TIMOTHY JOHN BURCHER v AUCKLAND STANDARDS COMMITTEE 5 OF THE NEW ZEALAND LAW SOCIETY [2020] NZHC 43

TIMOTHY JOHN BURCHER v AUCKLAND STANDARDS COMMITTEE 5 OF THE NEW ZEALANDLAW SOCIETY [2020] NZHC 43 [31 January 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-1262[2020] NZHC 43BETWEEN TIMOTHY JOHN BURCHERAppellantAND AUCKLAND STANDARDS COMMITTEE5 OF THE NEW ZEALAND LAWSOCIETYRespondentHearing: 31 October 2019Counsel: D P H Jones QC for AppellantE Mok for RespondentJudgment: 31 January 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 31 January 2020 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Mr Burcher has been found guilty of misconduct on the basis that he providedregulated services while suspended.1 This is Mr Burcher's appeal.Background[2] The following narrative is largely based on the background provided by theTribunal, which is not disputed.[3] On 18 December 2015, Mr Burcher was suspended from practice for a periodof nine months commencing at the close of business, 23 December 2015. Thisfollowed his guilty plea on two charges of misconduct and one charge of unsatisfactoryconduct. Those charges related to breaches of the rules relating to a nominee company.Mr Burcher was the trust account partner and the partner primarily responsible for therunning of the nominee company.[4] Following the Christmas break, Mr Burcher returned to the firm's premises on13 December 2016, at which point he corresponded with the General Manager ofRegulatory Services of the Law Society, Ms Olivier, over the suspension order andtype of activity he was permitted to undertake. Mr Burcher set out five sorts ofactivities which he proposed to engage in during the period of his suspension, namely:(a) Assisting in a search for premises for the firm;(b) being involved in staff employment and general management of thepractice;(c) archiving of files and ensuring wills and trusts were up to date;(d) the pursuit of continuing legal education; and(e) assisting with the final wind-down of a nominee company.1 Auckland Standards Committee No 2 v Burcher [2019] NZLCDT 12.[5] Ms Olivier advised Mr Burcher, among other things, that "care will need to betaken that other lawyers do not form the impression that you are continuing to practise,although that seems unlikely from what you have described".[6] Shortly after this advice, Mr Burcher sent a further email to Ms Olivier on26 January 2016. In that email he pointed out that he is a trustee of several trusts andattorney for various people. As recorded by the Tribunal, he said:I presume I can still talk to the other trustees as long as I disclose that it is onlyabout those specific matters that are not of a legal nature likewise if peopleneed me to sign documents as to attorney if someone else is providing thelegal advice I must surely be able to sign the document.[7] Ms Olivier responded the next day:I cannot see any reason why you would need to resign as attorney or trusteeby virtue of your limited suspension and there is no reason why you could notsign documentation in your capacity as trustee/attorney. You may wish toadvise any affected clients of your suspension.I note your awareness that you would not be providing legal advice in thatcapacity.[8] At about the same time, Mr Burcher's then partner, Mr Macdonald, raisedconcerns with Mr Burcher about his conduct. Mr Macdonald stated in an email:You have been suspended. Despite that, you are in the office every day andnot only are you making and receiving many phone calls but you are alsogiving tapes to [Ms M] to do as well as spending a lot of time in her officedirecting her on her work. You are also dealing with clients' funds and haveprovided a number of trust account records hand-written by you. I havealready expressed my concern about the position.[9] Ms M is a legal executive of more than twenty years' experience who workedwith Mr Burcher for a long time.[10] On 5 May 2016, Mr Macdonald made a confidential report to the Law Societyexpressing concern that Mr Burcher was acting in breach of the suspension order. TheLaw Society followed with an investigation which reviewed in excess of 500 piecesof dictation that Mr Burcher had made during the period in question, addressed to thelegal executive, Ms M. The investigator concluded that Mr Burcher may haveprovided regulated services and identified specific examples. Most of those examplesform part of the charges.The charges[11] The charges allege that Mr Burcher provided regulated services on multipleoccasions from 15 January 2016 through to 24 May 2016, which were in breach of theDisciplinary Tribunal's suspension order. These charges correspond to nineparticulars. It is convenient to set them out in full.15 January 2016[12] On or around 15 January 2016:(a) Mr Burcher gave legal advice in relation to the direction ormanagement of relationship property proceedings by draftingcorrespondence to barrister Alan Goodwin (the lawyer for the otherparty in the proceedings) and Mr Burcher's client, Michael Matthew.Mr Burcher dictated a letter to be sent by another employee at the firm:(i) Mr Burcher's correspondence to Mr Goodwin advised that theclient would be in New Zealand in the next couple of monthsand "we would certainly recommend that he attend a round tablemeeting in an attempt to finalise relationship property issues".(ii) Mr Burcher's correspondence to Mr Matthew enclosed thecorrespondence with Mr Goodwin and stated:I really think a round table informal meeting wouldbe a good idea. We really need to try to shut this downas soon as possible to avoid incurring furtherunnecessary costs. I know that you are absolutelyagainst paying anything but even making adjustmentsfor per lack of child care contributions etc. there isstill a litigation risk and we may well find we are ableto get rid of her for a reasonably modest sum.(b) Mr Burcher provided conveyancing services by draftingcorrespondence to [CS] on behalf of his client [A] Investments Limited(to be sent by another employee at the firm) which included detailedcomments on, and proposed changes to, a draft managementagreement, including that two clauses of the agreement be deleted, andseeking machine rental depreciation costs be included in the agreement.18 January 2016[13] On or around 18 January 2016, Mr Burcher dictated letters to a solicitor, ManuBhanabhai; and firm, Martelli McKegg, in respect of an outstanding leasehold matterfollowing the sale of a property by Tower City Holdings Limited. In particular:(a) The letter to Mr Bhanabhai advised:Our client instructs that it asked for the agent to arrange fornotice to be given to the tenant in the shop. It thought thatthis had been done but our client has now on-sold the propertyand the purchaser says that the tenant alleges that she has notbeen given any formal written notice. We note that there wereno apportionments of rental on the settlement statement andour client relied on your client's agent to arrange the notice.Our client has absolutely no knowledge of the terms of theagreement or indeed the name of the tenant. Can you pleaseurgently forward to us a copy of the lease and confirm up untilwhat date the rent has been paid.