G v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 601

G v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 601 [27 March 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS ORIDENTIFYING PARTICULARS OF THE APPLICANTIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-510[2019] NZHC 601IN THE MATTER of an application for judicial reviewBETWEEN GApplicantAND LEGAL COMPLAINTS REVIEWOFFICERRespondentNEW ZEALAND LAW SOCIETYIntervenorHearing: 27 February 2019Counsel: A O'Connor for ApplicantP I C Comrie-Thomson for IntervenerNo appearance required for RespondentJudgment: 27 March 2019JUDGMENT OF THOMAS J[1] Mr G and Ms M had been partners in their law firm since 1987 when, in 2015,a former client laid a complaint against them to the New Zealand Law Society inrespect of work they carried out on a relationship property agreement (the Complaint).Following a hearing on the papers, they were found to have engaged in unsatisfactoryconduct and censured. After receiving submissions on the question of penalties andpossible publication, the Law Society Standards Committee (the Committee) orderedthey pay, on a joint basis, compensation, a fine and costs. The Committee also directedthat the facts should be published, including identifying details of both lawyers.[2] Mr G and Ms M applied for a review of the decision on penalty and publication.The Legal Complaints Review Officer (the Review Officer) revised the financialpenalties and decided there was no public interest in publishing Ms M's name but itwas in the public interest to publish Mr G's name.1[3] Mr G seeks a review of the decision that his name be published (the Decision),claiming the Review Officer made errors of fact and the Decision was not reasonable.He seeks to have the Decision remitted to the Review Officer for reconsideration afterevidence and submissions have been filed.[4] The Review Officer abides this Court's decision. The New Zealand LawSociety (the Law Society) was joined as an intervenor to assist the Court on anyrelevant issues of principle. The Law Society is "neutral" as to the review but filedsubmissions and was represented at the hearing.Judicial review[5] Judicial review is the supervisory function of the Court which ensures publicpower is exercised according to the law.2 It is primarily concerned with examiningprocedural compliance, not the substance of the decision itself, when assessingwhether a decision should be allowed to stand.3[6] Any error of law must be material, that is, "one which may well have alteredthe ultimate decision".4 This can arise, for example, where a decision-maker hasapplied a gloss to a statutory test, or asked him or herself the wrong question.5 A1 M v C LCRO 154/2016, LCRO 155/2016, 21 June 2018.2 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC)at 388.3 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].4 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314,22 December 2011 at [73] citing Bulk Gas Users Groups v Attorney General [1983] NZLR 129(CA) at 136 per Cooke J.5 Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington, 2011) at 709 andPhilip Joseph Constitutional and Administrative law in New Zealand (4th ed, Brookers, Wellington,2014) at 985.failure by a decision-maker to take into account relevant considerations is an error oflaw whereas the weight the decision-maker places on a relevant consideration is amatter for the decision-maker. Therefore, failing to take into account relevantconsiderations is a ground of judicial review but failing to have sufficient regard torelevant factors is not.6[7] I am, therefore, broadly concerned not with the substance of the Decision, butwhether it was made according to the law, applying the correct legal tests and takinginto account the correct considerations in applying that test.[8] Unreasonableness is one of the most problematic grounds of Judicial review.7As discussed above, judicial review is concerned with the legality, as opposed to themerits, of administrative decisions. As this Court will not substitute its decision forthat of the specialist decision-maker, the reasonableness of a decision has historicallybeen approached from the high standard of Wednesbury unreasonableness.8Unreasonableness was explained in Wednesbury as a decision "that no reasonablebody could have come to".9 This high standard of unreasonableness has been appliedin the context of Review Officer decisions,10 although there is some disquiet aboutwhether this approach is too stringent.11The Complaint[9] The events which gave rise to the Complaint occurred in 2010 when thecomplainant, Ms C, instructed the law firm to act for her and her then partner, Mr J, inrelation to their relationship property. In 2004, the couple had entered into arelationship property agreement prepared by Ms M whereby the relationship home inWaiwhetu Road, Lower Hutt (the Property) was owned 75:25 in favour of Ms C.6 Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].7 Joseph Constitutional and Administrative law in New Zealand, above n 5, at 997 citing Shaw vAttorney-General (No 2) [2003] NZAR 216 (HC) at 239.8 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).9 At 239.10 Q v Legal Complaints Review Officer [2012] NZHC 3082, [2013] NZAR 69 at [41]. This decisionwas overturned on appeal for unrelated reasons.11 Q v Legal Complaints Review Officer [2013] NZCA 570, [2014] NZAR 134 at [45] and [46].