Waikato Bay of Plenty Standards Committee 2 v Leach [2024] NZLCDT 27 (30 August 2024)

Last Updated: 11 September 2024

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

[2024] NZLCDT 27 LCDT 022/23

IN THE MATTER of the Lawyers and Conveyancers Act 2006

BETWEEN WAIKATO BAY OF PLENTY STANDARDS COMMITTEE 2

Applicant

AND ROBYN ANNETTE LEACH

Practitioner

CHAIR

D F Clarkson

MEMBERS OF TRIBUNAL

Mr S Hunter KC Ms M Noble Prof D Scott

Ms N Taefi KC

DATE OF HEARING 21 August 2024

HELD AT Specialist Courts and Tribunals Centre, Auckland

DATE OF DECISION 30 August 2024

DATE OF REISSUED DECISION (to correct clerical error) 4 September 2024

COUNSEL

Mr P Collins for the Standards Committee

Dr R Somerville KC for the Practitioner (attending by VMR)

DECISION OF THE TRIBUNAL PROVIDING REASONS FOR PENALTY ORDERS

What this is about

[1] This decision records the reasons for penalty orders made on 21 August 2024 and for dismissing Ms Leach’s belated oral application for non-publication.1

[2] Following our liability decision of 7 July 2024, Ms Leach filed a further affidavit addressing two disputed facts, penalty matters and non-publication.

[3] Once again, Ms Leach failed to appear before the Tribunal for questioning. Shortly before the hearing, which proceeded partly by audio-visual link to avoid her counsel having to travel, Ms Leach filed a medical certificate seeking to excuse her appearance. The certificate simply stated she was “unfit to work from 15 August 2024 and may be fit to return to work on 29 August 2024”, without any further supporting information. It is noteworthy that in the days leading up to 19 August when she swore and filed her further affidavit, Ms Leach was well enough to prepare a 99-paragraph document in support of her case.

[4] Ms Leach’s lack of personal participation in these proceedings has been unfortunate because although we have been greatly assisted by her counsel, her final evidence still left questions, posed by the Tribunal in the liability decision, unanswered.

What required determination

[5] With the input of two senior counsel, the parties were able to agree many of the issues concerning appropriate penalty. The outstanding matters for determination were:

• (a) Whether the Tribunal approved the agreed penalty orders.
  

1 Pursuant to s 240 Lawyers and Conveyancers Act 2006 (the LCA).

(b) Determining the two remaining disputed areas of fact.

(c) What level of fees refund was proper, Ms Leach having agreed to a partial refund only?

(d) What was a fair contribution by Ms Leach to the Standards Committee costs?

(e) To what extent should Ms Leach reimburse the New Zealand Law Society for the s 257 Tribunal costs?

(f) Whether non-publication was proper in this case.

(a) Agreed orders

[6] The background to this matter is set out in our liability decision of 7 July 2024.

[7] Given the limited ambit of the dispute, we do not propose to address general principles as to penalty in any detail other than to note that the relevant principles applicable to this case are those of the least restrictive intervention, deterrence, and public protection linked with rehabilitation.

[8] Counsel agreed that the proper process for assessing proportionate and properly tailored penalty orders begins with an assessment of the seriousness of the conduct, then to consider the practitioner’s previous disciplinary history2, taking account of remorse and insight, as well as the need for deterrence. Aggravating and mitigating factors are taken into account, as are comparisons with similar cases to attempt to achieve consistency.

[9] Beginning with seriousness, there were three findings made against Ms Leach, the second two of which were agreed by her just before the liability hearing date. The agreed findings were one charge of negligence and one of unsatisfactory conduct. The Tribunal found the third charge proved to the level of misconduct.

2 Ms Leach had two previous findings of unsatisfactory conduct, which involved some failures in common with the present matter.

[10] The Tribunal does not consider that cumulatively this conduct to be at the most serious level of misconduct or negligence, but it did represent significant neglect of Ms Leach’s duties to her clients.