(b) The letter to Martelli McKegg advised that the client was "urgentlyascertaining the situation from the original vendor" regarding theleasehold.14 March 2016[14] On or around 14 March 2016, Mr Burcher prepared a letter for MackyRobertson Limited. That letter involved the provision of conveyancing services (orservices incidental to conveyancing services), in that it included comments and adviceon terms of an agreement, a priority deed, and the sale of a property.6 April 2016[15] On or around 6 April 2016:(a) Mr Burcher provided services to his client, A Investments, in relationto the reserved areas of work. He did this by dictating a letter to be sentto a solicitor for another party, setting out terms of proposed settlement,and his client's position on priority arrangements. The letter stated:Our client is willing to make substantial concessions ondealing with any sale proceeds of the property provided hegets prompt acceptance from yours Our clients [sic]additional advances are significant already. It is not mine [sic]to make any further contributions as it anticipates shortlyhaving to make the 10% settlement payment. If it paid thecosts that your client has incurred it would be entitled to apriority of those. In the circumstances it is perfectly happyfor your client to be reimbursed for those current costs that itwill attend to payment but no further costs We believe thisis a very fair and generous concession by our client and theoffer will not be on the table for very long.(b) Mr Burcher provided legal advice to one of his clients, Harry Dodson,in relation to the Black Watch Trust. Mr Burcher dictated a letter to MrDodson which thanked him for his instructions to review trustdocuments and prepare a new will and trust documents. The letterstated:Our review of the trust deed notes that clause 10.01contemplates an independent trustee before discretions can beexercised on certain beneficiaries who are also trustees. Wethink in due course that it may be sensible that you also resignas a trustee and appoint Tim Burcher in your place for themoment. However, if it is likely the only distributions fromthe trust will be in your favour ten [sic] certainly Tom andCecilia are able to exercise this discretion.24 May 2016 to 1 June 2016[16] On the following occasions, Mr Burcher provided the following conveyancingservices:(a) On or around 26 May 2016, Mr Burcher dictated an agreement tosurrender and create rights of way, a height covenant and stormwaterand sewage easements in relation to properties located at 18, 20, 20Aand 26 Selwyn Avenue between the Jones Family Trust, PolywealthTrustee Limited and 161 Tamaki Drive Limited. The dictation recordedthe following (among other things): "Okay if you can do an agreementplease, I think pretty much I'm trying to follow the same format as theKensington Swan draft that I've put with this";(b) on or around 26 May 2016, Mr Burcher dictated a sale and purchaseagreement between the Jones Family Trust and Polywealth TrusteeLimited in relation to the property located at 26 Selwyn Avenue,Mission Bay, Auckland, and correspondence to Winston Wang &Associates enclosing the draft easement and sale and purchaseagreements. The dictation included the following comments: "Then ifyou would like to put in the usual subdivision clauses throw in theusual ones you put in and there may be some of them that I'll take out";and(c) on or around 1 June, Mr Burcher provided conveyancing services bypreparing further correspondence to Winston Wang & Associates (to besent by another employee at the firm) about the agreement for sale andpurchase, and documentation about rearranging easements.[17] Further to the services provided on 15 January 2016 and 6 April 2016 describedabove in paragraphs 12(b) and 15(a), Mr Burcher also provided legal services inrespect of litigation, on or around 24 May 2016, by dictating a "Statement ofEvidence" for Mathew Anderson regarding repairs to the roof of a property at239 Queen Street, Auckland. A Investments was the mortgagee of this property, whichwas the subject of a court proceeding.Decision of the Tribunal[18] The Tribunal identified the issues to be determined as follows:1 Did any of the incidences pleaded fall within the definition of theprovision of legal services?(a) In each instance, was the nature of the work activity "legalwork" or "conveyancing" as defined? And(b) In each instance, was the work carried out "for anotherperson", particularly if Mr Burcher was a trustee?2 If the legal services are found to have been provided, does thisconstitute disgraceful or dishonourable conduct?3 Alternatively, if not, is it a wilful or reckless failure to comply with acondition on a practising certificate?4 If not, is it "unsatisfactory" either because it is unbecoming orunprofessional behaviour, or a failure to comply with a condition ona practising certificate?(Citations omitted)[19] The Tribunal noted that understanding the phrase " carrying out legal workfor any other person" (per s 6) was very significant to Mr Burcher's case. The Tribunalobserved that Mr Burcher essentially claimed to have been the client, conveyinginstructions to his legal executive, who then signed the correspondence and draftedthe documents as dictated. This claim, however, did not apply to services for Mr H Dand his trust (B W Trust). The Tribunal noted that Mr Burcher rightly conceded thatthe position was different, and he had effectively provided services for another person.[20] The Tribunal addressed the misconduct claim by reference to specific letters ordictation drafted by Mr Burcher. The Tribunal reviewed nine items in particular. Thefollowing is a summary of the Tribunal's assessment in relation to each of those items.1 Correspondence on behalf of A Investments Limited on 15 January 2016.[21] Mr Burcher was a trustee of the V Trust, which was a major shareholder in AInvestments Limited. The Tribunal observed that the correspondence, which was togo out in the name of Ms M (the legal executive), contained detailed comments onproposed changes to a draft management agreement.2[22] The Tribunal referred to Mr Burcher's evidence that he was providinginstructions as a trustee to Ms M and that he did not consider he was acting as a lawyerproviding regulated services. The Tribunal did not find this a convincing argument,3and noted the letter was sent for the benefit of A Investments Limited, a company ofwhich he was not a director. It is also noted Mr Burcher was acting as one of twotrustees, not just himself. The Tribunal thus concluded the services "[were] clearly2 At [33].3 At [36].legal services ancillary and incidental to 'advice' in relation to any legal or equitablerights or obligation" within the definition of 'legal work'".42 and 3 Dictation on 18 January 2016 to two other solicitors[23] This dictation is said to have related to a follow-up matter, incidental toconveyancing which Mr Burcher undertook prior to his suspension the previousChristmas, which Ms M then completed in the following January.5[24] The Tribunal found that this attendance, like the previous one, was incidentalor ancillary to conveyancing and thus fell within the definition of provision of legalservices. The attendances were on behalf of a client, T C Holdings, for whomMr Burcher had acted for some time. The Tribunal said Mr Burcher's evidence wasthat he was briefing Ms M on the file so as to cause as little disruption to the client aspossible. The Tribunal did not consider this argument was sustainable in the face ofthe correspondence in question.64 Letter on behalf of A Investments Limited[25] The Tribunal described this as a further letter on behalf of A InvestmentsLimited where Mr Burcher was one of the trustees of the B Trust, which was a majorityshareholder of A Investments Limited. The letter was said to comprise a detailedsettlement offer involving considerable sums of money (over $7 million) and to setout the priority mortgage arrangement.