NEW ZEALAND LAW SOCIETY v JOHN LLEWELLYN STANLEY [2020] NZSC 83

NEW ZEALAND LAW SOCIETY v JOHN LLEWELLYN STANLEY [2020] NZSC 83 [17 August 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 41/2019[2020] NZSC 83BETWEEN NEW ZEALAND LAW SOCIETYAppellantAND JOHN LLEWELLYN STANLEYRespondentHearing: 23 April 2020Court: Winkelmann CJ, William Young, Glazebrook, O'Regan andEllen France JJCounsel: P N Collins for AppellantJ C Gwilliam and H Joubert for RespondentJudgment: 17 August 2020JUDGMENT OF THE COURTA The appeal is dismissed.B Costs are reserved.____________________________________________________________________REASONSPara NoWilliam Young, O'Regan and Ellen France JJ [1]Winkelmann CJ and Glazebrook J [101]WILLIAM YOUNG, O'REGAN AND ELLEN FRANCE JJ(Given by Ellen France J)Table of ContentsPara NoIntroduction [1]The statutory scheme [5]The position in comparable jurisdictions [22]England and Wales [23]Australia [27]Canada [28]The authorities [29]New Zealand [30]Comparable jurisdictions [31]The approach to be taken to the fit and proper person standard [35]Summary [54]Factual background [56]The judgments in the Courts below [62]The High Court [62]The Court of Appeal [65]Our assessment [68]Effect of admission [87]Result [99]Introduction[1] Mr Stanley, the respondent, completed the necessary academic andprofessional qualifications for admission as a barrister and solicitor of the High Courtas a mature student. (He is now 67 years of age.) The New Zealand Law Society (theLaw Society), the appellant, refused to give him a certificate of character essentiallybecause of concerns about his character. Those concerns relate to his history ofcriminal offending, which includes four convictions for driving with excessbreath/blood alcohol, and his attitude towards that offending. Without a certificate ofcharacter from the Law Society, Mr Stanley could not be admitted in the usual way.Instead, the matter proceeded to a contested hearing in the High Court. Subsequently,Clark J concluded that Mr Stanley was not a fit and proper person to be admitted interms of the Lawyers and Conveyancers Act 2006 (the Act) and refused hisapplication.11 Stanley v New Zealand Law Society [2018] NZHC 1154, [2018] NZAR 1210 [HC judgment].[2] Mr Stanley appealed successfully from this decision to the Court of Appeal.2The Court of Appeal concluded that, subject to Mr Stanley taking the statutory oath,he was entitled to an order admitting him as a barrister and solicitor of the High Court.The Law Society unsuccessfully sought a stay of the Court of Appeal judgment.3Mr Stanley has now been admitted as a barrister and solicitor and has been issued witha practising certificate.4[3] The Law Society appeals with the leave of this Court from the decision of theCourt of Appeal determining that Mr Stanley was a fit and proper person.5 The appealraises questions about the approach to be taken to s 55 of the Act. Section 55 providesthat for the purpose of determining whether or not an applicant for admission is a "fitand proper person" to be admitted, the High Court or the Law Society "may take intoaccount any matters it considers relevant and, in particular, may take into account"any of the matters listed in s 55(1). Those factors relevantly include the following:(a) whether the person is of good character:(c) whether the person has been convicted of an offence in New Zealandor a foreign country; and, if so,—(i) the nature of the offence; and(ii) the time that has elapsed since the offence was committed;and(iii) the person's age when the offence was committed:[4] To determine the appeal it is necessary to consider three questions. The firstquestion is the approach to be taken to the fit and proper person standard in s 55(1)where the applicant for admission has previous convictions. That will requireconsideration of the statutory scheme and the way in which it has been interpreted to2 Stanley v New Zealand Law Society [2019] NZCA 119, [2019] NZAR 1001 (French, Dobson andBrewer JJ) [CA judgment].3 Stanley v New Zealand Law Society [2019] NZCA 354 (Kós P, Gilbert and Wild JJ)[Stay judgment].4 We understand that the practising certificate was issued subject to voluntary undertakings fromMr Stanley requiring him, amongst other matters, to obtain the approval of the Law Society beforeaccepting employment as an in-house lawyer.5 New Zealand Law Society v Stanley [2019] NZSC 125.date. The second question is how the principles apply to Mr Stanley. The remainingquestion is whether (and, if so, how) Mr Stanley's name could be removed from theroll of barristers and solicitors should the appeal be allowed.6The statutory scheme[5] The legislative history of the discipline of the legal profession, theestablishment of the Law Society and the Society's role in professional discipline isdiscussed in some detail by McGrath J in Auckland District Law Society v B.7 Forpresent purposes it is sufficient to note that two aspects common to professionaldiscipline generally, that is, controls on those who wish to enter the profession and onthe conduct of those within the profession, have been reflected in New Zealand lawgoverning the legal profession since the Supreme Court Ordinances of 1841and 1844.8[6] A wide range of professions have good character and competence requirementsfor entry.9 The content of those requirements may vary according to the profession.10In terms of lawyers in New Zealand, the content of the fit and proper person and goodcharacter requirements needs to be considered in light of the statutory scheme. Thepurposes of the Act provide the starting point. The relevant purposes are set out ins 3(1) as follows:11(a) to maintain public confidence in the provision of legal services :6 At [2].7 Auckland District Law Society v B [2002] 1 NZLR 721 (CA) at [72]–[84].8 Robin Cooke (ed) Portrait of a Profession (AH & AW Reed, Wellington, 1969) at 142–143, citingSupreme Court Ordinance 1841 5 Vict 1, cl 13; and Supreme Court Ordinance 1844 7 Vict 1, cl 16.See also WR Flaus "Discipline within the New Zealand Legal Profession" (1971–1973)6 VUWLR 337 at 340–341.9 Layne v Attorney General of Grenada [2019] UKPC 11, [2019] 3 LRC 459 at [36]. In NewZealand see, for example, Health Practitioners Competence Assurance Act 2003, s 15(1)(registered health practitioners); Education Act 1989, s 353 (registered teachers); Real EstateAgents Act 2008, s 36 (licensed real estate agents, branch managers and salespersons); SocialWorkers Registration Act 2003, s 6(1) (registered social workers); and Plumbers, Gasfitters, andDrainlayers Act 2006, s 36 (registered plumbers, gasfitters and drainlayers).10 Layne, above n 9, at [37] per Lady Arden. The history of the requirement of good character isdiscussed by Lord Sumption in the same judgment at [56]–[57]. Deborah L Rhode discusses the"extended historical lineage" of "moral character" as a professional requirement in "MoralCharacter as a Professional Credential" (1985) 94 Yale LJ 491 at 493–502. See alsoCarol M Langford "Barbarians at the Bar: Regulation of the Legal Profession through theAdmissions Process" (2008) 36 Hofstra L Rev 1193 at 1196–1198.11 These purposes also apply to registered conveyancers for whom the Lawyers and ConveyancersAct 2006 makes provision.(b) to protect the consumers of legal services :(c) to recognise the status of the legal profession .[7] Section 3(2) provides that in order to attain those purposes, the Act, amongstother things, reformed the law relating to lawyers and provided for a "more responsiveregulatory regime" for lawyers.12 To achieve the purposes, the Act also prescribes the"fundamental obligations with which, in the public interest, all lawyers mustcomply in providing regulated services".13 These fundamental obligations are set outin s 4 and include the following:(a) the obligation to uphold the rule of law and to facilitate theadministration of justice in New Zealand:(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.[8] The requirements for the admission and enrolment of barristers and solicitorsin New Zealand are set out in Part 3 of the Act. Under s 48(1), every person admittedby the High Court under the Act "must be admitted as a barrister and solicitor". Onceadmitted, every person so admitted is generally entitled "while his or her qualificationcontinues, to practise in or before any court or tribunal".14[9] Section 49 sets out the qualifications for admission as a barrister and solicitor.Section 49(1) provides that a person qualifies for admission if the person is in at leastone of the categories in the section. Relevantly, s 49(2) provides that the first categorycomprises those persons who:(a) have all the qualifications for admission prescribed or required by theNew Zealand Council of Legal Education; and12 Section 3(2)(a) and (b).13 Section 3(2)(d).14 Section 48(2). Under s 39(1), the Law Society, on application by any person whose name is onthe roll, must issue that person with a practising certificate. This is subject to a number ofqualifications including the ability to refuse to issue a practising certificate under s 41(1) on theground that the person is not a fit and proper person: see s 39(4)(b)(ii).(b) are fit and proper persons to be admitted as barristers and solicitors ofthe High Court; and(c) meet the criteria prescribed by rules made under section 54.[15][10] A certificate of character from the Law Society is evidence the applicant is afit and proper person. Section 51 provides that:A certificate purporting to be signed by the executive director of the NewZealand Law Society, or a person authorised for the purpose, by theCouncil of the New Zealand Law Society, and certifying that [an applicant] isboth a fit and proper person to be admitted as a barrister and solicitor of theHigh Court and a person who meets the criteria prescribed by rules madeunder section 54 is, in the absence of proof to the contrary, sufficient evidenceof those facts.[11] If a person wishes to be admitted on the grounds that he or she is qualifiedunder the first category described in s 49(2), the applicant must apply to the HighCourt in accordance with the Act and any rules made under the Act.16 Section 52(2)provides that the High Court must make an order admitting the person as a barristerand solicitor if:(a) the High Court is satisfied that the [applicant] is qualified foradmission under section 49(2) ; and(b) the [applicant] has taken the [oath in the prescribed form].[12] In this case the key section is s 55 which is headed "Fit and proper person".Section 55(1) provides that:For the purpose of determining whether or not a person is a fit and properperson to be admitted as a barrister and solicitor of the High Court, the HighCourt or the New Zealand Law Society may take into account any matters itconsiders relevant and, in particular, may take into account any of thefollowing matters:(a) whether the person is of good character:(b) whether the person has, at any time, been declared bankrupt or been adirector of a company that has been put into receivership orliquidation:15 Section 49(3) and (4) set out the second and third categories which respectively comprise personsadmitted in other countries and those issued with a certificate having given notice under theTrans-Tasman Mutual Recognition Act 1997.16 Section 52(1).