BROWN v NEW ZEALAND LAW SOCIETY [2018] NZHC 1263

BROWN v NEW ZEALAND LAW SOCIETY [2018] NZHC 1263NOTE:1. PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED.2. PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF MRBROWN'S PARTNER, INCLUDING HER OCCUPATION, PROHIBITED.3. PUBLICATION OF THE SHOPPING MALL WHERE MR BROWN METCOMPLAINANT 3 PROHIBITED.4. PUBLICATION OF THE NAME OF THE DANCE COMPANY WHEREMR BROWN WORKED AS AN INSTRUCTOR PROHIBITED.5. PUBLICATION OF ANY OF THE CROSS-EXAMINATION,SUBMISSIONS OR PARTS OF THIS JUDGMENT WHICH TOUCH ONTHE RELATIONSHIP BETWEEN COMPLAINANT 3 AND HERBOYFRIEND, OR THE NATURE OF THAT RELATIONSHIP, ORCOMMENTS ATTRIBUTED TO MR BROWN IN THIS REGARD,PROHIBITED.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-003026[2018] NZHC 1263IN THE MATTER OF The Lawyers and Conveyancers Act 2006BETWEEN ETHAN JAMES BROWNApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 21 May 2018Appearances: P J Davey for ApplicantP Collins for RespondentJudgment: 31 May 2018JUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylie on 31 May 2018 at 3.00pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy Registrar. Date:Introduction[1] The applicant, Mr Brown, applied to the New Zealand Law Society (theSociety) for a certificate of character to assist in his application to be admitted as abarrister and solicitor of this Court. The Society declined to issue the certificate.[2] Mr Brown now applies to this Court for admission pursuant to s 49 of theLawyers and Conveyancers Act 2006 (the Act). He does not have a certificate ofcharacter so the application is made pursuant to r 6(3) of the Lawyers andConveyancers Act (Lawyers: Admission) Rules 2008 (the admission rules).Mr Brown seeks to persuade the Court that he is a fit and proper person to be admittedas a barrister and solicitor of this Court.[3] Pursuant to r 6(4) of the admission rules, the Society opposes the application.It argues that Mr Brown is not a fit and proper person to be admitted as a barrister andsolicitor of this Court.Factual background[4] Mr Brown is 27 years of age. When he was 19 years of age, he applied to jointhe New Zealand Police. He was accepted in late 2009 and he started training at thePolice College in early 2010. He graduated as a police officer and later that year, hecommenced duties as a probationary constable.[5] In late November 2010, Mr Brown was informed by a senior police inspectorthat there had been a number of allegations of sexual impropriety made against him.Mr Brown was suspended from his police duties, pending both employment andcriminal investigations.[6] The criminal investigation ran its course. In the course of the investigation,Mr Brown was interviewed by a senior police officer. He was subsequently chargedwith the sexual violation and indecent assault of two female complainants. Mr Browndenied that he had had sexual contact with either of them. Separate jury trials wereheld, both in 2012. Mr Brown was acquitted of all charges against him.[7] The police did not charge Mr Brown in respect of the allegations made bynumerous other female complainants.[8] The employment investigation was stayed while the criminal proceedings wereongoing. It was revived in late 2012 following the acquittals. There had beenallegations of sexual impropriety made by 13 females, aged from 13 to 22 years, all inthe period January 2010 to September 2010. Mr Brown was interviewed by the policefor a second time in November 2012. He denied that the sexual relations alleged bysome of the complainants had occurred at all and he maintained that the sexualrelations alleged by other complainants were consensual.[9] As part of their investigation, the police had obtained copies of text messagesfrom Mr Brown's cellphone. A number of the text messages Mr Brown had sent tothe female complainants had a strong sexual content. Mr Brown accepted during hisinterview that those text messages were inappropriate. He said that he was not proudof them and he apologised for sending them.[10] Some of the text messages with a strong sexual content had been sent byMr Brown to a 13-year-old girl – complainant 3. Mr Brown told the policeinterviewers, both in the course of the criminal investigation and in the course of theemployment investigation, that he believed at the time that complainant 3 was 16 yearsof age. He said that she had told him her age when they first met in a shopping mall,before the text messages were exchanged.[11] Mr Brown had also exchanged text messages with a 16-year-old female –complainant 4 – who claimed that she had sexual relations with Mr Brown at his house.She made a statement to the police. She said that she was coerced into having sexualrelations with Mr Brown, that she felt pressured and that she thought that the only wayout for her was to do what Mr Brown wanted. In the course of making her statement,complainant 4 drew sketches showing the layout of Mr Brown's house and bedroom.Mr Brown accepted in the interviews that he met with complainant 4 at a carpark afterhe finished work one day. He said that they talked for a while, but that they did nothave sexual relations. Mr Brown said that complainant 4 had never visited his house.He could not explain how she had been able to draw sketches of his home. As anaside, he said that even if he did have consensual sexual relations with complainant 4when he was off duty, he had not breached the police code of conduct, and he observedthat the police had not charged him with any of the allegations made by complainant4.[12] Following the employment investigation interview, Mr Brown was advisedthat the Assistant Commissioner considered that the allegations were capable ofamounting to serious misconduct and that a disciplinary hearing would be convened.Mr Brown was told that he had until 4 February 2013 to elect whether to attend thedisciplinary hearing, or waive the hearing and progress to the preliminary decisionstage and make submissions.