[10] On 13 April 2010, the couple entered into an agreement to purchase a newrelationship home to be owned equally between them. On the advice of Mr J's sister,who was an accountant and said there would be tax advantages in the companystructure, they decided that the Property would be sold to a company they incorporatedon 28 April 2010 (the Company). The Company would operate the Property as arental. Ms C and Mr J were both directors of and equal shareholders in the Company.On 10 May 2010, the couple signed an agreement to sell the Property to the Company.[11] Ms C says she instructed Ms M to act for her and Mr J in purchasing the newrelationship home, varying their existing relationship property agreement andtransferring the Property to the Company.[12] A problem arose because the new relationship property agreement, signed on20 May 2010 (the 2010 Agreement), provided that the Property was to be owned70:30 per cent in Ms C's favour.12 However, on the day following execution of the2010 Agreement, the Property was transferred into the name of the Company, with theresult that it was owned, in effect, 50:50 by Ms C and Mr J. Following the couple'sseparation, the Family Court determined that the protection intended to be achievedby the 2010 Agreement was lost.13[13] It was Mr G who prepared the first draft of the 2010 Agreement and made somechanges to it. It appears this took place when Ms M was away from the office due toillness. It was Ms M who provided Ms C with independent advice on the effect andimplications of the 2010 Agreement and certified she had done so.[14] The findings of the Committee are set out in the notice of determination asfollows:1410. The Standards Committee noted at the outset that the essentialintention of the 2010 agreement did not appear to be in dispute. It wasintended to preserve Ms [C]'s unequal interest in the property fromMr [J], albeit that this was to gradually erode over time. It was alsoapparent that the 2010 agreement had failed to preserve Ms [C]'s12 This increased Mr J's share and provided for him to increase his ownership share further overtime.13 C v J [2014] NZFC 6876.14 The Board of the Law Society gave the Committee its prior approval to the publication of thepractitioners' names.unequal interest in the property, given the subsequent transfer of theproperty to the company and failure to ensure that any adequatesafeguards were in place. Indeed Ms [M], in her affidavit dated23 September 2015, had stated that "in hindsight, [the 2010agreement] should have referred to the shares in [the Company] asopposed to the property".11. In the Standards Committee's view, the 2010 agreement wasinadequate to preserve the interests of Ms [C] and failed to reflect theinstructions Ms [C] had provided in light of the transfer of the propertyto the company. The Standards Committee was satisfied that it oughtto have been apparent to both practitioners that the 2010 agreementwould fail to preserve Ms [C]'s unequal interest in the property onceit was transferred to the company. The Standards Committee was alsosatisfied that the advice provided by the practitioners was deficient tosuch a degree that it amounted to a failure to act competently and incompliance with their duty to take reasonable care.15 It was alsosufficient to amount to a failure to protect Ms [C]'s interests.16 In theStandards Committee's view, the failure to properly advise Ms [C] ofthe effects of the transfer was an omission that no competent andexperienced practitioner would make.12. The practitioners submitted that although the wording of the 2010agreement was not perfect, it adequately recorded the intentions of theparties with respect to the ownership rights of the property. However,for the reasons set out above, the Standards Committee did not acceptthis argument.13. The practitioners additionally submitted that Ms [C] was confident inher accountant's advice as to the transfer of the property to thecompany, and that she waived legal advice on this issue. However, inthe Standards Committee's view, it was incumbent on the practitionersto fully and properly advise Ms [C] on the essential effect the transferwould have on the 