DANIELS V COMPLAINTS COMMITTEE 2 OF THE WELLINGTON DISTRICT LAW SOCIETY HC WN CIV-2011-485-000227

DANIELS V COMPLAINTS COMMITTEE 2 OF THE WELLINGTON DISTRICT LAW SOCIETY HC WN CIV-2011-485-000227 8 August 2011THE ORDER MADE PURSUANT TO S 111(2)(B) OF THE LAWPRACTITIONERS ACT 1982 PROHIBITING PUBLICATION OF ANYACCOUNT OF ANY PART OF THE PROCEEDINGS BEFORE THELAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL ISCONFIRMED.PUBLICATION OF THE TITLE "CAC" OR "MS C" IS PROHIBITED.PUBLICATION OF THE FOLLOWING PARAGRAPHS OF THISJUDGMENT IS PROHIBITED: PARAS [8], [9], [14], [33], [49]; SECONDAND THIRD SENTENCES OF [63].PUBLICATION OF CERTAIN PARAGRAPHS OF THE LAWYERS ANDCONVEYANCERS DISCIPLINARY TRIBUNAL'S LIABILITY ANDPENALTY DECISION IS PROHIBITED. DETAILS ARE CONTAINED INPARA [8] OF THE SUPPLEMENTAL ORDER WHICH ACCOMPANIESTHIS JUDGMENT.THERE IS NO OTHER RESTRICTION ON PUBLICATION OF THISJUDGMENT.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-000227IN THE MATTER OF an appeal under the Law Practitioners Act1982BETWEEN KENNETH MICHAEL DANIELSAppellantAND COMPLAINTS COMMITTEE 2 OF THEWELLINGTON DISTRICT LAWSOCIETYRespondentHearing: 1 August 2011Court: Gendall JMacKenzie JMiller JCounsel: B A Corkill QC for AppellantM F McClelland and R S L Scott for RespondentJudgment: 8 August 2011In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 12.50pm on the 8th day of August 2011.JUDGMENT OF THE COURT[1] The appellant is a barrister and solicitor who was found guilty of professional misconduct by the Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) after a defended hearing. He appealed against that finding and the penalties imposed, but has abandoned the appeal against the finding of professional misconduct.[2] Because the disciplinary proceedings were commenced prior to the enactment of the Lawyers and Conveyancers Act 2006 (2006 Act), they were dealt with pursuant to the transitional provisions of s 353 of that Act, and penalties were imposed under the Law Practitioners Act 1982 (1982 Act).[3] The penalties were:(1) his practising certificate was suspended for three years, commencing 7 February 2011;(2) he was ordered to pay compensation to the complainant in the sum of $5,000;(3) he was censured;(4) he was ordered to pay costs of $40,000; and(5) the interim order suppressing publication of his name that had been made was to continue until 7 February 2011 and thereafter was variedonly to allow publication of the practitioner's name, but a prohibitioncontinued against publication of any account of any part of the proceedings pursuant to s 111(2)(b) of the 1982 Act.[4] By consent an order was made suppressing publication of his name and identifying details until the substantive appeal was determined. The Court stayed theoperation of the penalties until 30 June 2011 as the appellant had given an undertaking not to practise as a barrister and/or solicitor and to dispose of his practice.1Background[5] The appellant was charged with professional misconduct alleging eight particulars, the most serious being that:2On or about 13 July 2004 he had sexual intercourse with [a client] at "X"Motor Lodge, at a time when [...] was a client of his and in circumstances which were inconsistent with, or an abuse of, the relationship of trust and confidence between a practitioner and client.[6] The other particulars related generally to breaches of professional responsibilities in performing work, giving advice, and to following instructions of the complainant. The Tribunal said that it found five of these not established and the remaining two, whilst not professional misconduct, were established at the level of"unsatisfactory conduct". However, such a finding was only available under the2006 Act and not under the 1982 Act. So the findings were recalled and the Tribunal dismissed charges of professional misconduct as it related to those particulars.[7] The relevant background facts are that the complainant was a client of the appellant for approximately four years. He knew that she was a vulnerable and impoverished woman with a troubled background. He acted for her in matters of domestic violence from an abusive partner, proceedings involving care of her children (one of whom was intellectually handicapped), criminal proceedings (successfully), and ongoing custody and access disputes. She placed her trust in, and reliance and hopes on, him.[8] [Suppressed by Supplemental Order].[9] [Suppressed by Supplemental Order].1 D v Complaints Committee 2 HC Wellington CIV 2011-485-227, 16 March 2011.2 Complaints Committee 2 v Daniels [2010] NZLCDT 30, 20 October 2010 at [2].[10] It is not necessary to recite all the evidence in any detail, except to say it was amply sufficient – once credibility findings were made – to enable the Tribunal toaccept the complainant's evidence.