COMPLAINTS COMMITTEE NO 1 OF THE AUCKLAND DISTRICT LAW SOCIETY V APC HC AK CIV 2007-404-4646

COMPLAINTS COMMITTEE NO 1 OF THE AUCKLAND DISTRICT LAW SOCIETY V APC HC AK CIV 2007-404-4646 29 April 2008ORDER PROHIBITING PUBLICATION OF THE NAMES OR IDENTIFYING PARTICULARS OF THE MORTGAGORS IN THE TRANSACTIONS CONCERNED. ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF PRACTITIONER PENDING THE FURTHER ORDER OF THE TRIBUNAL. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-4646UNDER the Law Practitioners Act 1982 IN THE MATTER OF an appeal against a decision of the New Zealand Law Practitioners Disciplinary Tribunal BETWEEN COMPLAINTS COMMITTEE NO 1 OF THE AUCKLAND DISTRICT LAW SOCIETY Appellant AND APC Respondent Hearing: 8 February 2008 Court: Randerson J Williams J Winkelmann J Appearances: D M Carden and M A Treleaven for appellant G E Minchin for respondent Judgment: 29 April 2008JUDGMENT OF THE FULL COURTThis judgment was delivered by the Full Court on 29 April 2008 at 2.15 pm pursuant to r540(4) of the High Court Rules 1985.Registrar/Deputy Registrar Date:A. The appeal is allowed. We find all particulars of charges one, two and four proved. Mr C is guilty of misconduct in a professional capacity as alleged in charges one, two and four. B. We refer the matter back to the New Zealand Law Practitioners Disciplinary Tribunal for the imposition of penalty and the issue of costs for the hearings before the Tribunal. In doing so we record the appellant's concession it will not be seeking orders suspending Mr C from practice, or ordering he be struck off the roll. C. We order that there be no publication of the name or any identifying particulars of the mortgagors in the transactions concerned. D. We order that there be no publication of the name or identifying particulars of the practitioner until further order of the Tribunal. E. The appellant is entitled to costs on this appeal against the respondent on a 2B basis with disbursements as fixed by the Registrar.____________________________________________________________________REASONS OF THE COURT [Given by Winkelmann J][1] Mr C was brought before the New Zealand Law Practitioners Disciplinary Tribunal on five charges of professional misconduct, arising out of the issue by him of two separate solicitor's certificates to Westpac Banking Corporation. On both occasions he certified that it was in order for the Bank to make loans in respect of conveyancing transactions. He was charged with: (a) Misconduct in his professional capacity on the grounds that by signing the certificates he had breached s 56(2) of the Law Practitioners Act 1982 by acting as a solicitor when he did not hold a practising certificate as a solicitor, or as a barrister and solicitor.(b) Misleading the bank by reason of statements made in the certificates. (c) Failing to honour the undertakings he gave in the certificates. [2] The Tribunal took the view that although Mr C faced five charges, those charges needed to be looked at together and in a broad way. The substance of them was that he had conducted himself as a solicitor when he was not a solicitor. The Tribunal found that while Mr C had breached s 56(2) and while his conduct was unacceptable, he had not engaged in intentional wrongdoing so as to amount to professional misconduct. [3] The complainant appeals that decision on two grounds. First, it says the Tribunal applied the wrong threshold test to determine whether there was misconduct in a professional capacity. Secondly, the appellant says the Tribunal was plainly wrong in finding the conduct did not amount to professional misconduct.Factual background[4] Mr C is a law practitioner practising in Auckland. He was admitted as a barrister and solicitor on 12 October 2001 and employed by a Wellington firm of solicitors between February 2002 and February 2004. He had a practising certificate as a barrister and solicitor for the practising year ending 31 January 2003, but requested a practising certificate as a barrister sole on 21 May 2004. [5] Mr C provided an affidavit for the hearing before the Tribunal explaining his experience in conveyancing and his role in the subject transactions. He was also cross-examined at the hearing by counsel for the complainant. In his affidavit Mr C said he became acquainted with the conveyancing business of Mr Dempster, Conveyancers NZ Limited, while working for the Wellington firm of solicitors, as the businesses operated from adjacent premises. Although Mr Dempster was not a lawyer, Mr C knew he could complete conveyancing transactions legally because he was a licensed land broker. While at the firm, Mr C became familiar with instructions from lending banks, and what was entailed in the protection of theirinterests as mortgagees, including the issue of certificates. He also frequently saw the principal of his firm signing certificates and undertakings for mortgagee lenders in transactions in which Conveyancers NZ Limited was acting as the conveyancer. [6] In early 2004, Mr C left the employ of the firm of solicitors and commenced practice as a barrister sole. From mid-2004 until the time of the hearing before the Tribunal he had been practising as a barrister, his work predominantly focusing upon issues arising under the Injury Prevention, Rehabilitation and Compensation Act 2001 and various social security Acts. [7] In September 2004, Mr C was contacted by Mr Dempster and asked if he would act for mortgagee lenders where required, providing independent and separate advice as to the acceptability of mortgage documentation for registration. Mr C checked the Law Practitioners Act 1982 to see whether there would be any breach of its provisions if he undertook that work. He formed the tentative opinion that there was nothing in the Act prohibiting a barrister from providing advice and opinion on whether mortgage documents were satisfactory for registration. He decided to contact the Auckland District Law Society to check whether there would be any problem if he were to sign the certificates. He claims to have spoken with the Professional Standards Director of the District Law Society, Mr Andrew Burger. During a brief discussion Mr Burger expressed the view that there was no clear statutory bar or policy on the issue and said he was not aware of any possible breach. However, he recommended that Mr C talk to a Friends Panel Member. [8] Mr Burger also provided an affidavit for the hearing before the Tribunal. He said although he had no recollection of such a conversation, if he had been asked whether there was anything in the Act preventing a barrister from providing advice and opinion on whether mortgage documents were satisfactory for registration, he would have said there was no statutory prohibition against giving such advice. But if Mr C had told him he was proposing to take instructions from someone who was not a solicitor to act on behalf of mortgagees in conveyancing transactions and sign solicitor's certificates, he would have told him that would be in breach of the intervention rule. He would also have been mindful of a Tribunal decision whichconcerned a barrister doing conveyancing work. He agreed he would have recommended that Mr C speak to a Friends Panel Member. [9] Mr C said that as recommended by