DY v UQ [2018] NZLCRO 71 (17 August 2018)

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	LCRO 27/2018
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [Area] Standards Committee
BETWEEN	DY Applicant
AND	UQ _Respondent

[1] Mr DY has applied for a review of a decision by the [Area] Standards Committee (the Committee). The Committee found that Mr DY’s conduct of Mr UQ’s criminal trial fell below a proper professional standard in a number of ways, and that Mr DY had contravened of a number of relevant rules. The Committee made a determination that there had been unsatisfactory conduct on Mr DY’s part pursuant to ss 12(a) and 152(2)(b)(1) of the Lawyers and Conveyancers Act 2006 (the Act).

[2] The Committee censured Mr DY, imposed a fine of $5,000 and ordered him to pay $1,500 of costs, pursuant to s 156(1) of the Act.

Mr DY’s conduct in preparing for the jury trial and representing Mr UQ at that trial.

In effect Mr [UQ] informed me that he had asked Mr [DY] to call a Mr [MD] but that Mr [DY] said that because of his prior record that that would not be worthwhile.

Mr [DY] then attempted to call Mr [MD] at trial but it was ruled that could not occur because Mr [DY] had failed to put Mr [MD]’s affidavit evidence to the Crown witnesses. This occurred because Mr [MD] had not been briefed.

Further, Mr [UQ] alleges Mr [DY] only met him twice before trial, on both occasions for approximately 5 to 10 minutes and that Mr [DY] had not taken a brief from him.

After the voir dire Mr [UQ] alleges that Mr [DY] said he had no choice except to plead guilty, and Mr [UQ] accepted that advice and pleaded guilty to one charge.

In short Mr [UQ] alleges that Mr [DY]’s representation in this matter, taking into account that it was set down for jury trial, was not to the standard required of a competent lawyer.

[5] A copy of Mr DY’s file for Mr UQ’s matter was enclosed with the complaint, together with an affidavit from Mr UQ. The complaint form records the complaint as: failure to follow instructions, failure to adequately prepare for trial and trial incompetence leading to guilty plea.

[6] Mr UQ’s affidavit sets out the circumstances of his own offending and referred to Mr DY’s involvement in his matter follows:

... I first met [Mr DY] almost two months after my first court date. He told me he didn’t have all the facts on my case and he will have to get it remanded because he had a court case in Dunedin. I was put on curfew from the first day I was remanded from 9 p.m. to 5 a.m. and still am. It has now been reduced from

7 p.m. to 5 a.m. I have a witness to this case but [Mr DY] had told me that would not be a good idea to use him because he would be grilled on his criminal record. I said to him, but he’s the only one that was sober and could tell the state of everyone that night. He could also tell what happened there and back on the journey. The only time I got to talk with [Mr DY] on this case was twice, and both times were on Court day one of which was only 10 minutes and the other time was less than 15 minutes. I spent more time in the waiting room than I had discussing this case. When jury day came around [HV]’s statement was admissible because she couldn’t remember all of it, yet [BW]’s drunken statement is accepted. By this time I was panicking in Court. After a while I was stood down. [Mr DY] came down with a bunch of papers and said I didn’t do myself any favours. The only thing I said was the only thing I had said was that if she had been a man on the night then I would have been up on different charges. He said to me, if you sign these papers the court will reduce the charges and you will be remanded. I did [sic] know what I was signing at the time. I didn’t have glasses and I didn’t go through the paperwork, I just signed and hoped I was bailed when I came back into the Courtroom. After a few moments [MD] had turned up at Court to give evidence, he had insisted to [Mr DY]. He got up on the stand. The prosecution had no idea this was going to happen and neither did I. At the end of his statements the Judge made them inadmissible. I’m not sure why. I told [Mr DY] from the beginning he should have been there and had a lot to add in my defence and he just wasn’t listening.