(c) whether the person has been convicted of an offence in New Zealandor a foreign country; and, if so—(i) the nature of the offence; and(ii) the time that has elapsed since the offence was committed;and(iii) the person's age when the offence was committed:(d) whether the person has engaged in legal practice in New Zealandwhen not admitted under this Act or a corresponding law, or notholding an appropriate New Zealand practising certificate, as requiredby law:(e) whether the person has practised law in a foreign country—(i) when not permitted by or under the law of that country to doso; or(ii) if permitted to do so, in contravention of a condition of thepermission:(f) whether the person is subject to—(i) an unresolved complaint under a corresponding foreign law;or(ii) a current investigation, charge, or order by a regulatory ordisciplinary body for persons engaging in legal practice undera corresponding foreign law:(g) whether the person—(i) is a subject of current disciplinary action in another professionor occupation in New Zealand or a foreign country; or(ii) has been the subject of disciplinary action of that kind that hasinvolved a finding of guilty, however expressed:(h) whether the person's name has been removed from a foreign roll, andthat person's name has not been restored:(i) whether the person's right of practice as a lawyer has been cancelledor suspended in a foreign country:(j) whether the person has contravened, in New Zealand or a foreigncountry, a law about trust money or a trust account:(k) whether the person is subject to an order under this Act or acorresponding law disqualifying the person from being employed by,or a partner of, a lawyer or an incorporated law firm:(l) whether, because of a mental or physical condition, the person isunable to perform the functions required for the practice of the law.[13] Under the previous legislative regime, the Law Practitioners Act 1982 and theRules made under that Act, every applicant for admission was required to showevidence of good character "and" evidence that the applicant was a fit and properperson.17 Those requirements were treated as "discrete and conjunctive requirementsfor admission".18 Under the current Act, good character is a subset of the fit and properperson standard.19 As Wylie J said in Brown v New Zealand Law Society, "it ispossible that a person could be of good character but not fit and proper for unrelatedreasons".20[14] Section 55(2) makes it clear that either the Court or the Law Society maydecide that a person is fit and proper even though that person falls within any of thecategories mentioned in any of the paragraphs in s 55(1) or does not meet all of thecriteria prescribed by rules made under s 54. Finally, s 55(3) also expressly providesthat s 55(1) does not limit the grounds on which it may be "determined that [anapplicant] is not a fit and proper person" or the criteria that may be prescribed by rulesmade under s 54. The inquiry is not constrained in the sense that factors other thanthe listed matters may be considered.21 The section is a guide.22[15] Under s 56 of the Act, the Registrar must maintain a roll of barristers andsolicitors. Once the High Court makes an order admitting any person as a barristerand solicitor, and on payment of the relevant admission fee, the Registrar "must placethat person's name on the roll".23[16] The Law Society's functions include controlling and regulating the practice inNew Zealand by barristers and solicitors of the profession of law and upholding thefundamental obligations imposed on lawyers who provide regulated services inNew Zealand.24 The functions also include assisting and promoting, "for the purpose17 Law Practitioners Act 1982, s 46(2)(a)(ii); and Law Practitioners Admission Rules 1987, r 6(1).18 Singh v Auckland District Law Society [2002] 3 NZLR 392 (HC) at [26(a)].19 It is not apparent from the legislative history why this change was made. It does not appear tohave been seen as significant.20 Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [35]. See alsoDuncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and theLawyer (3rd ed, LexisNexis, Wellington, 2016) at 143.21 Brown, above n 20, at [34].22 At [34].23 Lawyers and Conveyancers Act, s 57.24 Section 65(a) and (b).of upholding the rule of law and facilitating the administration of justice inNew Zealand, the reform of the law".25 Under s 67(2)(d) the Law Society is expresslygiven the power to "oppose any application made for admission as a barrister andsolicitor, or any other application made under [the] Act".[17] Section 94 requires the Law Society to have practice rules providing forspecified matters which include "(a) the criteria for eligibility for a practisingcertificate", "(e) standards of professional conduct and client care", and "(o) the kindsof conduct, including criminal offences, for which a practitioner or former practitionermay be disciplined".26 The Law Society must, in exercising the powers under s 94(e),have rules for a code of professional conduct and client care as a "reference point fordiscipline".27[18] Finally, reference should be made to the Lawyers and Conveyancers Act(Lawyers: Admission) Rules 2008 which are made pursuant to s 54. Section 54(1)provides for rules to be made as to the evidence of the qualifications, character, andfitness of applicants, and "generally in respect of any matter relating to the admissionof [applicants] as barristers and solicitors". Section 54(2) states that the rules mayprescribe "non-educational criteria" which "may preclude the admission of a personwho has, at any time, been convicted of an offence of a kind or class specified in rulesmade under this section or who has, at any time, been declared bankrupt". The presentRules do not prescribe any such criteria.[19] Under r 5(1) of these Rules, a person in Mr Stanley's position is required toapply to the New Zealand Council of Legal Education for a certificate of completionand to the Law Society for a certificate of character. These documents are thenexhibited to the affidavit in support of the application for admission required to befiled by r 5(2). We interpolate here that in this case the Society delegated the decisionas to whether or not to issue a certificate of character to its Practice Approval25 Section 65(e).26 In terms of s 94(o), r 1.4(d) of the Lawyers and Conveyancers Act (Lawyers: Conduct and ClientCare) Rules 2008 provides that the kinds of conduct for which a lawyer or former lawyer may bedisciplined include a "conviction of an offence punishable by imprisonment where the convictionreflects on the lawyer's fitness to practise, or tends to bring the legal profession into disrepute".27 Section 95.Committee. This Committee has delegated authority from the Board of the LawSociety to deal with non-standard practice approval matters.[20] Rule 6 addresses the situation in which Mr Stanley found himself when theLaw Society declined to provide a certificate of character. In that situation, theapplicant for admission must serve a copy of their application on the Law Societywithin two days of filing it in the High Court.28 Under r 6(4)(a), the Law Society must,within 21 days of receipt, serve on the applicant a notice of opposition setting out thegrounds on which the application is opposed together with any affidavits in support.Rule 6(4)(b) provides that the applicant's application "must be determined at ahearing" at which the Law Society must be represented.[21] Rule 8(1) provides for every application for admission to be determined by aHigh Court judge.The position in comparable jurisdictions[22] In England and Wales, Australia and Canada there are similar "fit and properperson" and/or "good character" requirements for entry to the legal profession.England and Wales[23] In England and Wales, a certificate of "character and suitability" is aprerequisite to becoming a solicitor.29 Character and suitability is assessed by theSolicitors Regulation Authority (SRA), which is the approved regulator for solicitorsunder the Legal Services Act 2007 (UK). The phrase "character and suitability"replaced the previous requirement of "moral fitness";30 an example of more modernlanguage.28 Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, r 6(3).29 Solicitors Act 1974 (UK), s 3(1)(b).30 Keith Davies "Administrative Law" [2004] All ER Rev 1 at [1.24].[24] In assessing character and suitability, the SRA takes into account:31(a) the "overriding need" to "protect the public and the public interest" and"maintain public trust and confidence in the solicitors' profession andin legal services provided by authorised persons"; and(b) the nature of the individual's role and individual circumstances on acase by case basis.[25] The SRA Assessment of Character and Suitability Rules also provide that theSRA will consider criminal conduct when assessing character and suitability.32 Thisis subject to legislation equating to New Zealand's Criminal Records (Clean Slate)Act 2004 (the Clean Slate legislation),33 although convictions and cautions which are"spent" in the terms of the equivalent legislation must, with some exceptions, bedisclosed to the SRA.34 The SRA also bears in mind "the public interest in supportingthe rehabilitation of offenders".35 Criminal conduct is assessed in accordance with atable in the Rules which sets out a non-exhaustive list of types of offending categorisedas "most serious", which is "likely to result in refusal", and "serious", which "mayresult in refusal".36 Finally, the Rules set out a non-exhaustive list of aggravating andmitigating factors informing the character and suitability assessment.37 For example,the absence of evidence of successful rehabilitation is an aggravating factor, while theconverse, evidence of successful rehabilitation, is a mitigating factor.3831 SRA Assessment of Character and Suitability Rules, r 2.1.32 Rules 2.2. and 3.133 The equivalent legislation is the Rehabilitation of Offenders Act 1974 (UK) and The Rehabilitationof Offenders Act 1974 (Exceptions) Order 1975 (UK).34 The Rehabilitation of Offenders Act 1974 (Exceptions) Order (UK), art 3(a)(i) and pt 1 of sch 1.See also Solicitors Regulation Authority "Guidance: Admission as a solicitor" (July 2020)<www.sra.org.uk>. Under the Rehabilitation of Offenders Act (UK), after a specified period oftime, cautions and convictions (except those resulting in prison terms of over 48 months) areregarded as "spent": ss 1, 4 and 5.35 SRA Assessment of Character and Suitability Rules, r 3.1.36 Rule 3, table 1.37 Rule 5, table 3.38 The SRA's enforcement strategy applicable to the regulation of solicitors once admitted recordsdrink driving as a type of conviction that the SRA will "take more seriously": Solicitors RegulationAuthority "SRA enforcement strategy" (25 November 2019) <www.sra.org.uk> at [2.2].[26] Similarly, those who wish to become barristers must pass a "fit and properperson" check.39 The test for determining fitness and propriety is whether theapplicant is "capable of upholding the Core Duties which underpin the behaviourexpected of barristers".40 The purpose of the inquiry is to ensure public confidence in,and maintain the reputation of, the profession.41 Applicants are required to disclose,amongst other things, "any spent or unspent convictions, cautions, or final warnings save those which are 'protected' by law [or 'filtered' by the Disclosure and BarringService]".42 Such disclosure will not automatically result in an application beingrefused. Rather, the type of offence, the sentence imposed and the length of time sincethe sentence ended must be considered.43 Other factors that may be considered includethe applicant's age at the time of offending, whether there is a pattern of offending,whether the offending was linked to professional practice, whether the use of drugs oralcohol was a factor, the applicant's attitude towards the events, and evidence ofrehabilitation.44Australia[27] In Australia, one of the requirements for admission is that the person is a fit39 "Memorandum of Understanding between The Bar Standards Board and The Council of the Innsof Court and The Honourable Society of The Inner Temple and The Honourable Society of TheMiddle Temple and The Honourable Society of Gray's Inn and The Honourable Society ofLincoln's Inn" (March 2019) [Bar Standards Board and Inns of Court "Memorandum ofUnderstanding"], sch 1 at [7]. Under the Legal Services Act 2007 (UK), the General Council ofthe Bar (Bar Council) is the approved regulator of barristers in England and Wales. The BarCouncil delegates responsibility for all regulatory functions to the Bar Standards Board.40 Bar Standards Board and Inns of Court "Memorandum of Understanding", above n 39, sch 1 at [9].See also sch 1 annex 1 at [1].41 Schedule 1 at [10]. See also Bar Standards Board "Information for students on the fit and properperson checks" (3 