COOPER v WAIKATO BAY OF PLENTY STANDARDS COMMITTEE NO 2 OF THE NEW ZEALAND LAW SOCIETY [2015] NZHC 2352

COOPER v WAIKATO BAY OF PLENTY STANDARDS COMMITTEE NO 2 OF THE NEW ZEALAND LAW SOCIETY [2015] NZHC 2352 [28 September 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-000904[2015] NZHC 2352UNDER the Lawyers and Conveyancers Act 2006BETWEEN BRETT COOPERAppellantAND WAIKATO BAY OF PLENTYSTANDARDS COMMITTEE NO 2 OFTHE NEW ZEALAND LAW SOCIETYRespondentHearing: 24 September 2015Appearances: A M Simperingham for AppellantR McCoubrey for RespondentJudgment: 28 September 2015JUDGMENT OF VENNING JThis judgment was delivered by me on 28 September 2015 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Woodward Chrisp, GisborneMeredith Connell, AucklandIntroduction[1] Mr Cooper is a barrister. He faced disciplinary proceedings alleging two counts of misconduct. It was alleged Mr Cooper had misled the Rotorua District Court in the course of a criminal proceeding. On 2 March 2015 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found the charge proved. Mr Cooper pleaded guilty to a second, reduced, charge of unsatisfactory conduct in relation to his overall conduct on behalf of the defendant in the same criminal proceeding. He admitted his conduct was unsatisfactory.[2] After hearing from counsel on the issue of penalty the Tribunal:(a) suspended Mr Cooper for 18 months;(b) awarded costs to the New Zealand Law Society (NZLS) (with details to be submitted);(c) ordered Mr Cooper to pay the NZLS the costs of the Tribunal under s 257(3) of the Lawyers and Conveyancers Act (the Act). It fixed the costs of the hearing at $5,540;(d) made an order for interim suppression of name (which subsequently lapsed).[3] The Tribunal provided written reasons for its finding and the penalties in a decision delivered on 26 March 2015. It confirmed the suspension and fixed the costs of the NZLS at $27,925.62. Mr Cooper appeals against penalty alleging that the length of suspension and the costs award are excessive.Background facts[4] Mr Cooper was counsel for Mr T who faced one charge of driving with excess breath alcohol. The charge was laid in the Rotorua District Court. It was first called on 15 February 2011 but was adjourned nine times prior to 9 March 2012. On 9 March the charge was adjourned to 28 May 2012 for a defended hearing. The filerecorded that this was a final adjournment. Mr Cooper had arranged for an agent, Mr Birks, to appear on his behalf on 9 March 2012 when the matter was remanded for the fixture. Mr Cooper failed to appear in the Rotorua District Court on 28 May to conduct the defended hearing on behalf of the defendant. Instead, Mr Cooper appeared in the Christchurch District Court that day.[5] Mr Cooper was aware of the fixture scheduled for 28 May 2012. On 14 May 2012 he had sent an email to the Registry as follows:Further to my visit when I came in with [Mr T] on 4th May 2012.I request that this matter be put before the Court as a difficulty has arisen. I am happy to appear if that is appropriate.Namely that on the last appearance date 9/3/12 the client appeared with an agent Mr P.Birks. Counsel contacted the client later that day to see when the next hearing date was. Counsel was advised that the hearing of the matter was set down for the 4th May 2012 and as you know the defendant and counsel were at Rotorua Court that day expecting to proceed.In fact the hearing date was the 28th May 2012. The problem is on 28/5/12 counsel has a case in the Christchurch Court ([PE]).Counsel requests that the matter be rescheduled and asks that counsel istelephoned when you are selecting a suitable date for hearing.[6] The email attached an application for adjournment.[7] The matter was referred to a Judge. Judge Cooper noted the application for adjournment was opposed and minuted the file that it was to be put in the Court list on 28 May to be argued and the parties were to be advised. The Registrar then emailed Mr Cooper on 24 May 2012 with the following advice:Further to my emails regarding the above fixture I have had a direction from Judge Cooper.Judge Cooper has directed that the decision to adjourn this matter will be argued on Monday by both Counsel and the Police prosecutor.So just so we are clear:1. this matter will be called in the fixtures court on Monday;2. Mr Cooper both you and the defendant are expected to be present;[8] On 28 May Mr Cooper then sent a further email to the Registrar in the following terms:Thank you for your recent email regarding this matter.Unfortunately I have the flu and can not appear today and conduct a hearing to an acceptable professional standard. My medical certificate is attached.I have contacted Mr [T] and advised him to appear today. The problem was on 9/3/12 Mr [T] had the hearing date in his mind as 4/5/12 and advised counsel of this date and we both appeared that day for hearing. We reported to Mr Kelvin Wong that day after being told by the police (Richard) it was not listed that day.I would request that the Registrar contact counsel before any date is confirmed due to current Court commitments.My apologies to the Court for this error and my non appearance today.