[13] On 5 February 2013, Mr Brown resigned from the police with effect from 13February 2013. He did not make any election. Rather, he entered into a settlementagreement with the police. The agreement recorded Mr Brown's resignation and thepolice's agreement to pay him a lump sum in lieu of notice. The agreement recordedthat it was a full and final settlement of all matters arising out of the employmentrelationship. Mr Brown says that he thought that the settlement agreement was theend of the disciplinary process, and that no disciplinary decision could or would bemade after his resignation.[14] The police continued the employment investigation, notwithstandingMr Brown's resignation. They upheld two of the allegations made against Mr Brownby one of the complainants. This occurred some two months after Mr Brown resigned.Mr Brown says that this outcome was reached without recourse to him, and that hewas unaware of it when he first sought to obtain a certificate of character from theSociety.[15] Following his resignation from the police, Mr Brown studied to become alawyer. He completed his law degree at the end of 2016 and joined the Public DefenceService as a graduate employee in January 2017. He completed his professionalstudies course in February 2017.[16] Mr Brown initially applied to the Auckland branch of the Society for acertificate of character on 14 February 2017. The application was accompanied by anumber of references.[17] Given that Mr Brown had previously been employed in a regulated position,he was asked by the Society to obtain a certificate of standing from the policeconfirming that he had not been subject to any disciplinary processes. The policedeclined to issue a certificate of standing. This was when Mr Brown first becameaware that two of the allegations which were, inter alia, the subject of the employmentinvestigation had been upheld subsequent to his resignation. Mr Brown, through hiscounsel, attempted to have the police amend their records to remove reference to thetwo complaints being upheld, asserting that no disciplinary hearing had taken place.After correspondence, the police advised that Mr Brown's record would be amended,but only to record that he had resigned during the disciplinary process.[18] Mr Brown provided a detailed letter to the Society on 28 April 2017 setting outhis position in relation to both the criminal and employment investigations. Inter alia,Mr Brown said that he had resigned from the police so that he could: move on with [his] life and look towards the future with confidence confidence that he said he had lost in the police as a result of the prosecutions he hadto face. He said that, in his view, during the employment investigation, he was: denied a fair opportunity to relay [his] side of the story, and that what [he]had said was not listened to openly, independently and objectively.He said that he resigned: with the very clear understanding that no findings could or would be madegiven that he would no longer be an employee.He also stated as follows:I have maintained at all times, and I continue to maintain, that I have notcommitted any criminal offence and nor have I conducted myself in a way thatcould properly give rise to any finding of misconduct against me.[19] On 1 May 2017, Mr Brown was asked by the Society to provide "informationof the disciplinary matters you were charged with from the police department and thewritten outcome of your disciplinary matter". Mr Brown responded on the same dayby saying that he did not have any disciplinary matter with his former employers andthat he was not disciplined by them. He went on to say that he was subject to anemployment investigation as a result of allegations of sexual impropriety; he deniedany wrongdoing and noted that he was acquitted on all criminal charges that were laidagainst him. He said that he chose to resign from the police thereafter, but prior to theconclusion of the employment investigation. Mr Brown concluded his reply by askingthe Society to clearly specify "what further information it was seeking from him".[20] The Society followed this up by asking for full details of the employmentinvestigation, any communications Mr Brown had had in relation to the investigation,a copy of any written findings and the outcome.[21] Mr Brown had to obtain the information requested from the police. It wasprovided in early July 2017.[22] Mr Brown's application for a certificate of character was at this stage still withthe Auckland branch of the Society. It decided to interview Mr Brown. The interviewwas conducted by two senior practitioners – Andrew Gilchrist and Rachel Reed QC –on 27 July 2017. After the interview, they requested further information including thetext messages and the transcript of Mr Brown's interview. It was provided. Followingtheir consideration of this additional material, both Mr Gilchrist and Ms Reed providedreports to the Society in September 2017:(a) Mr Gilchrist, by a "small margin", was satisfied that Mr Brown is nowof good character. He was prepared to give Mr Brown the benefit ofthe doubt. He considered that Mr Brown came across as genuinelyremorseful and ashamed, and that he had done his "absolute best" toput his earlier behaviour behind him.(b) Ms Reed, also by a "small margin", was not so satisfied. She did notconsider that Mr Brown had answered truthfully or fairly about hisknowledge of the age of complainant 3, or that he answered honestlyand openly when denying sexual relations with complainant 4. Sheacknowledged Mr Brown's relative youth at the time of the allegedconduct, and that time had passed, but nevertheless expressed the viewthat Mr Brown's current honesty about his past conduct raises concernabout his character.[23] In light of Ms Reed's report, the Auckland branch of the Society was notsatisfied that it should provide a certificate of character to Mr Brown. Rather, itreferred the matter to the Society's national office. Senior staff at that office reviewedthe application and it was then referred to the Society's Practice Approval Committee.