[11] The Tribunal rejected the appellant's evidence on the sex allegation. It said "... the Tribunal was not impressed by [the practitioner's] approach to his defence in attempting to portray [the complainant] as such an unworthy person"3 and that it found the charge proved on the balance of probabilities to the very high standard required. It said:4We consider that having regard to the vulnerable personality of [the complainant], who had for many years been a victim of relationships of domestic violence and having regard to her dependence on and long relationship with [the practitioner], we have no doubt that his behaviour in having sexual intercourse with her breached this rule. We are clear that this amounts to professional misconduct.[12] In giving its reasons for the penalties imposed, the Tribunal referred to competing submissions of counsel on aggravating and mitigating features and concluded:5The Tribunal failed to accept [the practitioner's] evidence on a number ofimportant matters which imports an element of dishonesty, in addition to the sexual misconduct established. His lack of remorse and indeed blame of the victim in this case was extremely troubling to the Tribunal. Some of theTribunal members considered that the practitioner's name ought to be struckoff the roll. However, unanimity was not able to be achieved and thus such an order could not be made.We consider a proportionate response to this conduct to be suspension for themaximum period allowed, when coupled with the practitioner's statedintention not to continue in practice.The formal censure delivered to the practitioner on 28 January has been expanded upon in these reasons and is self-evident. The privilege of representing people and of being privy to their most personal details and responsible for the managing of crucial events in their lives imposes an extremely high responsibility. [The practitioner] fell far below his duty to this client and thus the consequences must be serious. ...[13] When fixing the order for costs at $40,000 (based upon actual costs of $76,000) the Tribunal took into account costs incurred when an earlier hearing did3 At [106].4 At [109].5 Complaints Committee 2 v Daniels [2011] NZLCDT 1, 7 February 2011 at [41] – [43].not proceed, and which the appellant did not have to meet, together with the fact that seven of the charges were dismissed. It noted that the expenses of the Tribunal could not be recovered under the transitional procedure, although would have beenrecoverable under the 1982 Act. It said it had regard to the appellant's means infixing costs at a figure of a little more than 50 per cent.6[14] [Suppressed by Supplemental Order].Appellant's submissions[15] The appellant, through his counsel, submitted that:given the undertaking to cease practise, an order for suspension was notrequired and it was not open to the Tribunal to find that he was not a "fitand proper person" to practise;a fine only should have been imposed, together with the existing orders for compensation and censure, they being the least restrictive outcome;costs should be reduced to $18,000 because of the dismissal of the remaining particulars alleged as incorporating the charge, or being separate charges, of professional misconduct; anda permanent order for suppression of the appellant's name should bemade.[16] Counsel contended that the Tribunal failed to adequately identify the principles that it applied in imposing penalties and, although discussing aggravating and mitigating factors, largely discounted the mitigating factors that had been advanced. The imminent retirement of the practitioner was a reason for not striking him off, but that should also have been a reason why suspension was not appropriate. He submitted that undertaking to cease practise clearly met any need for protection of the public. He submitted that the defence by the practitioner of the charge was not6 At [45].an aggravating factor but simply the absence of a mitigating factor. We were referred to other cases where practitioners had sexual contacts with clients and orders for suspension were not made. We do not accept that these cases indicate that a penalty less than suspension with publication of the practitioner's name is orthodox.We observe that in two the finding was conduct unbecoming (then available under the 1982 Act), not professional misconduct, and further, in Re E7 the practitioner acknowledged his breach of responsibility, accepted wrongdoing, and displayed considerable remorse and contrition.[17] On the issue of name suppression counsel submitted that the Tribunal failed to make a careful evaluation of factors advanced in favour of the appellant, and that publication is only necessary to the extent to which it would provide some degree of protection to the public. It failed to consider name suppression as part of the overall outcome of the impact of the penalties that were to fall upon the appellant. He referred to S v Wellington District Law Society,8 where the Court said the focus was on protection of the public, and argued that the Tribunal did not refer to that well established principle. He referred to the serious health issues affecting both the appellant and his family, and concern over the effect any publication might have on family members. Counsel emphasised that as the appellant was selling his practice and had retired not having renewed his practising certificate, publication was not necessary to protect the public from future practise.