March 2020) <www.barstandardsboard.org.uk>.42 See the prescribed "Admission Declaration" and "Call Declaration" forms available on the BarStandards Board website, above n 41. As with the Solicitors Regulation Authority, the BarStandards Board is empowered by The Rehabilitation of Offenders Act 1974 (Exceptions) Order(UK) (as amended by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975(Amendment) (England and Wales) Order 2013 (UK)) to require applicants to disclose criminaloffences except for certain protected or filtered convictions.43 Bar Standards Board and Inns of Court "Memorandum of Understanding", above n 39, sch 1annex 2 at [4]. The decision maker is provided with detailed guidelines on how to evaluate thesefactors. This includes the categorisation of offences into different classes of seriousness and anassessment grid for evaluating the time since the sentence ended: see sch 1 annex 2 at [6]–[25].44 Schedule 1 annex 2 at [3]–[5]. A range of aggravating and mitigating factors are set out at [26].See also Bar Standards Board, above n 41.and proper person to be admitted to the legal profession.45 Apart from South Australia,legislation or rules in the other Australian jurisdictions list "suitability matters" for thedecision maker to consider in determining whether the person is a fit and properperson.46 The suitability matters are similar to the considerations in s 55(1) of theNew Zealand Act, including the consideration of "good fame and character", whetherthere have been past convictions and, in the event there have been past convictions,the nature of the offending, the time that has lapsed since the offending and theapplicant's age when the offence was committed.47Canada[28] In Canada, law societies must ensure that applicants for admission are of goodcharacter and reputation.48 The terminology commonly used is "good character andreputation" or "good moral character". There is also some reference to the "fit andproper person" standard. In Saskatchewan, "suitability to practise" is defined as"honesty, governability, financial responsibility and respect for the rule of law and theadministration of justice".49The authorities[29] The principles applicable to deciding whether an applicant is a fit and properperson or similar standards have been considered in numerous cases in New Zealandand in comparable jurisdictions. There is no controversy as to those principles and sono need to undertake an historic review of those cases. Relevant principles emergingfrom the cases will be canvassed in the course of the discussion which follows and itsuffices at this point simply to briefly summarise the approach taken.45 Legal Profession Act 2006 (ACT), s 26(2)(b); Legal Profession Act 2006 (NT), s 25(2)(b); LegalProfession Uniform Law Application Act 2014 (NSW), s 4 (confirming the application ofss 16(1)(a) and 17(1)(c) of the Legal Profession Uniform Law in New South Wales); LegalProfession Act 2007 (Qld), s 31(1); Legal Practitioners Act 1981 (SA), s 15(1)(a); LegalProfession Act 2007 (Tas), s 31(6)(b); Legal Profession Uniform Law Application Act 2014 (Vic),s 4 (confirming the application of ss 16(1)(a) and 17(1)(c) of the Legal Profession Uniform Lawin Victoria); and Legal Profession Act 2008 (WA), s 26(1)(a)(ii).46 Halsbury's Laws of Australia (reissue, 2018) vol 16 Legal Practitioners at [250-10].47 See Legal Profession Act (ACT), s 11(1); Legal Profession Act (NT), s 11(1); Legal ProfessionUniform Admission Rules 2015 (NSW), r 10(1) (these rules also apply in Victoria: see r 4definition of "Board"); Legal Profession Act (Qld), s 9(1); Legal Profession Act (Tas), s 9(1); andLegal Profession Act (WA), s 8(1).48 Halsbury's Laws of Canada (reissue, 2017, online ed) Legal Profession at [HLP-16].49 Rules of The Law Society of Saskatchewan (Sask), r 149.New Zealand[30] Lincoln v New Zealand Law Society provides a recent illustration of theapproach taken to the assessment of the fit and proper person standard in theNew Zealand authorities.50 The Court of Appeal in that case summarised the approachin this way:51(a) The Court should not lightly prevent [an applicant] being admittedwhen they have achieved the qualifications prescribed by theNew Zealand Council for Legal Education.(b) [An applicant] for admission is not to be punished for pastwrongdoing.(c) An assessment of the [applicant's] fitness to be admitted as a barristerand solicitor must focus on protecting the public and the profession.[52](d) The assessment must be prospective. It requires an evaluation of the[applicant] at the time of their application and the risks, if any, theypose in the future to society and the profession's reputation.(e) The concept of a fit and proper person incorporates standards ofintegrity, and "moral rectitude of character".(f) Where [an applicant] has been involved in some past indiscretion theCourt must be satisfied that the "frailty or defect of character"indicated by the earlier behaviour can be safely regarded as "spent".(g) The Court is required to make an objective judgement based on allrelevant evidence when assessing the ability of the [applicant] tocomply with the fundamental obligations imposed upon alllawyers.[53](footnotes omitted)50 Lincoln v New Zealand Law Society [2019] NZCA 442.51 At [34].52 Wylie J in Brown, above n 20, at [39(c)] referred to the need to be satisfied the applicant "is aperson of integrity and moral rectitude of character, such that he or she can be safely accreditedby the Court to the public as being a person who can properly and responsibly discharge his or herduties".53 In Brown, above n 20, at [39(f)] the High Court expressed this principle in terms of the need tolook at the facts "in the round" without trying "to pay undue regard to the earlier wrongdoing".Comparable jurisdictions[31] The approach taken in the authorities for England and Wales is illustrated byJideofo v The Law Society,54 which in turn derived the relevant principles from theleading authority in the context of post-admission conduct of Bolton v Law Society:55(i) the test of character and suitability is a necessarily high test;(ii) the character and suitability test is not concerned with'punishment', 'reward' or 'redemption', but with whether there is arisk to the public or a risk that there may be damage to the reputationof the profession; and(iii) no one has the right to be admitted as a solicitor and it is for theapplicant to discharge the burden of satisfying the test of character andsuitability.[32] As in New Zealand, the two regulatory objectives are of protecting the publicand maintaining the reputation of the profession in order to maintain public confidencein the profession.56[33] There is also no significant difference in approach in either Australia orCanada. Relevantly, there is much the same focus on the particular requirements ofthe legal profession57 and a concern as to whether the applicant has the necessary"[q]ualities of honesty and integrity and a preparedness to comply with the law".5854 Jideofo v The Law Society [2007] EW Misc 3 (EWLS) at [16]–[17].55 Bolton v Law Society [1994] 1 WLR 512 (CA). While there are some differences in the assessmentof fitness and propriety in admission applications compared to applications for strike off orrestoration to the roll (see Webb, Dalziel and Cook, above n 20, at 142), the underlying principlesassist in all contexts (see Jideofo, above n 54, at [14]). Cases dealing with strike-off and restorationare accordingly referred to where relevant.56 Mulla v Solicitors Regulation Authority [2010] EWHC 3077 (Admin) at [17]. See also Jideofo,above n 54, at [10]; and Shuttari v The Law Society [2007] EWHC 1484 (Admin) at [18].57 For Australian examples see Ziems v The Prothonotary of the Supreme Court of New South Wales(1957) 97 CLR 279 at 298 per Kitto J; New South Wales Bar Association v Cummins [2001]NSWCA 284, (2001) 52 NSWLR 279 at [20]; and Re Application by Gadd [2013] NTSC 13at [11]–[13]. For Canadian examples see Law Society of British Columbia v Applicant 3 2010LSBC 23, [2010] LSDD No 124, citing the principles affirmed in McOuat v Law Society of BritishColumbia (1993) 78 BCLR (2d) 106 (BCCA).58 Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409at [66]. For other Australian examples see the summaries of the relevant propositions inJarvis v Legal Practice Board [2012] WASAT 28 at [61]–[62]; and Prothonotary of the SupremeCourt of NSW v P [2003] NSWCA 320 at [17]. For a Canadian example see Applicant 3,above n 57, at [14]–[19], citing the principles affirmed in McOuat, above n 57.[34] We turn now to the approach to be taken to the fit and proper person standardwith particular reference to issues arising from past convictions. This discussiondraws on the existing body of cases. Those cases include a number of the earlierauthorities which, despite the passage of time and legislative changes, remain relevant,although some of the language can helpfully be modernised.The approach to be taken to the fit and proper person standard[35] The first point to note is the obvious one. That is, the fit and proper personstandard has to be interpreted in light of the purposes of the Act.59 Those purposesbroadly reflect two aspects. The first aspect is the need to protect the public, inparticular by ensuring that those whose admission is approved can be entrusted withtheir clients' business and fulfil the fundamental obligations in s 4 of the Act.60 Thesecond aspect is a reputational aspect reflecting the need to maintain the publicconfidence in the profession at the present time and in the future. This second aspectalso encompasses relationships between practising lawyers and between lawyers andthe court.[36] While some of the language is outdated, the essence of the first aspect isreflected in the judgment of Skerrett CJ in Re Lundon:61The 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.[37] The observations of Kitto J in Ziems v The Prothonotary of the Supreme Courtof New South Wales to similar effect also remain pertinent today.62 With reference to59 See Lawyers and Conveyancers Act, s 3(1).60 As we note above at [7], these obligations include the obligation to uphold the rule of law and tofacilitate the administration of justice.61 Re Lundon [1926] NZLR 656 (CA) at 658.62 Ziems, above n 57, at 298.Ziems, Spigelman CJ in a more recent judgment of the New South Wales Court ofAppeal described "four interrelated interests" as follows:63Clients must feel secure in confiding their secrets and entrusting their mostpersonal affairs to lawyers. Fellow practitioners must be able to dependimplicitly on the word and the behaviour of their colleagues. The judiciarymust have confidence in those who appear before the courts. The public musthave confidence in the legal profession by reason of the central role theprofession plays in the administration of justice. Many aspects of theadministration of justice depend on the trust by the judiciary and/or the publicin the performance of professional obligations by professional people.