[26] The Tribunal noted that the letter referred to a recent meeting between "ourrespective clients". The Tribunal did not accept Mr Burcher's argument that he waspurporting to act as the client (being a company of which he is not even a director).5 Further dictation on 6 April 2016[27] The Tribunal said Mr Burcher sent a letter to Mr D thanking him for hisinstructions to review his trust documents and prepare a new will. The letter enclosed4 At [37].5 At [40].6 At [41].a deed of retirement for Mr D as trustee and appointed Mr Burcher in his place. It alsoenclosed a new will and authorities to uplift the deeds from previous solicitors. TheTribunal found that Mr Burcher clearly provided the legal advice to Mr D, an oldfamily friend, and properly conceded this in cross-examination and closingsubmissions.76 Dictation around 26 May 2016[28] The Tribunal noted Mr Burcher dictated an agreement to surrender and createrights of way, a height covenant, and a stormwater and sewage easement in relation toproperties in which the three trustees of the J Family Trust had an interest. Mr Burcherwas a trustee of this trust and his evidence was that he had fiduciary obligations toensure his knowledge, as a professional trustee, was utilised to the fullest possibleextent.8[29] The Tribunal noted the documents dictated ran to a number of pages andrepresented a multi-party agreement, intended to create legal rights and obligations.The Tribunal said: 9The dictation quite clearly sets out step by step and word for word what Ms M,the legal executive, was to construct in the agreement.[30] The Tribunal referred to Mr Burcher's evidence that he was instructing Ms Mon what he believed was the best course of action for the trust to undertake. He saidit was over to her to carry out or challenge his instructions as she saw fit.[31] The Tribunal found that the evidence disclosed in the transcript or the dictationwent well beyond instructing Ms M as to "the best course of action for the trust toundertake", and also went well beyond mere client instructions.107 At [47].8 At [48].9 At [49].10 At [50].7 Dictation on 26 May 2016[32] The Tribunal referred to further dictation on 26 May 2016 in which Mr Burcheris said to have dictated a draft agreement for sale and purchase in a letter to solicitorsin relation to property of the J Family Trust. The Tribunal found that this was clearlyconveyancing work or a legal service in relation to conveyancing work.8 Dictation on 1 June 2016[33] The Tribunal noted dictation from 1 June 2016 which involved correspondenceto solicitors (to be sent by Ms M) and concerned the redrafting of documents. TheTribunal found this was conveyancing work and/or a legal service provided to the threetrustees of the J Family Trust.9 Dictating a statement of evidence on 24 May 2016[34] The Tribunal noted this brief of evidence related to repairs required for aproperty in Auckland, of which A Investments Limited was a mortgagee. There werecourt proceedings. The Tribunal said it appeared Mr Burcher had prepared the brief.The Tribunal found that in preparing a brief of evidence, Mr Burcher was acting foranother person and was undertaking legal work incidental to reserved areas of workas defined by the Act. The Tribunal did not find the issue of charging or not to bedeterminative.[35] The Tribunal also referred to expert evidence filed by Mr C Moore. Mr Mooreagreed with Mr Burcher's analysis, which was that he had simply provided his servicesas a trustee and that he was better qualified than anyone to do so. However, theTribunal noted that when challenged, Mr Moore accepted if there was more than onetrustee, the other person was being rendered a service for the trust, and appeared toaccept the fact that "the client" could not be only one of the trustees.[36] The Tribunal was also critical, it appears, of Mr Moore's expressions inevidence that Mr Burcher was "extraordinary" and "wonderful". The Tribunal said itraised questions about the degree of independence of the witness.[37] The Tribunal noted even Mr Moore referred to the attendances of Mr H D as"a grey area". It also noted Mr Moore referred to Mr Burcher as having "oversteppedthe mark" later in his evidence and added that Mr Burcher had mistakenly thought hewas abiding by the rules.11[38] The Tribunal also noted Mr Moore appeared to accept that there was a fairdegree of truth in that the approach he promoted would lead to a point where a trustlawyer could simply continue to act as previously while suspended. The Tribunaltherefore disagreed with Mr Moore's analysis of Mr Burcher's actions.[39] The Tribunal then examined whether Mr Burcher's conduct was disgraceful ordishonourable conduct. Referring to suspension, the Tribunal noted:[73] As such a significant sanction, with multiple purposes, it must not betreated lightly by any practitioner. It was absolutely clear to Mr Burcher thathe could not undertake legal work. His further enquiries of the New ZealandLaw Society emphasised at least two matters. One, that he should notundertake file-specific or client-related work and, two, that he should takegreat care not to give the impression to the outside world, including otherlawyers, that it was "business as usual".[74] Whilst we note Mr Burcher's evidence that he was open with hisclients about his suspension and attempted to clarify his role when attendingmeetings, it is clear that at least his partner Mr Macdonald was concerned thatMr Burcher was flouting the suspension order. Mr Macdonald said that twoother lawyers spoke to him about their situation but they did not give evidenceand we have not relied on this.[40] The Tribunal repeated its findings that his work went well beyond theparameters he had discussed with the New Zealand Law Society and they regarded his"pushing of the boundaries" and attempting to justify his actions as merely those of atrustee, the order.12Grounds of appeal[41] Mr Burcher appeals the Tribunal's decision on the basis that it erred in findingthat:11 At [65].12 At [75]-[76].(a) Mr Burcher breached the order suspending him from practice.(b) Mr Burcher was acting in the capacity of a lawyer in relation to theconduct at issue.(c) The appellant provided regulated services during the period ofsuspension.(d) Legal services had been carried out "for any other person" when theappellant was a trustee and was acting in that capacity.(e) The nature of the work or activity, the subject of the charge, was "legalwork" or "conveyancing" as defined in the Act.(f) The appellant was guilty of misconduct under s 7(1)(a)(i) ors 7(1)(a)(iii) of the Act; and(g) that he Tribunal failed to properly consider or take into account theexpert evidence of Mr Moore, both as the capacity Mr Burcher wasacting in and whether or not his behaviour was disgraceful ordishonourable.[42] Mr Jones QC submits the main questions that arise in the appeal are:(a) What capacity was the appellant acting in when engaged in the conduct,the subject of the nine particulars?(b) Were legal services carried out "for any other person" when theappellant was acting as a trustee?(c) Did his conduct amount to providing regulated services on any of thoseoccasions, such that he breached the suspension order?(d) Did his conduct amount to misconduct under s 7(1)(a)(i) or s 7(1)(a)(iii)of the Act?