Mr Burger, he telephoned a Friends Panel Member whose name appeared in the Domestic Conveyancing category. He was unable to recall who that person was. The Panel Member said he was not aware that Mr C's proposed actions would breach the Act, but said Mr C should make his practising status clear to the mortgagee lender and let the mortgagee lender decide according to their practice. [10] Mr C claims that if the response from either the Professional Standards Director or the Panel Member had been doubtful or negative, he would have declined to sign the certificates. However, their response, along with some other factors, led him to conclude his actions would be proper. Those other factors included the fact that a certificate is not a formal part of the conveyancing transaction and in particular is not a statutory document or instrument. The only significance the certificate has is to the bank itself; not the registration process or the mortgagor. How a lender verifies that the documentation is in order so that it may proceed to lend is a matter for each lender. To illustrate this point Mr C described a land broker's certificate used by at least one lender which he said is the same in substance and contained the same confirmations as a solicitor's certificate. This led to his understanding that "solicitor's certificate" is a name only. He also took into account his assessment that Mr Dempster was a competent conveyancer who he thought would provide a high level of expertise in respect of the obligations to be fulfilled for the mortgagee. [11] Mr C said that following the discussions with the Professional Standards Director and Friends Panel Member he very occasionally acted for the Bank as mortgagee, in transactions in which Mr Dempster, through his business, Cullen Conveyancing, was acting for the mortgagor. He identified a transaction that occurred in April 2005, approximately a year earlier than the transactions in respect of which he was charged. In the April transaction he was also asked by Cullen Conveyancing to provide a solicitor's certificate to the Bank. In the signature portion of the document there is provision for completion of the firm's name, the partner's signature, and the partner's name. In the space for the firm name he hasprinted his first name, middle initial and surname alongside the description "Barrister". He has signed the document in the space for the partner's signature and in the space for the partner's name he has written his first name and surname.Mr and Mrs B's transaction[12] The first transaction in respect of which Mr C was charged was a loan by the Bank to Mr and Mrs B. Mr C was contacted on or about 11 May 2006 by a principal of Cullen Conveyancing, Ms Ann Meredith-Cullen. He was told the clients were refinancing and a loan was due for draw-down on 16 May 2006. He asked Ms Meredith-Cullen for confirmation disclosure had taken place and the loan agreement and mortgage instrument were correctly executed. He asked that Cullen Conveyancing perform a guaranteed search on the title, and that copies be provided to him. [13] On 12 May 2006 he received a courier pack enclosing a covering letter from Cullen Conveyancing asking him to complete and sign the solicitor's certificate enclosed and courier the documents overnight to the Bank in the enclosed courier envelope. He was paid a small fee in anticipation of his services. Documents with which he was provided were executed loan agreements, a guaranteed search of title, a copy of an authority to act form and a trust account deposit slip, together with a solicitor's certificate for completion by him. The enclosed solicitor's certificate is headed "Solicitors' Certificate and Undertaking". It records as follows (with customer details omitted):To: [The Bank] Debtor/s: ("Customer") Guarantor/s: ("Guarantor") We certify that:Instructions1. We have acted for Westpac in accordance with instructions dated 4/05/2006 ("Instructions")Experience, care and skill2. The principal who has undertaken or supervised the instructions has adequate relevant experience and we have exercised the appropriate standard of care and skill for the transaction.Enquires and searches3. We have made such enquires and searches as we have considered appropriate (including, where relevant, obtaining a guaranteed search of the titles to the land described in Schedule 1 ("Land")) and confirm that, other than for the security interests referred to in paragraph 4 below, such enquires and searches disclose nothing to adversely affect Westpac's security interest in the Land (including preventing it from obtaining the security ranking required by Westpac).Releases of other security interests4. We have obtained releases of, or satisfactory undertakings to provide releases on settlement in respect of, all security interests in the land.Parties5. We are of the opinion that, in respect of each party to the facility and security documents referred to in the instructions ("Documents") (other than Westpac): (a) (where relevant) it is incorporated and validly existing under the laws of New Zealand; (b) it has the necessary power to enter into, and to perform its obligations under, the Documents and the transactions contemplated by the Documents; (c) it has every requisite authorisation for its entry into, execution and performance of the Documents and the transactions contemplated by the Documents; (d) it has executed the Documents in accordance with its constitutional documents (if any) and all applicable laws; and (e) its obligations under the Documents are binding and enforceable obligations of it (subject to matters of general law affecting enforceability).No amendments6. No amendments have been or will be made to the Documents without the prior written approval of the Westpac instructing unit.Guarantees7. Any guarantee included in the Documents, and the separate Solicitor's Certificate relating to each guarantee, has been signed inaccordance with the Instructions and any notes provided by Westpac regarding completion of the guarantees.Insurance8. We have made enquiries of the insurer for each party to the Documents which has granted a security interest to Westpac, and set out insurance details in Schedule 2. We have been advised that all the property subject to a security interest is, or on drawdown of the facilities will be, insured against fire, earthquake and disaster risks. We have notified the insurers of Westpac's interest in the secured property and have requested them to forward us a certificate of currency.Rates9. On the basis of information provided to us by the local authority for levying rates on the Land, or undertakings we will obtain prior to drawdown of the facilities, we confirm that on or immediately after drawdown there will be no arrears of rates on the land.Registration10. We enclose those Documents which are not required to be registered. We will promptly lodge or submit, in a registrable form at the appropriate registry of Land Information New Zealand ("LINZ"), all Documents which are required by law to be registered (or the non- registration of which might affect the priority of any security interest contained in any Document). We will forward to Westpac: (a) In the case of any paper dealing, as soon as the registrable Documents are registered and returned to us, those registrable Documents and a post registration search copy of each certificate of title (without a diagram); and (b) in the case of any Landonline electronic dealing, as soon as the registrable Documents are registered, a post registration search copy of each certificate of title (without a diagram). 