[38] The second point is that the fit and proper person evaluation is a forwardlooking exercise.64 That is because the Court or the Law Society, as the decisionmaker, is required to make a judgement at the time of undertaking the evaluation as tothe risks either to the public or of damage to the reputation of the profession if theapplicant is admitted.65 Those risks have to be construed in light of the fundamentalobligations on lawyers discussed above.66 Of particular relevance here are theobligations to uphold the rule of law67 and to protect the interests of the client subjectto duties as an officer of the Court or under any other enactment.68[39] The evaluation is often described as objective.69 By this, the authorities simplymean that it is necessary to focus on the relevance of the past conduct vis-à-vis theprofessional standards, rather than being influenced by sympathy for the position ofthe applicant.70 Dixon J in Re Davis put it in this way:71 though concern for an individual who is overtaken by the consequences ofpast wrongdoing is a very proper human feeling, it is no reason whatever for63 Cummins, above n 57, at [20].64 Lincoln, above n 50, at [34(d)].65 Commentators have questioned how successful the standard is as a "predictor of good behaviour":see, for example, Webb, Dalziel and Cook, above n 20, at 141. See also Alice Woolley "Tendingthe Bar: The 'Good Character' Requirement for Law Society Admission" (2007) 30 Dalhousie LJ27 at 67–70; and Langford, above n 10, at 1194.66 See the discussion above at [7].67 Lawyers and Conveyancers Act, s 4(a).68 Section 4(d).69 See for example Re M [2005] 2 NZLR 544 (HC) at [18].70 Mr Collins for the Law Society referred to the need to consider the position from the perspectiveof informed members of the public and their view of how admission would reflect on theprofession. That perspective may provide a helpful way of viewing matters, but it is not necessaryto be prescriptive about this: see Layne, above n 9, at [43] per Lady Arden and [69] and [71] perLord Kerr.71 Re Davis (1947) 75 CLR 409 at 426. See similarly Law Society of Upper Canada v Schuchert[2001] LSDD No 63 at [20].impairing in his interests the standards of a profession which plays soindispensable a part in the administration of justice.[40] The evaluation is accordingly a protective exercise focussed on either the needfor public protection or the maintenance of public confidence in the profession. Theapproach is not punitive.72 The High Court in Re M adopted the words used inIncorporated Law Institute of New South Wales v Meagher and said that the questionis as to the applicant's "worthiness and reliability for the future".73 Further, asLady Arden observed in Layne, what comprises fitness to practise must be referableto the good character appropriate to the particular profession.74 For an applicant foradmission to the legal profession, as the authorities state, the appropriate aspects ofthe fit and proper person standard are whether the applicant is honest, trustworthy anda person of integrity.75[41] When assessing the effect of prior convictions in this context, the Act indicatesthree aspects of previous convictions may be relevant. Those aspects are the nature ofthe offence, the time that has elapsed since the offending, and the applicant's age whenthe offence was committed.76[42] The nature of the offence is an important consideration.77 Some convictionswill inevitably be problematic by their very nature. Dishonesty offences are in thatcategory because of the direct connection with legal practice.78 Offending involving72 Lincoln, above n 50, at [34(b)], citing Re Lundon, above n 61, at 658; and Brown, above n 20,at [39(b)]. For examples of a similar approach in England and Wales, Australia and Canada, seerespectively Jideofo, above n 54, at [16(ii)] and [17]; Cohen v Legal Practitioners AdmissionsBoard (No 2) [2012] QCA 106 at [12]; and DeMaria v Law Society of Saskatchewan [2013] SKQB178, (2013) 420 Sask R 230 at [46].73 Re M, above n 69, at [21], citing Incorporated Law Institute of New South Wales v Meagher (1909)9 CLR 655 at 681 per Isaacs J.74 Layne, above n 9, at [38].75 See Lincoln, above n 50, at [34(e)], citing New Zealand Law Society v Mitchell [2010] NZCA 498,[2011] NZAR 81 at [24]–[25]; and Brown, above n 20, at [39(d)].76 Lawyers and Conveyancers Act, s 55(1)(c).77 GE Dal Pont Lawyers' Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2017)at [2.60]. See also in the context of strike-off Hart v Auckland Standards Committee 1 of TheNew Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 at [186].78 Re Owen [2005] 2 NZLR 536 (HC) at [34]. For examples of a similar approach in England andWales, Australia and Canada, see respectively Jideofo, above n 54, at [17]; Thomas v LegalPractitioners Admission Board [2004] QCA 407, [2005] 1 Qd R 331 at 335; and Preyra v LawSociety of Upper Canada [2003] LSDD No 25 at [69] (but see at [78] about the possibility ofgenuine rehabilitation even where there has been prior egregious dishonesty).a failure to comply with disclosure obligations is treated in a similar way.79 Veryserious prior convictions, such as murder, pose their own issues.80[43] Some convictions will be in the trivial category or, anticipating the second andthird factors referred to in s 55(1)(c)(ii) and (iii), be so dated as to lose any significanceor reflect youthful immaturity. Further, the Clean Slate legislation is also relevant andprovides "an appropriate register of the preparedness of the community to put priorcriminal behaviour into the past finally".81[44] Other offending will not fit into any of the categories discussed so far but willrequire further inquiry.[45] In the authorities, the inquiry into the effect of prior convictions has beenexpressed as an inquiry into whether the "frailties" or "defects of character" reflectedby the previous convictions can now be regarded as "entirely spent" or "safelyignored".82 Updating that language, the decision maker is essentially trying to assesswhether the convictions remain relevant to whether the applicant meets the fit andproper person standard and, if so, to what extent the conduct remains relevant at thetime of the current inquiry.83 The inquiry into relevance will commonly requireconsideration of the circumstances of the offending84 and of whether the applicant canbe seen to have moved on in the sense of being either reformed or having undertaken79 Lack of candour and failure to disclose material relevant to character is generally treated seriously.80 Layne, above n 9, is an illustration of this. Mr Layne had been convicted of murder in the contextof a political coup nearly 40 years prior to seeking admission as an attorney-at-law in Grenada.The Privy Council upheld the decision to refuse him admission on the basis he did not meet thegood character criterion.81 Re Owen, above n 78, at [33]. The prescribed application form for a certificate of characterexplicitly directs applicants to "note [their] rights under the Criminal Records (Clean Slate) Act2004 before providing details of any criminal record", and the question regarding prior convictionsasks applicants whether they have "ever been convicted of any crime other than one concealedby the Criminal Records (Clean Slate) Act 2004": available at New Zealand Law Society:Te Kāhui Ture o Aotearoa "Certificate of Character" <www.lawsociety.org.nz>.82 See Brown, above n 20, at [39(e)]; and Lincoln, above n 50, at [34(f)]. In Re Lundon, above n 61,the question asked was whether the applicant's "purgation [was] complete, his repentance real":at 668.83 See Layne, above n 9, at [58] per Lord Sumption.84 Ziems, above n 57, at 283 per Dixon CJ.steps towards rehabilitation.85 Alternatively, there may be other features of characterwhich mean that the convictions should assume less relevance. That it is not alwayseasy to draw the line emphasises the fact-specific nature of the inquiry.86[46] Expanding upon that last point, not a great deal can be drawn from theauthorities on the approach to excess breath/blood alcohol offending. That reflects, atleast in part, the fact-specific nature of the assessment and the need to consider theevidence in the round.87[47] Two examples, both from Australia, suffice to illustrate the sorts of issues thatmay arise and the approach taken. The appellant in Ziems was removed from the rollfollowing a conviction for manslaughter.88 The case at his criminal trial was that theaccident resulting in the death of the victim had occurred as a result of the appellantdriving whilst under the influence of alcohol. The appeal against removal from theroll was allowed by a majority of the High Court of Australia and an order forsuspension substituted.89 For the majority, the offending was not seen as decisive.90What was necessary was to assess the nature and quality of the conduct and how itwas relevant to the practice of the law. For example, Kitto J in his reasons made thepoint that the conviction was for a serious offence but the ground for treating it asserious was not one going to "the propriety of the barrister's continuing a member ofhis profession".91 It was an isolated incident, not involving a premeditated crime, andhad "neither connexion with nor significance for any professional function".92[48] More recently, in a case involving an application for removal from the rollfollowing conviction for supplying drugs, the Queensland Court of Appeal also saw85 See for example Re Owen, above n 78, at [35] and [37]; Brown, above n 20, at [66]; andPou v Waikato/Bay of Plenty District Law Society HC Rotorua CIV-2004-463-0511, 10 May 2005at [43]. For examples of a similar approach in England and Wales, Australia and Canada, seerespectively Venton v Solicitors Regulation Authority [2010] EWHC 1377 (Admin) at [17]; Re anapplication for admission as a legal practitioner by MCF [2015] QCA 154 at [10] and [18]; andLaw Society of British Columbia v De Jong 2017 LSBC 44, [2017] LSDD No 293 at [117]–[118].86 Webb, Dalziel and Cook, above n 20, suggest case law can provide "only limited guidance at thelevel of principle": at 144.87 Lincoln, above n 50, at [34(g)]; and Brown, above n 20, at [39(f)].88 Ziems, above n 57.89 Per Fullagar, Kitto and Taylor JJ. Dixon CJ and McTiernan J dissenting.90 See at 288 per Fullagar J, 299 per Kitto J and 303 per Taylor J. Compare at 286 per Dixon CJdissenting and 287 per McTiernan J dissenting.91 At 299.92 At 299.the offending conduct as different from that directly relating to the conduct of theprofession.93 The Court noted that Ziems emphasised the "need for conduct revealingthe character of the practitioner to be of a kind that threatens the professional functionof the practitioner".94 The Court also suggested that the same result might notnecessarily follow now if the facts in Ziems were repeated given the emergence of "amore marked attitude of public disapproval of drink driving".95[49] It is clear from the cases both here and in the comparable jurisdictions we havediscussed that a highly influential factor in determining whether a person is a fit andproper person given prior convictions is evidence as to rehabilitation and as to insightinto the offending. It is sufficient to refer to two cases, one from New Zealand andone from Canada, to illustrate the point.[50] The applicant in Re Owen had a long history of criminal offending from ayoung age.96 The offending included convictions for theft, burglary, wilfully settingfire to property, drug possession and driving offences. The Court saw the burglaryconvictions as particularly relevant, given the importance of honesty to legal practice.Despite the offending having "the hallmarks of outright dishonesty",97 the Court wassatisfied that the applicant had "achieved such a complete turnaround, or reformation,that the convictions [could] be safely ignored".98 After completing a law degreethe applicant had utilised his legal skills by working at the community legal centre andas an employment advocate. He also stopped abusing drugs and alcohol. Thisevidence of complete reformation was corroborated by positive character references,and satisfied the Court that the applicant was now of good character and a fit andproper person to be admitted.9993 Barristers' Board v Darveniza [2000] QCA 253, (2000) 112 A Crim R 438 at [33].94 At [35].95 At [36].96 Re Owen, above n 78.97 At [36].98 At [35]. See also at [37]–[38].99 Webb, Dalziel and Cook, above n 20, at 145 describe the case as "appear[ing] to turn entirely onrehabilitation". The authors note that, "While the wrongdoing was in many ways of the mostserious kind and wholly inconsistent with status of a barrister and solicitor, the Court wasconvinced the [applicant] was a 'new man' in a real and not trivial sense." For an Australianexample see Re Application by Saunders [2011] NTSC 63, (2011) 29 NTLR 204; andSaunders v Legal Profession Admission Board [2015] NSWSC 1839; and for an English andWelsh example see Davis v Solicitors Regulation Authority [2011] EWHC 3645 (Admin).