[43] I am content to frame my judgment so as to address the issues identified byMr Jones. Before doing so, however, it is necessary to review the legislative scheme,particularly as to the effect of suspension and the meaning of regulated services.Effect of suspension[44] Section 7 of the Lawyers and Conveyancers Act 2006 defines "misconduct"(relevantly) as follows:7 Misconduct defined in relation to lawyer and incorporated lawfirm:(1) In this Act, misconduct, in relation to a lawyer or anincorporated firm:-(a) means conduct of the lawyer or incorporated firm thatoccurs at a time when he or she or it is providingregulated services and is conduct –(i) that would reasonably be regarded by lawyersof good standing as disgraceful ordishonourable [45] A "lawyer" is defined as:13A person who holds a current practising certificate as a barrister or asa barrister and solicitor.[46] Mr Jones contended that the order for suspension, coupled with the surrenderof the practising certificate itself, appears to mean that the lawyer can no longer besaid to be "a person who holds" that certificate and on a plain reading of the Act, aperson who is suspended from practice is not considered to be a lawyer as they are notthe holder of a current practising certificate. He goes on to submit that, given that theambit of the misconduct provisions, it may have been the legislative intent that theconduct of such persons be dealt with separately to those lawyers who hold practisingcertificates and are thereby practising under the Act.[47] I disagree. While it is true that a person who is suspended from practice mustdeposit his or her current practising certificate (if any) with the Law Society that issued13 Criminal Procedure Act 2011, s 5.the certificate,14 a suspended practitioner is not removed from the roll of barristers andsolicitors. Self-evidently, therefore, suspension does not mean that the barrister nolonger holds a practising certificate. It only means that he or she cannot practisepursuant to it. This interpretation also aligns with the clear protective purpose of theAct insofar as concerns the provision of legal services. I return to this below.Meaning of regulated services[48] Mr Jones submits that a trustee who performs legal work on behalf of the trustis not performing or providing regulated services "for any other person". In thisregard, he notes:(a) The client is the only person who can give instructions. Mr Burchermust have been acting as a trustee to do what he did.(b) Giving instructions to a legal executive is not providing advice to thatperson, or anyone else. It is telling the legal executive what the clientwants done.(c) Legal advice is given and received before decisions are made andinstructions provided to a law firm. The Tribunal conflated these issuesas there was no suggestion that Mr Burcher provided advice to the othertrustee.(d) There was clear evidence that the other trustees (Messrs Moyes andJones) dealt with Mr Macdonald when legal advice was needed, notMr Burcher.(e) Lawyers charge clients fees for providing regulated services.Mr Burcher did not charge, nor did he receive any fees.[49] I agree with Mr Jones that that the question of whether a person is providingregulated services will depend on the facts in each case. But I do not accept that a14 At s 6.trustee undertaking legal work is presumptively not providing regulated services. AsI said in Young, it is necessary to examine the provisions dealing with the provision oflegal services in light of the purposes of the Act.15[50] Regulated services is defined as follows:"Regulated services" means-(a) In relation to a lawyer or an incorporated firm –(i) legal services; and(ii) conveyancing services; and(iii) services that a lawyer provides by undertaking the work of areal estate agent; and(b) In relation to a conveyancing practitioner or an incorporatedconveyancing firm –(i) conveyancing services; and(ii) services that a conveyancing practitioner provides byundertaking the work of a real estate agent.[51] Legal services is then defined as follows:"Legal services" means services that a person provides by carrying out legalwork for any other person.(Emphasis added.)[52] Legal work is then defined as follows:"Legal work" includes:(a) the reserved areas of work:(b) advice in relation to any legal or equitable rights or obligations:(c) the preparation or review of any document that—(i) creates, or provides evidence of, legal or equitable rights orobligations; or15 Young v National Standards Committee [2019] NZHC 2268 at [53].(ii) creates, varies, transfers, extinguishes, mortgages, or charges anylegal or equitable title in any property:(d) mediation, conciliation, or arbitration services:(e) any work that is incidental to any of the work described in paragraphs (a) to(d).[53] Given the reference to "any other person" in the definition of "legal services",s 7(1)(a) literally refers to conduct by a lawyer "at a time" when he or she is providing"legal work" for "any other person". However, the purposes and scheme of the Actmust inform the interpretation of s 7.[54] Those purposes are set out at s 3, which states:3 Purposes(1) The purposes of this Act are:(a) to maintain public confidence in the provision of legalservices and conveyancing services:(b) to protect the consumers of legal services and conveyancingservices:(c) to recognise the status of the legal profession and to establishthe new profession of conveyancing practitioner.[55] The "legal services" referred to at (a) and (b) is presumably as defined in theAct, that is, "carrying out legal work for any person". Furthermore, subs (2) of s 3states (most relevantly):(2) To achieve those purposes, this Act, must among other things –(d) state the fundamental obligations with which, in the publicinterest, all lawyers and conveyancing practitioners mustcomply in providing regulated services.[56] The fundamental obligations of lawyers are then set out at s 4, which states:4 Fundamental obligations of lawyersEvery lawyer who provides regulated services must, in the course of his or herpractice, comply with the following fundamental obligations:(a) the obligation to uphold the rule of law and to facilitate theadministration of justice in New Zealand:(b) the obligation to be independent in providing regulatedservices to his or her clients:(c) the obligation to act in accordance with all fiduciary dutiesand duties of care owed by lawyers to their clients:(d) the obligation to protect, subject to his or her overriding dutiesas an officer of the High Court and to his or her duties underany enactment, the interests of his or her clients.[57] To my mind, in light of the clear purposes of the Act and the fundamentalobligations of lawyers, s 7 should be construed broadly to include practicing lawyerswho are undertaking "legal work" as trustees. To hold otherwise would enablepracticing lawyers to avoid sanction for incompetence by simply invoking the statusof trustee, even though such lawyers regularly charge for their time. Furthermore, itwould be perverse to exclude a solicitor trustee from s 7 sanction because he or shewas suspended at the time. The entire purpose of the suspension is to ensure thatperson does not perform such legal work because they are deemed unfit to practicewhile under that suspension.Assessment[58] With this frame in mind, I turn to examine each of the particulars upon whichthe Tribunal based its finding of misconduct.[59] As Mr Jones submitted, the particulars of the charges can be broken down intofour categories, namely:(a) Particulars 1, 4 and 9 – these are related to the V Trust;(b) Particulars 2 and 3 – these are related to the letters sent by MBC Lawregarding a client for whom Mr Burcher had acted on a conveyancingmatter prior to suspension.(c) Particular 5 – this is correspondence which was to be sent by MBC Lawto Mr D, a family friend of Mr Burcher.