After signing the papers down in the cells, which took all of five minutes, I went back up to face the Judge just to find out later I had signed a guilty plea and that the prosecution had not done any type of deal at all. I was originally charged with two offences but come jury day there was a third charge which I did not know about. [Mr DY] never asked or challenged it. In the end nothing has changed and the charges are still the same. I’m in more trouble while being on curfew and signed the papers I shouldn’t have. I have said to [Mr DY] to ask for evidence on this case which was not shown. He didn’t. In Court I couldn’t talk to him or advise him on points. I was told to sit on the other side of the courtroom. I am not guilty for defending myself and I will go through all this again with the right facts and witnesses brought forward. I want to retract my plea as I was duped into signing those papers and that was a mistake and it was all rushed through court. I thought when you have a public defender that is what they do, not in my case.

[7] Mr DY’s file begins with a bundle of documents from when the file was reassigned from Ms [LF] to him around 17 September 2015, including a handwritten file note dated 17 September 2015 which says:

[8] Ms LF handed her file over to Mr DY on or about 22 September 2015, apparently following a phone call from Mr UQ on 9 September 2015 expressing his disappointment in the service Ms LF had provided.

[9] Disclosure was provided to Mr DY on [date] and Mr DY completed an undated Case Management Memorandum that was to be filed in the [Town 1] District Court by [date]. Mr DY confirmed he had been able to take instructions from Mr UQ and anticipated trial would take two days. Various evidential issues were traversed and procedural indications given but no mention was made of Mr MD.

[10] Further disclosure followed on [date]. It appears the matter was transferred from [Town 1] to [City] because there follows a Crown Charging Notice dated [date] and a “Trial Callover Memorandum: defendant’s Lawyer” dated [date] which appears to have been completed by Mr DY, both of which were for filing in the [City] District Court. The memorandum completed by Mr DY includes an estimate of one and a half days for trial, reduced from two, and in the place where any objection to the proposed mode of evidence being given by the prosecution, the words “no evidence has been provided to support this application” regarding evidence being given behind a screen. No mention was made of Mr MD.

[11] There is a handwritten note dated [date] on a notice given by the Crown confirming that Mr UQ had instructed Mr DY to oppose the Crown’s application for the alleged victim to give evidence behind the screen.

[12] Mr DY’s file includes a handwritten file note dated [date] referring to Mr UQ being in the cells on a breach of bail conditions and awaiting a pre-trial callover on [date]. The note refers to the breach being certified and Mr UQ being readmitted to bail to await callover on [date]. No mention was made of Mr MD.

[13] The file also contains a list of Mr UQ’s previous convictions, the police and the Crown charging documents, a police summary of facts describing Mr UQ’s alleged behaviour on the day, notice that reparation of $400 was sought and a pre-sentence report from the Department of Corrections.

[14] It is clear from the note dated [date] that Mr UQ had mentioned Mr MD’s involvement early on. There is no evidence of Mr DY having taken steps before trial to progress what Mr UQ says were his instructions in that regard. That is consistent with Mr DY’s later explanation in response to Mr UQ’s complaint, set out in detail below, that he had made a decision about that.

[15] Mr DY’s file also contained Judge A’s ruling regarding Mr DY’s indication at trial that he intended to call Mr MD as a witness. Mr MD gave evidence in the absence of the jury. In making his ruling on whether to admit that evidence, Judge A noted that Mr DY had put no suggestion to one of the witnesses that:

a knife was pulled; that there was a third person in the vehicle; and that there had been these numerous trips before they got the final trip to [Town 2] which was the trip immediately before the incident which is before the Court today.

[16] Judge A noted that Mr MD had not been cross-examined, and that the evidence had not been put to the Crown witnesses. Judge A was satisfied that the defence had known Mr MD was the sober driver on the night, and formed the view that Mr MD could have been briefed and available, and his evidence could have been put to the witnesses. As that had not happened, Judge A refused leave for the defence to call Mr MD to give evidence at trial. Mr MD’s evidence was ruled inadmissible because it could have been, but was not, put to the Crown witnesses.