[9] The medical certificate dated 24 May 2012 was from a Nelson medical practice. It simply stated:The above patient was seen and examined by me on 24 May 2012 and in my opinion is medically unfit from 25/5/12 for one week.[10] Mr Cooper did not arrange for other counsel to appeal for Mr T on 28 May. In fact, as noted, Mr Cooper travelled (via Auckland) to Christchurch that day and appeared for another client who was to be sentenced in the Christchurch District Court. He said he felt an obligation to represent that client despite being unwell. He considered that his state of health would enable him to represent a client at sentencing but not a fully defended hearing, as was scheduled in Rotorua.Tribunal's decision[11] In finding the charge proved the Tribunal rejected Mr Cooper's evidence thathe did not get the email of 24 May 2012. It considered that Mr Cooper's email of 28 May was misleading and intentionally so. He had made a plain choice of going to Christchurch rather than remaining in Rotorua and appearing in Court there.[12] As to the second charge, Mr Cooper accepted he had failed to organise himself to avoid conflicting appearances and had failed to instruct agents to appear on his behalf.[13] The Tribunal's reasons as to penalty are relatively brief. The Tribunal said:[22] As to the penalties imposed, the Tribunal, while taking into accountthe respondent's health issues, has noted that those issues did not prevent him from going to Christchurch and did not prevent him from doing a deliberate act which it has found to be misleading and dishonest. His fitness to practice is brought into question when his obligations to the Court are brought to bear.[23] After the hearing was concluded and after reporting its decision and penalty, the Tribunal received a copy of a letter written by Mr Birks on 13 March 2012 advising the respondent that the date of 28 May 2012 set for the hearing was a final remand. That letter is important. In a response to a question from the Chair, the respondent stated that the first he knew of the 28 May 2012 date of hearing was when he appeared in Court with his clienton 4 May 2012. That was plainly a lie given that he had Mr Birks' letter afew days after the 9 March adjourned hearing. The respondent can count himself fortunate that this advice was received after the hearing concluded.The resulting penalty could well have been different as the Tribunal's findingis that the letter is further confirmation that the respondent was not truthful before it.[25] The costs of the Law Society are approved in the sum of $27,925.62The appeal grounds[14] Mr Simperingham argued that there ought to be a degree of parity in the penalties imposed by the Tribunal and that the suspension imposed on Mr Cooper was out of line in comparison to more severe breaches of ethical standards. As a result a manifestly excessive penalty was imposed. The Court should substitute a suspension of no more than six months.[15] In relation to the costs award Mr Simperingham submitted that the Tribunalshould have considered Mr Cooper's circumstances. The quantum of legal fees charged to the NZLS was excessive. The Law Society solicitors should not be given"carte blanche" when seeking costs. The Court should substitute a costs award indemnifying the NZLS to a quarter of the sum charged, $6,981.40.The approach of the Court[16] Mr Simperingham submitted that an appellant under s 253 of the Act is entitled to the opinion of this Court as to the appropriate penalty even though thatinvolves an evaluative judgment on matters of fact and degree.1 I understood Mr McCoubrey to accept that was the correct approach.[17] In any event, in this case, the reasons given by the Tribunal for the penalty imposed are, as noted, brief. While it is not necessary for the Tribunal to follow the same approach to sentencing as has been mandated with criminal sentencing,2nevertheless it is helpful for a Court reviewing the sentence on appeal to understandthe starting point and what, if any, allowances have been made by way of mitigatingor aggravating personal factors. It is impossible to discern the Tribunal's view onthose features in the present case.[18] A full Court of this Court discussed the appropriate approach to penalty inDaniels v Complaints Committee 2 of the Wellington District Law Society:3[28] The starting point is fixed according to the gravity of the misconduct, and culpability of the practitioner for the particular breach of standards. Thereafter, a balancing exercise is required to factor in mitigating circumstances and considerations of a practitioner. Obviously, matters of good character, reputation and absence of prior transgressions count in favour of the practitioner. So, too would acknowledgment of error, wrongdoing and expressions of remorse and contrition. For example, immediate acknowledgment of wrongdoing, apology to a complainant, genuine remorse, contrition, and acceptance of responsibility as a proper response to the Law Society inquiry, can be seen to be substantial mitigating matters and justify lenient penalties such as arose, for example, in Re E.[29] On the other side of the coin, absence of remorse, failure to accept responsibility, showing no insight into misbehaviour, are matters which, whilst not aggravating, nevertheless may touch upon issues such as aperson's fitness to practise and good character or otherwise.