11. Additionally, in relation to any Landonline electronic dealing, we confirm that: (a) we hold the duly signed Client Authority and Instruction form for the dealing (as approved by the New Zealand Law Society and the Registrar-General of Land) from each party authorising the dealing; and (b) we have pre-validated the dealing with LINZ; Dated 12 May 2006[14] When Mr C received the documents he reviewed them and conferred with Ms Meredith-Cullen. He concluded that the Bank's interests were protected. He completed the solicitor's certificate. In the space provided for the firm name, heprinted his first name, middle name and surname. In the space for the partner's signature, he signed his name. He left the area provided to print the partner's name blank. For reasons not before us, Mr C returned all the documentation to Cullen Conveyancing rather than sending it directly to the Bank as he had been instructed. [15] On about 18 May 2006 Mr C received documents from Cullen Conveyancing confirming draw-down of the funds had taken place on the transaction, settlement had been effected on 16 May 2006 and the Bank's interests had been protected. Mr C expresses the view that the fact the security instruments were registered proved the mortgagee could rely on his certification. He accepts however that he should have crossed out the terms, "Name of firm" and "Partner" on the bottom of the certificate and inserted the word "Barrister" next to his name. He should further have made it clear on the certificate itself that he was signing the certificate as a barrister as he claims he had done in the past.Mr and Mrs G's transaction[16] The second transaction the subject of charges occurred in late May 2006. At 2.30 pm on 30 May 2006, Mr C received by same day courier from Cullen Conveyancing copies of instructions from Westpac to Mr and Mrs G. He received copies of instruction from the Bank to Cullen Conveyancing, a "Solicitors' certificate and Undertaking" form for completion, an authority to act form and identification from Mr and Mrs G, a loan agreement signed by the mortgagors, a completed certificate of insurance, a guaranteed search of title and a mortgage instrument executed and witnessed. The certificate was in identical form to that for Mr and Mrs B. Mr C signed the certificate and faxed it to Cullen Conveyancing on the same day, 30 May 2006. He then sent the original certificate to the Bank with a covering letter on his normal letterhead, which clearly states he is a barrister. The certificate was again headed "Solicitors' Certificate and Undertaking". It was completed in a similar fashion as on the previous occasion except when Mr C printed his name in the space supplied for the firm's name, he wrote his first name, middle initial and surname. He left the space for the partner's name blank.Tribunal decision[17] The charges and the particulars of the charges against Mr C before the Tribunal were as follows.COMPLAINTS COMMITTEE NO. 1 OF THE AUCKLAND DISTRICT LAW SOCIETY hereby charges Mr C with misconduct in his professional capacity as follows: 1. Being the holder of a practising certificate as a barrister sole, in about May 2006 he acted as a solicitor when he was not the holder of a current practising certificate as a solicitor or as a barrister and solicitor in breach of Section 56(2) of the Law Practitioners Act 1982.Particulars1.1 On or about 12 May 2006 the Practitioner signed a Solicitors' Certificate and Undertaking addressed to Westpac Banking Corporation, purportedly as a partner of the firm Mr C , in relation to a mortgage advanced by Westpac Banking Corporation to [B] to be secured over a property. 1.2 On or about 30 May 2006 the Practitioner signed a Solicitors' Certificate and Undertaking addressed to Westpac Banking Corporation, purportedly as a partner of the firm [A] , in relation to a mortgage advanced by Westpac Banking Corporation to [G] to be secured over a property. 1.3 By letter dated 29 May 2006 the Practitioner wrote to Westpac Bank in respect of the purchase of by [G] forwarding a Solicitors' Certificate and Undertaking and asking the Bank to contact him with any further enquires. 2. The Practitioner misled Westpac Banking Corporation in his Solicitors' Certificate and Undertaking dated 12 May 2006 in respect of a proposed mortgage advance to [B] ("the First Solicitor's Certificate")Particulars2.1 In the First Solicitors' Certificate the Practitioner stated he was a partner of the firm [A]. 2.2 In the First Solicitors' Certificate signed by the Practitioner he purported to give a solicitor's certificate and undertaking when he was not the holder of a practising certificate as a solicitor or as a barrister and solicitor. 2.3 By Paragraph 1 of the First Solicitors' Certificate the Practitioner certified and undertook "we have acted for Westpac in accordance with instructions dated 4/05/2006 ("the instructions").2.4 By Paragraph 2 of the First Solicitors' Certificate the Practitioner certified and undertook "the principal who has undertaken or supervised the instructions has adequate relevant experience and we have exercised the appropriate standards of care and skill for the transaction". 2.5 By paragraph 3 of the First Solicitors' Certificate the Practitioner certified and undertook "we have made such enquires and searches as we considered appropriate and confirm that such enquires and searches disclosed nothing to adversely affect Westpac's security interest in the land " 2.6 By paragraph 4 of the First Solicitors' Certificate the Practitioner certified and undertook "we have obtained releases of, or satisfactory undertakings to provide releases on settlement in respect of, all security interests in the land." 2.7 By paragraph 8 of the First Solicitors' Certificate the Practitioner certified and undertook "we have made enquires of the insurer for each party to the documents which has granted a security interest to Westpac" and "we have notified the insurers of Westpac's interest in the secured property and have requested them to forward us a certificate of currency". 2.8 By paragraph 10 of the First Solicitors' Certificate the Practitioner certified and undertook "we will promptly lodge or submit, in a registerable form at the appropriate registry of Land Information New Zealand ("LINZ") all documents which are required by law to be registered". 2.9 By paragraph 11 of the First Solicitors' Certificate the Practitioner certified and undertook "we hold a duly signed Client Authority and Instruction form for the dealing from each party authorising the dealing". 2.10 The statements referred to in particulars 2.1 to 2.9 above were untrue in that the Practitioner was not a partner of a firm named [A], was not acting in relation to the proposed mortgage advance to [B] and had no instructions to do so. 3. Further or in the alternative, in breach of Rule 6.07 of the Rules of Professional Conduct for Barristers and Solicitors the Practitioner failed to honour the undertakings referred to in particulars 2.2 to 2.9 above. 