Mr McConnor within a further 10 days. We shall deal with costs on the papers.

DATED at AUCKLAND this 16th day of May 2024

Dr JG Adams Deputy Chair