(d) Particulars 6, 7 and 8 – these are forms of correspondence which wereto be sent by MBC Law; and documents, including an agreement tosurrender and create rights of way, height cover, and an easement andagreement for sale and purchase (relating to the J Trust, of whichMr Burcher was a trustee).[60] Particular 1 relates to dictation made by Mr Burcher on 15 January 2016. Itrecords what appears to be an instruction to Ms M to prepare an email to a third partyon behalf of A Investments Limited about a draft agreement between the third partyand the client. The dictation refers to, among other things, the absence of Mr Burcher,a commencement date for the agreement, parking information, the client's lack ofknowledge as to likely identified costs, and the fact the client was not prepared to becommitted to any firm arrangement beyond the monthly tenancy. The dictation alsorecords an instruction to Ms M to send an email to another third party referring to(among other things) payments that had not been received, and the client'spreparedness to accept a new rental of $1,500 per week (plus GST) on a monthly basisfrom 1 January 2016.[61] Mr Jones submits this dictation contains no legal "advice" given as to "legal orequitable rights or obligations" (being the definition of "legal work"), and that thereare no other matters within the file notes which are "work incidental to such advice".Furthermore, he says the dictation was not "carried out for any other purpose": hesays it was an instruction on behalf of a client to a law firm. He further submits thatany letter sent by Ms M for MBC Law had to be sent with Mr Burcher's approval asclient (being one of two trustees).[62] Mr Hodge submits that the file note includes detailed comments on andproposed changes to a draft management agreement, including that two clauses of theagreement be deleted and seeking rental and depreciation costs be included in theagreement. He submits this amounted to provision of legal services incidental to orancillary to "advice in relation to legal equitable rights or obligations". He says, asthe Tribunal also noted, the dictation made was of such a nature that the legal executivecould simply transcribe it and send it in an email or letter without any further actionon her part.[63] I agree with Mr Hodge and with the Tribunal. The dictation records aninstruction to a legal executive to correspond in relation to a client matter. On its face,that matter involved not only an understanding of the background facts, but of thesignificance of particular provisions of an agreement which, in turn, affected the legaland equitable rights of the client. It is the type of correspondence one might expectfrom a reasonably experienced commercial property lawyer. Furthermore, it is evidentfrom the dictation the legal executive was expected to transpose the dictation onto aletter and put it in her name. That dictation therefore falls within the definition of legalwork.[64] I do not accept Mr Jones' argument that because Mr Burcher was simply givinginstructions as a trustee of the trust, the dictation did not amount to the provision ofregulated services. In addition to the fact that the instruction bore directly on thecontents of an agreement which determined the rights and liabilities of the client, therewas nothing in the dictation that placed any expectation on Ms M to evaluate andprovide advice on the suggested correspondence and the implications of the draftagreement.[65] In his evidence, Mr Burcher said he considered he was acting in the capacityof a trustee and not a lawyer providing regulated services. He said, given a lawyer orlegal executive has to act on the instructions of a client, he was in the position of theclient and provided instructions accordingly. While Mr Burcher may have believedthat to be case (I return to this issue later), he was nonetheless engaged in performinglegal work when he provided those instructions, the content of which, as I have said,bear directly on A Investments Limited. Furthermore, as Mr Burcher accepted undercross-examination, he was one of two trustees on the V Trust and the subject matter ofthe dictation (A Investments Limited) is 99 per cent owned by that trust, and one percent owned by a Mr M. It follows that in giving the "instructions" to Ms M (no relationof Mr M), he is affecting the interests of a third legal person. Mr Burcher also acceptedunder cross-examination that he reviewed the draft agreement to manage beforebeginning the dictation. Though, he emphasised there was nothing particularlycomplex about it. But that apparent lack of complexity is the view of an experiencedcommercial property lawyer, not a layperson. The reviewing and settling of terms ofan agreement are very much the work of a lawyer and qualify, in my view, as legalwork. It is relevant to note Mr Burcher, in responding to questions about makingjudgement calls, said:That's what I'm employed for as a trustee, to be able to give competentinstructions to anybody when it's required. That's the value of a solicitortrustee.[66] I agree. It is also why the dictation was legal work.[67] I am satisfied that Particular 1 was proven and I, therefore, agree with theTribunal's conclusion about it. Whether or not this apparent breach of the suspensionqualifies as misconduct will be addressed below at [95].[68] As Mr Jones noted, Particular 4 comprises instructions for correspondencewhich were to be sent out by MBC Law. It involves dictation which refers to priorityarrangements between A Investments Limited and a third party. Mr Jones submits thedictation is in the nature of instructions by a client as to a commercial settlement. Hesubmits no legal advice was given. He also says there was no work incidental to legalwork rights. Mr Hodge submits in response that drafting the relevant correspondenceinvolved work incidental to reserved areas of work. These areas include giving adviceto any other person in relation to the direction or management of proceedings or,alternatively, the provision of advice in relation to legal or equitable rights orobligations.[69] With respect, and contrary to the conclusion of the Tribunal, I do not considerthat the contents of the dictation to which Particular 4 relates includes legal work, evenwhen applying the broad definition I have outlined above. Given this is myconclusion, I repeat in full the relevant dictation here (anonymised to maintain theprivacy of the clients):As discussed at the recent meeting between our respective clients, our clientis willing to make substantial concessions on dealing with any sale proceedsof the property provided he gets prompt acceptance from yours. There aresome unacceptable terms in the proposed Settlement Agreement which we arestill working through with Grove Darlow. Assuming, however, that alldifferences can be resolved we advise as follows:1. Although our client is owed north of $7,000,000 on its original loanplus interest it is prepared for the purpose of this settlement toaccept $6,000,000.2. In addition of course it is underwriting and funding the $1,725,000to settle all arrears with the Body Corporate.3. It has paid $116,150 inclusive of GST to have urgency repairs doneto protect the unit.4. It has had significant other costs already in assisting funding youraction against the Body Corporate and also making good thepremises and fighting an action with [K]. It also has solicitors costsand the likely costs of scale which are all factored into this equation.All of these costs and anticipated costs but excluding the marketingcosts, and of course agent's commission could be rounded out at$350,000 (at $475,000?)5. This means a total priority of $3,200,00 what did I say $8,200,000.Our clients additional advances are significant already. It is not mine to makeany further contributions as it anticipates shortly having to make the 10%settlement payment. If it paid the costs that your client has incurred it wouldbe entitled to a priority of those. In the circumstances it is perfectly happy foryour client to be reimbursed for those current costs that it will attend topayment but no further costs.We believe this is a very fair and generous concession by our client and theoffer will not be on the table for very long.Yours etc.