[51] In Canada, the applicant in Law Society of Upper Canada v Schuchert had anumber of criminal convictions including convictions for damaging property, breakingand entering, theft and welfare fraud.100 He also had a long history of drug and alcoholabuse which in part coincided with his criminal offending. After a conviction in 1984,the applicant was medically treated for his drug and alcohol dependencies and hadbeen sober and drug-free since 1984. His offending continued past that date and hewas dealing with other ongoing difficult issues in his personal life. In deciding toadmit him, the Hearing Panel pointed to his "full and frank" self-reporting withoutattempting to understate or minimise the severity of his offending,101 characterevidence, and the lapse of 12 years since his last offending. Ultimately, the Panel wassatisfied that the applicant's criminal convictions "were in a different life", noting thathe had "turned the corner rehabilitated himself and shown that he [was] now aperson of good character".102[52] Further, because of the focus on the potential risk to the public and to the publicconfidence in the profession, the fit and proper person standard is necessarily a highone.103 But the Court should not lightly deprive someone who has otherwise met thequalifications of the opportunity of practising as a lawyer.104 Perfection is notrequired.105[53] Finally, the onus is on the applicant to show that he or she is a fit and properperson, although questions of onus are not generally going to feature largely.106 It isalso accepted in the authorities that the onus on the person who has "erred in aprofessional sense" after admission "is a heavier one than that upon [an applicant] foradmission".107100 Schuchert, above n 71, at [4]. The applicant had later been pardoned of a majority of theseconvictions.101 At [12]–[13] and [21].102 At [22].103 Jideofo, above n 54, at [16(i)] and [17].104 Lincoln, above n 50, at [34(a)].105 Ziems, above n 57, at 298. See similarly Preyra, above n 78, at [71].106 Re M, above n 69, at [16].107 At [22], citing Ex parte Lenehan (1948) 77 CLR 403 at 422.Summary[54] From this discussion, the relevant principles can be summarised in this way:(a) The purpose of the fit and proper person standard is to ensure that thoseadmitted to the profession are persons who can be entrusted to meet theduties and obligations imposed on those who practise as lawyers.(b) Reflecting the statutory scheme, the assessment focusses on the need toprotect the public and to maintain public confidence in the profession.(c) The evaluation of whether an applicant meets the standard is a forwardlooking exercise. The Court must assess at the time of the applicationthe risk of future misconduct or of harm to the profession. Theevaluation is accordingly a protective one. Punishment for past conducthas no place.(d) The concept of a fit and proper person in s 55 involves consideration ofwhether the applicant is honest, trustworthy and a person of integrity.(e) When assessing past convictions, the Court must consider whether thatpast conduct remains relevant. The inquiry is a fact-specific one andthe Court must look at all of the evidence in the round and make ajudgement as to the present ability of the applicant to meet his or herduties and obligations as a lawyer.(f) The fit and proper person standard is necessarily a high one, althoughthe Court should not lightly deprive someone who is otherwisequalified from the opportunity to practise law.(g) Finally, the onus of showing that the standard is met is on the applicant.Applications are unlikely to turn on fine questions of onus.[55] The next question is whether, measured against these principles, the Court ofAppeal was correct to determine Mr Stanley was a fit and proper person to beadmitted.Factual background[56] The relevant facts are set out in the High Court judgment.108 For the purposesof this appeal the following are the key points.[57] In his application of 8 February 2017 to the Law Society for a certificate ofcharacter, Mr Stanley disclosed, as required, that he had relevant criminal convictionsand noted "Car EBA". The record of criminal convictions Mr Stanley subsequentlyprovided to the Law Society is as follows:20 March 1978 Driving with excessblood alcohol levelDisqualificationfrom driving; fine31 August 1988 Drove a motor vehicleat a dangerous speedDisqualificationfrom driving; fine19 November 1991 Operated a vehiclecarelesslyFine23 January 2002 Drove with excessblood alcohol contentFine12 September 2007 Drove with excessbreath alcohol – 3rd orsubsequentSpecial circumstancesfound – nodisqualification; fine6 December 2013 Failed to stop whenfollowed by red/blueflashing lightsFine9 May 2014 Drove with excessblood alcohol – 3rd orsubsequentDisqualificationfrom driving; fine[58] The Law Society sought and was provided further information by way ofexplanation from Mr Stanley about his convictions. Mr Stanley was then interviewedby the President and Vice-President of the Wellington Branch of the Law Society. Inthe interview, Mr Stanley expressed his regret for his offending and told the108 HC judgment, above n 1, at [3]–[24].interviewers he had been diagnosed as having early indications of an alcoholdependency but had responded by "curtailing" his drinking. He also said thatfollowing heart surgery he would be putting his health at risk if he were to drink toomuch.[59] The interviewers were not satisfied as to Mr Stanley's insight into hisoffending and what it might mean in terms of his fitness to practise. Nor were theysatisfied there was no risk of future lapses in judgement or behaviour. Ultimately, ashas been foreshadowed, the application was referred on to the Law Society's PracticeApproval Committee. In considering the application the Committee had before itMr Stanley's response to the notes of his interview. In this response Mr Stanleydescribed his remorse.[60] The application was considered at a meeting of the Committee on 18 July 2017and declined. A letter of 20 July 2017 from the secretary to Mr Stanley setting out thedecision explained the Committee's concerns. The letter referred to the following:Mr Stanley's focus on the reasons he was caught rather than the fact of the offending;his age at the time of the last three offences; the most recent offence occurred afterMr Stanley had finished his law degree; and his very poor driving history. All in all,the Committee saw Mr Stanley as lacking in insight to his offending and in judgement.[61] Mr Stanley responded by letter of 3 August 2017 stating it was clear he hadmade mistakes in interpreting the questions. He apologised and requested areassessment of his application.109 After some further communications, in the courseof which Mr Stanley was advised to seek legal advice, the application to the HighCourt was filed on 22 November 2017.The judgments in the Courts belowThe High Court[62] The High Court heard evidence from Mr Stanley. In evidence in the HighCourt, Mr Stanley accepted that there may have been an alcohol problem "at some109 On the information before us the application was reconsidered but with no change to the result.stage". He said he had questioned the early stages of what was "maybe a dependency"himself although that was never confirmed. He described his zero tolerance fordrinking and driving. He also said he had not had a drink over the last four years otherthan one glass as a toast at his son's wedding in May 2017.[63] The Judge's conclusion was that there was not sufficient evidence of a changein character or of reformation such that the Judge could be satisfied that Mr Stanleywas a fit and proper person. While the High Court accepted Mr Stanley was sincerein his intention not to drink and drive again, the Judge did not consider that "the frailtyrevealed by his drink driving convictions [is] spent and can safely be ignored".110 Nordid the Judge see Mr Stanley's most recent conviction, that in 2014, as involving"a lapse which can be relegated to the past".111 In reaching these views, the Judgetook into account what her Honour saw as Mr Stanley's tendency to blame others forwhat had occurred and his dismissive responses to questions in the hearing about hisoffending.[64] The Judge's approach is summarised in the following excerpt:[65] Mr Stanley has not established he is a reformed person. I have foundhis assertions of reform to be unpersuasive. Mr Stanley resists any suggestionhe may have an alcohol problem yet points to his self-imposed abstinence asbeing the substantial step which demonstrates there will be no furtheroffending. Mr Stanley proposes to rely only on willpower and self-disciplinewhen, manifestly, this has consistently failed him over a period of decadesincluding into mature adulthood. I accept Mr Collins' submission that theperil for the legal profession is that Mr Stanley will reoffend and bring theprofession into disrepute. Further, I hold the view that the public generally,and members of the profession, would not regard Mr Stanley as a person ofsuch integrity, probity and trustworthiness as to be a suitable candidate foradmission.(footnote omitted)The Court of Appeal[65] The Court of Appeal accepted that there was a doubt as to Mr Stanley neveragain offending by driving unlawfully having drunk alcohol, but concluded thatMr Stanley was nonetheless a fit and proper person. In reaching that conclusion the110 HC judgment, above n 1, at [48].111 At [48].Court said that the High Court put too much emphasis on the risk of reoffending anddid not consider Mr Stanley's position in the round. The Court noted first,Mr Stanley's conviction did not go "directly to fitness to practi[s]e as a lawyer".112Second, Mr Stanley was a person of good character, having "lived a productive lifeand pursued a career as an insurance broker".113 He was a person who had continuedto contribute to the community.[66] The Court did not consider the risk of drink driving again meant Mr Stanleywould not meet the fundamental obligations in s 4 of the Act. Nor was the Courtconvinced reoffending would bring the profession into disrepute given the LawSociety does not "commonly remove practising certificates from lawyers who incurdrink driving convictions".114 The Court said that Mr Stanley was "entitled to betreated more liberally" than someone already in practice.115[67] In summary, the Court said this:[53] In the round, Mr Stanley is a 65-year-old who has acquired fourconvictions for drink driving in the period 1978 to 2014. He is of goodcharacter and he continues to contribute to society, particularly through hischurch. He has, as more than one of his referees attests, a commitment tofairness and justice. His attitude to his offending does not show the wholesalereform which led the Courts in Owen[116] and Burgess,[117] in circumstanceswhere the offending in question was prima facie disqualifying, to grantadmission. However, he does have a genuine commitment not to reoffend andwere he to reoffend similarly that would not create a meaningful risk of hisbringing the profession into disrepute. There is no reason to suspect that, ifadmitted, Mr Stanley would not comply with the fundamental obligations ofa lawyer.Our assessment[68] The detail of the submissions from the parties is addressed in the discussionwhich follows. To put that discussion in context, the essence of the Law Society'scase can be stated shortly. The primary submission is that Mr Stanley's convictionsremained relevant when combined with his lack of insight and relationship with112 CA judgment, above n 2, at [45].113 At [47].114 At [49].115 At [49].116 Re Owen, above n 78.117 Re Burgess [2011] NZAR 453 (HC).alcohol and that the Court of Appeal was wrong to ignore the resultant risk of furtheroffending with its inevitable consequences for professional discipline. The LawSociety also submits that the Court of Appeal "set the bar too low" in terms of the fitand proper person standard. In response, Mr Stanley says that the Court of Appealwas correct to conclude that the frailties of character represented by his previousoffending could now be safely ignored, particularly when his character was viewed inthe round.