[30] If a practitioner engaged, for example, in disreputable correspondence with a complaints committee or disciplinary tribunal, or conducted himself in a belligerent way in which he responded to legitimate complaints made to a Law Society Complaints Committee, a tribunal may take a dim or adverse view of his overall behaviour. The practitioner cannotexpect that to be a factor that is ignored in the exercise of the tribunal'spower. That is because character – good or bad – may be very relevant when sanctions or penalties may come to be imposed.[31] To maintain innocence, which carries with it denial and absence of remorse, relates to absence of potential mitigation but not as a matter of aggravation.11 But there may be behaviour which detracts from positive1 Hong v Auckland Standards Committee (No 3) [2004] NZHC 2871, at [21].2 R v Taueki [2005] 3 NZLR 372.3 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850.character features advanced in mitigation. The position is described in Hall'sSentencing as:Conduct falling short of further offending should not be penalised by lengthening sentence. Nevertheless, the manner in which the defence is conducted may be considered when assessing the general character of the offender and, in particular, it may be balanced against evidence or assertions of remorse introduced in mitigation. For example, in R v Keenan (CA 256/80, 18 February 1981) the offender lied to the Court and attempted to place the blame on an innocent person. Testimonials as to her good character were introduced in mitigation. The offender'sconduct, the Court said, demonstrated not only an absence of contrition, but was relevant to the matter of character and could thus be taken into account in the matter of credits and debits which were so often a feature of the sentencing process. Similarly in R v Lynn (CA 137/88, 12 July 1988, McMullin, Bisson and Hardie Boys JJ) [1984–1988] BCLD 1900the "concoction of the defence" was seen as being "symptomatic" of the offender's absence of remorse; while in R v G (CA 184/94, 21 July 1994, Eichelbaum CJ, Casey and Henry JJ) [1993–1995] BCLD 1919 the Court stated that a failure by the appellant, aged 15 at the time of his commission of the offences of aggravated robbery and injuring with intent to facilitate that crime, to accept responsibility for his serious actions and instead to proceed to a fully defended trial where the jury was invited to conclude that he was not proved to be one of theoffenders, left the Court "with a feeling of disquiet as to the true extentof the rehabilitation process and of the appellant's genuineness". Theelements of remorse and acceptance of responsibility were said to be"lacking in any significant substance".[19] Having regard to the brief reasons given by the Tribunal for the penalty imposed, I propose to approach the issue afresh with the discussion in Daniels in mind.Preliminary matter[20] A preliminary matter arises. That is the letter provided by Mr Birks following the hearing which confirmed that Mr Birks had reported to Mr Cooper following the appearance on 13 March 2012. In that letter he confirmed the date of 28 May 2012 was set for the fixture and was a final remand. That was contrary toMr Cooper's evidence. Mr Simperingham submitted the Tribunal should not havetaken that letter into account. However, on my reading of its decision, the Tribunal did not take the letter into account. The penalty of the suspension had been imposed earlier and costs were to be quantified on the basis of invoices. The Tribunal acknowledged that it did not take the letter into account noting that the penalty could have been different (i.e. more substantial) if it had. In any event, the letter did nomore than confirm Mr Birks' oral evidence.[21] Mr Birks was called by Mr Cooper at the hearing before the Tribunal. Under cross-examination Mr Birks accepted that he advised Mr Cooper of the date of the next hearing (28 May 2012) by a brief letter saying the matter had been adjourned to the new date for a defended hearing. Further, as is apparent from Mr Cooper's ownemail of 14 May 2012, he was aware of the fixture on 28 May 2012.Decision[22] In the present case, given the finding that Mr Cooper had deliberately and wilfully misled the District Court at Rotorua the Tribunal was undoubtedly correct to identify suspension as the correct penalty. Mr Simperingham accepted in his writtensubmissions that Mr Cooper did not challenge the Tribunal's findings as a matter oflaw. Despite that, the submissions were advanced on the basis Mr Cooper had not wilfully misled the Tribunal. The Tribunal rejected that and did not accept MrCooper's evidence.[23] On my review of the record, I agree with the Tribunal's findings. Mr Cooperwas aware of the fixture of 28 May. He had sought an adjournment of it. He had been told his application for adjournment would be listed for argument on 28 May (inferentially it would have been clear to Mr Cooper that, if his application for adjournment was declined, the case would proceed) and to avoid that issue and to meet his obligations to a different client he chose not to attend the Rotorua District Court. He ignored the Registrar's communication of the Judge's direction that he was required to attend Court and deliberately misled the Court in his letter of 28 May by suggesting he was so unwell that he would be unable to conduct the hearing. That was a serious breach of his obligations as an officer of the Court.