[70] The matters referred to herein appear to simply record the basis upon which AInvestments Limited was prepared to settle a matter. While undoubtedly Mr Burcher,who was acting as a trustee, drew on commercial property law experience in forminga view about the terms of settlement, there is nothing in the dictation which suggeststhat he was doing anything other than recording the position of the client on the termsidentified at paras 1 to 5.Particular 9[71] Particular 9 is a dictation comprising a draft brief of evidence. Mr Jones saysMr Burcher simply had knowledge of the facts set out in the statement from hisposition as a trustee. He says the contents are not "legal advice in relation to thedirection or management of proceedings" or even "incidental" to such advice. He alsonoted another firm filed the brief.[72] Contrary to Mr Jones' submissions, this is plainly legal work. The dictation isheaded, "Okay can you just please do a Statement of Evidence of Mathew []Anderson".[73] I accept Mr Hodge's submission that, whether acting as a trustee or otherwise,Mr Burcher was engaged in legal work that was at least incidental to reserved areas ofwork. Reserved areas of work are defined in the Act as follows:reserved areas of work means the work carried out by a person—(a) in giving legal advice to any other person in relation to the directionor management of—(i) any proceedings that the other person is considering bringing,or has decided to bring, before any New Zealand court or NewZealand tribunal; or(ii) any proceedings before any New Zealand court or NewZealand tribunal to which the other person is a party or islikely to become a party; or(b) in appearing as an advocate for any other person before any NewZealand court or New Zealand tribunal; or(c) in representing any other person involved in any proceedings beforeany New Zealand court or New Zealand tribunal; or(d) in giving legal advice or in carrying out any other action that, bysection 21F of the Property (Relationships) Act 1976 or by anyprovision of any other enactment, is required to be carried out by alawyer[74] In the result, I am satisfied that Particulars and 1 and 9 are proven. However, Idisagree with the Tribunal as to Particular 4.Particulars 2 and 3[75] Particulars 2 and 3 relate to a dictation within which there appears to be aninstruction to send a letter to a solicitor, the contents of which are as follows:You will recall that our client settled this matter just before Christmas. Ourclient instructs that it asked for the agent to arrange for notice to be given tothe tenant in the shop and thought that this had been done but our client hasnow on-sold the property and the purchaser says that the tenant alleges thatshe has not been given any formal written notice. We note that there were noapportionments of rental on the settlement statement and our client relied onyour client's agent to arrange the notice.Our client has absolutely no knowledge of the terms of the agreement orindeed the name of the tenant. Can you please urgently forward to us a copyof the lease and confirm up until what date the rent has been paid. Yours etc[76] The dictation also appears to have instructed Ms M to write a letter to anotherlaw firm. The letter was to read as follows:Thank you for your letter of 15 January. As you are aware, our clientcompleted the purchase of this property just prior to Christmas and tells usthat it instructed the agents and prior owners to arrange notice to be given tothe tenant. They thought that this has been done. They have no knowledge ofthe tenant either and are urgently ascertaining the current situation from theoriginal vendor, and we will be in touch further as soon as we can.Yours etc[77] Mr Jones submits the Tribunal was straining the words "incidental to"conveyancing in suggesting the above-mentioned dictation was a provision ofconveyancing services. He says it was clearly "wash-up work" which the appellanthad knowledge of and, had he remained silent, he could well have breached hisobligations to the client.[78] Mr Hodge notes Mr Burcher had acted as solicitor for T Holdings Limited. Hemaintains that by undertaking the above work, Mr Burcher was undertaking legal workincidental to and ancillary to conveyancing, and the correspondence related to theproperty which was subject to the property transaction carried out.[79] I agree with Mr Hodge and the Tribunal. This was work incidental to aproperty transaction Mr Burcher previously handled. However, as I think Mr Hodgeultimately accepted, had this been the only transgression of the suspension order, itwould have been characterised as de minimis, and would not have been worthpursuing. For my part, it is only relevant insofar as it provides another example ofbreach, albeit very minor in the circumstances.Particular 5[80] Particular 5 relates to dictation dated 6 April 2016, wherein an instruction wasgiven to compose a letter to a Mr H. The content of the letter relates to a trust andwill. In his dictation, Mr Burcher thanked H for his instructions to review trustdocuments and to prepare a new will. He referred to an existing independent trusteewho was to retire and the appointment of a new trustee. He also referred to a reviewof a trust deed. He appears to have provided advice as to what was sensible to do,namely, that H resign as a trustee and appoint Mr Burcher in his place. Enclosed forconsideration are (among other things) a deed of retirement and appointment oftrustee, and a new will.[81] This was provision of legal services. Mr Jones did not seriously contendotherwise. He insisted, however, that this was a minor transgression, given that MrBurcher was simply assisting a longstanding friend. I do not consider it material thatthe legal work was undertaken for a close friend. Mr Burcher plainly breached thesuspension by providing these services while suspended.Particulars 6, 7 and 8[82] Particulars 6, 7 and 8 relate to a dictation which includes an instruction to createan agreement, wherein Mr Burcher noted:I think pretty much I'm trying to follow the same format as that KensingtonSwan draft that I've put with this.[83] The dictation then goes on to set out the agreement to surrender and createrights of way, height covenant, and stormwater and sewerage easements. Relevantterms are also identified as are their definitions. The relevant rights of way are alsodefined. The terms of the easement consent are then specified, as are the terms of theformation of a right of way and covenant. Other conditions are also noted. Thedictation refers to the preparation of other documents and other relevant clauses thatmight have been included. That was in relation to dictation dated 26 May 2016. Thereis also dictation dated 1 June 2016. This was a response to a law firm. There arevarious detailed comments on clauses.