2010 agreement and they had failed to do so. AsMs [C] ' s solicitors, the practitioners were under a duty to give suchadvice despite any guidance Ms C may have received from any otherparty.14. The Standards Committee noted that Mr [G], in his response to thecomplaint, asserted that he was not required to give advice to Ms [C]and that he had not acted for her. He said he was not present at themeeting on 20 May 2010, and that his role in the matter was limitedto drafting the 2010 agreement and emailing it to Ms [C] for herperusal. However the Standards Committee was satisfied that Mr [G]had sufficient involvement to be on notice of the issues and to beobliged to take steps on Ms [C]'s behalf to address matters. Not onlyhad Mr [G] prepared the initial draft of the agreement, he had alsoamended the draft agreement after receiving emailed instructionsfrom Ms [C].17 Whilst his involvement was minimal, it was sufficient15 As required by r 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)Rules 2008.16 As required by r 6 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)Rules 2008.17 See Ms C's email to Mr G dated 19 May 2010.to trigger his professional obligations, including the obligation toprovide appropriate advice regarding the effect of the 2010 agreementand the implications of the subsequent transfer of the property. In theStandards Committee's view, it was not sufficient for Mr [G] to relyon his limited dealings with Ms [C] and his recommendation that Ms[C] obtain separate independent legal advice to exempt him fromcomplying with his professional obligations.15. Therefore the Standards Committee, for the reasons set out above, wassatisfied that Mr [G] and Ms [M] had failed to provide Ms [C] withadequate legal advice regarding the effect of the 2010 agreement andthe transfer of the property to the company.The Decision[15] The Review Officer began by noting that the Committee's determination ofunsatisfactory conduct and censure was not the subject of an application for reviewand she therefore proceeded on the basis of the Committee's determination. Theapplication for review was on the grounds that the compensation should be eliminatedor reduced, the fine was disproportionate, and the lawyers' names should not bepublished. While previously the interests of Mr G and Ms M aligned, their positionon review was somewhat different. As the Review Officer said:18[5] On review, Mr [G] submits that his part in the retainer was so limitedthat he should not be held responsible for any consequences. He submits thatresponsibility sits squarely with the lawyer who certified the agreementpursuant to s 21 of the Property (Relationships) Act 1976 (PRA). That lawyerwas Ms [M], because she explained the effects and implications of theagreement to Ms [C] before she signed it. Mr [G] accepts, however, that hehad some part in drafting the agreement and that this review cannot affect thedetermination that there was unsatisfactory conduct on his part or the ordercensuring him.[6] It is noted that Ms [M] has suffered some ill health in more recenttimes. She said at the review hearing on 25 May 2018, that she did not intendto renew her practicing certificate and had effectively retired from practice.[7] With Ms [M]'s retirement, Mr [G] is unsure where his future lies.However, he has given no indication that retirement from legal practice is onhis immediate horizon. On that basis, it is assumed he intends to continue inpractice for the time being, which is a consideration that would be relevant toconsiderations of public protection which can be met by publishing apractitioner's name.[16] The Review Officer noted that neither lawyer had any involvement in Ms Cand Mr J entering into the transactions, or forming the Company or its equal18 M v C, above n 1.shareholding, observing that neither lawyer seemed to have a clear grasp of the wholearrangement. She said, nevertheless, one or other should have checked how the couplehad structured their affairs and ensured the 2010 Agreement reflected that. She alsonoted Ms M's untested belief that Ms C knew what it meant for her interests when shesigned the documents transferring the Property to the Company.[17] As the Review Officer observed, it was difficult to say with any degree ofcertainty who precisely was responsible for what. Nevertheless, the Committee hadmade the determinations and those were not subject to review.[18] The Review Officer concluded that Mr G's attempt to attribute allresponsibility to Ms M was misplaced and Mr G was involved in the drafting processto some extent. She said that was not managed competently or with diligence. As theReview Officer noted, her task was limited to considering what orders, if any, wereappropriate pursuant to s 156 of the Lawyers and Conveyancers Act 2006 (the Act)and whether one or both of the lawyers' names should be published in the context ofthe Committee's decision.