[11] We accept Mr Collins’ submission on behalf of the Standards Committee that this case was a borderline suspension case. However, it fell a little short of that level of seriousness and thus suspension was not sought by the Standards Committee.

[12] It is to be noted that Ms Leach has, of her own accord, retired from practice and thus any suspension would have been symbolic only. We did not consider the level of seriousness would have justified a symbolic suspension in order to send a message to the profession generally.

[13] We considered that the agreed orders represented the least restrictive intervention as stated in Daniels.3

[14] The thrust of the penalty orders, as earlier signalled by the Tribunal, was directed to protection of the public and education and rehabilitation of the practitioner should she in the future elect to return to practice. That is the reason for the restrictive orders imposed, and agreed by the practitioner.

[15] Taking account of all of the above factors we endorsed the agreed penalty orders.

(b) Disputed facts

[16] The complainant, Ms H, alleged that first, she did not tell Ms Leach that her former partner was residing overseas and therefore posed a problem as to service, and second, she emphasised the need to issue Family Court proceedings promptly because previous negotiations with an earlier lawyer had proved fruitless. She did not at any stage endorse or accept the lengthy periods of delay which she alleged were entirely of the practitioner’s making.

[17] Ms Leach for her part contended that she had been instructed that the intended respondent of the proceedings was overseas and that this led to some of the delays

3 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] NZHC 1359; [2011] 3 NZLR 850 at [22].

and some of the extended work in seeking substituted service from the Court when proceedings were finally filed. Ms Leach alleged that her former client had been quite comfortable with delays because the property in question was increasing in value by virtue of inflation.

[18] Unfortunately, the complainant was unable to make herself available from Australia where she now resides, as had earlier been intended, because of the need for her to undertake medical treatment for a serious illness.

[19] We have already referred to Ms Leach’s unavailability on either occasion to be cross-examined on the areas of dispute.

[20] We find that Ms Leach’s version does not accord with the chronology of events, or much of the evidence that we have before us. On a number of occasions, Ms H emphasised her keenness for proceedings to be issued so that she could have the matter resolved and “get on with her life”. It was she who contacted the Court following a delay of over seven months from the time when she had been told the proceedings had been filed, only to find that they had languished in the Court all of that time.

[21] We were not impressed by Ms Leach’s attempts to justify the egregious delays in this matter by blaming her client effectively for the ‘misinformation’ about the intended respondent being overseas.

[22] While we accept that Ms H subsequently signed an affidavit in support of an application for substituted service, it is clear that she did so in an effort to push the matter along, since it has been over a year since she first instructed the practitioner and does not necessarily mean that she had at the outset advised of his absence overseas. The respondent was ultimately located in New Zealand and was able to be served through his lawyer.

[23] Nor do we consider that her justification after the events, that her client was not bothered by delays, in any way fits with the chronology or Ms H’s first instructions and subsequent actions attempting to move the matter along.

[24] Ms Leach’s later assertion that her client had stopped her from taking further action at one point does not in any way explain the earlier delays because that

instruction came well after the proceedings had been filed, a notice of defence received, and judicial conference allocated. It would appear that Ms Leach has misremembered this aspect. It is unfortunate that further clarification was not able to be obtained by cross-examination of both parties. However, we consider that we are able to find that the complainant’s version of events is more plausible than that provided some years later by the practitioner.

(c) Fee refund – quantum

[25] Mr Collins seeks an order under s 156(1)(g) of the LCA that the practitioner refunds the amounts paid under two fee invoices, one of 5 April 2018 (not delivered until 25 June 2018) of $5,926.63 and a second, dated 8 February 2019, for $1,674.40 in relation to a substituted service application for which the practitioner had told Ms H she would not charge.

[26] Ms Leach asks that these refunds be limited to $1,000 and $500 respectively pointing to the fact that in the larger invoice, the proceedings drafted were able to be used. In relation to the second invoice, she submits that she had already discounted her fee by $750 in respect of the substituted service application, which eventually was not required. These two invoices represent less than half of the total funds paid by Ms H to the practitioner. Her proceedings had barely advanced after two years and in 2020, she instructed new lawyers who were able to resolve the matter relatively promptly.

