SUN v NEW ZEALAND LAW SOCIETY [2014] NZHC 1318

SUN v NEW ZEALAND LAW SOCIETY [2014] NZHC 1318 [12 June 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2014-485-389[2014] NZHC 1318IN THE MATTER of the Lawyers and Conveyancers Act2006BETWEEN ZAK ZUECONG SUNApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 29 May 2014Counsel: Applicant in personP Collins for RespondentJudgment: 12 June 2014JUDGMENT OF WILLIAMS J[1] At the conclusion of this hearing, I gave judgment for the application. I now set out my reasons.[2] Mr Sun applies for admission as a barrister and solicitor of this Court under s 52 of the Lawyers and Conveyancers Act 2006 and under rr 5 and 6 of the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008.[3] The executive director of the New Zealand Law Society (NZLS) has refused him a certificate of character under s 51 of the Act. This refusal followed consideration of s 55. That section contains a list of 12 express relevant considerations for NZLS in making its judgment, but it is common ground that none of them apply. Rather, the refusal was on the basis of the general residual discretion under s 55 to take into account "any [other] matters it considers relevant".[4] The NZLS refusal triggers a contested hearing before this Court on the question. This is not a review or appeal of the NZLS decision. Rather, it is a de novo hearing of the matter with no legal onus on the applicant although he will carry an evidential burden. I must now make my own decision on the basis of the evidence before me, including of course, the NZLS decision itself.[5] Mr Sun provided a number of references to NZLS from various employers and colleagues. They were positive and supportive. The Wellington Branch nonetheless decided he needed to be interviewed by Branch Officers and the matter referred to the Practice Approval Committee for final decision before a certificate could be provided. This apparently was because the applicant did not "adhere totimeframes and there were always delays in obtaining the information required toissue the certificate of character." The interview took place on 5 November 2013.The interview did not assist Mr Sun. Ms Attrill's reflections on it are as follows:1During the interview, the Officers asked Zak about the attributes he believed were necessary for admission to the bar. The officers were of the opinion that he displayed limited understanding of, and somewhat casual approach to the desirable characteristics of what a fit and proper person would be to practise law including honesty and integrity. They also asked him about the skills that a lawyer needed. Zak did not seem able to focus on the skills and attributes required and, when asked about coping strategies for the future to enhance time management and research skills, his replies did not address satisfactorily the issues perceived by the Officers and Branch Manager. They were particularly concerned at the lack of research and seeming lack of understanding of the importance of timeframes and the impact this might have on future clients. Zak did not appear to have an appreciation or understanding that he would need to take responsibility for implementingprocesses to ensure clients' needs were met.The Officers carefully considered Zak's application and took into account hisdemeanour and attitude during the interview and concluded that they were unable to sign-off on his application for a Certificate of Character.[6] Following the interview, there was a series of tense email exchanges in which Mr Sun challenged the approach the Branch had taken. An example of one communication from him to Ms Attrill caught my eye and is indicative of the tone ofMr Sun's communications. It was sent on the 25th of November 2013:I admit these professions of ignorance and requests for assistance in relation to your requirements may give weight to the Wellington Branch allegations1 A memorandum from Lisa Attrill to Catherine Harris, 12 November 2013.regarding my research skills. I note however that if in fact the information requested is not available for public consumption without personal contact with yourself, the duplicity in bringing my research abilities into question and protesting delays in receiving required information while contemporaneously obfuscating the nature and form of that selfsame information becomes evident. I find this especially meaningful in light of the Wellington Branch claim that my supposed failings in this arena could impact future clients.My understanding of the Law Society was as an association of colleagues operating for the common good. I hope this remains the case going forward.[7] A memorandum was prepared by Sarah Inder for the Practice Approval Committee of which she is secretary. The memorandum summarised the WellingtonBranch's concerns as follows:Delays in obtaining the information required to support his applicationAn apparent limited understanding of, and somewhat casual approach to the desirable characteristics of a fit and proper person which is required to be admitted to the bar, including honesty and integrityAn inability to focus on the skills and attributes required of a lawyerA lack of research and seeming lack of understanding of the importance of timeframes and the impact this may have on future clientsAn apparent lack of appreciation or understanding that he would need totake responsibility for implementing processes to ensure clients' needsare metHis general demeanour and attitude at the interview.[8] On 12 December 2013, the Practice Approval Committee comprising Frank Godinet, Anne Stevens and John Brandts-Giesen received the Branch's report andaccompanying information. The Committee decided as follows:The Committee consideration the information submitted by Mr Sun, including the comments from the Branch interviewers. The Committee was concerned Mr Sun did not understand the regulatory role of the Law Society, and had no appreciation of fundamentals of legal practice or the profession. His references were not informative of matters relevant to how he would function as a lawyer. His responses to correspondence with the Law Society showed a lack of judgment.The Committee agreed it could not accredit Mr Sun to the public. He did not meet the standard of a fit and proper person under s 55 of the Lawyers and Conveyancers Act, and therefore it could not issue Mr Sun a Certificate of Character. The application is declined.