4. The Practitioner misled Westpac Banking Corporation in his Solicitors' Certificate and Undertaking dated 30 May 2006 in relation to a proposed mortgage advance to [G] ("the Second Solicitors' Certificate").Particulars4.1 In the Second Solicitors' Certificate the practitioner stated he was a partner of the firm [A], which was untrue. 4.2 With the exception of the matter referred to in particular 4.1 above, the terms of the Second Solicitors' Certificate were the sameas the terms of the First Solicitors' Certificate and particulars 2.2 to 2.9 above are repeated. 4.3 The statements referred to in particulars 2.2. to 2.9 above in respect of the [G] transaction were untrue in that the Practitioner was not a partner of a firm named [A], was not acting in relation to the proposed mortgage advance to [G] and had no instructions to do so. 5. Further or in the alternative in breach of Rule 6.07 of the Rules of Professional Conduct for Barristers and Solicitors the Practitioner failed to honour the undertakings referred to in particular 4.2 above.[18] In considering the charges the Tribunal noted that s 56(2) of the Act prohibits a practitioner from acting as a solicitor unless he or she is the holder of a practising certificate as a solicitor or barrister and solicitor. It also noted the provisions of s 65, which provides in material part:65 Qualified persons only to act as conveyancers(1) Except as provided in subsection (2) of this section, no person, other than the holder of a current practising certificate as a barrister or as a solicitor or as both, or a person acting under the supervision of such a holder, shall draw or prepare for or on behalf of any other person - (a) Any conveyance within the meaning of the Property Law Act 1952 of any real or personal property: (b) Any deed within the meaning of the Property Law Act 1952 relating to any real or personal property: (c) Any tenancy agreement or agreement evidencing a tenancy, if - (i) The tenancy is for a term of more than 12 months; or (ii) Any right of renewal is conferred on the tenant by the agreement; or (iii) Any charge is made directly or indirectly for the drawing or preparation of the agreement or for any other service incidental to it. (2) Subsection (1) of this section shall not apply to - (a) Any agreement for sale and purchase of land or any interest in land or of the goodwill of a business or of chattels prepared by a real estate agent holding a licence in force under the Real Estate Agents Act 1976: (b) Any transfer of shares, stocks, debentures, or chattels containing no trust or limitation thereof:(c) Any conveyance, deed, or agreement that is drawn or prepared by filling in a printed form, if - (i) The printed form was drawn or prepared by a person who, at the time when it was drawn or prepared, was the holder of a current practising certificate as a barrister or as a solicitor or as both; and (ii) It could reasonably be expected that the form could be properly completed by the persons likely to complete it, whether or not they were holders of such certificates; and (iii) No charge is made directly or indirectly for the drawing or preparation of the conveyance, deed, or agreement or for any service incidental to it.[19] The Tribunal observed that s 65 allows barristers, solicitors, and barristers and solicitors holding current practising certificates to draw or prepare three categories of documents. First, any conveyancing of real or personal property within the meaning of the Property Law Act 1952. Secondly, any deed within the meaning of the Property Law Act relating to real or personal property and thirdly, any tenancy agreement. It held that it does not authorise barristers to be involved in conveyancing to any wider extent and does not authorise a practitioner who does not hold a solicitor's practising certificate to do work which the holder of such certificate may do. It referred to its previous decision in Robert John McKee (oral decision of Tribunal as to charges dated 3 March 2003) in which the Tribunal drew a distinction between the drawing of deeds, complex or otherwise, on the one hand, and acting in a conveyancing transaction on the other. Generally, the former was an area of work in which barristers had long been instructed. The latter was the ordinary work of a solicitor and outside the scope of a barrister's work in terms of the narrow ambit of s 65(1). [20] Applying that principle to the specifics of this case, the Tribunal held that Mr C had involved himself in solicitor's work by providing the solicitor's certificates. The Tribunal found it was wrong for Mr C to complete the certificates in the way he did and on the basis they were to be put before the Bank. It found it must have been obvious to him he was not a solicitor, that the Bank was requiring a certificate from a solicitor, and that it was unacceptable to complete the documents purporting to be solicitor's certificates when he, the practitioner, was a barrister only.[21] It noted however that the issue before the Tribunal was not only whether wrongful acts had been established beyond reasonable doubt but also whether they had reached the threshold of gravity required to establish misconduct. It adopted the threshold test stated by the Tribunal in Auckland District Law Society v Atkinson(Reasons for decision dated 15 August 1990). The Tribunal described the test inAtkinson as a test of gravity of conduct. The Tribunal also referred to the decision of the High Court in Re A (Barrister and Solicitor of Auckland) [2002] NZAR 452. [22] The Tribunal then addressed the charges. In relation to the charges that Mr C had misled the Bank, the Tribunal said there was no evidence before it the Bank was in fact misled. In relation to charges 3 and 5, failing to honour undertakings, it said the undertakings were the usual undertakings contained in a solicitor's certificate as to the completion of the conveyancing process. [23] In any event, the Tribunal considered the charges needed to be looked at together in a broad way and said at [33]:The substance of the charges is that the practitioner involved himself in giving solicitor's certificates in conveyancing transaction when he ought not to have done so and that thereby he was conducting himself as a solicitor when he was not a solicitor. Breaking down this overall position to a number of separate charges does not now change the gravity of what happened. Therefore, while we have carefully addressed each of the five charges it is the first of the charges that we think is most apposite.