[19] While noting that both lawyers had been censured but those censures werebeyond her jurisdiction on review, the Review Officer considered it relevant to notethe significance of a censure for the purposes of considering her review. She remindedherself that a censure is likely to be of particular significance and would inevitably betaken seriously.19[20] The Review Officer referred to Ms M's retirement, saying:20[42] A censure is a significant and serious consequence for both of thelawyers, but will have little or no practical impact on Ms [M]'s future inpractice because she intends not to have one.[21] The Review Officer then considered the Committee's award of $12,000compensation, observing that:19 New Zealand Law Society v B [2013] NZCA 156, [2013] NZAR 970.20 M v C, above n 1.[48] Without being able to properly analyse all of the relevant evidence,it is impossible to apportion compensation according to the contributions ofthose whose conduct or advice caused losses.[22] She said:[51] Although there were problems with the 2010 agreement, there werealso problems with the way the couple had structured their affairs, and the waythe shares were owned. All of those problems were manageable if the lawyershad been diligent in ascertaining how the couple have structured their affairs.Although the 2010 agreement was later said to be deficient, Ms [M]'s evidenceis that Ms [C] understood exactly what she was doing when she signed the2010 agreement and transferred property to the company.[52] One of them is wrong, but Ms [M] is correct in saying the existenceof extrinsic evidence informs what the parties' intentions were in 2010. It isnot clear exactly what Ms [M] was aware of in terms of extrinsic evidence atthe time she advised on and certified the 2010 agreement. Testing of herevidence is no longer possible for medical reasons.[53] What is clear, however, is that by reason of deficiencies in the 2010agreement Ms [C] suffered some loss. The difficulty, which was recognisedby the Committee, is in assessing the value of the lawyers' contribution to theloss in circumstances where there is no evidence available on review fromsome of the others who were involved in events in 2010. As the complaintand review processes are inquisitorial, Ms [C] cannot be cross examined inthe context of those processes.[54] In my view, the evidence is so incomplete as to make it unreliable. Itis virtually impossible to quantify the amount of compensation that mightproperly be payable to Ms [C] without proper tested evidence.[56] It is not good enough to take an educated guess. There has to be someprincipled basis on which to calculate contributions, particularly whenlawyers are ordered to pay significant sums in compensation under the Act,albeit for amounts well within the statutory cap of $25,000.[23] The Review Officer then revised the order that the lawyers pay $12,000towards Ms C's legal costs to $1,500. She did not, however, alter the payment of$2,000 in respect of Ms C's inconvenience and stress on the basis:[62] It follows from the discussion above that the lawyers could and shouldhave done better. The failure to properly enquire and to understand anddocument the agreement in a way that dovetailed with the way the couple hadstructured their affairs left Ms [C] (and Mr [J]) with a problem to resolve whentheir relationship ended.[24] The Review Officer confirmed the fine of $3,000 imposed by the Committee,saying:[74] A fine of $3,000 punishes the practitioners, encourages otherpractitioners to act with diligence and competence in drafting and certifyingrelationship property agreements. A fine at that level also reflects the public'sand the profession's condemnation, or opprobrium, of the practitioner'sconduct in failing to ensure that the agreement reflected the structure of thecouple's affairs and preserved Ms [C]'s interests.[25] Similarly, the costs order of $1,000 in favour of the Law Society wasconfirmed.[26] The Review Officer then turned to consider publication, noting that, havingobtained approval from the Law Society, the Committee ordered publication of asummary of facts and details identifying both lawyers. The reasoning and conclusionof the Review Officer was as follows:[78] The decision to publish was driven at least in part by the lawyers'disciplinary histories. Mr [G]'s name has previously been published in thecontext of a disciplinary matter in which he accepted he was responsible fornegligence. Although the facts were different, the underlying problem is thesame. At the review hearing Mr [G] demonstrated an inappropriately casualapproach to the drafting of a document that was intended to become legallybinding on Ms [C] and Mr [J], describing the work he had done as"secretarial". That casual approach is reflected in the factual matrix and is notacceptable in a professional person. The public should be protected.Publication of Mr [G]'s name is necessary and desirable in the public interest.