[24] In October 2017, the Practice Approval Committee considered Mr Brown'sapplication by way of a telephone conference between members. The Committeedeclined to give Mr Brown a certificate of character. Its reasons were explained in aletter sent to Mr Brown dated 31 October 2017. Relevantly, the letter stated as follows:The Committee is not satisfied that you understand and appreciate theseriousness of the complained of conduct in so far as you admit it occurred.You were faced with complaints from some 13 females, one as young as 13,another 16 years of age, several of whom you had texted sexual messages andseveral of whom you had sent a "20 question" survey about their personal andsexual habits or preferences. Some of this occurred while you were aprobationary police officer.You have not had any counselling regarding this behaviour and you have nowentered a field of employment where inevitably there will be contact withyoung women some of whom will be very vulnerable, and again your contactwill be from a relative position of power.The Committee is also concerned about your apparent lack of candour andinsight into your conduct, as reflected in what it considered to be aminimisation of events in your letter of explanation, and during the interviewwith the Auckland branch panel. It noted that at the interview when askedabout particulars at least one of your answers was inconsistent with the facts,in that you said you did not know the 13 year old's age despite the fact thatthere was a text from you referring to the 7 year age gap when you were 20years of age at the time.Unquestionable integrity, probity and trustworthiness are essentialcharacteristics of an applicant at the time of applying to join the legalprofession where standards of candour and honesty are high. The lapse oftime since the complained of conduct and your youth at the time are notsufficient to address the Committee's concerns, in the absence of a cleardemonstration that your maturing has included a real understanding andchange in your thinking.For the above reasons the Committee did not feel it could accredit you to theCourt, to the profession, or to the public, as a fit and proper person for thepurposes of admission as a barrister and solicitor of the High Court.Accordingly, your application for a Certificate of Character has been declined.The statutory regime[25] The starting point is s 3 of the Act. Relevantly, it states as follows:3 Purposes(1) The purposes of this Act are—(a) to maintain public confidence in the provision of legalservices (b) to protect the consumers of legal services (c) to recognise the status of the legal profession (2) To achieve those purposes, this Act, among other things,—(a) reforms the law relating to lawyers:(b) provides for a more responsive regulatory regime in relationto lawyers (d) states the fundamental obligations with which, in the publicinterest, all lawyers must comply in providing regulatedservices:[26] Section 4 of the Act sets out the fundamental obligations resting on lawyersreferred to in s 3(2)(d):4 Fundamental obligations of lawyersEvery lawyer who provides regulated services must, in the course of his or herpractice, comply with the following fundamental obligations:(a) the obligation to uphold the rule of law and to facilitate theadministration of justice in New Zealand:(b) the obligation to be independent in providing regulated services to hisor her clients:(c) the obligation to act in accordance with all fiduciary duties and dutiesof care owed by lawyers to their clients:(d) the obligation to protect, subject to his or her overriding duties as anofficer of the High Court and to his or her duties under any enactment,the interests of his or her clients.[27] Mr Collins, for the Society, submitted that any analysis of the status of acandidate for admission must occur in light of these overarching provisions. I agree.Those seeking to be admitted must be persons who can confidently be expected toadhere to the fundamental obligations of lawyers.[28] Section 49 of the Act sets out three different categories of persons who canqualify for admission as a barrister and solicitor. Relevantly, it provides as follows:49 Qualifications(1) A person is qualified for admission as a barrister and solicitor if he orshe is in at least 1 of the categories in this section.(2) The first category is persons who—(a) have all the qualifications for admission prescribed orrequired by the New Zealand Council of Legal Education; and(b) are fit and proper persons to be admitted as barristers andsolicitors of the High Court; and(c) meet the criteria prescribed by rules made under section 54.[29] Pursuant to s 49(2)(b) of the Act, and the admission rules, a person applyingfor admission as a barrister and solicitor (the candidate) will, in addition to applyingto the New Zealand Council of Legal Education for a certificate confirming his or hercompletion of the educational requirements, apply to the Society for a certificate ofcharacter.1 The candidate must satisfy the Society that he or she is a fit and properperson for admission.2 If the Society is satisfied that the candidate is fit and proper, itwill issue a certificate of character. That certificate is sufficient evidence of the1 Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, r 5(1).2 Re M [2005] 2 NZLR 544 (HC) at [16]; Singh v Auckland District Law Society [2002] 3 NZLR392 (HC) at [26](a). I note that it has been observed that, while in theory, the rules under whichonly people who are suitably qualified, of sound character and able may practice law, are animportant protection against incompetent or dishonest individuals practising law, in reality theselimits may afford little protection – Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics,Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at 141.candidate's status as a fit and proper