[24] Although the Tribunal was satisfied that in one sense the practitioner's conduct was inexcusable, and that it was unacceptable, it was not persuaded the gravity of the practitioner's conduct was such to justify a finding of professional misconduct. The Tribunal was satisfied Mr C had been drawn into the conveyancing transactions more through irresolution than guile. The Tribunal took account of the enquiries the practitioner made with the Auckland District Law Society and the members of the Friends Panel. The Tribunal said it was left with a feeling the enquiries were shallow and insufficient to justify the practitioner proceeding as he did. Nevertheless, in the circumstances the Tribunal did not consider it was able to find to the standard required that Mr C had engaged in intentional wrongdoing. Instead, the Tribunal concluded that Mr C made wrong judgments after consideration of the issues, that these wrong judgments were made to meet the expectations of theland broker and the clients of the land brokers and that the practitioner recognised that his actions were wrong.Approach on appeal[25] This is a general appeal by way of rehearing under s 118 of the Act and Rule 718(1) of the High Court Rules. As to the relevant principles governing such an appeal, the appellate court proceeds on the record from the Tribunal hearing. It must come to its own view on the merits, and need not defer to the views of the Tribunal. When forming its view of the merits the appellate court is entitled to take into account that the Tribunal may have an advantage in terms of technical expertise, and may also have had the opportunity to assess issues of credibility where witnesses have given evidence before it. Where credibility determinations of the Tribunal are in issue on appeal the appellate court may properly be cautious in differing from the Tribunal in relation to those findings. But the extent of consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment: Austin Nicholls & Co v Stichting Lodestar [2007] NZSC 103 11 December 2007. The Court has the power under s 118(3) of the Law Practitioners Act to confirm or modify the decision of the Tribunal.First ground of appeal[26] The appellant says that in adopting the test for misconduct in a professional capacity articulated in Auckland District Law Society v Atkinson, the Tribunal applied the wrong legal test. The starting point for what is meant by the expression "misconduct" in a professional capacity must, of course, be the statute. Section 112 of the Law Practitioners Act 1982 provides a range of disciplinary charges that may be laid against a practitioner, as follows:Powers of New Zealand Disciplinary Tribunal in respect of charge against practitioner(1) Subject to this Part of this Act, if after inquiring into any charge against a practitioner the New Zealand Disciplinary Tribunal -a) Is of the opinion that the practitioner has been guilty of misconduct in his professional capacity; or b) Is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor; or c) Is of the opinion that the practitioner has been guilty of negligence or incompetence in his professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute; or d) Is satisfied that the practitioner has been convicted of an offence punishable by imprisonment, and is of the opinion that the conviction reflects on his fitness to practise as a barrister or solicitor, or tends to bring the profession into disrepute, - [27] The Tribunal in Atkinson articulated the test for professional misconduct after a review of English and New Zealand authority. The test is set out at 15 of the reasons for the decision in Atkinson:Returning to the definition of professional misconduct, in short the default must be of sufficient gravity to be termed "reprehensible" (or "inexcusable", "disgraceful" or "deplorable" or "dishonourable") or if the default can be said to arise from negligence such negligence must be either reprehensible or be of such a degree or so frequent as to reflect on his fitness to practise.[28] The appellant submits the principal difficulty with this test is the linking of the adjectives reprehensible, inexcusable, disgraceful, deplorable and dishonourable with the expression "as to reflect on [the practitioner's] fitness to practice". In the appellant's submission this confuses the nature of the conduct with the appropriate penalty. [29] When the particular passage in Atkinson is read with care, it is apparent that the expression "or be of such degree or so frequent as to reflect on his fitness to practise" qualifies only that portion of the test that refers to negligence. It does not limit the earlier part of the cited passage. Nevertheless, we consider the test adopted in Atkinson incorrectly describes as "professional misconduct", conduct properly charged under s 112(1)(c) as negligent to such a degree "as to reflect on his fitness to practise". [30] There is a further difficulty with the Atkinson definition. The expressions such as "disgraceful", "dishonourable" (Myers v Elman [1940] AC 282),"inexcusable" (Re a Solicitor [1972] 2 All ER 811) and "reprehensible" that make up the balance of the Atkinson test have been used in various decisions to describe conduct that can amount to professional misconduct. As the Tribunal noted, they describe the gravity of the conduct. In reality however, while those words describe the seriousness of the misconduct, they reveal little of the type of conduct intended to be caught by s 112(1)(a). [31] Elsewhere the Tribunal directed itself that intentional wrongdoing is an essential element of a charge under s 112(1)(a). We consider that formulates the test too narrowly. The essential characteristics of conduct that will amount to professional misconduct are well described in Re A (Barrister and Solicitor of Auckland), and in particular in the passages set out there from Pillai v Messiter [No 2] (1989) 16 NSWLR 197 (Kirby P):The words used in the statutory test ("misconduct in a professional respect") plainly go beyond that negligence which would found a claim against a medical practitioner for damages: Re Anderson, (at 575). On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson (at 575). Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: [32] Also approved of in Re A (Barrister and Solicitor of Auckland) was the passage from Corpus Juris Secundum Vol 58, 1948, page 818 applied by Kirby P inPillai:Both in law and in ordinary speech the term 'misconduct' usually implies an act done wilfully with a wrong intention, and conveys the idea of intentional wrongdoing. The term implies fault beyond the error of judgment; a wrongful intention, and not a mere error of judgment; but it does not necessarily imply corruption or criminal intention, and, in the legal idea of misconduct, an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences.[33] To conclude, the Atkinson test adopted by the Tribunal incorrectly includes within the definition of professional misconduct conduct falling within s 112(1)(c) and, in other respects, is not particularly helpful. The Tribunal erred in directing itself that intentional wrongdoing is an essential element of a charge under s 112(1)(a). While intentional wrongdoing by a practitioner may well be sufficient to constitute professional misconduct, it is not a necessary ingredient of such conduct. The authorities referred to above (and referred to in the Tribunal decision) demonstrate that a range of conduct may amount to professional misconduct, from actual dishonesty through to serious negligence of a type that evidences an indifference to and an abuse of the privileges which accompany registration as a legal practitioner. [34] There is another aspect of the Tribunal's decision that, although not the subject of appeal and not touched upon in submissions before us, requires some comment. The Tribunal directed itself that the standard to which the charges had to be proved by the complainant was "beyond reasonable doubt". In Z v Complaints Assessment Committee CA 231/05, 22 March 2007, the Court of Appeal held that the standard of proof in medical and dental disciplinary proceedings was civil in nature and not quasi-criminal. The civil standard applied even though the subject matter of the charge against the dentist in that case was conduct which amounted to criminal offending and for which he had previously been tried before a jury and acquitted. [35] In the Court's view, the civil standard reflected the nature of the proceedings and the procedure applicable to the dental disciplinary bodies. The civil standard was also apposite given the purpose of the disciplinary proceedings, which was not to punish the practitioner but to ensure appropriate standards of conduct were met and, in so doing, protect the public. [36] The reasoning in Z seems to us to apply equally to proceedings under the Law Practitioners Act. The purpose of the disciplinary procedures under the Act is to ensure compliance by solicitors and barristers with appropriate and required standards of conduct: Chow v Canterbury District Law Society [2006] 2 NZAR 160 at [18]. By this means the public is protected and the standing of the profession maintained. In this case, the conduct the subject of charge 1 is also capable of beingcharged as a criminal offence, for which the practitioner is liable on summary conviction to a fine not exceeding $1000. However, the Auckland District Law Society elected to deal with the conduct through disciplinary proceedings rather than a charge under s 56. [37] Ultimately, for reasons we will come to, the standard of proof is not determinative of this appeal.Second ground of appeal[38] The appellant argues that the Tribunal erred in finding that neither Mr C's conduct in acting as a solicitor without a practising certificate nor his conduct in making misleading statements in the certificates amounted to misconduct in a professional capacity. As to the first, it is submitted that in circumstances where the Tribunal was satisfied Mr C had contravened the provisions of s 56 of the Act, it should have found him guilty of misconduct in a professional capacity and that such a finding was necessary to ensure compliance by other practitioners with the provisions of s 56. The submission is that the Tribunal was led into error because it took into account irrelevant material. In particular, it took into account that Mr C had made inquiries of the Law Society and a member of the Friends Panel as to whether he could act in the way he was intending to act. It is submitted that such material may have been relevant to the issue of penalty, but was not relevant when determining whether or not there had been misconduct. Secondly, even taking into account the inquiries made by Mr C , and on the basis of the Tribunal's own findings that they were not adequate, the Tribunal should have found the charge proved. [39] In finding the charge of misconduct in a professional capacity was not proved, the Tribunal said at [38]:In reaching our conclusions we took account of the evidence given by the practitioner before us and the manner in which that evidence was given. The practitioner was frank and open and at the end of his evidence we did not consider it was available to us to find to the standard required that he had engaged in intentional wrongdoing. Instead we concluded that the practitioner made wrong judgments after a scanty consideration of the issues, that these wrong judgments were made to meet the expectation of thelandbroker and the clients of the landbroker and that the practitioner now recognises his actions were wrong.[40] The Tribunal found Mr C's conduct had breached s 56(2), and Mr C did not challenge that finding. We consider the Tribunal was correct in its view that Mr C purported to act as a solicitor in issuing the certificates, in that he undertook work usually done by a solicitor. Although, as Mr C claims, the issuing of certificates in relation to aspects of conveyancing transactions may not be the exclusive preserve of solicitors, the issue of a solicitor's certificate certainly is. Lenders regularly require solicitor's certificates because the certificates provide assurance that the matters certified have been undertaken or verified by a person with recognised knowledge and skills. Lenders also gain the comfort of knowing that the conduct of the certifier is regulated by statutory and professional rules, and that a client may have access to the Fidelity Fund if the client suffers loss through wrongdoing by the practitioner. Finally, lenders know that the solicitor will in all likelihood have professional indemnity insurance to meet any claims against him or her arising out of the certificate. [41] Mr C issued solicitor's certificates. Although on one of the charged occasions he also labelled himself "barrister" (and also on the earlier occasion in April 2005), he nevertheless claimed for himself the practising status of solicitor by signing certificates entitled "Solicitors' Certificate" without amendment. His conduct went further. In those certificates he also represented to the Bank that he had undertaken tasks normally undertaken by a solicitor in a conveyancing transaction. [42] Mr C's evidence before the Tribunal as to how he came to sign certificates in this form was as follows:Q. I think you described in your affidavit your having signed these certificates in question as having been sloppy; is that really your position that you signed them on the face of it as a solicitor, you didn't strike out the word "partner", and you say that was not the purpose of trying to bluff the Westpac Bank into thinking that you were a solicitor in a law firm, but rather just as an act of inattention to the detail? A. Those two transactions, and I think the evidence will bear it out in my affidavit, that they were completed in haste. I had other work on, perhaps I had my own fairly complex cases, litigation cases happening, and,you know, these would come by, but remembering these were same day couriers and the like coming in with documentation to check, the time frames were tight, and I had a particular focus that I needed to put in, which I did and that was on the documentation. And if you look at the certificates I believe both of them, it's just my name and a signature, one of the lines I think the partner I've ignored altogether, no misrepresentation, there's otherwise I would have put a partner's name or firm's name perhaps, it was just my name and a signature and they were written very, very quickly and then the documents were bundled together and off.[43] In answer to a follow up question from the Chair he said:I didn't provide adequate attention to the signing, there's no doubt about it, and I admit that and I admitted that right from the start to the Society. But the actual work itself, the actual scrutiny I did.