[79] Ms [M] has not previously been identified in the context of aprofessional standards issue. She is no longer in practice and says she is unfitto return. Although it cannot be said with certainty that no responsibility restswith Ms [M], there is no public interest to be protected by publishing hername.[80] The Committee's decision that there had been unsatisfactory conducton the lawyers' part has not been the subject of review. However, theCommittee's decision to publish a summary of that decision is modified onreview so that publication extends only to identifying Mr [G] within thecontext of a suitably drafted summary of facts. The content of the summaryof facts and publication are left to NZLS.[81] Out of respect to Ms [M]'s present circumstances, there is no directionto publish this decision on review.The application[27] Mr G challenges the Decision on two grounds:(a) That the Review Officer failed to take into account the followingmatters in modifying the Committee's publication order to identify onlyMr G:(i) publication of only Mr G's name would provide an incompleteand misleading representation of the circumstances surroundingthe Complaint;(ii) whether or not the "usual considerations" would be better metby publishing the facts without either of the lawyers' details;(iii) the fact that eight years had elapsed since events the subject ofthe Complaint;(iv) the fairness of naming only one of the lawyers;(v) the impact publication would have on Mr G's new practice;(vi) the "lack of recent evidence indicating a propensity [on the partof Mr G] to commit similar offending"; and(vii) the length of time Mr G has practised.(b) That, in accordance with natural justice and fairness, the ReviewOfficer should have given Mr G further time to file submissions on thequestion of publication, given her decision not to publish Ms M's name.Complaints and discipline[28] The purposes of the Act include the maintenance of public confidence in theprovision of legal services and protection of consumers of legal services.21[29] Part 7 of the Act provides a framework in relation to complaints about anddisciplining of lawyers. A complaint about a lawyer is referred to a Lawyers'21 Lawyers and Conveyancers Act 2006, s 3(1)(a) and (b).Standards Committee.22 Unless the Standards Committee decides to take no action onthe complaint it may, after inquiring into the complaint and conducting a hearing,23determine that:(a) the complaint be considered by the Disciplinary Tribunal;24(b) there has been unsatisfactory conduct;25 or(c) no further action will be taken.26[30] There is a significant difference between hearings before the DisciplinaryTribunal and those before a Standards Committee. Disciplinary Tribunal hearingsmust be held in public, except in certain circumstances, although the Tribunal canmake orders prohibiting publication of the proceedings and the names of thoseinvolved.27 Hearings of Standards Committees and reviews by the Review Officer areto be conducted in private, the decisions not being published unless there is adetermination to do so.28 This reflects the policy that the Disciplinary Tribunal dealswith the more serious matters which in the public interest should be dealt with openly,whereas lesser matters are dealt with by Standards Committees and the ReviewOfficer.29Publication of identity[31] A Standards Committee has a discretionary power to direct publication of itsdecision, subject to the obligation to comply with natural justice and determine it isnecessary to do so in the public interest.30 The Review Officer is also required toperform his or her functions and exercise his or her powers in accordance with naturaljustice.3122 Section 130.23 Section 137.24 Section 152(2)(a).25 Section 152(2)(b).26 Sections 138 and 152(2)(c).27 Sections 238(1)–(2) and 240.28 Sections 142(2), 148(1), 206 and 206A.29 New Zealand Law Society v B, above n 19, at [47].30 Lawyers and Conveyancers Act 2006, ss 142(2) and 131(f).31 Section 206(3).[32] Regulation 30 of the Lawyers and Conveyancers Act (Lawyers: ComplaintsService and Standards Committees) Regulations 2008 (the Regulations) sets out thecircumstances in which a Standards Committee may publish the identity of a personwho has been censured. It is therefore the context in which to consider Mr G'sapplication for review.[33] Regulation 30 provides:30 Publication of identity(1) If a Standards Committee makes a censure order pursuant to section156(1)(b) of the Act, the Committee may, with the prior approval ofthe Board [of the New Zealand Law Society], direct publication of theidentity of the person who is the subject of the censure order.