[69] In assessing the relevance of the previous convictions, a number of points canbe made. The first point relates to the nature of the offending. Although obviouslyconduct which is of concern, the Court of Appeal was right to say that the offendingis not of the character that has a direct connection with legal practice. Nor was therea suggestion of a lack of candour given Mr Stanley's full disclosure and cooperationwith the Law Society's requests for further information.[70] Next, in terms of the time that has elapsed and Mr Stanley's age at the relevanttimes, some weight could be placed on the fact that the primary offending is dated.Simply to illustrate the point, if the matter is viewed from the date of this Court'sjudgment, the first drink driving conviction was some 42 years ago, and the secondand third were over 18 and 12 years ago respectively. The Court could also take someconfidence from the gap since the last offence, which occurred in June 2013 and forwhich Mr Stanley was convicted in May 2014. While the Clean Slate legislation doesnot yet apply to Mr Stanley, as it only applies seven years after the date of his lastsentence, it is of some relevance that Mr Stanley would be entitled to the protectionsin that Act from 9 May 2021.118[71] In addition, on the evidence before it, the Court of Appeal was correct to saythat the offending was "not at the serious end of the range of drink driving".119 Interms of the 2002 conviction, Mr Stanley said he had not drunk alcohol but had beentaking "hospital linctus" for pain relief that day. The High Court said of this occasionthat "Mr Stanley appeared in person and satisfied the Judge he had no knowledge of118 See Criminal Records (Clean Slate) Act 2004, ss 4 definition of "rehabilitation period", 7(1) and 8.119 CA judgment, above n 2, at [48].the alcohol content and was convicted without loss of licen[c]e".120 Mr Stanley wasnot disqualified from driving for the 2002 and 2007 convictions. In terms of the latterconviction, it has to be noted that his criminal history records he was not disqualifiedfrom driving because of special circumstances. He was not imprisoned for the 2014conviction.121[72] We accept that in questioning the sense in which Mr Stanley's offending wasa failure to uphold the rule of law, there is some force in the Law Society's submissionthat the Court of Appeal thereby understated the seriousness of excess breath/bloodalcohol offending and this had the effect of downplaying the importance of theobligation on lawyers to uphold the rule of law.122 The relevant aspect of the rule oflaw is that no one is above the law. Mr Stanley can be seen in respect of his convictionsas having acted as though different rules applied to him, albeit this was notpremeditated offending. Moreover the context is of conduct, drink driving, which isnot now tolerated123 and which is inherently dangerous.124[73] It is also fair to say, as the High Court found of Mr Stanley's attitude, that theexplanations Mr Stanley gave for his offending tended to avoid an acceptance of hisown responsibility for what had occurred. For example, in his letter of 11 May 2017he referred to the high level of "scrutiny" to policing of excess breath/blood alcoholin the Hutt Valley area and he attributed his 2014 conviction to a failure to considermetabolism after drinking some wine at lunch with a friend. The Judge was obviouslyconcerned about this lack of insight.[74] Against this background, given both the number of alcohol-related offencesand his insistence that any problem with alcohol was, at the most, incipient, Mr Stanleyshould have provided the High Court with evidence from an appropriately qualified120 HC judgment, above n 1, at [8].121 That offending is the only conviction for which the blood alcohol sample results were available.The analysis showed a blood alcohol level of 141 milligrams of alcohol per 100 millilitres ofblood.122 Lawyers and Conveyancers Act, s 4(a).123 See similarly Darveniza, above n 93, at [36] where, as noted above at [48], the Court observedthat recently "a more marked attitude of public disapproval of drink driving has emerged".124 See similarly Davis, above n 99, at [14] noting that driving with excess blood alcohol is "in itself a real danger"; and Montenegro v Law Society of NSW [2015] NSWSC 867 at [89] observingthat "drink driving offences, even those not involving personal injury or death, are consideredseriously when deciding questions of professional fitness".expert as to his relationship with alcohol.125 That said, we do not accept the LawSociety's submission that the Court of Appeal set the bar too low in acceptingMr Stanley's assurances of reform. These issues all had to be assessed in the round.[75] In terms of that assessment, in addition to the matters referred to above aboutthe nature of the offending, it is relevant that the sincerity of Mr Stanley's commitmentto reform was accepted by both of the Courts below. Mr Stanley explained he nowhad a self-imposed "zero tolerance" on drinking and driving and had decided his healthwas more important. He also appears to have at least realised that he had not put hisbest foot forward in his responses, noting he "probably [had not] used the right words".Furthermore, as discussed above, the Court can take some confidence in the sincerityof Mr Stanley's assurances given the gap of almost seven years since he last offendedin this manner. In addition, there were other features of good character identified bythe Court of Appeal which were attested to by his four referees, all of whom wereaware of his criminal history. Mr Stanley had maintained a career in the insurancebusiness and led a productive life having made, and continuing to make, contributionsto the community.[76] The latter point is also relevant to the response to the Law Society's submissionthat the Court of Appeal should not have substituted its views for those of the HighCourt Judge. We consider that the Court of Appeal was entitled to conclude that theJudge had applied too exacting a test.126 That was because of the focus on the aspectthat suggested bad character, being the previous convictions and Mr Stanley'sapproach to those. The fact that Mr Stanley was otherwise of good character was apart of the equation but, in all of the circumstances, too much weight was given to theone bad feature.127[77] It is necessary next to address the Law Society's submission relating to the riskof reoffending. The submission is that the Court of Appeal could not find thatMr Stanley's previous convictions were no longer relevant when the Court125 Mr Stanley did not receive a great deal of assistance from the Law Society in this respect. Heasked twice whether further information was required but was advised to consult his lawyer.126 As it was a general appeal, the Court of Appeal was required to make its own assessment of themerits of the case: Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103,[2008] 2 NZLR 141 at [5].127 As discussed above at [54](e).acknowledged there was a risk that Mr Stanley would reoffend. The Law Society saysthat the Court's finding that there was "prima facie doubt as to whether Mr Stanley isreformed"128 was inconsistent with the Court's ultimate decision that Mr Stanley wasa fit and proper person.[78] The first point to note is that the Court did not consider that the risk ofMr Stanley reoffending was high given he was genuinely committed to reform. Butthe Court correctly acknowledged that risk could not reasonably be excluded. Wherethere are other factors to put into the mix it is not necessarily inconsistent to concludethat, although the risk was not one that could be discounted, Mr Stanley was a fit andproper person.[79] The comparison with the way in which lawyers who offend in a similar waypost-admission are treated, a factor also considered by the Court of Appeal, is relevantin this context. It is particularly relevant to the Law Society's submission that the riskof future offending meant Mr Stanley would be likely to engage professionaldiscipline and cause damage to the reputation of the profession.[80] Of course the analogy between admission and the disciplinary context is notentirely apt. In the case of offending whilst in practice, the disciplinary body has anumber of options. For example, ongoing practice may be permitted but subject toconditions as to practice.129 By contrast, in New Zealand, at the admission stage, theapplicant for admission is either admitted or not admitted.130 Further, in thedisciplinary context, references are often made to the desirability of adopting "the leastrestrictive outcome", which may mean suspension rather than strike-off is preferred.131Again, that factor is not a feature of the decision whether or not the fit and properperson standard is met prior to admission.128 CA judgment, above n 2, at [42].129 Lawyers and Conveyancers Act, s 242(1). Restoration to the roll can also be made conditional:s 246(3)–(4).130 Re Owen, above n 78, at [13]. See also Webb, Dalziel and Cook, above n 20, at 142. In somejurisdictions, such as the Australian Capital Territory and South Australia, it is possible to imposeconditions on admission: see Re an Application by L for Admission as a Legal Practitioner [2015]ACTSCFC 1 at [27] and [36].131 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850(HC) at [22].[81] However, the way in which such offending is treated in the disciplinary contextis nonetheless of some relevance in assessing the risks of admission. That is becausecompliance with the fit and proper person standard is a factor in both contexts.132 Thereality is that quite serious offending of this type, even where combined with otheraggravating factors such as obstruction of the police and dishonest conduct, has not infact been treated as requiring striking off.[82] The parties provided the Court with five cases dealt with by the New ZealandLawyers and Conveyancers Disciplinary Tribunal (the Tribunal) involving excessbreath/blood alcohol offences.133 We have also considered Otago StandardsCommittee v Copland,134 another more recent excess breath alcohol authority; andAuckland Standards Committee 1 v Ravelich, a slightly older excess breath/bloodalcohol case which is referred to in some of the recent cases.135[83] In all of these cases apart from Copland, the relevant offending included drinkdriving where there had been a history of multiple instances of drink driving. In onecase, for example, the practitioner had been convicted of an excess breath alcoholoffence in 2011, and had two previous convictions: one for an excess breath alcoholoffence in 2007 and one for excess blood alcohol in 2002.136 The 2007 and 2011convictions were post-admission. Subsequently, in 2012, the practitioner wasconvicted for resisting a police officer and obstructing another police officer, and in2011 had also been abusive towards officers. Mr Copland had been convicted of anexcess breath alcohol offence in July 2018 and then, in September 2018, had been132 The Disciplinary Tribunal may not make an order striking off a lawyer from the roll unless it is ofthe opinion that the lawyer is not a fit and proper person to be a practitioner: Lawyers andConveyancers Act, s 244(1). See also the definition of misconduct in s 7(1)(b)(ii) and s 41(1)which provides that a practising certificate may be refused on the ground that the person is not afit and proper person to hold a practising certificate. See also GE Dal Pont Lawyer Discipline(LexisNexis Butterworths, Chatswood (NSW), 2020) at [1.5] where the author describes thedisciplinary jurisdiction as "the flipside" of the court's jurisdiction relating to admission.133 Hawke's Bay Lawyers Standards Committee v Beacham [2012] NZLCDT 29;Canterbury-Westland Standards Committee v Taffs [2013] NZLCDT 13; Waikato/BOP Lawyers'Standards Committee No 1 v Pou [2014] NZLCDT 86; Auckland Standards CommitteeNo 5 v Rohde [2016] NZLCDT 9; and Auckland Standards Committee No 1 v Chen [2017]NZLCDT 7.134 Otago Standards Committee v Copland [2019] NZLCDT 29.135 Auckland Standards Committee 1 v Ravelich [2011] NZLCDT 11. See also Dal Pont, above n 132,at [15.54], n 216 for a description of New Zealand disciplinary case law in relation to drink driving.136 Beacham, above n 133, at [1].convicted for driving whilst disqualified.137 In all but two of these cases thepractitioner was suspended for varying periods ranging from two years plus censureto two months plus censure and costs.138 Mr Rohde and Mr Copland were notsuspended but were censured, fined and ordered to pay costs.