[44] Mr C's counsel submitted that the evidence clearly showed Mr C did not intend to represent himself as a solicitor. In his April Certificate (not the subject of a charge) he wrote "barrister" next to his name. In the G transaction, he sent the solicitor's certificate to the Bank with a letter on his letterhead in which his practising status was described as "Barrister". [45] On the basis of Mr C's evidence the Tribunal formed the view that Mr C had made wrong judgments after scant consideration of the issues in order to meet the expectations of the land broker. The Tribunal therefore found that in doing work properly the preserve of solicitors only, he was guilty of carelessness rather than any conscious departure from the required standards of professional conduct. [46] We do not accept the appellant's submission that every breach of s 56(2) amounts to professional misconduct. If Mr C had breached s 56(2) as a result of a mistake on his part, even a negligent mistake, that might not amount to professional misconduct. The key issue on appeal in respect of Charge 1 is whether the Tribunal erred in finding that Mr C's wrongdoing was the result of carelessness, and that it was not professional misconduct. Although the Tribunal based its finding on its view of how Mr C gave evidence, we are not bound to accept that finding. [47] Mr C's explanation was in substance that the situation arose because he was under time pressure and made a sloppy mistake. But sloppiness or time pressure cannot explain what amounted to a course of conduct on the part of Mr C. Althoughthe April 2005 certificate was not the subject of charges, it is relevant in assessing Mr C's claim that his failure to appropriately amend the certificates was simply a mistake. He might possibly have overlooked the misdescription of his status on one occasion, but to suggest that he did so on three occasions is not plausible. It is also apparent that Mr C did work through the various certificates he was giving and we are satisfied that he did turn his mind to the content of those certificates. He must have been aware that in the certificates he claimed for himself the role of solicitor acting for the Bank in the transaction. Although he may have seemed to the Tribunal open and frank in how he gave evidence, it is implausible that on three occasions he slipped up as he claims. The significance of the fact that the same misdescription occurs in three certificates is a matter not referred to or apparently considered by the Tribunal. [48] As to the significance of the inquiries Mr C made, the Tribunal acknowledged that the inquiries Mr C made of Mr Burger and the Friends Panel member were shallow and were insufficient to justify him in proceeding as he did. It is not entirely clear how those inquiries weighed with the Tribunal in its decision. We observe that the inquiries did not relate to the actions that Mr C actually took at the request of Cullen Conveyancing. In particular he did not inquire if he, as a barrister, could complete a solicitor's certificate. Mr C did not claim that those inquiries led him to believe that he could issue the certificates in the form that they were issued. [49] We conclude that Mr C knew that the Bank required a solicitor's certificate, and that it is for that reason he did not amend the certificate to accurately reflect his role in the transaction and his practising status. We consider the Tribunal erred in attaching too much weight to the way in which Mr C gave his evidence, and failed to adequately consider the course of conduct by Mr C. We are satisfied his conduct establishes, even if the highest standard of proof beyond reasonable doubt is applied, that Mr C purported to act as a solicitor when he was not the holder of a solicitor's practising certificate. In this case, his conduct in so doing was intentional and not the result of a rushed mistake. We are also satisfied he did not have a belief that, as a barrister, he was entitled to issue solicitor's certificates. His conduct fell wellbelow the required standards of professional conduct for a legal practitioner and amounted to misconduct in his professional capacity.Misleading Westpac Banking Corporation: Charges 2 and 4:[50] In the preamble sentence to both charges 2 and 4, the charged conduct is described as misleading the Bank, but the particulars of the charges contain allegations Mr C made misleading statements. Counsel for the appellant submitted the approach taken before the Tribunal in relation to the charges was, in accordance with the particulars, that the conduct was misleading, rather than that it had misled the Bank. He said this was the approach of all counsel during the course of the Tribunal hearing. In a professional disciplinary context of course the focus is upon the conduct of the practitioner, and not upon its consequences. The charge would therefore have been better expressed if in the preamble sentence it stated the practitioner "made misleading statements" to the Bank. In any case, counsel for Mr C did not disagree that was how the charges were presented and argued before the Tribunal. [51] However the Tribunal dealt with the charges as follows:There was no evidence before us that the Bank was in fact misled. Rather it seems that the bank understood the true position and made the complaint.The Tribunal then gave no further consideration to the charges. We consider the Tribunal erred in this respect. The essential complaint against Mr C was that he had made misleading representations in the certificates, not that the Bank had in fact been misled. We must therefore consider whether these charges are proved. [52] The certificates given by Mr C in the B and G transactions contained unequivocal representations he was acting as the Bank's solicitor in the transactions in accordance with the Bank's letter to Cullen Conveyancing. On each occasion the Bank's instructions were far more extensive than the completion of a solicitor's certificate and included the completion of documentation, attending to execution of documentation and completing particular customer identification processes designedto protect the Bank from fraud. Mr C had not prepared the documents, or attended to their execution. He had not undertaken the customer identification processes. [53] Counsel for Mr C submitted the representation was accurate because Mr C had received instructions from Cullen Conveyancing to act for the Bank. This ignores the fact that the certificates specifically refer to the Bank's letters of instruction, and not to the more limited instructions from Cullen Conveyancing. [54] In paragraph 2 of each certificate Mr C represented that the principal who had undertaken and supervised the instructions had adequate relevant experience:and we have exercised the appropriate standard of care and skill for the transaction.These certificates are expressed as given by the person undertaking the transaction for the Bank. This reinforces the representation in paragraph 1 that it is Mr C who is undertaking the conveyancing transaction for the Bank. [55] In paragraph 3, Mr C represented that he had made the inquiries and searches he considered appropriate, whereas in fact it was Cullen Conveyancing that exercised judgment as to what inquiries and searches were necessary and undertook those inquiries and searches. [56] In paragraph 4 Mr C represented that:We have obtained releases of, or satisfactory undertakings to provide releases on settlement in respect of all security interests in the land.Again, in