[27] Whilst it is accepted that the practitioner’s hourly rate was reasonable and that she certainly did undertake work which had some value for the client, the delays involved were such that there can be no justification for charging a full fee. We consider that a full refund of each of these invoices is reasonable in all of the circumstances since it still leaves the practitioner with more than 50 per cent of her attendances having been paid for.

(d) Costs

[28] Right until the very last minute following Dr Somerville’s involvement as counsel for Ms Leach, the practitioner had vehemently denied the charges and thus the matter had to be prepared for on a defended basis.

[29] She is entitled to a modest credit for the fact that agreement was able to be reached in respect of a number of matters, both in relation to liability and penalty. However, the last-minute nature of this meant that significant costs were incurred by the profession in order to prosecute this matter.

[30] Ms Leach has provided us with some details of her financial situation. Her means are relatively modest and she has a number of outstanding debts.

[31] For that reason, the Standards Committee have not sought full recovery of their costs, suggesting that a contribution of two thirds would be reasonable in all of the circumstances. We consider that is a very fair approach to the matter and note that Ms Leach is still paying off fines incurred in respect of previous unsatisfactory conduct findings against her by the Standards Committee. We note that Ms Leach has recently received a legacy of $30,000.

[32] We considered that a contribution of two thirds of the Standards Committee costs of $43,851.64 was proper in all of the circumstances.

(e) Contribution to Tribunal costs

[33] The Tribunal costs were much more modest and we considered that these ought to be fully reimbursed by Ms Leach to the New Zealand Law Society against whom there is a mandatory order pursuant to s 257.

(f) Non-publication

[34] Although there was no non-publication order in place earlier, and the Tribunal’s liability decision was available for a time on its website, Ms Leach now seeks a non- publication order, including suppression of all penalty orders. She initially sought this on a permanent basis but at the hearing her counsel sought to simply have an interim order to allow him to obtain some evidence from a psychiatrist.4

[35] Ms Leach based her application on the fact that she did not wish her reputation to be damaged because she is now practising as a mediator on largely Family Court

4 This had been the first mention of any psychiatric intervention for the practitioner.

related matters and is trying to build up that practice in a new location from where she previously practised as a lawyer.

[36] The second ground advanced was that it could damage her relationship with her stepson (who has a different name from her) because he might be bullied at times when he returned to spend time with his mother at the location where Ms Leach had previously practised.

[37] In oral submissions, Dr Somerville emphasised that there was no public protection element involved because Ms Leach had left legal practice.

[38] We accept Mr Collins’ submission that it would be a most unfortunate precedent if this ground was relied on, since any practitioner could then avoid publication by simply ceasing practice temporarily.

[39] Section 240 sets out the test for non-publication.5 The starting point is that of open justice. Section 238 of the LCA prescribes that hearings are to be held in public.

5 240 Restrictions on publication

(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:

• (a) an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:
• (b) an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
• (c) an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.

(2) Unless it is reversed or modified in respect of its currency by the High Court on appeal under section 253, an order made under subsection (1) continues in force until such time as may be specified in the order, or, if no time is specified, until the Disciplinary Tribunal, in its discretion, revokes it on the application of any party to the proceedings in which the order was made or any other person.

(2A) Subsections (1)(c) and (2) are subject to subsection (4).

(3) Subsection (1)(c) does not apply to, or in respect of,—

• (a) any communications by or between any or all of the following:
  • (i) the Council of the New Zealand Law Society:
  • (ii) the Council of the New Zealand Society of Conveyancers:
  • (iii) an officer of either of the societies specified in subparagraphs (i) and (ii):
  • (iv) an employee of either of the societies specified in subparagraphs (i) and (ii):
  • (v) a Standards Committee:
  • (vi) an employee of a Standards Committee:
  • (vii) the Legal Complaints Review Officer:
  • (viii) the Disciplinary Tribunal:
• (b) the publication pursuant to section 256 of a notice in the Gazette.