person for admission, in the absence of proof tothe contrary.3 If the Society is not so satisfied, and it refuses to issue a certificate ofcharacter, then the candidate can seek to satisfy this Court concerning his or her statusas a fit and proper person.4[30] A candidate seeking admission under s 49(2) of the Act must apply to thisCourt, and this Court must make an order admitting the candidate if it is satisfied thatthe candidate is qualified for admission and takes the prescribed oath.5[31] Section 55 of the Act provides statutory guidance which may assist whendetermining whether a candidate is a fit and proper person to be admitted. Relevantly,it reads as follows:55 Fit and proper person(1) For the purpose of determining whether or not a person is a fit andproper person to be admitted as a barrister and solicitor of the HighCourt, the High Court or the New Zealand Law Society may take intoaccount any matters it considers relevant and, in particular, may takeinto account any of the following matters:(a) whether the person is of good character:(c) whether the person has been convicted of an offence in NewZealand and, if so,—(i) the nature of the offence; and(ii) the time that has elapsed since the offence wascommitted; and(iii) the person's age when the offence was committed:(g) whether the person—3 Lawyers and Conveyancers Act 2006, s 51.4 Lawyers and Conveyancers Act (Lawyers: Admission) Rules, r 6(3).5 Lawyers and Conveyancers Act, s 52(2).(i) is a subject of current disciplinary action in anotherprofession or occupation in New Zealand or a foreigncountry; or(ii) has been the subject of disciplinary action of that kindthat has involved a finding of guilty, howeverexpressed:(2) The High Court or the New Zealand Law Society may determine thata person is a fit and proper person to be admitted as a barrister andsolicitor even though the person—(a) is within any of the categories mentioned in any of theparagraphs of subsection (1); or(b) does not satisfy all of the criteria prescribed by rules madeunder section 54.(3) Subsection (1) does not limit—(a) the grounds on which it may be determined that a candidate isnot a fit and proper person for admission as a barrister andsolicitor; or(b) the criteria that may be prescribed by rules made under section54.[32] The rules referred to in s 49(2)(c) and in s 55(3)(b) are the admission rules.They were promulgated under s 54. They do not put in place any additional criteria.Case law[33] As I have noted, the onus to establish that he or she is a fit and proper personto be admitted as an officer of this Court falls on the candidate for admission. Wherethe Society declines to issue a certificate of character, a candidate is entitled to seek tosatisfy the Court of his or her good character. In such cases, the absence of thecertificate is relevant, and the Court should give weight to the Society's decision torefuse to issue a certificate.6[34] When considering whether a candidate is a fit and proper person, the Court cantake into account the various matters set out in s 55(1) of the Act. It is clear that the6 Singh v Auckland District Law Society, above n 2, at [26](d).section is no more than a guide. The matters set out in s 55(1) are not expressed to bemandatory considerations, and the Court can determine that a candidate is a fit andproper person even though he or she falls within one or more of the categories set outin s 55(1). The section expressly records that its provisions do not limit the enquirythat must be made.[35] The words "good character" used in s 55(1)(a) are distinct from the words "fitand proper" used in the introductory words to the section.7 The statute requires that acandidate be a fit and proper person. Whether the candidate is of good character is amatter which can be weighed in considering fitness and propriety. Good charactergoes to the candidate's integrity, probity and trustworthiness; it is possible that aperson could be of good character but not fit and proper for unrelated reasons.8[36] There are several cases which discuss the high standards expected fromcandidates for admission to the legal profession. It suffices to quote from the decisionof Panckhurst and Chisholm JJ in Re M:9[17] The rationale for a stringent test of fitness to practise in the law hasbeen authoritatively considered in a number of cases. We think itsufficient to quote from two. In Bolton v Law Society [1994] 2 All ER486 the Master of the Rolls, Sir Thomas Bingham, identified thepublic interest in the maintenance of standards (at p 492) as:". . . the most fundamental [consideration] of all: to maintain thereputation of the solicitors' profession as one in which everymember, of whatever standing, may be trusted to the ends of theearth. To maintain this reputation and sustain public confidence inthe integrity of the profession it is often necessary that those guiltyof serious lapses are not only expelled but denied re-admission. Ifa member of the public sells his house, very often his largest asset,and entrusts the proceeds to his solicitor, pending re-investment inanother house, he is ordinarily entitled to expect that the solicitorwill be a person whose trustworthiness is not, and never has been,seriously in question. Otherwise, the whole profession, and thepublic as a whole, is injured. A profession's most valuable asset isits collective reputation and the confidence which that inspires."But there is a further underlying interest which must be protected andmaintained: that of the Courts and of the profession generally.[18] In our view that dimension was best captured in an Australian case:Ziems v Prothonotary of the Supreme Court of New South Wales7 Singh v Auckland District Law Society, above n 2, at [26](a).8 Webb, Dalziel and Cook, above n 2, at 143.9 Re M, above n 2.