[18] On the question of costs, counsel argued that the Tribunal failed to have regard to the modest financial circumstances and means of the appellant and fixed the costs at too high a level ($40,000). The costs claimed were $76,000 and he said that the usual approach in professional disciplinary cases was to start with an order at 50 per cent of actual costs, and move up, or down, depending on aggravating and mitigating factors. Counsel argued, the figure should first have been reduced by reason of the particulars dismissed, and then a discount of 50 per cent so as to result in a figure of no more than $18,000.7 Re E Law Practitioners Disciplinary Tribunal, 29 August 1996.8 S v Wellington District Law Society [2001] NZAR 465 (HC).Discussion[19] No challenge is or could be made to the orders for compensation and of censure. The appeal proceeded solely on the basis of challenge to the suspension, refusal of name suppression, and order for costs.[20] The issue of suppression was central to the appellant's argument in two ways.First, if there was an order for suspension publication of the effect of the order had to occur in the Gazette9 and the punitive effect of this in combination with a suspension led to an excessive penalty. Secondly, and regardless of whether there was an order for suspension, publication was not necessary to protect the public or profession as the appellant was no longer going to practise, and the private interests of his family required that there be general suppression.[21] We think it is convenient to deal with the issue of suspension first, but recognise that, because Gazette publication must accompany such an order, this is inextricably linked to suppression considerations.As to suspension[22] It is well known that the Disciplinary Tribunal's penalty function does nothave as its primary purpose punishment, although orders inevitably will have some such effect. The predominant purposes are to advance the public interest (whichinclude "protection of the public"), to maintain professional standards, to imposesanctions on a practitioner for breach of his/her duties, and to provide scope for rehabilitation in appropriate cases. Tribunals are required to carefully consider alternatives to striking off a practitioner. If the purposes of imposing disciplinary sanctions can be achieved short of striking off then it is the lesser alternative that should be adopted as the proportionate response. That is "the least restrictive outcome" principle applicable in criminal sentencing. In the end, however, the test iswhether a practitioner is a fit and proper person to continue in practice. If not, striking off should follow. If striking off is not required but the misconduct is9 Law Practitioners Act 1982, s 119.serious, then it may be that suspension from practising for a fixed period will be required.[23] In this case, despite the view of a majority, the required unanimity of five members could not be obtained to enable an order for striking off to be made. But there was unanimity as to suspension and for the maximum term of three years.[24] A suspension is clearly punitive, but its purpose is more than simply punishment. Its primary purpose is to advance the public interest. That includes that of the community and the profession, by recognising that proper professional standards must be upheld, and ensuring there is deterrence, both specific for the practitioner, and in general for all practitioners. It is to ensure that only those who are fit, in the wider sense, to practise are given that privilege. Members of the public who entrust their personal affairs to legal practitioners are entitled to know that a professional disciplinary body will not treat lightly serious breaches of expected standards by a member of the profession.[25] It will not always follow that a practitioner by disposing of his practice and undertaking not to practise can avoid or pre-empt an order for suspension. The consideration of whether to suspend or not requires wider consideration of all the circumstances. The real issue is whether this order for suspension was an appropriate and necessary response for the proven misconduct of the appellant having regard not only to the protection of the public from the practitioner but also to the other purposes of suspension.[26] Counsel said that the Tribunal wrongly regarded the appellant's defending thecharge an aggravating feature. He said it is simply, under conventional sentencing principles, an absence of mitigation. That of course is true, but we do not accept that conventional sentencing principles were the only relevant factor for the Tribunal.