[84] It is the case that in reaching the view that the penalty imposed was theappropriate penalty rather than strike-off, the fact that the practitioner had taken stepstowards rehabilitation was, generally, an important factor in these cases.139 Rohdeprovides a good illustration. Mr Rohde admitted a disciplinary charge of beingconvicted for offences reflecting on his fitness to practise or tending to bring theprofession into disrepute. The three convictions were excess breath alcoholconvictions in May 2014 and September 2015, and a dangerous driving conviction inSeptember 2015. Mr Rohde had very promptly begun attending AlcoholicsAnonymous meetings, filed an affidavit annexing a number of references expressingconfidence in his recovery from addiction, and was in constant contact with hissponsor. In deciding that it was not necessary to suspend Mr Rohde, the Tribunalobserved that his evidence of rehabilitation provided "strong mitigating features"140and that "the steps he ha[d] taken to safeguard his sobriety [were] a sufficient safetynet" such that the public, as consumers, did not need to be directly protected fromhim.141[85] Although there are distinctions to be made between these disciplinaryproceedings and the present case, these cases indicate at the least that a practitionerconvicted of drink driving can remain on the roll, albeit a need for further reformation137 Copland, above n 134, at [1]. Mr Chen's case also concerned his failure, over a six-year period,to disclose his offending: Chen, above n 133, at [8].138 Ms Beacham and Mr Chen were suspended for two years and censured. Mr Chen was also finedand ordered to pay costs. Mr Taffs was suspended for three months and ordered to pay costs.Mr Pou was suspended for two months, censured and ordered to pay costs. Mr Ravelich wassuspended for around four and a half months, censured and ordered to pay costs.139 This feature is less obvious in a case such as Taffs, above n 133, in which the Tribunal referred toMr Taffs' "denial of what would appear to be a longstanding problem with alcohol": at [40].Mr Taffs had sought the assistance of a psychologist. He also said he had made changes to his lifein that he now used taxis on days where he was drinking, had organised a restorative justicemeeting and had proposed to give lectures to community work offenders about moving on frombad choices. The shorter suspension compared to Ms Beacham and Mr Ravelich appears to reflectthe fact that Mr Taffs' drink driving convictions were "not clustered in the same manner": at [42].140 Rohde, above n 133, at [20].141 At [8] and [15].has generally been recognised. And, as discussed, an applicant for admission isentitled to be treated more liberally than a practitioner.142[86] In conclusion, viewed in the round, the Court of Appeal was correct toconclude that the concerns reflected in Mr Stanley's convictions and the inadequacyof his responses to questions about them were not a controlling factor. On this basis,given his otherwise good character, the Court of Appeal did not err in determining thatMr Stanley met the standard for admission.Effect of admission[87] On our approach, it is not necessary to consider the effect of the fact thatMr Stanley has already been admitted. But in any event we doubt that, absent somemore recent disqualifying conduct on Mr Stanley's part, the Court of Appeal wascorrect to suggest in the judgment declining a stay that ss 266 and 267 of the Act wouldprovide a basis for striking Mr Stanley's name from the roll.143 Our reasons can beexpressed briefly.[88] The Court of Appeal declined the stay on the basis that the balance ofconvenience fell against granting a stay. The Court said this:144First, Mr Stanley's ability to earn a living as an admitted lawyer is the mostpowerful factor. Second, and also cogent, is the fact that refusing a stay willnot render the Society's appeal nugatory. Third, Mr Stanley would beadmitted knowing full well that he may face an application to have his nameremoved from the roll if the Society's appeal ultimately succeeds. So heopposes a stay knowing of the potential implications of his being admitted atthis stage. Further, he could avoid any public stigma by consenting to hisname being removed, should the Society ultimately succeed on appeal.[89] The reason for the Court's view that granting a stay would not render the LawSociety's appeal to this Court nugatory rested on two possibilities. The Court said thatthe Law Society could take steps to have Mr Stanley's name removed either by142 See the discussion above at [53].143 Section 268(1) of the Lawyers and Conveyancers Act provides that nothing in the Act affects theinherent jurisdiction and powers of the High Court over enrolled lawyers "other than sections 266and 267".144 Stay judgment, above n 3, at [13].consent under s 60 of the Act or by order of the Court under ss 266 and 267(1) of theAct.145[90] Section 60(1) provides for any person, with the prior consent of the Council ofthe Law Society, to request the Registrar to remove his or her name from the roll.Under s 60(3), if the Registrar is satisfied that the necessary consent has been given,the Registrar must remove the person's name from the roll. This avenue is not openwhilst Mr Stanley does not consent to removal.[91] Section 266 provides that on application to the High Court, a person's name"may be struck off the roll for reasonable cause, whenever and wherever it arises, inaccordance with section 267".[92] Section 267 sets out the powers of the High Court when such an application ismade. Section 267(1) provides for the following:(a) the High Court may, if it thinks fit, dismiss the application; or(b) if the High Court is of the opinion that the application ought to begranted, or that it is doubtful whether the application ought to bedismissed or granted, the High Court must reserve the case for theconsideration of the Court of Appeal.[93] Where a case is reserved in this way for the consideration of the Court ofAppeal, s 267(2) provides that the High Court:(a) must cause the application and all affidavits made in support of theapplication, and all other proceedings, to be sent forthwith to theRegistrar of the Court of Appeal; and(b) may order that the person enrolled be suspended from practice as abarrister or as a solicitor or as both until the decision of the Court ofAppeal on the application is given.145 The other statutory mechanism for removal from the roll is by strike-off under s 242(1)(c) of theLawyers and Conveyancers Act. However, the Law Society submitted that this was a disciplinaryresponse and did not suggest that a successful appeal in this Court would result in disciplinaryconsequences for Mr Stanley.[94] The Court of Appeal must then consider the application, as soon as practicable,and grant or dismiss it.146 It may also make such other order in relation to theapplication as it thinks fit.147[95] As is apparent from this description, the Court under these sections can onlystrike off for "reasonable cause". The Law Society submits that a judgment of thisCourt allowing the appeal to the effect that Mr Stanley was not a fit and proper personto be admitted would constitute "reasonable cause" under s 266.148[96] Section 266 refers to reasonable cause "whenever and wherever" that arises.However, even that expansive wording seems inapt to apply to Mr Stanley's case.That is because Mr Stanley's name was properly placed on the roll in accordance withthe Court of Appeal judgment. This was not a case where, for example, admissionwas obtained on a false or fraudulent basis. A contrast can be made with the positionin New Zealand Law Society v Mitchell.149 Mr Mitchell was struck off the roll unders 266 on the basis that he was not a fit and proper person to be on the roll. Between1989 and 1994, he had been convicted of 39 criminal offences covering a range ofoffending.150 He had not disclosed these convictions either at the time of hisapplication for admission and nor, later, when applying for a practising certificate overseveral years.151 The High Court was not satisfied that the Society's application forstrike-off should be dismissed so the matter was referred to the Court of Appeal.152The Court of Appeal concluded Mr Mitchell's conduct fell short of the standard giventhat he had "deliberately concealed his convictions on a number of occasions, right upto denying the convictions related to him when the list was put before him".153[97] In addition, reference should be made to s 41 of the Act. That section relevantlyprovides that the Society may refuse to issue a practising certificate "on the ground146 Lawyers and Conveyancers Act, s 267(3)(a).147 Section 267(3)(b).148 We have not been referred to any authority on the ss 266 and 267 procedure in analogouscircumstances where a person who has been properly admitted on the basis of a lower courtdecision subsequently has their grounds for admission overturned on appeal.149 Mitchell, above n 75.150 At [5].151 At [4] and [7]–[8].152 New Zealand Law Society v M HC Wellington CIV-2009-485-1944, 4 May 2010 at [4].153 Mitchell, above n 75, at [26].that the person is not a fit and proper person to hold a practising certificate".154 Indetermining whether a person is fit and proper to hold a practising certificate, theLaw Society may consider any of the matters listed in s 55. However, s 41 does notassist in the present case. The Law Society accepts that the inquiry relating to apractising certificate is as to present matters, so it could only be denied here if therewas some disqualifying conduct since admission.[98] Finally, the position is not altered by the fact that Mr Stanley opposed theapplication for a stay knowing that he might face an application to have his nameremoved. That fact cannot change the position, which is that Mr Stanley's name wasproperly entered on the roll. If the Law Society wanted to preserve the position, anapplication for a stay should have been made to this Court.155Result[99] For these reasons, in accordance with the view of the majority, the appeal isdismissed.[100] We did not hear from the parties on costs.156 Unless the parties are able toagree on costs, we seek submissions on that issue. Submissions for Mr Stanley shouldbe filed and served by 27 August 2020. Submissions from the Law Society should befiled by 10 September 2020 and reply submissions from Mr Stanley should be filedby 16 September 2020. We reserve costs.154 Lawyers and Conveyancers Act, s 41(1).155 This was an available course of action under r 30(4) of the Supreme Court Rules 2004.156 Mr Gwilliam advised the Court that Mr Stanley was legally aided.WINKELMANN CJ AND GLAZEBROOK J(Given by Glazebrook J)Summary[101] We would have allowed the appeal. We consider the High Court was correctto hold that Mr Stanley was not a fit and proper person to be admitted as a barristerand solicitor of the High Court.157[102] Driving while impaired due to alcohol is inherently dangerous and can causeserious injury and death.158 It is thus very serious offending. Multiple drink drivingconvictions would in many cases signal either a drinking problem, a contempt for thelaw,159 or both. In our view, both directly affect a person's ability to practise as alawyer.160 There must be a risk that a drinking problem could adversely affect alawyer's judgement and thus their ability to serve their clients competently. Contemptfor the law raises serious questions as to a lawyer's ability to fulfil their fundamentalobligation to uphold and promote the rule of law.161[103] In this case, Mr Stanley had multiple drink driving convictions over a longperiod, including one following the completion of his law degree.162 We accept thatMr Stanley did express regret for his offending but he continued, even before the HighCourt, to minimise the seriousness of his offending.163 He admitted he may have hadan alcohol problem but asserted that he had largely stopped drinking.164 He did not,however, provide any evidence of an independent alcohol assessment or of havingundertaken any treatment.157 Stanley v New Zealand Law Society [2018] NZHC 1154, [2018] NZAR 1210 (Clark J)[HC judgment].158 As recognised by the majority above at [72] and in particular at n 124.159 At least in the sense of a perpetrator considering the law does not apply to them.160 Contrary to the view of the Court of Appeal and the majority: Stanley v New Zealand Law Society[2019] NZCA 119, [2019] NZAR 1001 (French, Dobson and Brewer JJ) [CA judgment] at [45];and majority reasons above at [69].161 Lawyers and Conveyancers Act 2006, s 4(a).162 Following the completion of his law degree, Mr Stanley was also convicted for failing to stopwhen followed by red/blue flashing lights on a separate occasion. These convictions evidence adisrespect for the rule of law notwithstanding Mr Stanley's legal education (including legalethics).163 HC judgment, above n 157, at [15], [52], [55]–[56] and [59].164 At [49] and [52].