[24] The Tribunal rejected Mr Cooper's explanation and found that he was not truthful in the evidence he gave before it. Again, like the Tribunal I reject the submission on his behalf that he considered he was well enough to conduct a sentencing hearing but not a full defended hearing. The medical evidence Mr Cooper provided to the Rotorua District Court to explain his absence was insufficient and does not suggest that at all.[25] What then was the appropriate period of suspension? The maximum period of suspension permitted is three years.4[26] As noted, Mr Simperingham referred to a number of cases where penalties less than 18 months' suspension had been imposed. For instance:(a) Otago Standards Committee v Davidson5 – the lawyer had entered a false date for execution of a will. The Committee began with a starting point of suspension of 12 months and reduced it to six months in consideration of mitigating factors;(b) Hong v Auckland Standards Committee No 36 – Mr Hong failed to comply with an order of the Court. The High Court reduced the suspension from 10 months to four months;(c) Auckland Standards Committee No 1 v Garrett7 – Mr Garrett had negligently or falsely sworn an affidavit. A 12 month suspension was imposed (I note in that particular case Mr Garrett accepted his guilt at an early stage);(d) Wellington Standards Committee 1 of the New Zealand Law Society v Lester8 – the practitioner failed to file a notice in pursuit of a claim and then falsely advised the client the matter was proceeding. The Tribunal found there was no deliberate dishonesty and censured the practitioner. I do not consider this authority is relevant to the present circumstances where the Tribunal has found a deliberate attempt to mislead; and finally4 Lawyers and Conveyancers Act 2006, s 242(1)(e)5 Otago Standards Committee v Davidson [2012] NZLCDT 39.6 Hong v Auckland Standards Committee No 3 [2014] NZHC 2871.7 Auckland Standards Committee No 1 v Garrett [2011] NZLCDT 29.8 Wellington Standards Committee 1 of the New Zealand Law Society v Lester [2015] NZLCDT 23.(e) Sorensen v New Zealand Law Society (Auckland Standards Committee Number 29 – the Tribunal found the practitioner assisted the executors of the will to distribute the estate knowing it to be improper and dishonest – suspension of two years imposed.[27] Mr Simperingham suggested that having regard to those cases, the 18months' suspension was excessive.[28] However, I consider there is force in Mr McCoubrey's submission that a distinction is to be drawn between negligence and wilful dishonesty. This was serious misconduct on the part of the practitioner akin to wilful dishonesty. He deliberately misled the Court. That impacted on the business of the Court, the client and the administration of justice generally. It is a serious matter for counsel to mislead the Court. Judges properly place reliance on counsel's advice and often act on the basis of it. It is a serious matter to breach the trust that Judges place incounsel's advice. Given the maximum period of three years for suspension, a starting point of 18 months was open to the Tribunal.[29] It is then necessary to consider aggravating and mitigating circumstances. There are aggravating circumstances in this case. Mr Cooper has previously been sanctioned by the Law Society for not dissimilar actions.[30] In 1997 Mr Cooper was found guilty of conduct unbecoming a barrister, was censured and directed to pay costs on a charge that he deceived and misled the Court in the conduct of a criminal defence. In July 2012 he was found guilty of unsatisfactory conduct. He had shown discourtesy to the Court and let his client down by, inter alia, not dealing with a scheduling conflict in relation to a hearing on 22 March 2012. Those previous breaches of his obligation as a barrister would have warranted an uplift of up to six months, even without considering a third matter which post-dated the present complaint.9 Sorensen v New Zealand Law Society (Auckland Standards Committee Number 2 [2013] NZHC 1630.[31] There was then Mr Cooper's personal circumstances. There was informationbefore the Court as to his medical condition. In April 2014 he was diagnosed as suffering from mixed anxiety depression. He ceased working as a barrister as from about January 2014 and confirmed in May 2014 that he was not going to renew his practising certificate. He has thus already spent over a year without practising. Nevertheless, as the Court said in Daniels v Complaints Committee 2 of the Wellington District Law Society:10[25] It will not always follow that a practitioner by disposing of his practice and undertaking not to practise can avoid or pre-empt an order for suspension. The consideration of whether to suspend or not requires wider consideration of all the circumstances. The real issue is whether this order for suspension was an appropriate and necessary response for the proven misconduct of the appellant having regard not only to the protection of the public from the practitioner but also to the other purposes of suspension.