[27] In considering penalties a Disciplinary Tribunal's considerations may bewider than those of a sentencing Judge in criminal matters, because it is dealing with professional standards and conduct. What the Tribunal said when giving its reasons for the penalties imposed was that counsel for the Complaints Committee hadsubmitted that the appellant's "continued denial was an aggravating factor". It thensaid:10We have referred in our decision of October to the Tribunal's disapproval of [the practitioner's] characterisation of his former client as someone whoought not to be believed, indeed someone who was totally untrustworthy.At sentencing his own statement to the Tribunal reinforces his denial and adopts the attitude that his present troubles are largely at the feet of the complainant despite a minor acknowledgement at his lack of judgment at putting himself in the position where such an allegation could be made. He refers to the allegations of [the complainant] having prompted him to retire from his profession and having brought suffering and hardship to him and his family.In maintaining his position [the practitioner] is clearly not prepared to be open with his profession or its governing body. His actions are referred to by Mr McClelland as "a continued dishonest attempt to mislead the Tribunal,in the face of unequivocal evidence provided (very late) to the contrary".[28] It is not the case, on the conventional criminal sentencing principles, thatdefending proceedings with vigour and "pulling no punches", is an aggravatingfeature so as to increase any penalty to be imposed. The starting point is fixed according to the gravity of the misconduct, and culpability of the practitioner for the particular breach of standards. Thereafter, a balancing exercise is required to factor in mitigating circumstances and considerations of a practitioner. Obviously, matters of good character, reputation and absence of prior transgressions count in favour of the practitioner. So, too would acknowledgement of error, wrongdoing and expressions of remorse and contrition. For example, immediate acknowledgement of wrongdoing, apology to a complainant, genuine remorse, contrition, and acceptance of responsibility as a proper response to the Law Society inquiry, can be seen to be substantial mitigating matters and justify lenient penalties such as arose, for example, in Re E.[29] On the other side of the coin, absence of remorse, failure to accept responsibility, showing no insight into misbehaviour, are matters which, whilst notaggravating, nevertheless may touch upon issues such as a person's fitness topractise and good character or otherwise.10 Complaints Committee 2 v Daniels [2011] NZLCDT 1 at [29] – [31].[30] If a practitioner engaged, for example, in disreputable correspondence with a Complaints Committee or Disciplinary Tribunal, or conducted himself in a belligerent way in which he responded to legitimate complaints made to a Law Society Complaints Committee, a Tribunal may take a dim or adverse view of his overall behaviour. The practitioner cannot expect that to be a factor that is ignored inthe exercise of the Tribunal's power. That is because character – good or bad – may be very relevant when sanctions or penalties may come to be imposed.[31] To maintain innocence, which carries with it denial and absence of remorse, relates to absence of potential mitigation but not as a matter of aggravation.11 But there may be behaviour which detracts from positive character features advanced in mitigation. The position is described in Hall's Sentencing as:12Conduct falling short of further offending should not be penalised by lengthening sentence. Nevertheless, the manner in which the defence is conducted may be considered when assessing the general character of the offender and, in particular, it may be balanced against evidence or assertions of remorse introduced in mitigation. For example, in R v Keenan(CA 256/80, 18 February 1981) the offender lied to the Court and attempted to place the blame on an innocent person. Testimonials as to her goodcharacter were introduced in mitigation. The offender's conduct, the Courtsaid, demonstrated not only an absence of contrition, but was relevant to the matter of character and could thus be taken into account in the matter of credits and debits which were so often a feature of the sentencing process. Similarly in R v Lynn (CA 137/88, 12 July 1988, McMullin, Bisson and Hardie Boys JJ) [1984-1988] BCLD 1900 the "concoction of the defence" was seen as being "symptomatic" of the offender's absence of remorse;while in R v G (CA 184/94, 21 July 1994, Eichelbaum CJ, Casey and Henry JJ) [1993-1995] BCLD 1919 the Court stated that a failure by the appellant, aged 15 at the time of his commission of the offences of aggravated robbery and injuring with intent to facilitate that crime, to accept responsibility for his serious actions and instead to proceed to a fully defended trial where the jury was invited to conclude that he was not provedto be one of the offenders, left the Court "with a feeling of disquiet as to the true extent of the rehabilitation process and of the appellant's genuineness".The elements of remorse and acceptance of responsibility were said to be"lacking in any significant substance".[32] A Tribunal, when determining ultimate fitness to remain in practise, whether limited by suspension, or by striking off, is entitled to review the entire conduct of the practitioner and transgressions the subject of the disciplinary proceedings, and the general behaviour of the practitioner. It cannot regard poor behaviour as11 R v Tumai CA403/89, 28 June 1990 at 6; R v Parata CA72/01, 21 June 2001 at [6].12 Geoffrey Hall (ed) Hall's Sentencing (looseleaf ed, Lexis Nexis) at [I.8.2(b)].justifying more severe penalties, but it is the obvious absence of a mitigating factor and relevant to balancing matters of character.