[9] This is an unusual case. There is no past misconduct or dishonesty. Rather, the Branch, and it appears the Committee, were worried about Mr Sun's attitude and his apparently poor grasp of the responsibility to be borne by a legal practitioner. These shortcomings seemed (the Branch and the Committee felt) to be reflected in Mr Sun's apparent inability to meet deadlines and do the background work necessary to demonstrate an understanding of the burdens of legal practice. In short, the Branch and the Committee seemed to think that Mr Sun had an attitude problem.[10] As counsel for NZLS submitted, most of the cases in which the NZLS opposes admission or re-admission involved past wrongdoing of some kind. See for example Singh v Auckland District Law Society, Re M, Pou v Waikato/Bay of Plenty Law Society, Re Burgess and Re Gazley.2[11] One case, Re Donnelly, did not involve wrongdoing. Rather, the applicant simply was unable to obtain adequate character references to satisfy the NZLS. Peters J in dealing with the application considered that a determination had to bemade "on the evidence which is available in assessing whether it gives the degree of assurance which is required.3 That is not the problem in this case.[12] The classic statement in Re Lundon is all that is required (sexist language to one side) to underscore the importance of maintaining the highest standards in the profession:4The 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 is possessed of such integrity and moral rectitude of character that he may be safely accredited by the Court to the public to be entrusted with their business and private affairs.[13] Mr Collins for NZLS sought leave to cross-examine Mr Sun and such leave was granted. There followed a series of pointed but fair questions designed to test Mr Sun's attitude toward timeliness, professional standards, skills and attributes and2 Singh v Auckland District Law Society [2003] 3 NZLR 392 (HC), Re M [2005] 2 NZLR 544 (HC), Pou v Waikato/Bay of Plenty Law Society (unreported, HC Rotorua CIV-2004-463-0511, 10 May 2005, Baragawanath and Courtney JJ), Re Burgess [2011] NZAR 453 (HC) and Re Gazley(unreported, HC Wellington CIV-2011-485-1776, 26 October 2011, MacKenzie J).3 Re Donnelly (unreported, HC Auckland, CIV-2010-404-5943 at [61].4 Re Lundon [1926] NZLR 656 (CA) at p 658.so forth. Mr Sun advised that he currently works for the Legal Aid section of the Ministry of Justice but hoped one day to become either a barrister in Chambers with more senior barristers, or a barrister and solicitor in a firm. He discussed his professional obligations to clients and to this Court, and accepted that the latter obligation transcended those to clients. He gave credible answers in terms of thelawyer's duty not to mislead the Court, and to maintain the standards of theprofession, to uphold the rule of law, and to facilitate the administration of justice.[14] He was asked about the qualities of a fit and proper barrister and solicitor in these terms:Q: What do you say the essential qualities of a fit and proper person to be admitted to the role of barristers and solicitors in this country?A: Well, I would say that's well covered by the jurisprudence we'veboth looked at.Q: Well, I'm asking, what do you say?A: I would agree with the authorities and say that integrity, probity and trustworthiness is all-important. I would also add competence and, especially in the legal aid sector, efficiency, and personally I would say that the ability to relate with a client is also important.Q: Do you accept that there are qualities required in a lawyer which might not be required in a non-lawyer member of the public?A: Only in the sense that a lawyer has a duty to hold those qualities, while a non-lawyer member of the public doesn't have the sameburdens on them.[15] A further example related to clients with unrealistic expectations:Q: Well, what would you do if you were faced with a client who had what you regarded as very unrealistic expectations in the mater in which you were representing that clients, but nevertheless the client insisted that you proceed to try and achieve those expectations?A: Well, I would say it's one of the obligations of a lawyer to managetheir clients, so I would do the best I could for them but be a hundred percent honest that their expectations may not be met within the realities of practice.Q: And you're aware of the lawyer's duty not to mislead the Court?A: Yes.Q: You're aware of the duty of candour of lawyers in dealing with theCourt? For example, in disclosing to the Court an adverse authority or precedent?A: Yes.Q: And how would you manage a situation with a client who wished you – instructed you emphatically to press on with a case where you were nevertheless facing, say, adverse authorities, how would you deal with that?A: As best as I could. You seem to have set it out perfectly. I would need to tell them about these adverse authorities, let them know about their realistic prospects of success and, if they wanted to go ahead, I would need to do it, even though I might personally think it would be a doomed cause.[16] Having reviewed Mr Sun's references, including references provided by hissupervisors at the Community Law Centre and the Ministry of Business, Innovation and Employment – both of which positions involved Mr Sun providing legal advice; and having reviewed the concerns expressed by the Wellington Branch and the Committee in light of my own assessment of Mr Sun in the witness box, I am well satisfied that he is a fit and proper person to practice as a barrister and solicitor of this Court.[17] Mr Sun appears to be an organised and clear thinker with a good appreciation of the obligations of legal practitioners to this Court, the profession and clients. In short, I am satisfied that Mr Sun has sufficient integrity and moral rectitude of character to be safely accredited by this Court to the public to be entrusted with their business and private affairs as required by Re Lundon.[18] He seems to have got off on the wrong foot by reacting badly to questions from the Wellington Branch that were posed as a result of his tardiness in processing his application for admission. This early hiccup should not prevent him from pursuing and attaining the goal of taking his place as a barrister and solicitor of this Court.[19] Mr Sun will be entitled to be admitted as a barrister and solicitor of this Court, upon completion of the necessary oaths and formalities at an admission ceremony.[20] No order for costs is required.___________________________Williams J