[32] Taking account of Mr Cooper's medical condition, particularly the diagnosis of depression, and the fact that he voluntarily did not seek to renew his practising certificate, an allowance of up to six months might have been allowed as a reduction in the suspension.[33] No further allowance can be made for remorse in this case as Mr Cooper did not accept that he had done anything wrong. In fact he presented a different explanation to the Tribunal. The Tribunal rejected his evidence. While that is not a matter he is to be penalised for, there is no credit available to him for remorse. It follows that, in my view, the term of suspension of 18 months from 2 March 2015 was appropriate.[34] I turn to the issue of the costs award. Mr Cooper has been ordered to reimburse the NZLS for the Tribunal's costs of $5,540 as well as pay the full amount of the NZLS solicitors' costs. Section 249 provides the Tribunal may direct payment "as [it] thinks fit in respect of the expenses of and incidental to the proceedings and any investigation ". It also makes it clear the costs may include the NZLSoverhead expenses (which were not claimed in this case).10 Daniels v Complaints Committee 2 of the Wellington District Law Society, above n 3.[35] I note there was no information provided by Mr Cooper to assist the Tribunal as to what his financial circumstances were. Although information has been presented to this Court that he is now in receipt of an insurance related income protection benefit, there is still no information before the Court as to his assets.[36] On the issue of costs Mr Simperingham referred to the decision of Auckland Standards Committee 1 v Thomson11 where, after taking account of the practitioner'sfinancial state, the Disciplinary Tribunal did not award a full indemnity but rather awarded costs of approximately one-third. However, in Mr Thompson's case theTribunal had sufficient information before it to record that he was in a parlous financial state, was in receipt of a sickness benefit and had a number of outstanding debts. Bankruptcy was a possibility. His health was fragile. He also had co- operated with the Tribunal and accepted he should be struck off.[37] In The National Standards Committee of New Zealand Law Society v Blair,12another case referred to by Mr Simperingham, the Tribunal had particular regard tothe practitioner's weekly income, necessary expenses and quantum of debts andfixed a costs award at 50 per cent of the expenditure. Further, in the case ofAuckland Standards Committee v van der Zanden13 the Tribunal awarded costs of 50 per cent.[38] There is some debate in the authorities as to the approach to be taken to the issue of costs. In a number of cases less than full recovery has been awarded, but in other cases the point has been made that the costs of a successful prosecution should not fall on the members of the professional generally. I note for example the following passage from Daniels v Complaints Committee 2 of the Wellington District Law Society:14[49] Unquestionably, awards of costs have punitive consequences, but on the other hand the financial burden of disciplinary proceedings can be significant and such a burden ought not fall totally upon the members of a profession which disciplines its own.11 Standards Committee 1 v Thomson [2014] NZLCDT 38.12 The National Standards Committee of New Zealand Law Society v Blair [2015] NZLCDT 9.13 Auckland Standards Committee v van derZanden [2014] NZLCDT 21.14 Daniels v Complaints Committee 2 of the Wellington District Law Society, above n 3.[39] In my judgment there are two particular aspects relevant to the issue of costs in this case. The first is, as noted, Mr Cooper did not put any information before the Court as to his expenses, outgoings, or his assets and liabilities. Mr Simperingham suggested Mr Cooper's asset position was not relevant but I do not accept that when the issue is consideration of ability to meet a lump sum order for costs.[40] Further, the actions of the practitioner throughout the prosecution in this case have in large part contributed to the amount of the costs award. While he was of course entitled to defend himself, he has to face the consequences if ultimately the defence is unsuccessful.[41] Having regard to all factors, but taking account of the fact Mr Cooper has not been practising for some time and will not, as a consequence of the suspension be able to practise for a lengthy period, I accept that the costs award should be less than a full indemnity in this case. Eighty per cent of the direct solicitor/client costs incurred by the NZLS is appropriate in this case.Result[42] The appeal against a suspension of 18 months is dismissed. The appeal against the costs award of $27,925.62 is allowed to the extent that that order is quashed and replaced with an order that Mr Cooper is to pay costs in the sum of $22,340.50.[43] For the avoidance of doubt in addition to the above order for costs theTribunal's order that Mr Cooper is to reimburse the NZLS for the Tribunal costs of $5,540 stands. It is in addition to the above sum of costs of $22,340.50.__________________________ Venning J