(1957) 97 CLR 279. The issue was whether the conviction of abarrister for motor manslaughter while driving under the influence ofalcohol required his disbarment. At pp 297 – 298 Kitto J observed:"The issue is whether the appellant is shown not to be a fit andproper person . . . [T]he Bar is no ordinary profession oroccupation. These are not empty words, nor is it their purpose toexpress or encourage professional pretensions. They should beunderstood as a reminder that a barrister is more than his client'sconfidant, adviser and advocate, and must therefore possess morethan honesty, learning and forensic ability. He is, by virtue of along tradition, in a relationship of intimate collaboration with thejudges as well as with his fellow-members of the Bar, in the hightask of endeavouring to make successful the service of the law tothe community. That is a delicate relationship, and it carriesexceptional privileges and exceptional obligations. If a barrister isfound to be, for any reason, an unsuitable person to share in theenjoyment of those privileges and in the effective discharge ofthose responsibilities, he is not a fit and proper person to remainat the Bar."Reflection upon the above passage, and like opinions in other cases,exposes the necessity to recognise that the test of suitability isnecessarily an objective one, where sympathy for the person which asubjective approach might engender, has no place.[37] The nature of the inquiry was succinctly articulated by the Court of Appeal inRe Lundon:10The relations between a solicitor and his client are so close and confidential,and the influence acquired over the client is so great, and so open to abuse,that the Court ought to be satisfied that the person applying for admission ispossessed of such integrity and moral rectitude of character that he may besafely accredited by the Court to the public to be entrusted with their businessand private affairs [38] Counsel referred me to a large number of cases where the relevant principleshave been applied.11 In each case, the inquiry into the candidate's fitness for admissionwas fact specific.[39] Relevant to the present case, I glean the following from the authorities:10 Re Lundon [1926] NZLR 656 (CA) at 658. See also S v New Zealand Law Society [1944] NZLR351 (HC) at 356; L v Canterbury District Law Society [1999] 1 NZLR 467 (HC) at 474.11 Re Owen [2005] 2 NZLR 536 (HC); Pou v Waikato/Bay of Plenty District Law Society HC RotoruaCIV-2004-463-0511, 10 May 2005; Re Burgess [2011] NZAR 453 (HC); Ali v New Zealand LawSociety [2014] NZHC 1111; Gibbs v New Zealand Law Society [2014] NZHC 1141; Re DonnellyHC Auckland CIV-2010-404-5943, 2 September 2011; Re Gazley HC Wellington CIV-2011-485-1776, 26 October 2011; Sun v New Zealand Law Society [2014] NZHC 1318; Samuels v NewZealand Law Society [2014] NZHC 3026.(a) The Court should not lightly limit the ability of a person to engage inan occupation for which they are qualified.12(b) Refusal to admit a candidate has no punitive element. It is whollyprotective. Refusal should be based on the risk of the candidate's futuremisconduct or likely potential harm to the profession's reputation.13(c) The Court must be satisfied that the candidate is a person of integrityand moral rectitude of character, such that he or she can be safelyaccredited by the Court to the public as being a person who can properlyand responsibly discharge his or her duties.14(d) The concept of a fit and proper person incorporates standards ofintegrity.15(e) Where a candidate has been involved in some past indiscretion, theCourt must be satisfied that the "frailty or defect of character" indicatedby the candidate's earlier behaviour can be regarded as "entirely spent"or "safely ignored".16(f) The Court must look at the facts of the case "in the round", and not seekto pay undue regard to the earlier wrongdoing.17[40] The approach taken in the authorities is helpfully summarised by the learnedauthors of Ethics, Professional Responsibility and the Lawyer.18 They note that, whilesome leeway will be given for foolish acts of youth, there is little place for sympathyas to the consequences if there remains doubt about a candidate's integrity.19 The fact12 Harder v Auckland District Law Society [1983] NZLR 15 (CA) at 17; Singh v Auckland DistrictLaw Society, above n 2, at [62].13 Webb, Dalziel and Cook, above n 2, at 144. See also Re M, above n 2, at [21]; Gibbs v New ZealandLaw Society, above n 11, at [28].14 Re Lundon, above n 10, at 658; Singh v Auckland District Law Society, above n 2, at [29].15 Samuels v New Zealand Law Society, above n 11, at [10]; referring to New Zealand Law Society vMitchell [2011] NZAR 81 (CA) at [24]-[25] (a striking off case).16 Re Owen, above n 11, at [34]-[35]; Re Burgess, above n 11, at [38]; Ali v New Zealand Law Society,above n 11, at [28].17 Re M, above n 2, at [23]; Ali v New Zealand Law Society, above n 11, at [24]; Samuels v NewZealand Law Society, above n 11, at [32].18 Webb, Dalziel and Cook, above n 2.19 At 145-146.that criminal convictions did not flow from past conduct does not mean the conduct isirrelevant to a consideration of character.20 It is, however, inappropriate to refuse toadmit a candidate solely on the basis of facts which were found to be not proved at acriminal trial.21 They also observe as follows:22 a Court could refuse admission on the basis that certain conduct, while notcriminal, showed such character flaws as to be inconsistent with an order foradmission. For example, cheating in university exams (or other dishonestconduct) may be enough to refuse admission. Certainly any such mattersshould be disclosed. A lack of frankness as regards any matters which mightraise questions will be likely to strengthen suspicions of a lack of fitness Where a candidate is not forthright about earlier convictions orwrongdoing, this will count heavily against him or her. Where a candidate isfrank, fully discloses all relevant matters, and recognises the gravity of thosematters, it is indicative of a rehabilitation that is consistent with adherence toprofessional obligations, and therefore the Court is more likely to accept thatthe fit and proper test is met.