[84] Particular 7 relates to further dictation on 26 May which refers to an instructionconcerning a standard agreement for sale and purchase, which set out the terms andrecorded the presence of easements.[85] Mr Jones submits that because the appellant was one of three trustees of theJ Trust, he was a client of MBC Law. He says a client can give specific instructionsor not. He says a trustee is obligated to use their skills and abilities. That is whatMr Burcher did, he says. He notes:(a) The proposed documents were not final documents. Although thedocuments were documents relating to land owned by the V Trust, theydid not in the form dictated, "have the purpose of effecting ordocumenting any transaction that would create, vary or extinguish alegal or equitable estate, interest or right in real property". Thosedocuments were to be completed by MBC Law.(b) If the appellant sat in a meeting with his two trustees and stated thesame information, that could not fairly have been said to be theprovision of regulated services.(c) Mr Burcher also had fiduciary obligations to the Trust to use hisprofessional knowledge.[86] Mr Hodge acknowledges that at all times Mr Burcher was a trustee of therelevant affected trust. He submits Mr Burcher was nevertheless undertakingconveyancing work and legal services incidental to that work by preparing thedocuments and related correspondence.[87] I agree with Mr Hodge. Mr Burcher undertook legal work together withinstructions to Ms M to carry the work out. There is no suggestion that Ms M wasapproached to give advice or add value to the instructions given to her. I also agreewith the Tribunal that it should have been obvious to Mr Burcher he was engaged inlegal work when he provided documentation of such detail in relation to sale andpurchase and other dealings in property.Dishonest, dishonourable or disgraceful?[88] Mr Jones submits, in any event, the conduct was not dishonest, dishonourableor disgraceful. He says there was no "flouting" of the order as suggested by theTribunal. He says this is plain from the number of instances of transgression,compared to the number of dictations/recordings reviewed. He also refers to the expertevidence which speaks of the very real difficulties in differentiating the roles andobligations of trustees to act and use their legal experience for the benefit of the trust.Mr Jones refers to various authorities dealing with the meaning of misconduct.16 Hesays it is not met by mere professional incompetence or by deficiencies in the practiceof the profession. Something more is required. It may range from actual dishonestythrough to serious negligence. But he says Mr Burcher was doing no more thanperforming his duties as a trustee or acting on behalf of a friend and/or taking relativelyminor steps in respect of a property transaction that had just settled prior to hissuspension.[89] Mr Hodge, in contrast, submits that it is well established that professionalmisconduct does not solely consist of intentional wrongdoing but, rather, captures arange of conduct from actual dishonesty through to serious negligence of the type thatevidences an indifference to an abuse of the privileges which accompany registrationas a legal practitioner.17 He submits such orders also help to ensure that properprofessional standards are upheld, and serve as a deterrent. He submits that this is toensure that, citing Daniels:18Only those who are fit, in the wider sense, to practice are given that privilege.Members of the public who entrust their personal affairs to legal practitionersare entitled to know that a professional disciplinary body will not treat lightlyserious breaches of expected standards by a member of the profession.[90] Mr Hodge submits further that respect for the disciplinary process incompliance with orders by lawyers who are subject to such processes is fundamental16 Complaints Committee No 1 of the Auckland District Law Society v C [2008] 3 NZLR 105;Auckland Standards Committee No 3 and 4 v Banbrook [2017] NZLCDT 35; Deobhakta v WaitakoBay of Plenty Standards Committee [2015] NZHC 965; Ellis v Auckland Standards Committee No5 [2019] NZHC 1384; Mr A v Canterbury Westlands Standards Committee No 2 [2015] NZHC1896; Waikato Bay of Plenty Standards Committee v M [2016] NZLCDT 24.17 Citing Auckland District Law Society v C [2008] 3 NZLR 105 HC at [31] and [33].18 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850(HC) at [24].to ensuring public confidence in the profession and efficacy of disciplinaryprocesses.19[91] He notes the appellant was found to breach the suspension order on a numberof occasions over a period of six months, and that the position is aggravated by thefact that Mr Burcher must have known that he was acting in breach of the suspension,having conferred with Ms Olivier about the scope of what he could do while undersuspension.[92] Responding to Mr Jones' submission, Mr Hodge submits that Mr Macdonald'sperceptions about the defendant's conduct were given due weight. He submits hisperceptions provided context for why Mr Macdonald submitted a confidential reportto the Law Society. He further submits the fact that the evidence of Mr Moyes andMr Jones, in support of Mr Burcher, was not referred to in the Tribunal's decision,does not mean the Tribunal failed to take that evidence into account.[93] Mr Hodge also submits that, had the Tribunal not found Mr Burcher's conductto be disgraceful and dishonourable, it still would have been open to the Tribunal tofind Mr Burcher had engaged in misconduct under s 7(1)(a)(ii) on the evidence. Thatis, he had recklessly or wilfully failed to comply with a conditional restriction to whicha practising certificate was subject. The restriction in this case was failure to complywith the suspension.[94] Finally, Mr Hodge also submits that, in the alternative, the conduct wasunsatisfactory. That is, the conduct was unbecoming of a lawyer or would constituteconduct consisting of a failure to comply with a condition or restriction to whichpractise is withheld by the lawyer.Assessment[95] I propose to address the particulars individually to assess whether any of themamount to disgraceful or dishonourable conduct. As a preliminary observation, I agreethat disgraceful and dishonourable conduct is not limited to intentional wrongdoing.19 Citing Auckland Standards Committees No 3 and 4 v Bambrook, above n 18; Central StandardsCommittee v Meyrick [2018] NZLCTD 28.But, it is clear from the authorities that the presence or absence of an intentional breachof expected standards, together with the presence or absence of harm (includingfinancial and/or emotional harm) to a client or third person, will be relevant to theassessment.20 Having said that, we are dealing here with the performance of legalwork while suspended. Limited tolerance only is to be afforded to such conduct.Particular 1[96] As will be evident from my review, I consider this particular to be on theborderline of breach. While, by necessary implication, it required Mr Burcher to drawon his legal training and experience, I accept that the instructions were largely of aperfunctory nature, and might be expected of a solicitor/trustee acting in his role as amere trustee only. I therefore do not consider this amounts to misconduct. I do,however, consider it to be unsatisfactory conduct insofar as it should have beenobvious to Mr Burcher that a bright line separation between his role as a trustee andany work as a lawyer needed to be clearly drawn and he failed to do that.Particular 4[97] As noted, I have found this particular does not infringe or breach thesuspension because, to my mind, it was clearly in the