[17] A note in Mr DY’s handwriting and apparently signed by Mr UQ when the trial ended confirms:

I [UQ] state that I have been fully advised as to my position and I freely plead guilty to one charge of assault with intent to injure.

[18] The file contained the notes of evidence before Judge A incorporating the voir dire evidence of Mr MD and exhibits, and Mr DY’s closing. There are also several pages of handwritten notes apparently from the trial, prosecution witness statements with what appears to be Mr DY’s handwriting on them, and police statements from the

witnesses which gloss over events prior to the alleged assault by Mr UQ. The file also contains statements from police officers who arrested Mr UQ, both of which refer to him wanting to make an assault complaint against the alleged victim.

Mr [UQ] seems to be complaining that I did not call his friend Mr [MD] as a defence witness. The events relating to the charges Mr [UQ] faced took place inside the complainant’s house in the absence of Mr [MD] he did not witness the events, any evidence he could give would have been irrelevant and therefore inadmissible, I informed Mr [UQ] of this every time we talked. I therefore decided not to call Mr [MD]. However, on the day of trial both Mr [UQ] and Mr [MD] insisted I call MD against my better judgement and to avoid a disruption to the Court process I did call him and as I thought his evidence was ruled inadmissible.

After Mr [MD] gave his evidence an in chambers discussion took place in front of Mr [UQ] after which I discussed the case with Mr [UQ]. I did forcefully highlight the difficulties he faced (that included two creditable eyewitnesses) he then agreed to plead guilty to one charge of Assault with Intent to Injure to which I had advised him I would work towards a sentence of HD.

Mr [UQ] did not make a good impression on the PSR writer who consequently recommended a Sentence of Imprisonment. I got the report about a week before sentencing, I tried to ring Mr [UQ] but got no response, so I wrote him a letter which he got the day before sentence, when he eventually rang me he sounded drunk so it was a short non-productive conversation. However at that stage I was still confident that I could persuade the Judge to hand down a HD sentence.

My confidence evaporated with Mr [UQ]’s arrival at Court, he was paralytic and completely incoherent, he was escorted to the cells where I tried to get some sense out of him. He ranted at me at which point I told him I was withdrawing.

[20] The Committee issued a notice of hearing on [date], describing the issues raised as including:

(a) failed to act competently and with reasonable care in breach of Rule 3 of the Lawyers and Conveyancers Act (Lawyer: Conduct and Client Care) Rules 2008 (RPCC) and in particular failed to:

(i) take adequate instructions in breach of Rules 7.1 and 13.3; (ii) follow instructions, in breach of RCCC 13.3 and 13.3.1;

(b) failed to adequately explain significant facts or provide advice to Mr [UQ] in breach of RCCC 5.3, 7.1, 13.3, 13.4 and 13.3.1, leading Mr [UQ] to plead guilty.

(a) had met with Mr UQ only twice before the trial, for 10 and 15 minutes respectively, which did not give him enough time to properly prepare for trial;

(e) therefore failed to take adequate instructions and failed to prepare for trial competently, in a timely manner consistent with the terms of the retainer and the duty to take reasonable care;

(f) did not, as far as was possible, protect Mr UQ from being convicted and did not put before the court “any proper defence in accordance with” Mr UQ’s instructions;

(g) did not put key evidence of events that had preceded the assault to the prosecution witnesses;

(j) did not have enough time to obtain informed instructions from Mr UQ on his change of plea, after explaining the consequences of doing so to him.

13.13.1 of the RCCC, in some cases, more than once. The Committee concluded that conduct on Mr DY’s part fell within the definition of unsatisfactory conduct in s 12(a) of the Act and imposed orders censuring Mr DY, ordering him to pay a fine and costs, pursuant to ss 156(1)(b), (i) and (n) of the Act respectively.

[23] Mr DY filed an application for review saying the penalty imposed was excessive. He also observes that other issues arising from comments made on his conduct have been referred by a Committee to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). Mr DY would like the Committee’s decision reversed or “put with other matters” for which he is to appear before the Tribunal.