(Citations omitted)AnalysisSubmissions[41] For Mr Brown, it was argued that his acknowledged inappropriate conductwhen he was a youth/young man does not demonstrate defective character andunfitness to become a lawyer. It was submitted that Mr Brown has learned from hispast mistakes and that he has not indulged in inappropriate behaviour over recentyears. It was argued that the Court should look at matters in the round and in a forwardlooking way, and that it can be satisfied that Mr Brown is now a fit and proper personto be admitted as a barrister and solicitor of this Court.[42] The key issue for the Society was Mr Brown's perceived lack of integrity.Concern was expressed that Mr Brown has persistently denied that he knew thatcomplainant 3 was 13 years old. It was argued that the evidence clearly shows thatshe told Mr Brown unequivocally, at a very early stage in the text message exchanges,that she was only 13 years of age. It was also put to me that Mr Brown's denial of20 At 146.21 At 146.22 At 146-147. See also G E Dal Pont Lawyers' Professional Responsibility (6th ed, ThomsonReuters, Sydney, 2017) at [2.55]-[2.135].sexual relations with complainant 4, and his dismissal of her sketches of his home, itsinterior and the interior of his bedroom, suggest that Mr Brown has been less thanhonest in dealing with this matter. It was submitted that there are therefore doubts asto whether the frailties which Mr Brown acknowledges were apparent from hisconduct in 2010 are in fact spent, and whether he even now genuinely appreciates thegravity of his actions at the time. It was argued that Mr Brown's lack of candour andhonesty in dealing with the Society raises doubts as to whether he is a fit and properperson to be admitted.Mr Brown's initial application[43] At the outset, when he initially made application to the Society, Mr Brownfilled out a certificate of character application form. Clause 9(d) in that applicationform read as follows:Are you the subject of current disciplinary action in another profession oroccupation in New Zealand or a foreign country, or have you ever been thesubject of disciplinary action of that kind that has involved a finding of guilt,however expressed?Mr Brown answered "no" to this question.[44] I do not consider that the answer given by Mr Brown to this question has anybearing on whether or not he is a fit and proper person. On the evidence before me,Mr Brown did not know that the police had continued with the employmentinvestigation and ultimately upheld two of the allegations made by one of thecomplainants after he resigned. Mr Brown had entered into the settlement agreementwith the police. He thought that was the end of the matter. There was noacknowledgement of wrongdoing by him in the agreement or in any of the eventswhich led up to it. There was nothing to contradict his evidence that he did not knowof the findings against him, and I accept it.[45] As an aside I note that the application form for a certificate of character doesnot advise candidates of the overarching need for candour and frankness. Rather, theform poses a number of specific questions and asks for a yes or no answer to each –eg. have you ever been convicted of any crime or offence in New Zealand or overseas.If a candidate answers yes to any of the questions, he or she is asked to provide detailedinformation on a separate sheet. There is however no express invitation to a candidateto tell the Society of anything else that might be relevant to his or her application. Thisis an issue that the Society should consider.Factors which favour Mr Brown[46] There is nothing to suggest that Mr Brown has been involved in any furtherinappropriate behaviour. He has been involved in a mentoring programme offered bya major law firm, where he helped students in years below him. He has completed amiscarriage of justice project and he has continued as a dance instructor. He has beenemployed by the Public Defence Service since January 2017. He has providedaffidavits in support from Lynn Hughes, who is the office public defender for theManukau office of the Public Defence Service. Ms Hughes supports his application.He has also provided a letter of support from a director of the dance company whereMr Brown has worked as an instructor. No behavioural issues have arisen in thatcontext.[47] Mr Brown has filed a lengthy affidavit in support of his application. Heannexes to that affidavit a copy of a letter from the barrister who acted for him throughboth the criminal and employment investigations – Mr Simmonds. Mr Simmonds isclearly aware of the fine detail of the allegations Mr Brown faced. He has continuedto offer advice and support for Mr Brown, and has offered to act as his mentor on aregular basis if he is admitted as a barrister and solicitor.[48] Mr Brown has obtained a supporting affidavit from Sabine Visser, a seniorclinical psychologist, who carried out a psychological assessment of Mr Brown in June2017. Ms Visser concluded from her assessment that Mr Brown's personality profiledoes not elicit any points of concern "psychologically and characteriologically" thatshould prevent Mr Brown from being admitted as a barrister and solicitor, should hemeet all other criteria. She considered that Mr Brown was open in his discussion ofrelevant events with her, and noted that he provided a large amount of documentationdetailing the accusations against him. She advised that he did not seek to censor theinformation provided and she formed the view that Mr Brown had not sought tominimise the issues that were raised.[49] Mr Brown has the support of his partner. She has confirmed that she has beenwith him throughout the entire process, including first the criminal investigation andthen the employment investigation. She says that Mr Brown has been very openthroughout and kept her fully "in the loop". She confirms that she has read theinappropriate text messages and discussed them with Mr Brown.