BARRY EDWARD BRILL v AUCKLAND STANDARDS COMMITTEE 2 [2023] NZCA 465 [22 September 2023]

BARRY EDWARD BRILL v AUCKLAND STANDARDS COMMITTEE 2 [2023] NZCA 465[22 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA274/2023[2023] NZCA 465BETWEEN BARRY EDWARD BRILLApplicantAND AUCKLAND STANDARDS COMMITTEE2RespondentCourt: Miller and Mallon JJCounsel: Applicant in personL P Radich for RespondentJudgment:(On the papers)22 September 2023 at 11.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs for a standard application on aband A basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Brill is a solicitor who was admitted in 1964 and at all material timespractised as an in-house lawyer employed by his own company, B E Brill Ltd. Heheld a practising certificate as an in-house lawyer. It did not entitle him to practise onhis own account.[2] Between March 2015 and September 2017 Mr Brill acted as solicitor andcounsel for himself, his wife, and four neighbours in a dispute with the Body Corporateof the Gateway complex in Paihia, in which they all owned apartments. The litigationdid not go well.[3] A Standards Committee of the New Zealand Law Society began aninvestigation of its own motion and charged Mr Brill with misconduct. The Lawyersand Conveyancers Disciplinary Tribunal found that Mr Brill had misconductedhimself by providing regulated services to the public other than in the course of hisemployment, contrary to s 9(1) of the Lawyers and Conveyancers Act 2006.1 TheTribunal censured Mr Brill, fined him $7,500 and ordered that he pay 75 per cent ofrelated costs.2[4] Mr Brill appealed liability and penalty to the High Court. Downs J dismissedthe liability appeal but quashed the censure, noting that Mr Brill had not solicited therole of solicitor for the parties in the litigation or benefitted financially from it andthere was no need for personal deterrence.3[5] Section 254 of the Act permits a second appeal, by leave, to this Court on aquestion of law which, by reason of its general or public importance or for any otherreason, ought to be submitted to this Court for its decision.[6] Mr Brill sought leave to appeal from the High Court. Downs J listed theproposed questions of law for this Court:4a. Whether s 9(1) extends to a lawyer who is not "being an employee"(ie is acting in a different capacity) in providing the regulated servicesin question?b. Whether a co-owner and/or a co-litigant of an employed lawyercomprises "the public" within the meaning of s 9(1)?c. Whether a legal practitioner may enter two or more part-time in-housecontracts at the same time?1 Auckland Standards Committee 2 v Brill [2022] NZLCDT 3 [Tribunal decision].2 Auckland Standards Committee 2 v Brill [2022] NZLCDT 13.3 Brill v Auckland Standards Committee 2 [2022] NZHC 3036 [High Court judgment] at [91]–[96].4 Brill v Auckland Standards Committee 2 [2023] NZHC 929 [Leave judgment] at [5].d. Whether an in-house lawyer is entitled to practise on his or her ownaccount if so authorised under s 22 of the Law Practitioners Act 1955?[7] The Judge found that none of these questions warranted leave. With respect tothe first, s 9(1) plainly means that a lawyer is guilty of misconduct who, being anemployee, provides regulated services to the public other than in the course of his orher employment.5 With respect to the second, the Judge held that in s 9(1) the phrase"the public" plainly means anyone other than the employer of the lawyer.6 The thirdquestion was not a question of law, and even if it was it could not be of general orpublic importance.7 The fourth question was a question of law but, as it only affectedpractitioners admitted under earlier enactments who had not practised on their ownaccount for more than 10 years and now wished to do so, it was not of general or publicimportance.8[8] Mr Brill sought to reframe these questions for this Court as:(a) Is the purpose of s 9(1) to impose a general ban on non-lawyersfacilitating the provision of legal services by their non-lawyeremployers? He also wishes to contend that r 15.1.4 of the Lawyers andConveyancers Act (Lawyers: Conduct and Client Care) Rules 2008(which allows an in-house lawyer who is engaged on a part-time basisto enter into a separate in-house lawyer contract with anothernon-lawyer on a part-time basis) supplies a complete defence.(b) What is the meaning and effect of "being an employee", bearing inmind that it is common ground that he was not acting as an employeeof his company when he represented the plaintiffs in the litigation?(c) What is the meaning of the term "the public" in s 9(1) and does it meananyone other than the employer of the lawyer? He contends that itexcludes a private, family or other particular group which share aconfined common interest with the lawyer.5 At [6]–[7] quoting the High Court judgment, above n 3, at [39].6 At [8] quoting the High Court judgment, above n 3, at [46].7 At [11].8 At [12].(d) What is the scope and effect of s 31(1) of the Act? He contends that itis a stand-alone provision that applied to him.[9] Generally, Mr Brill contends that these questions of law are of considerableimportance to members of the legal profession. He contends that for many years theNew Zealand Law Society has provided formal written advice to countless in-houselawyers which is inconsistent with the Judge's findings.[10] A little more background is in order at this point. We take it from the decisionof the Tribunal, which included the Hon Paul Heath KC.9 The Tribunal explained thatMr Brill has been employed by BE Brill Ltd as its in-house solicitor since 2007.10 Thecompany appears to be an investor. It does not offer legal services to the public.[11] Mr Brill allowed his practising certificate to lapse at some point and in 2013he applied for a new one.11 He gave an affirmative answer to the question "[w]ill yoube engaged as an In-House Lawyer (meaning a lawyer who is engaged by a non-lawyerand who, in the course of his or her engagement provides regulated services to thenon-lawyer on a full-time or part-time basis)?"12 He confirmed that he would not bein practice on his own account.13 In answer to queries from the Law Society, he statedthat he would be providing services to BE Brill Ltd under a contract of service. 14[12] At no time has Mr Brill applied to practise on his own account or met all therequirements for doing so.[13] Mr Brill accepted before the Tribunal that he had provided regulated servicesin connection with the litigation.15 He argued that his clients were not the public. TheTribunal put the position of his wife to one side and found the charge proved on thebasis that the other parties quite clearly were "the public".169 Tribunal decision, above n 1.10 At [9].11 At [9].12 At [12].13 At [12].14 At [15].15 At [41].16 At [47] and [53].[14] Mr Brill wishes to argue that Downs J was wrong to hold that s 9(1) creates ageneral prohibition against in-house lawyers providing regulated services to thepublic. The Standards Committee responds that the Judge spoke in general terms anddid not overlook the existence of certain limited exceptions none of which (includingr 15.1.4 of the Client Care Rules) applies on the facts.[15] In our view it is not seriously arguable that Mr Brill complied with s 9(1). Therelevant objective of the legislation is to confine employed lawyers, including in-houselawyers, to offering regulated services in their capacity as employees subject tospecified exceptions. Mr Brill undoubtedly provided regulated services otherwisethan in the course of his employment. The public for these purposes plainly includedthe neighbours for whom he acted. We have hesitated over Downs J's finding that thepublic is anyone other than the employer, but we are not persuaded that this is theappropriate case in which to examine the issue.[16] For these reasons the first, second and third proposed questions do not meritleave on the merits. The fourth does not warrant the attention of this Court, and wenote that it seems Mr Brill's purpose is to argue that, because he was entitled to practiseon his own account, he could not contravene s 9(1) notwithstanding that at no relevanttime had he sought to practise on his own account or met all the necessaryrequirements. To the extent that is so the argument is misconceived.[17] The application for leave to appeal is declined.[18] Mr Brill must pay the Standards Committee costs for a standard application ona band A basis together with usual disbursements.Solicitors:Crown Solicitor, Manukau for Respondent