[25] Mr DY’s lawyer, Mr GP, attended a review hearing in Christchurch on 13 July

2018, saying Mr DY was too unwell to attend. Mr UQ has not been involved in this review because he has left his last known address and this Office does not have his current one.

[26] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:1

... the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.

The Review Officer has broad powers to conduct his or her own investigations including the power to exercise for that purpose all the powers of a Standards Committee or an investigator and seek and receive evidence. These powers extend to “any review” ...

... the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.

[27] More recently, the High Court has described a review by this Office in the following way:2

A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the

LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

[28] Mr DY would like any conduct issues that arise from Mr UQ’s complaint joined with other conduct issues that are understood to be in the process of being heard and determined by the Tribunal. Concerns are said to have been raised by Judges before whom Mr DY has appeared as to his competence. One of the complaints relates to sentencing submissions filed by Mr DY on behalf of Mr UQ. Other than the fact that Mr UQ is the common feature, there is does not seem to be any overlap with the subject matter of this review because Mr UQ’s complaint relates to Mr DY’s conduct of his trial. Sentencing submissions came later.

[29] Mr DY has agreed to this Office requesting information from the New Zealand Law Society prosecutions team about the charges and current status of the Tribunal proceedings to facilitate the joinder. Having reflected on all matters after the review hearing I have decided not to take that path for several reasons.

[30] First, the Committee had all the complaints and related information available to it. It exercised its discretion in deciding to determine the complaint at the centre of this review and to put the other matters before the Tribunal. I am obliged to exercise particular caution before substituting my own judgment for that of the Committee, without good reason.

[31] Second, it is difficult to see how the complaint at the centre of this review could be determined on any basis other than that Mr DY’s conduct was unsatisfactory. Mr DY’s evidence is that he had decided not to call Mr MD. Although it was entirely proper for Mr DY to form a view and advise Mr UQ on the advantages and disadvantages of calling Mr MD, making the decision for him fundamentally misconceives the dynamics of that relationship.

[32] The commentary in Ethics, Professional Responsibility and the Lawyer puts it this way:3

A lawyer must not act in contravention of a client’s instructions. It may be appropriate for the lawyer to counsel against a particular course of action when it is considered not to be in the client’s best interests. But when clients are firm in their instructions, the lawyer may not substitute the lawyer’s own judgment for

3 Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at 291 citing R v McLoughlin [1985] 1 NZLR 106 (CA) at 107.

that of the clients. In R v McLoughlin a barrister chose not to call the alibi evidence of the defendant to a rape charge, against the defendant’s instructions. The Court of Appeal observed:

The reason, it appears, was that counsel thought the proposed evidence unreliable and thought that it would be improper for him and detrimental to the client appellant for it to be called. It is not for this Court to question counsel’s judgment about that, or to comment upon the evidence ourselves. But the plain unvarnished fact is that counsel most certainly

had no r i ght t o d is r egard hi s [the a ppe ll ant ’s ] i ns tr uc tio ns . F ol lo wing an y advice he thought it proper to give his client, his duty was either to act on the instructions he received or to withdraw from the case.

If the client’s instructions are unclear, it is incumbent on the lawyer to obtain clarification of those instructions. The lawyer may not proceed on an assumption the client agrees to a certain course of action.

[33] Mr UQ says instructions to Mr DY were to call Mr MD. Mr DY does not deny that. It was therefore not open to Mr DY to decide otherwise.

[34] Third, Mr UQ appears to have disappeared. It is not possible to obtain his input on review.

[35] Fourth, it is not entirely apparent from Mr DY’s application for review that he disagrees with the determination of unsatisfactory conduct. His focus is primarily on the consequences that follow from that determination.