(2) When deciding whether to publish the identity of a person who is thesubject of a censure order, a Standards Committee and the Board musttake into account the public interest and, if appropriate, the impact ofpublication on the interests and privacy of-(a) the complainant; and(b) clients of the censured person; and(c) relatives of the censured person; and(d) partners, employers, and associates of the censured person;and(e) the censured person.[34] Regulation 30(2) requires two broad considerations:(a) the public interest; and(b) if appropriate, the impact of publication on the interests and privacy ofthe complainant, clients, relatives, partners, employers, and associatesof the censured person, and the censured person him or herself.Analysis[35] The Review Officer modified the Committee's determination to publish theidentity of both lawyers, deciding Mr G's name only would be published "in thecontext of a suitably drafted summary of facts".32[36] In Mr Comrie-Thomson's submission, for the Law Society, the decisions ofboth the Committee and the Review Officer clearly indicated that considerations ofprotection of the public were fundamental to the decision to publish Mr G's name.There were two main reasons to distinguish his position from that of Ms M. First,Ms M was no longer practising and that was a major consideration in the publicinterest evaluation. Secondly, in contrast to Ms M, Mr G has previously had his namepublished in the context of a disciplinary matter where he accepted he had beennegligent.[37] In my assessment the real crux of the issue in this case is the lack of claritysurrounding the events at issue. Without that clarity, Mr G's "culpability" cannotproperly be analysed. The Review Officer recognised the problem a number of timesin the Decision, noting that, while she did not have the jurisdiction to review theCommittee's decision that the lawyers demonstrated a lack of diligence andcompetence, she was frustrated because she could not analyse all the relevantevidence.33[38] The Committee described Mr G's involvement as "minimal" but sufficient totrigger his professional obligations, including the obligation to provide appropriateadvice regarding the effect of the 2010 Agreement and implications of the subsequenttransfer of the Property. What was not clear, however, was the extent of Mr G'sknowledge in the context of having stepped in temporarily while Ms M was absentthrough illness.[39] The Review Officer began her discussion by noting that Mr G's attempt toattribute all responsibility to Ms M was misplaced. He was involved to some extent32 M v C, above n 1, at [80].33 At [19], [54] and [65].in the drafting process, which was "not manage[d] that competently or withdiligence".34 As to Ms M, she was left to provide advice on the effect and implicationsof the Agreement, which did not dovetail with how the couple had structured theiraffairs and she did not protect Ms C's separate property interests.35 The ReviewOfficer considered that Mr G demonstrated at the review hearing an inappropriatelycasual approach to the drafting of the document, and said that casual approach wasreflected in the facts and was not acceptable. On that basis, she decided the publicrequired protection, and publication of Mr G's name was necessary and desirable.36[40] She then, in addressing Ms M, observed that it could not be said with certaintythat "no responsibility" rested with her.37 The implication of that statement is that itwas Ms M who had minimal involvement in the events which led to the Complaint.That statement does not reflect the Committee's finding that it was Mr G whoseinvolvement was minimal.[41] The Review Officer was, however, bound by the Committee decision onliability as that decision was not under review. With that as the backdrop and with nosuccinct analysis of findings of fact or what each of the lawyers knew or should havedone but did not do, the Review Officer was in a difficult position. An understandingof the nature of a lawyer's unsatisfactory conduct and culpability is fundamental (andtherefore clearly relevant) to a decision on publicity.[42] The Review Officer then concluded that Mr G's name only should bepublished, together with "a suitably drafted summary of facts" which she left to theLaw Society.38[43] That, in my assessment, places the cart before the horse. In order to be satisfiedthat publication of Mr G's name was warranted in accordance with the mandatoryconsiderations of reg 30,39 the relevant summary should have first been provided. The34 At [36].35 At [36].36 At [78].37 At [79].38 At [80].39 Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees)Regulations 2008.benefit of that would be two-fold. First, it would clarify exactly where Mr G'sculpability lay once that of Ms M was removed and, secondly, it would enable the reg30 considerations to be considered in proper context.