Summary
The High Court dismissed a lawyer’s challenge of a Lawyers and Conveyancers Disciplinary Tribunal decision, to suspend him from practice for two months for refusal to provide information.
Background
Mr Kwon, a barrister specialising in immigration, had a complaint laid against him by a client’s husband. The complaint alleged Mr Kwon was at fault for an appeal to the Immigration and Protection Tribunal being made out of time, and that Mr Kwon said he would refund fees in relation to this but did not.
A Standards Committee was appointed. In investigating the complaint, they requested information under section 147 of the Lawyers and Conveyancers Act 2006 (“LCA”). They asked for all invoices, receipts, trust account records, client account information with records of payments and the terms of engagement.
Mr Kwon objected to the production of these documents on the basis of lawyer client privilege. The Lawyers Complaints Service responded that the documents were “not generally of the type that are subject to legal professional privilege” and gave him further time to comply with the s147 request.
Mr Kwon responded re-stating his position, and that he did not see legitimate grounds for the investigation into his practice.
The Standards Committee wrote to him setting out the difference between legal professional privilege and confidentiality, noting that section 147 overrode confidentiality. Section188(2) of the LCA ensures disclosure of information to a Standards Committee remains private and confidential.
Mr Kwon went on to make other arguments including that the complaint was an attempt to “extort money from him” and that the “complainants did not have standing”. He also claimed that complying with the request would contravene his fiduciary duty to his client.
The Case
The Tribunal
The key question was whether the failure to resist the section 147 request amounted to misconduct.
The Tribunal found the Standards Committee request was properly made under section 147 as the documents sought were “reasonably necessary” to investigate the complaint. It further found that Mr Kwon “totally misunderstood the provisions” of the LCA in which he referred to in refusing to provide information. This was despite the difference between confidentiality and privilege being made clear to him.
Mr Kwon provided the information sought to the Tribunal, but the Tribunal concluded that Mr Kwon’s resistance to the section 147 request was wilful and repeated, and therefore amounted to misconduct. Emphasis was placed on the importance of complying with section 147 requests:
In a separate penalty decision, the Tribunal censured Mr Kwon and suspended him, considering “the need for general and specific deterrence in this case to be significant”. They gave Mr Kwon“ considerable credit” that a few weeks before the hearing he had changed approach and demonstrated remorse, discontinuing an appeal against the misconduct decision. Another mitigating factor was that he had finally produced the requested information at the Tribunal stage.
The High Court
Mr Kwon appealed the Tribunal's penalty decision, arguing his suspension was unnecessary for public protection, the Tribunal improperly considered a previous unsatisfactory conduct finding, and that the penalty failed to adequately consider his rehabilitation and was not the least restrictive penalty necessary.
The Court applied the decision of Daniels v Complaints Committee 2 of the Wellington District Law Society which considered the Tribunal’s penalty function:
Mr Kwon failed to satisfy the Court that the Tribunal was wrong. Affirming the importance of deterrence in the circumstances, the Court stated that “compliance with Standards Committee orders is not negotiable”.
Result
The High Court upheld the Tribunal’s orders which included a two month suspension, censure and a requirement to take advice on the management of his practice from a senior practitioner for 12 month, and costs.
These decisions show the importance that the Tribunal and Courts place on maintaining the integrity of the disciplinary process in assessing penalties for misconduct. Lawyers should be aware of the very real consequences if they wilfully fail to comply with requests of Standards Committees. Even with mitigating factors, a suspension from practice is a possible outcome.
For further information on this case, issues related to the lawyer’s complaints regime or professional regulation generally, please contact Managing Director Brigitte Morten.