[33] [Suppressed by Supplemental Order].[34] In considering sanctions to be imposed upon an errant practitioner, a Disciplinary Tribunal is required to view in total the fitness of a practitioner to practise, whether in the short or long term. Criminal proceedings of course reflect badly upon the individual offender, whereas breaches of professional standards may reflect upon the wider group of the whole profession, and will arise if the public should see a sanction as inadequate to reflect the gravity of the proven conduct. The public are entitled to scrutinise the manner in which a profession disciplines its members, because it is the profession with which the public must have confidence if it is to properly provide the necessary service. To maintain public confidence in the profession members of the public need to have a general understanding that the legal profession, and the Tribunal members that are set up to govern conduct, will not, treat lightly serious breaches of standards.[35] The Tribunal recognised this important dimension of "public interest" whenreferring to the well known dicta of Sir Thomas Bingham MR in Bolton v Law Society:13In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order for suspension; plainly it is hoped that the experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly be indefinitely by an order of striking off. The second purpose is the most fundamental of all; to maintain the reputation of the solicitors' profession as one in which every member, ofwhatever standing, may be trusted to the ends of the earth.[36] We do not consider the Tribunal erred in the manner in which it approached its task. It was justified in expressing disquiet about the lack of remorse of the appellant, which remains apparent from his affidavit and statements. He appears to13 Bolton v Law Society [1994] 2 All ER 486 (CA) at 492.maintain regret only simply because his only error was putting himself in the position where (impliedly) false allegations could be made against him.[37] The critical element in this case was the finding that the complainant was vulnerable and exploited. It involved the breach of the fiduciary duty owed to a client who had entrusted her private and personal life and trust to the lawyer so that he would protect and advance her family interests and aspirations. This element made the sexual exploitation very serious. It elevated the professional misconduct to a high level. To reflect this, a starting point had to have been an order for suspension. Any less would not have reflected the serious breach of the duty of absolute good faith.[38] Counsel did not argue before us that the length of suspension was inappropriate, rather that no suspension was required because the appellant was not going to practise. We do not consider the Tribunal erred in its choice of themaximum term, three years. Despite the appellant's past standing in the professionand community, in the absence of acceptance of guilt, expressed remorse and contrition, and having regard to the inherent seriousness of the conduct, it was open to the Tribunal to decline to ameliorate such a sanction.[39] A practitioner cannot avoid an order for suspension, if it should properly have been made, by surrendering a practising certificate or selling his/her practice or giving an undertaking not to practise. The fact that this appellant might choose to never practise again naturally is relevant to his specific deterrence. But the wider general deterrent function of orders for suspension or other stern sanctions remain relevant. Other members of the profession must know that similar misconduct will bring a stern response from the disciplinary body.[40] In the circumstances of this case we are not able to conclude that the Tribunal erred in imposing an order for suspension or that its term was manifestly excessive, inappropriate or unnecessarily severe. The only other available penalty was a fine not exceeding $5,000. That would have been manifestly inadequate.[41] We have independently reached the same conclusion as the Tribunal that an order for suspension was required. We are not disposed to disturb its length.As to the order for costs[42] Actual costs said to have arisen were in the region of $76,000 and on that basis an award of costs of $40,000 was made. Mr Corkill's argument is that the "accepted" measure of costs in disciplinary proceedings where a practitioner is foundguilty of misconduct, is only 50 per cent of actual costs. So, he adopts an arithmetical approach so as to result in a figure of $35,000, and says that should be reduced to $18,000 because of the dismissal of the other particulars or itemised charges.