[104] In our view, the High Court was right to consider that the effect of Mr Stanley'slatest conviction (in 2014) could not be considered "spent" and thus that it could notsafely be ignored.165 That conviction has to be seen in the context of Mr Stanley'slong history of drink driving, the possibility of an untreated drinking problem and theminimisation of his offending.The test[105] We are in general agreement with the majority's discussion of the principles tobe applied, including the importance of rehabilitation and insight into the offending.166[106] The majority update the language of whether the effect of a conviction is"spent"167 to a question of whether the conviction remains relevant to whether theapplicant meets the fit and proper person standard at the time of the current inquiry.168We accept updating the language is appropriate.[107] We agree with the majority that not a great deal can be drawn from theauthorities on drink driving offending.169 We do, however, make the followingcomments on Ziems v The Prothonotary of the Supreme Court of New South Wales, acase which illustrates the serious consequences that can arise if a person drives whileimpaired.170 It seems to have been accepted in that case that the offending was anisolated incident and did not warrant any conclusion as to the barrister's general165 At [33] and [48].166 See majority reasons above at [5]–[45], [49]–[53] and the summary at [54]. Mr Stanley's lack ofinsight and minimisation of his offending was quite rightly of particular concern to the High Court.167 The test of whether the frailty or defect of character indicated by the earlier convictions can nowbe regarded as "entirely spent" comes from Re Owen [2005] 2 NZLR 536 (HC) at [35]. See alsoLincoln v New Zealand Law Society [2019] NZCA 442 at [34(f)]; Brown v New Zealand LawSociety [2018] NZHC 1263, [2018] NZAR 1192 at [39(e)]; Gibbs v New Zealand Law Society[2014] NZHC 1141 at [29]; and Re Burgess [2011] NZAR 453 (HC) at [31] and [41]. The originof the test of whether a conviction is "spent" is Re Lundon [1926] NZLR 656 (CA) at 658–659which states that the candidate is not to be punished for past crimes. Rather the test is a prospectiveone ("a question of [their] worthiness and reliability for the future"). The issue is whether thecandidate can satisfy the court that their "repentance [is] real" and that they have amended theirways and character. The question in Australia has been phrased in different ways but is essentiallythe same, that is, "whether the deficiencies of character revealed by past misconduct are shown tobe no longer present": Prothonotary of the Supreme Court of New South Wales v Montenegro[2015] NSWCA 409 at [78].168 See majority reasons above at [45].169 See majority reasons above at [46].170 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279.behaviour or inherent qualities.171 If that was truly the case (in other words, if theoffending was not indicative of a drinking problem or a contempt for the law), Kitto J'scomment that it had "neither connexion with nor significance for any professionalfunction" might be understandable.172[108] As noted above,173 however, we consider that drink driving is directly relatedto "professional function" where there are multiple convictions or other indicationsthat can be seen as indicative of a wider drinking problem174 or a contempt for thelaw.175Factors taken into account by the majority[109] We reiterate that we disagree with the majority's view that the Court of Appealwas right to say that Mr Stanley's offending is not of the type that has a directconnection with fitness to practise as a lawyer.176[110] We agree that there was no lack of candour on Mr Stanley's part.177 We do not,however, consider it of much relevance that the Criminal Records (Clean State)Act 2004, assuming no further convictions, would apply from 9 May 2021.178 Thattime has not yet arrived.[111] We would agree that, had Mr Stanley shown insight into his offending andprovided an expert report on his possible drinking problem, the time that had lapsedsince the 2014 conviction should be given weight.179 We would, however, seeMr Stanley's age as counting against him. These drink driving offences were171 At 299 per Kitto J. See also at 301 and 303–304 per Taylor J.172 At 299.173 Above at [102].174 In Barristers' Board v Darveniza [2000] QCA 253, (2000) 112 A Crim R 438 at [36], the Courtsuggested that the result in Ziems, above n 170, may not be the same today, given a shift in socialattitudes towards drink driving.175 It seems to us that the supply of drugs would also raise real issues about professional function:Darveniza, above n 174, at [41]. See also the comments on Darveniza in the majority reasonsabove at [48]. For a New Zealand case about a practitioner's involvement in drug possession anduse in the context of professional discipline (rather than admission), see Jefferies v NationalStandards Committee [2017] NZHC 1824, [2017] NZAR 1323 at [31].176 See majority reasons above at [69]; and CA judgment, above n 160, at [45].177 See majority reasons above at [69].178 Criminal Records (Clean State) Act 2004, ss 4 definition of "rehabilitation period", 7(1) and 8.Our view is contrary to the majority reasons above at [70].179 See majority reasons above at [70].committed as a mature man. None of them can be explained away as "false steps ofyouth".180[112] Further, because driving while impaired is inherently dangerous, in our viewmultiple drink driving convictions should always be treated as very serious offendingfor the purpose of admission and professional disciplinary decisions, even where theyare "not at the serious end of the range of drink driving".181[113] We agree with the majority's comments that Mr Stanley can be seen as actingas though different rules applied to him.182 We also agree with the comments aboutMr Stanley's minimisation of his offending and that he should have provided theHigh Court with evidence from an appropriately qualified expert as to his relationshipwith alcohol.183 Contrary to the view of the majority, however, we see the lack of anexpert report as fatal to Mr Stanley's case.[114] We would accept the Law Society's submission that the Court of Appeal setthe bar too low in accepting Mr Stanley's assurances of reform.184 We also accept thesubmission that this was a case where the High Court Judge, having seen and heardMr Stanley, had a major advantage over the Court of Appeal and that the Court ofAppeal should have exercised caution in coming to a different view.185[115] We accept that Mr Stanley has indicated a commitment to reform and says hehas given up drinking altogether for health reasons.186 Absent an expert report,however, there was nothing other than assertions from Mr Stanley about havingstopped drinking and thus that he was a reformed character. In our view, assertionswere not sufficient for the Court of Appeal legitimately to have concluded that180 Re M [2005] 2 NZLR 544 (HC) at [22], citing Ex parte Lenehan (1948) 77 CLR 403 at 424.181 Contrary to the view of the Court of Appeal and the majority: CA judgment, above n 160, at [48];and majority reasons above at [71].182 Majority reasons above at [72].183 Majority reasons above at [73]–[74].184 Contrary to the majority reasons above at [74].185 ANZ Bank New Zealand Ltd v Bushline Trustees Ltd [2020] NZSC 71 at [59]; and Sena v Police[2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].186 The notes of evidence taken before Clark J on 16 February 2018 were that the last drink Mr Stanleyhad was a toast at his son's wedding in May 2017. Some of Mr Stanley's referees said he hadreformed his drinking habit but it does not seem they were necessarily in a position to attest tothis.Mr Stanley's risk of reoffending was not high.187 This is particularly in light of hisminimisation of his past offending.[116] The effect of Mr Stanley's convictions remains relevant. It is therefore of nomoment if he is otherwise of good character.188 In our view, the High Court did notgive too much weight to one bad feature. The Court was assessing whether the drinkdriving convictions remain relevant.189[117] In terms of the comparison with lawyers in the disciplinary context,190 it seemsto us that the decisions that the majority discusses may not have sufficiently taken intoaccount the inherently dangerous nature of drink driving and the change both in publicand legislative attitude to how drink driving is viewed.[118] The emphasis on rehabilitation in those decisions was, however, appropriate.191It is important to stress that, while we are of the view that Mr Stanley was not a fit andproper person to be admitted as a barrister and solicitor at the time of the High Courthearing, this does not mean he could never be admitted. He would need to supply anexpert report, complete any treatment recommended and provide independent andcogent evidence that he has given up drinking. This can be seen as analogous with theperiods of suspension imposed in the disciplinary cases discussed in the majorityreasons.192Effect of Mr Stanley's admission[119] In terms of the effect of Mr Stanley's admission and the failure of theLaw Society to ask this Court for a stay, we agree with the majority that ss 266 and267 of the Lawyers and Conveyancers Act 2006 would not provide a basis for strikingMr Stanley off the roll (even had our view prevailed).193 We also agree that it does187 We thus disagree with the majority reasons above at [78].188 Contrary to the majority reasons above at [45].189 Contrary to the majority reasons above at [76].190 Discussed in the majority reasons above at [82]–[84].191 See the majority reasons above at [84].192 See the majority reasons above at n 138.193 See majority reasons above at [87]–[96] and [98].not make a difference that Mr Stanley knew he might face an application to have hisname removed from the roll at the time of the stay application.194[120] We are less sure about the majority's statement that s 41 of the Lawyers andConveyancers Act would not assist.195 Section 41(1) provides that the Law Societymay refuse to issue an annual practising certificate on the ground that the person is nota fit and proper person to hold a practising certificate. Even if this section is confinedto current matters, assuming Mr Stanley did not provide evidence of rehabilitation,then his convictions would still be relevant to his character and his current ongoingability to practise law. But, as our view has not prevailed, it is not necessary to cometo a definitive conclusion on this point.Result[121] We would have allowed the appeal.Solicitors:S L Inder, New Zealand Law Society, Wellington for AppellantMain Street Legal Ltd, Upper Hutt for Respondent194 See majority reasons above at [98].195 See majority reasons above at [97].