(4) For the purposes of exercising the Disciplinary Tribunal’s powers under subsections (1)(c) and (2) to make or revoke, before the start of the hearing of the charge, an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person, the quorum at any sitting of the Disciplinary Tribunal or a division of the Disciplinary Tribunal is, despite section 235(1), the 3-member quorum specified in section 235(5).

This is for the very good reason that the public is entitled to observe the workings of a transparent disciplinary process and that full exposure of the process will enhance public confidence in the profession as upholding its own professional standards. To determine whether it is “proper” to suppress information, the Tribunal must weigh the personal interests of the lawyer against the public interest in full disclosure of the nature of disciplinary proceedings and their outcomes.

[40] The practitioner’s name has already been in the public domain. We do not regard any of the grounds as coming anywhere near outweighing the public interest in the openness of proceedings. Ms Leach has failed to establish that the threshold where non-publication would be “proper” has been reached.

[41] For all of the above reasons, we dismiss the application for non-publication.

Orders

[42] The attached Schedule confirms the oral Orders announced at the hearing on 21 August 2024.

DATED at AUCKLAND this 4th day of September 2024

DF Clarkson Chairperson

Schedule

ORAL ORDERS MADE AT THE HEARING ON 21 AUGUST 2024

The following orders were announced at the end of the hearing:

1. Censure (set out below in writing). (pursuant s 156(1)(b) LCA)
   
2. An apology to the complainant in terms of the draft that Ms Leach has provided. (pursuant s 156(1)(c) LCA)
   
   3. Orders in relation to future practice as follows:
      
      • (a) Should Ms Leach return to practice, an order under s 242(1)(g) that she be prohibited from practising on her own account until authorised by the Disciplinary Tribunal to do so.
        
      • (b) Assuming an order in those terms and that Ms Leach elects to return to practice and later applies to be released from that restriction, an order that she satisfactorily complete the New Zealand Law Society CLE Stepping Up course before being authorised to practice on her own account.
        
      • (c) That any application by Ms Leach for a practising certificate be accompanied by evidence of a suitable mentoring arrangement, to the satisfaction of the Law Society’s Practice Approval Committee, to run for a period of two years from her recommencement of practice, under s 156(1)(l).
        
4. We direct a refund under s 156(1)(g) in the amounts sought by the Standards Committee, that is the full amount of the two invoices set out at para [2.1] of counsel’s submissions.

5. An order for a contribution by Ms Leach to the Standards Committee costs, of two-thirds of those costs as set out in the schedule provided. The amount payable is confirmed as $29,234.43. (pursuant s 249 LCA)
   
   6. The Tribunal costs are awarded against the New Zealand Law Society. These costs are now certified in the sum of $9,985. (pursuant s 257 LCA)
      
   7. Ms Leach will reimburse the New Zealand Law Society in full for the Tribunal s 257 costs. These costs are now certified in the sum of $9,985. (pursuant s 249 LCA)
      
   8. The application for non-publication orders is dismissed.
      

Censure

Ms Leach, this censure is to remind you of the consequences of neglecting your responsibilities to your client and of poor practice management. The 3 findings against you of misconduct, negligence and unsatisfactory conduct reflect this.

Every client who consults a lawyer is entitled to expect that his or her instructions will be carried out promptly and competently. Conduct which falls short of this diminishes confidence in the legal profession as a whole.

Your client was disadvantaged by the delays which resulted from your negligence and failure to have in place systems which would identify such errors swiftly. Her stressful situation was unnecessarily extended.

In addition, your failure to ensure your client’s funds were treated carefully and in accordance with the Rules must not be repeated. Scrupulous behaviour in this regard must be every lawyer’s unchanging practice. A barrister handling client funds directly needs to be even more cautious.

Should you seek to re-enter the profession, the Tribunal has directed that you comply with further protective and educational orders, to protect against a repetition of the events which led you to this point.

This Censure remains a permanent part of your record as a lawyer.