[43] An award of costs under s 129 of the 1982 Act (and the 2006 Act) is entirely discretionary. A practitioner may be ordered to pay costs if the Tribunal considers that the proceedings were justified, despite the practitioner not being subject to a guilty finding.14 It is clear that expenses include salaries and staff and overhead expenses incurred by the societies that investigate and bring proceedings before the Tribunal.15 So the scope or ambit for a costs order is very wide. The Court will onlyinterfere in the exercise of a Tribunal's discretion if it is wrong in principle or clearlyunreasonable.[44] Mr Corkill referred to the case of Cooray v Preliminary Proceedings Committee, where Doogue J discussed a number of other cases which suggested that 50% of total reasonable costs was a guide to a reasonable order for costs.16 Those cases all related to decisions in respect of medical practitioners, and in the decision the subject of that appeal an order for costs of 75 per cent of the actual costs had been made. The Court considered that this went beyond what was a justified figure.[45] Reference is also made in that judgment to the proportion of costs not being the final determinator of what is reasonable. Indeed, there is reference to a decision of O'Connor v Preliminary Proceedings Committee, where an order for costs of14 Law Practitioners Act 1982, s 129(1)(b).15 Law Practitioners Act 1982, s 129(2).16 Cooray v Preliminary Proceedings Committee HC Wellington AP23/94, 14 September 1995 at 9.$50,000 out of a total of $70,500 (being 66⅔ per cent of the total) was upheld.17 In that case Jeffries J said:18It is a notorious fact that prosecutions in the hands of professional bodies, usually pursuant to statutory powers, are very costly and time consuming to those bodies and such knowledge is widespread within the professions so controlled. So as to alleviate the burden of the costs on the professional members as a whole the legislature had empowered the different bodies to impose orders for costs. They are nearly always substantial when the charges brought are successful and misconduct admitted, or found.[46] All cases referred to in Cooray were medical cases and the Judge was careful to note that the 50 per cent was the general approach that the Medical Council took. We do not accept that if there was any such approach, it is necessarily to be taken in proceedings involving other disciplinary bodies. Much will depend upon the time involved, actual expenses incurred, attitude of the practitioner bearing in mind that whilst the cost of a disciplinary action by a professional body must be something of a burden imposed upon its members, those members should not be expected to bear too large a measure where a practitioner is shown to be guilty of serious misconduct.[47] Costs orders made in proceedings involving law practitioners are not to be determined by any mathematical approach. In some cases 50 per cent will be too high, in others insufficient. Counsel has not been able to refer the Court to any specific examples of decisions involving law practitioners where it has been accepted that a fixed percentage is to be the proper approach. There is no binding principle that the Tribunal in the exercise of its discretion must follow any formula. In the present case the Tribunal says it took into account matters favourable to the appellant, which included dismissal of the other charges because of the finding not being available under the 2006 Act. The Tribunal was entitled to take into account the vigorous and determined defence, on the face of strong evidence arising out of the earlier mentioned physical characteristic that could only be known to the complainant, and which were confirmed pre-hearing by the appellant's own medicalevidence. The hearing lasted over three days and going into a Saturday.17 O'Connor v Preliminary Proceedings Committee HC Wellington AP280/89, 23 August 1990.18 At 13.[48] Further, in this case, it is apparent that the Tribunal viewed as justified theinclusion in the charge(s) of some of the other "particulars" by reason of its conclusion that the appellant was guilty of "unsatisfactory conduct" in respect ofthose. It would have been open to the Tribunal to impose costs in respect of those matters under s 129(b) of the 1982 Act.[49] [Suppressed by Supplemental Order].[50] Viewed broadly, and taking into account the appellant's own circumstances, the level of the award of costs was not manifestly unjust or outside the discretion vested in the Tribunal and we are not disposed to interfere with it.As to suppression[51] This aspect formed the major argument on appeal. It was contended that if there be an order for suspension the mandatory publication in the Gazette wouldseverely damage the appellant's reputation. And such publicity, with anyconsequential publication, would harm his family.[52] As the order for suspension is to be confirmed, publication must occur in the Gazette of the fact of a finding of professional misconduct and suspension. But in confirming the order for suspension we have had regard to all the factors and considerations relating to suppression, in reaching that overall conclusion. Our assessment follows.