[50] Mr Brown has produced an affidavit from his mother. She also confirms thatshe knows the full detail of the allegations, including the text messages. She states herbelief that Mr Brown is now mature, honest and responsible, and that he has goodmorals.[51] There are various other references referred to in Mr Brown's application for acertificate of character, and in subsequent correspondence from his and his counsel. Ihave read those references where they are available on the Society's file. As I havenoted, many of the referees attest to Mr Brown's honesty and integrity.[52] The inappropriate conduct took place some years ago. Mr Brown was only 19-20 years old at the time. He is entitled to say that recognition should be given to hisyouth at the time and to his relative immaturity. It is also relevant that he was acquittedof the criminal charges brought against him. He has, to his credit, completed a lawdegree and obtained employment in the Public Defence Service. He has performedwell in that role.Factors which tell against Mr Brown[53] The Society expressed concern at aspects of Mr Brown's letter to it dated 28April 2017, parts of which I have summarised at [18] above. I share those concerns.In my view, Mr Brown was not particularly candid with the Society in that letter. Inparticular, his assertion that he did not conduct himself in a way that could properlygive rise to any finding of misconduct against him suggests that he does not have anygreat insight into his actions in 2010.[54] I have referred above at [19] to Mr Brown's email response to the Society on1 May 2017.[55] Mr Brown's response to the Society was raised by Mr Collins in cross-examination. It was put to him that his answer – that he did not have any disciplinarymatter with the police – was untrue. Mr Brown did not accept this. He said that hewas subject to the employment investigation and that he had separated the employmentinvestigation from the disciplinary enquiry.[56] I did not regard Mr Brown's response as particularly satisfactory. In myjudgment, Mr Brown was less than forthcoming in his response of 1 May 2017 to theSociety's reasonable enquiry.[57] It also seems to me that Mr Brown has been less than candid in relation to hisdealings with complainant 3. His dealings with complainant 3 were raised by policeinterviewers in the course of the interviews that Mr Brown gave, both in the course ofthe criminal investigation and in the course of the employment investigation. In bothinterviews, Mr Brown maintained that complainant 3 told him that she was 16 yearsold, that she looked that age, and that he believed her. He told the same thing toMs Hughes at the Public Defence Service. Mr Brown has belatedly accepted that hemust have known that complainant 3 was only 13 years old at the time that he wassending the inappropriate text messages to her. In Mr Brown's affidavit filed insupport of the present application, Mr Brown explained as follows:These text messages were sent over 7 years ago so it is hard to rememberexactly what was in my mind at the time. I thought she was 16 years of ageat the time because she had told me that was her age and she looked over 13years of age when I met her at the mall. I recall that the content of some ofher texts to me were not what I would expect of someone who was only 13years of age. I appreciate that the text messages suggest that I knew that shewas 13 years of age but I don't recall thinking that was her age at the time thatwe were sending these messages to each other. I didn't give it as much thoughtas I should have at the time. If I could take those text messages back I would,and I am sorry for them.[58] Mr Brown's assertion that he thought complainant 3 was 16 years old is notsupported by the text messages. Mr Brown had met the complainant earlier in the dayat a shopping mall. The text messages commenced on 18 September 2010 at 18:25.In the course of the text messages, he asked her " wats ur last nd age. Il ad u n ourlst?". The complainant immediately answered, providing her name and saying "andim 13 till March". This plainly is inconsistent with complainant 3 having toldMr Brown her age earlier when they met in the mall. He would not have needed toask her age if he had been told earlier in the day that she was 16 years old. In anyevent, Mr Brown continued sending text messages to complainant 3 and they becameincreasingly inappropriate. In later text messages, Mr Brown said that he thought thatcomplainant 3 was about 17 years old. She replied that she wished she was, but thatshe could not look that old. In a later text, complainant 3 asked Mr Brown whether heliked her. He replied that she was cute, but that she was seven years younger than him.He was 20 years old at the time. The text messages resumed the following morningon 19 September 2010. There were then various text messages of an openly sexualnature. The complainant repeated in the course of the text messages that she was 13years old.[59] It is only relatively recently that Mr Brown has made a more concessionarystatement. In an affidavit filed on 15 February 2018, he said as follows:I said to the interviewing panel of the NZLS that at the time of textingcomplainant 3 I believed she was 16 years of age. I also said that to the policein 2012 when I was interviewed in the course of the employment investigation.My explanation was based on the recollection of what I thought at the timethat the text messages were sent. I still don't recall thinking that she was 13years of age at the time as my recollection is that I thought she was older. I'veexplained the reasons for that in my previous affidavit. However, having readthe text messages I believe I must have been aware at the time that she was13 years of age.I accept that the text messages were completely inappropriate and apologisefor sending them. All I can say is that they were sent many years ago when Iwas young and immature. I can assure the Court that I'm a different personnow and would not conduct myself in the same manner now or in the future.