reality Mr C was relying upon assurances given to him by Cullen Conveyancing that those matters had been attended to. [57] By paragraph 8 Mr C certified that "we" had made inquiries of the insurers of each party to the documents that had granted a security interest to the Bank and:We have notified the insurers of Westpac's interest in the secured property and have requested them to forward us a certificate of currency.In fact, Mr C had not undertaken any of those tasks, relying instead upon assurances from Cullen Conveyancing that they had been performed. [58] In paragraph 10 of the solicitor's certificates Mr C represented to the Bank that he would "promptly lodge or submit in a registrable form at the appropriate registry of Land Information New Zealand all documents which are required by law to be registered". Mr C knew that he would not attend to those tasks. If they were to be attended to, they would be attended to by Cullen Conveyancing and he would have no control over the process. [59] By paragraph 11 he certified that:We hold a duly signed client authority instruction form for dealing from each party authorising the dealing.Mr C did not hold any such duly signed client authority instruction form. [60] Mr C's counsel submitted that Mr C's conduct could not amount to professional misconduct because he had simply certified as to steps taken by Cullen Conveyancing. This was no different to conveyancing solicitors who rely on agents to perform practical tasks required by the transactions, and then certify that those tasks have been undertaken. In his affidavit Mr C says:My understanding of the certificates concerned was that they do not require the signing practitioner actually to perform the required actions. The obligation on the practitioner is to advise the mortgagee that those actions have been performed or that there is an undertaking in place they will be. My understanding was that in signing and forwarding the certificate, the practitioner is advising the mortgagee lender that the obligations given in their instructions to the party acting for the mortgagor have been performed thereby protecting their security interest. This verification is supported by the relevant documents being received by the bank.[61] It is true that third party agents such as search agents may undertake necessary tasks during conveyancing transactions. However, to the extent they do, they do so under the control and at the direction of the principal who ultimately issues the certificate. Similarly, certificates will be given in respect of tasks that have been undertaken by a partner's employees. However those employees will undertake the tasks under the supervision and control of the partner who issues thecertificate. That is a different situation to the present one. Cullen Conveyancing did not act under the control and at the direction of Mr C. [62] Finally, it was submitted for Mr C that it is not unusual for practitioners other than those who have been involved in the transaction to be instructed to issue a solicitor's certificate. That may well be so but those practitioners who undertake such a limited task must take care to ensure any certificate they issue does not misrepresent the extent of their involvement in the transaction, or their practising status. [63] We are satisfied these representations were untrue and were misleading. Together or individually they created the impression that Mr C was personally or by his staff undertaking all necessary steps and inquiries to protect the Bank's interest as mortgagee. That was not the case. As we have already held, the certificates as a whole represented that Mr C was acting as a solicitor and as the solicitor in the transaction. [64] Counsel for Mr C argued that even if we are satisfied any of the statements were misleading the conduct was not professional misconduct. On Mr C's evidence he had no intention to deceive the Bank, and that evidence was supported by the objective fact that Mr C had nothing to gain by the misrepresentations. Intention to mislead was an essential element the appellant had to prove. [65] We consider that the appellant had to establish before the Tribunal no more than that Mr C intended to make the representations to the Bank and that he knew that the representations, or some of them, were not true. We observe however that if these two facts are satisfactorily proved, it is of course an inevitable inference that Mr C either intended that the Bank be misled or at least was aware of the risk that it would be misled and was indifferent as to whether it was. [66] The evidence strongly supports the conclusion that the representations were deliberate and also that Mr C knew that that they were false to the extent alleged. He issued the same certificate on the two charged occasions and also in April 2005. On each occasion, he misstated the tasks undertaken by him and also his future role inthe transaction. Mr C did not claim those inaccuracies were the result of time pressure or sloppiness, and nor could he credibly do so. [67] It is true that Mr C had little to gain from issuing the certificates containing these misleading statements. As the Tribunal observed, it may well be the case that he became drawn into the conduct through a combination of irresolution and a desire to oblige someone with whom he had previously had professional dealings. However the issue of why he acted as he did is more properly for the penalty phase. We consider that his conduct in making various misleading statements in the certificates is such a significant departure from the acceptable standards of conduct for legal practitioners as to amount to misconduct in a professional capacity. We are satisfied of this whether applying the standard of proof on the balance of probabilities, or that of beyond reasonable doubt.Result[68] We allow the appeal. We find all particulars of charges one, two and four proved. Mr C is guilty of misconduct in a professional capacity as alleged in charges one, two and four. We refer the matter back to the Tribunal for the imposition of penalty and the issue of costs for the hearings before the Tribunal. In doing so we record the appellant's concession that it will not be seeking orders suspending Mr C from practice, or ordering that he be struck off the roll. [69] The appellant is entitled to costs on this appeal against the respondent on a 2B basis with disbursements as fixed by the Registrar.Name suppression[70] The appellant has requested that the names of the parties to the conveyancing transactions be suppressed. We order that there be no publication of the names or identifying particulars of the mortgagors in the transactions concerned. Counsel for Mr C has requested that name suppression continue for Mr C. In general, we would not support name suppression for a practitioner in a case such as this. But the caseis to be remitted to the Tribunal and there is no opposition to continued name suppression at least until the Tribunal concludes the penalty phase. We order that there be no publication of the name or identifying particulars of the practitioner pending the further order of the Tribunal.Auckland District Law Society, Auckland Counsel: David M Carden, Barrister, Auckland G E Minchin, Barrister, Auckland