[53] Harm to reputation is an inevitable consequence of publication if a professional is the subject of an adverse disciplinary finding but of itself cannot provide sufficient ground for there to be suppression of his name. The further comments of Sir Thomas Bingham MR in Bolton v Law Society are apt:19To maintain [the profession's] reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are [disciplined] ... a member of the public ... is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and19 At 492.the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.[54] So it is more than a question of publication being required to protect the public in this case – rather it is to advance the public interest, namely to protect theprofession's most valuable asset, being its collective reputation.[55] The presumption in favour of publicity and openness in Court proceedings is enshrined also in disciplinary decisions which have been made on other occasions. Section 111 of the 1982 Act provides that hearings are to be in public and the Tribunal may make an order prohibiting publication of the name or any particulars of the affairs of the person charged, or any other person, if the Tribunal is of the opinion that it is proper to do so having regard to the interests of any person and to the public interest.[56] In S v Wellington District Law Society it was said:20The public interest referred to is the interest the public, including members of the legal profession, has resulting from its right to know about proceedings affecting a practitioner. The interests of any person includes the interests of the practitioner as well as others....We conclude from this approach that the public interest to be considered, when determining whether the Tribunal, or on appeal this Court, should make an order prohibiting the publication of the report of the proceedings, requires consideration of the extent to which publication of the proceedings would provide some degree of protection to the public, the profession, or the court. It is the public interest in that sense that must be weighed against the interests of other persons, including the practitioner, when exercising the discretion whether or not to prohibit publication.The exercise of the discretion should not be fettered by laying down any code or criteria, other than the general approach directed by s 111(2). ...[57] Orders for striking off or suspension provide "public protection" because thepractitioner cannot practise. But it must not to be overlooked that whilst protectionof the public is of course a matter of "public interest", the latter concept covers a farwider ambit than simply protection. It is in the interests of the profession that the20 At 469.public have confidence in the disciplinary process by which a profession deals with its members.[58] The public interest in being aware of the proceedings in which a practitioner has been found guilty of misconduct and is suspended, and knowing that such an outcome will usually not be hidden, must be high. It is still to be weighed against the interests of other persons, including the practitioner and family.[59] These will include:21Private interests will include the health interests of a practitioner, matters that may affect a family and their wellbeing, and rehabilitation. Correspondingly, interest[s] such as protection of the public, maintenance ofprofessional standards, both openness and "transparency" and accountabilityof the disciplinary process, the basic value of freedom to receive and impart information, the public interest knowing the identity of a practitioner foundguilty of professional misconduct, the risk of other [professionals']reputations being affected by suspicion, are all factors to be weighed on the scales.[60] We agree with the comments of Panckhurst J (essentially repeating what the Court of Appeal said in R v Liddell22), in T v Director of Proceedings:23... following an adverse disciplinary finding more weighty factors are necessary before permanent suppression will be desirable. This, I think, follows from the protective nature of the jurisdiction. Once an adverse finding has been made, the probability must be that public interest considerations will require that the name of the practitioner be published in the preponderance of cases. Thus, the statutory test of what is "desirable" isnecessarily flexible. Prior to the substantive hearing of the charges the balance in terms of what is desirable may include in favour of the private interests of the practitioner. After the hearing, by which time the evidence is out and the findings have been made, what is desirable may well be different, and more so where professional misconduct has been established.[61] A balancing exercise is required. The Full Court in Sullivan v Complaints Committee of the Canterbury District Law Society said:24The decision maker must consider both the private interests of the practitioner ... on the one hand, and the public interest on the other. There is21 Anderson v Professional Conduct Committee of the Medical Council of New ZealandHC Wellington CIV 2008-485-1646, 14 November 2008 at [36].22 R v Liddell [1995] 1 NZLR 538 (CA).23 T v Director of Proceedings HC Christchurch CIV 2005-409-2244, 21 February 2006 at [42].24 Sullivan v Complaints Committee of the Canterbury District Law Society HC Christchurch CIV 2008-409-2590, 3 August 2009 at [71].a legitimate public interest in members of the public having access to information concerning disciplinary proceedings ...