[60] There is force in Mr Collins' submission that this is a last-minute change ofmind. In my view, the text message exchanges do not permit any uncertainty orconfusion about the complainant's age. She clearly stated that she was 13 years oldand more than once. The text messages are inconsistent with Mr Brown's version ofevents that the complainant had earlier told him that she was 16 years old. Mr Brown'sinsistence that he thought that complainant 3 was 16 years old, in the face of textmessages clearly indicating to the contrary, suggest that he was dishonest in theanswers he gave to the police interviewers, and in the information he gave to both hisemployer and, at least initially, to the Society. It is noteworthy that Mr Brown has stillnot told Ms Hughes that he must have known complainant 3 was only 13 years of age.These matters raise a concern as to whether Mr Brown is a fit and proper person to beadmitted.[61] Similar concerns about Mr Brown's honesty also arise in relation to theallegations made by complainant 4. The text message exchanges between Mr Brownand this complainant occurred mainly over the period 4 July 2010 to 7 August 2010,although Mr Brown persisted with text messages to complainant 4 until 22 August2010. The key texting exchanges occurred between 11pm on 9 July and 2am on 10July. It is clear from the text messages exchanged at the time that Mr Brown wasseeking to rendezvous with complainant 4 for a casual sexual encounter. Mr Brownaccepted in cross-examination that the text messages "look[ed] that way". Henevertheless denied that he had taken her back to his home, had sexual relations withher, and then returned her to her home the following morning. As noted above at [11],complainant 4 gave a statement to the police. In the course of that statement, she drewsketches showing the layout of Mr Brown's home and his bedroom. Mr Brown couldnot explain how complainant 4 could have drawn those sketches if, as he claims, shehas never been to his house. His response, when it was put to him that the sketchessuggest that he was being less than honest when he denied taking complainant 4 backto his house, was that the sketches: [do] not correctly show the position of the front door. There was a sidedoor that led into a separate laundry area and then into the kitchen.When he was cross-examined about this issue, Mr Brown accepted that there weresimilarities, but nevertheless asserted that the sketches did not depict exactly the floorplan of his house.[62] Again, there is reason for concern about Mr Brown's candour in discussing theallegations made by complainant 4. It seems inherently unlikely that complainant 4could have drawn the sketches unless she had been to Mr Brown's home.Conclusion[63] The key point of this analysis is, of course, the enquiry into Mr Brown's statusas a fit and proper person for admission as a barrister and solicitor.[64] In my judgment, there are justifiable concerns in this regard. I note thefollowing:(a) Mr Brown has sought to downplay his prior inappropriate conduct, eg.in his letter of 28 April 2017 and in his email of 1 May 2017. Thissuggests a lack of insight by him.(b) Mr Brown has sought to deflect attention from his own conduct, eg. heasserted that during the employment investigation he was denied a fairopportunity to put his side of the story.23 By way of further example,when Mr Brown became aware that two of the allegations made againsthim in the course of the employment investigation had been upheld, hisimmediate reaction was to seek to get the record corrected on the basisthat no disciplinary hearing had been held.(c) Mr Brown has not been as candid as he should have been with theSociety.(d) A reasonable conclusion can be drawn from the text messagesexchanged with complainant 3 that Mr Brown has been less than honestabout his knowledge of complainant 3's age to his employer, to thepolice in the two interviews, and to the Society in his affidavit of 19December 2017.(e) Similar concerns about his lack of candour arise in relation tocomplainant 4.[65] A candidate for admission must be a person of integrity and trustworthiness, inhis or her dealings with the public, with clients and with the institutions of the law,including this Court.23 It is clear from reading the transcript of the interview that Mr Brown was given every opportunityto put his version of events. He was accompanied during the interview by his counsel, MrSimmonds.[66] Had Mr Brown been more open in his disclosures to his employer, the policeand the Society, I would have been prepared to accept that his character has reformedand that he has put the frailties of his past behind him. However, I am not persuadedthat Mr Brown has been as candid as he should have been in his disclosures, or thateven yet he fully appreciates how inappropriate his conduct was in 2010. In myjudgment, Mr Brown has sought to minimise the events of 2010. There is reason todoubt whether he has fully reformed and whether his earlier frailties in his dealingswith young women are yet spent.[67] Mr Brown has not satisfied me that he is a fit and proper person to be admittedas a barrister and solicitor of this Court. His application for admission is declined.Costs[68] I do not know whether the Society seeks costs and/or disbursements. If it does,I make the following directions:(a) The Society is to file a memorandum setting out thecosts/disbursements it seeks within 10 working days of the date ofrelease of this judgment.(b) Mr Brown is to file a response within a further 10 working days.(c) Memoranda are not to exceed five pages.I will then deal with the issue of costs and/or disbursements on the papers, unless Irequire the assistance of counsel.________________________________Wylie JSolicitors/counsel:Steindle Williams Legal Ltd/P Davey, AucklandSenior Solicitor Regulatory, New Zealand Law Society/P Collins, Auckland