[36] No reasons have been advanced that suggest it is appropriate to reverse or modify the Committee’s other findings. While the file discloses some minor factual discrepancies, such as the number of times Mr DY met with Mr UQ, I have identified no matters of substance that could affect the final determination. In the circumstances, it is appropriate to confirm the determination that there was unsatisfactory conduct on the part of Mr DY. That leaves open consideration of what consequences should follow.

[37] Mr DY’s primary concern is with the financial orders made by the Committee pursuant to s 156. The Committee also imposed a censure.

[38] The first point to note is that the functions of penalty in a disciplinary context include:4

[39] A censure is a response to a failure on the part of a professional to adhere to professional standards. A censure reflects the public and the profession’s disapproval of such a failure. There is nothing inappropriate in that response to Mr DY’s conduct. The censure is confirmed.

[40] Mr DY does not say that a fine of $5,000 or costs of $1,500 cannot be sustained. Mr DY’s point is that he cannot afford to pay the money. In addition to what are understood to be his increasingly serious health issues, Mr DY is now in bankruptcy.

[41] The Committee’s decision was made on 20 December 2017. [42] Mr DY was adjudicated bankrupt on 9 February 2018.

[43] Mr GP says Mr DY’s finances now fall under the control of the Official Assignee (OA), who has given Mr DY permission to continue to practice as a lawyer. It seems the OA receives Mr DY’s income, which comes mainly from legal aid, and pays Mr DY an allowance. Mr DY’s position is that he has no capacity to meet the fine or costs.

[44] It has long been the case that a lawyer’s ability to pay costs should be taken into account when determining the quantum of costs orders. As the High Court said in Kaye v Auckland District Law Society:5

As a matter of principle, we consider that the Tribunal ought to take into account a practitioner’s ability to pay when determining the quantum of costs orders. Costs should not be punitive.

[45] The disciplinary machinery of the Act is funded by a levy all New Zealand lawyers pay. Although the interests of lawyers as a group should be balanced against Mr DY’s interests, the principle as it applies to costs carries considerable weight. Fines are different.

[46] The starting point for this discussion is that, apparently without Mr DY’s ability to pay having been raised, the fine and costs orders were reasonably made at the time by the Committee. Mr DY’s conduct had potentially serious implications for Mr UQ. He should not have assumed the decision-making power in the lawyer/client relationship. That was wrong. Mr DY’s conduct is rightly condemned, warrants punishment, and should be deterred.

[47] There is nothing objectionable in the Committee imposing a fine of $5,000. A fine at that level reflects the functions of penalty referred to above. Costs of $1,500 are equally unobjectionable. The question is whether Mr DY’s ability to pay should affect the level of those orders now he is bankrupt.

[48] Bankruptcy does not come out of nowhere. It is the result of a process, sometimes a lengthy one. Although Mr DY had not been declared bankrupt in December 2017, it can reasonably be assumed he knew at that stage that he was facing financial difficulties and possible bankruptcy. In that sense, Mr DY’s ability to pay has not changed in any meaningful way since December. What has changed is the level of control Mr DY exercises over his own finances. The OA has assumed some of that control.

[49] Mr GP says the fines and costs orders are a civil debt. As I understand the position advanced, the fines and costs are not included in the bankruptcy so Mr DY is obliged to continue to pay those from his allowance, and it does not stretch that far. While that may well be Mr DY’s position, there is insufficient evidence before me to enable me to reach the conclusion that Mr DY is unable to pay. Fines in particular are intended to be something of a burden.

[51] Without evidence of Mr DY’s financial position, his request for a reduction cannot be advanced.

[52] Having considered all the materials available on review, including Mr GP’s careful presentation at the review hearing on Mr DY’s behalf, there is no good reason to reverse or modify the Committee’s decision. That is confirmed.

[53] I have considered ordering Mr DY to pay costs on review pursuant to s 210 of the Act. As he is now bankrupt, I have decided not to order him to pay costs even though his review application has entirely been unsuccessful.

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

New Zealand Legal Complaints Review Officer

DY v UQ [2018] NZLCRO 71 (17 August 2018)