[62] Because suspension (and striking off) carries with it the statutory requirement of publication in the Gazette, it would be rare for there to be any order prohibiting further general publication of a practitioner's name. The evidence of the nature ofthe charge and the circumstances surrounding it might be the subject of suppression orders although that carries with it the risk that prospective clients or members of the public may speculate and be left to wonder what it was that led to the finding of professional misconduct. So, too, other members of the profession should be aware of the precise nature of the misconduct charged and penalties imposed in order that there be general deterrence against their behaviour in a similar way. In this case the Tribunal clearly had that in mind by prohibiting publication of any account or any part of the proceedings. This did not extend so far as prohibiting publication of the particulars of the proven charge of professional misconduct.[63] The issue is whether there ought to be separate prohibition of publication outside the statutory requirement. [Suppressed by Supplemental Order]. But that cannot be a compelling reason why a necessary sanction of an order for suspension should not be made, simply so as to avoid publication in the Gazette. Publication in the Gazette (or more widely) is an unfortunate and often sad consequence that inevitably occurs where a person is convicted of an offence, or a serious disciplinary charge. But mere temporary shame or discomfort or embarrassment will rarely if ever of itself tip the balance against the usual outcome of publication of the name of a practitioner found guilty of professional misconduct.[64] We are not satisfied the Tribunal erred in principle or in the exercise of its discretion when approaching the question of suppression and there is no reason for us to interfere with the exercise of that discretion. Indeed, we have independently come to the same conclusion.[65] For completeness we add that even if there had been no order for suspension made, and upheld, suppression orders sought by the appellant would still not have been appropriate.[66] The interim order suppression publication of the appellant's name or anyparticulars to identify him is now discharged. The permanent order pursuant to s 111(2)(b) prohibiting publication of any account of any part of the proceedings before the Disciplinary Tribunal is confirmed. Prohibition of publication of the title [suppressed] remains. There may be publication of the charge of professional misconduct as described in [5] of this judgment, and of the fact that the appellant has been found guilty of that charge and of the penalties imposed and that the appeal to this Court has been dismissed.[67] Publication is prohibited of:the personal circumstances or names of the practitioner's family;the evidence given before the Tribunal; andany further particulars relating to the charge.[68] Those limited suppression orders will affect publication of some parts of thisjudgment, possibly those paragraphs dealing with factual "background". Counselare invited to submit within seven days particulars of those paragraphs in thisjudgment, and in the Tribunal's liability and penalty decisions, that should be subject to a permanent suppression order. The circumstances must be available to the profession so that it can make sense of the judgment, but it is not necessary that all details be published. We recognise that the appellant has a privacy interest in some particulars, including his health and family circumstances.Conclusions[69] The appeal is dismissed. The orders for suspension, compensation, censure and costs are reconfirmed.[70] The order of the Tribunal prohibiting publication of any account of any part of the proceedings before it is confirmed.[71] The interim order for suppression of the appellant's name and finding ofprofessional misconduct lapses. There may be general publication of name, finding and orders, particulars charged as set out in [5] of this judgment and dismissal of the appeal. Publication of the reasons contained in this judgment is prohibited in theinterim pending the Court's receipt of the views of counsel as to suppression offactual details in certain paragraphs. [Now determined, see Addendum].[72] As the appeal is being dismissed in its entirety the respondent is entitled to costs. If it wishes to pursue such an order it is invited to submit a memorandum.ADDENDUM[73] The Court, by its supplemental order dated 18 August 2011, has now made certain suppression rulings and orders which are now encompassed in the suppression banner on page 1 of this judgment.____________________J W Gendall J____________________A D MacKenzie J____________________F Miller JSolicitors:Lawrence Johnston Elder, Wellington for AppellantNew Zealand Law Society, Wellington for Respondent