nature of instructions by a trusteeconcluding the terms of an agreement. However, if I am wrong about that, likeParticular 1, I would not consider this misconduct. Also, for the same reasonsexplained in relation to Particular 1, it would have been unsatisfactory conduct.Particular 9[98] The actions in relation to Particular 9, as I have said, were clear breaches ofthe suspension order and thus expected standards. This particular provides sufficientgrounds for disgraceful and dishonourable conduct. Mr Burcher should have knownthat providing a draft brief of evidence was plainly the job of a lawyer and one heshould not have undertaken, even if he had knowledge of the relevant events. He has20 See Complaints Committee No 1 of the Auckland District Law Society v C, above n 18; AucklandStandards Committee No 3 and 4 v Banbrook, above n 18; Deobhakta v Waitako Bay of PlentyStandards Committee, above n 18; Ellis v Auckland Standards Committee No 5, above n 18 at[42]; Mr A v Canterbury Westlands Standards Committee No 2, above n 18 at [71] to [79];Waikato Bay of Plenty Standards Committee v M, above n 18.clearly crossed the bright line here. The absence of harm is not sufficient to mitigateand thereby enable a different, more lenient result.Particulars 2 and 3[99] While, again, the steps Mr Burcher took in relation to Particulars 2 and 3involved a breach of the suspension order, I consider that breach to be relatively minor.The "instructions" were largely perfunctory and, in any event, served only to ensurethe client's interests were properly protected. I would not categorise this asmisconduct or unsatisfactory conduct, given the particular circumstances of thebreach.Particular 5[100] This involved a clear breach of the suspension. Mr Burcher was obligated notto undertake legal work of this type. I acknowledge, however, that the breach involvedwork for a close friend. I also acknowledge that it was not done for gain, pecuniaryor otherwise, and it did not cause harm to the friend. Given these factors, I would notfind this conduct to be disgraceful but, rather, unsatisfactory.Particulars 6, 7 and 8[101] Mr Burcher's primary defence to this charge was that he was acting as a trustee.But the work he was undertaking was clearly, as he put it, in his capacity as a"solicitor/trustee". He has crossed the bright line here again and, given the scale andcontent of the work, it amounts to disgraceful conduct warranting censure. Iacknowledge, however, that minor refinements to the approach taken, namely, theactive engagement of a senior lawyer rather than a legal executive and the giving ofinstructions in a transparent way with a senior lawyer present, would have avoidedthis issue. It is a matter for the Committee, but I consider this should be relevant topenalty. This is also where Mr Moore and Mr Darlow's evidence is particularlyhelpful. While there has been a breach here, it might be said to be a breach of formrather than substance, particularly given the roles taken by solicitor/trustees in theirrole as trustees. It nevertheless should sound a salutary warning to solicitor/trusteesto be careful insofar as their advice to the trust and their actions require theperformance of legal work of any nature.[102] Overall, I am satisfied there was a proper basis for finding disgraceful anddishonourable conduct in relation to Particulars 6, 7, 8 and 9. I am also satisfied thatParticulars 1 and 5 both amount to unsatisfactory conduct. I would otherwise dismissthe charges.The evidence of Christopher Patrick Eisdell Moore[103] Mr Jones also submitted the Tribunal's assessment of Mr Moore's evidencewas wrong. Mr Moore is a very experienced practitioner specialising in property law.He provided evidence in support of Mr Burcher to the Tribunal and he has provided afurther brief to this Court. Where relevant I have referred to Mr Moore's evidenceabove. Contrary to the Tribunal's findings, I have found Mr Moore's evidencesubstantially helpful insofar as it explains the role played by solicitor/trustees and thecommon practice of a solicitor/trustee. The following passages were particularlyhelpful:18 Where a solicitor is a trustee and is intimately involved in the affairsof his trust/clients, as certainly seems to have been the case here, thesolicitor will generally be operating in two capacities: as a trustee, andas a professional adviser. Most trustees recognise this dual role, andprovide for a professional trustee to be remunerated for his or herefforts on behalf of the trust, ie in their trustee roll. It goes withoutsaying that they must also be remunerated for their professional role,in the present case, for legal services provided. It will be seen that asolicitor who is also a trustee may be both the client, and the legaladviser to the client.19 In my experience few solicitors who are active trustees would makemuch (or any) distinction between their role as a professional trusteeand their role as a solicitor, and would bill for time spent on the matteras though the distinction did not exist. .[104] Mr Moore's descriptions of Mr Burcher's quality as a lawyer were notsubstantially helpful, but nor did they act to disqualify his evidence. To my mind,those comments simply reflected his opinion of Mr Burcher without revealing any lackof independence. It is not strictly necessary therefore for me to say more. However,there is one aspect which I think requires further comment.[105] Mr Moore observed:21 If Mr Burcher could provide assistance to the trust having ceased tobe a lawyer (so long as he did not seek to be remunerated), as asuspended lawyer he should also have been able to provide suchassistance to the trusts, on an unpaid basis.[106] With respect, Mr Moore is wrong about this. It highlights an underlyingproblem with Mr Burcher's case; that is an assumption that a suspendedsolicitor/trustee does not provide regulated services when he or she performs legalwork for the trust. A suspended lawyer is still a lawyer, but is deemed to be unfit topractice and, for that reason, is suspended. The entire object of the sanction was toensure that the suspended lawyer (here, Mr Burcher) did not perform those serviceswhile suspended.[107] I wish to add in this regard that the protective object of suspension relates notonly to lawyers that act in good faith. It also relates to lawyers that might act in badfaith. While there is no issue of bad faith in this case - Mr Burcher was, in effect,looking to the best interests of the trusts upon which he was a trustee, for his clients,and his friend - the object of s 7 is to ensure proper standards are met, whatever thelawyer's intentions.Outcome[108] The appeal is allowed in part. Particulars 2, 3 and 4 do not amount tomisconduct or unsatisfactory conduct. Particulars 1 and 5 do not amount tomisconduct, but amount to unsatisfactory conduct. I am satisfied, however, that therewas a proper basis for finding disgraceful and dishonourable conduct in relationParticulars 6, 7, 8 and 9.[109] I make two further observations. It is plain to me that Mr Burcher was actingat all times in the best interests of the persons for whom he was engaged in legal work,but he overstepped the mark in doing so. In addition, it appears that for the most part,Mr Burcher did not intend to breach the suspension order. While not exculpatory, theabsence of intentional breach is relevant to the assessment of the seriousness of thebreach, as is the fact that there was no harm done. In some cases that might mean theconduct does not amount to misconduct. In others, it will be, as here, relevant topenalty.