[44] This is closely aligned with Mr G's complaint that, having decided Ms M'sname was not to be published, in accordance with natural justice the Review Officershould have invited further submissions from Mr G. Mr Comrie-Thomson hasaccessed the transcript of the hearing before the Review Officer. He confirmed therewas no indication at the hearing that Mr G's name might be published but Ms M'smight not.[45] A further issue is the fact the Review Officer reduced the compensationpayable to Ms C. Whether and to what extent that is relevant to an assessment ofculpability in the context of a decision on publication should also have been addressedand submissions invited in that regard.[46] The way in which the Review Officer dealt with the respective failings of thetwo lawyers before deciding that Ms M's name should not be published, but Mr G'sshould, was in error. The error can be viewed as a failure to take account of relevantconsiderations in respect of Mr G's culpability, and a failure of natural justice.[47] A related issue was the potential for Ms M's name to be identified if Mr G'sname were published. Regulation 30 requires the Review Officer, in modifying theCommittee's determination, to take account of the impact of publication on theinterests and privacy of other persons, including "partners, employees and associatesof the censured person".40 Given the length of Mr G and Ms M's partnership, theprospect of Ms M's name being identified through the summary of facts must be a realpossibility. That being the case, the Review Officer would need to consider whetherhaving Ms M's name identified in such circumstances would outweigh the publicinterest in publication of Mr G's name.[48] Mr Comrie-Thomson helpfully provided an example of how the summary offacts could be drafted, identifying Mr G and his role but minimising the risk that Ms M40 Regulation 30(2)(d).would be identified. I acknowledge that the wording proposed by him was simplyintended as an example and was not to be taken as a proposal from the Law Society.What it did, however, demonstrate was, when Ms M's involvement was removed andMr G's "minimal" role described in accordance with the Committee's decision, thedecision to publish Mr G's name in the public interest would seem at best to be a veryfinely balanced one. This comment is not intended to direct the Review Officer to adecision but it does perhaps emphasise that it was the combination of the roles withinthe partnership which must have contributed to the decision that both partners shouldbe censured.[49] For the sake of completeness, I agree with Mr Comrie-Thomson's submissionthat Mr G's complaints to the effect the Review Officer failed to take account of theage of the Complaint, the "lack of recent evidence indicating a propensity to commitsimilar offending" and the length of time Mr G had been practising were matters Mr Ghad the opportunity to raise in submissions to, and hearing before, the Review Officer.The same applies to submissions concerning Mr G's new practice, the type of law inwhich it specialises and whether Mr G had undertaken at his own behest any steps toensure that there is no repeat of the type of behaviour which resulted in the censure.[50] For these reasons, I agree that there has been an error of law which may wellhave altered the ultimate decision by failing to take into account relevant matters indeciding to modify the Committee's publication order and by failing to give Mr G theopportunity to make submissions on the impact of publication of his name only.[51] As recognised by the Court of Appeal, the effect of publication is likely to beconsidered a significant, if not the significant element of the penalty imposed,particularly if the lawyer will continue in practice.41 I am satisfied, therefore, it isappropriate to exercise my discretion and grant the application.Result[52] For the reasons given, the application for judicial review is granted. The partof the decision dealing with publication of Mr G's name is quashed and the matter is41 New Zealand Law Society v B, above n 19, at [54].remitted back to the Review Officer for reconsideration to take place after furthersubmissions are requested from Mr G.[53] My provisional view is that Mr G is entitled to costs. Counsel may filememoranda if the issue cannot be agreed.[54] I make an order prohibiting publication of the name or identifying particularsof the applicant.Thomas JSolicitors:Iorns Legal, Porirua for ApplicantCrown Law, Wellington for RespondentMeredith Connell, Auckland for Intervenor