The Best Lawyer In Town Has Left The Country
The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has ordered a 10-month suspension of an attorney who has left New Zealand without plans to return
the Tribunal was informed by counsel for the practitioner that his client was not intending to return from overseas in the immediate future and counsel sought leave to withdraw, which was granted.
The particulars
The agreed facts in this matter are set out in the particulars of the charge annexed as Appendix I. In summary, Mr Arman was engaged by Ms O to act for her partner WJ in respect of criminal proceedings. WJ had been charged with sexual violation by rape, and two charges of sexual violation by unlawful sexual connection. The stated victim was Ms O’s then 15-year-old daughter.
Ms O had found Mr Arman in a Google search for “best lawyers in Auckland”. The practitioner’s website had included testimonial stating that he was “best lawyer in town”.
A fee arrangement of $15,000 for representing WJ if the matter proceeded to jury trial was agreed. Despite the limited income of both Ms O and WJ, Mr Arman did not advise WJ about his ability to apply for legal aid.
Contact with the client was sporactic
At no stage did Mr Arman meet WJ at the practitioner’s office. All meetings were at Court immediately before or immediately following scheduled court appearances. The meetings generally lasted less than 30 minutes with the exception of the meeting on 29 August 2016 when the guilty plea was entered.
At no stage did the practitioner discuss trial strategy with WJ or Ms O. Nor did he seek or obtain instructions from WJ about his version of events, possible defence witnesses, or the possibility of non-party disclosure from Child Youth and Family or others. Nor did he discuss the nature of the defence for trial.
On the morning that the trial was due to commence, 29 August 2016, Mr Arman met WJ at the Manukau District Court. The agreed facts placed before this Tribunal acknowledged that Mr Arman pressured WJ to plead guilty rather than proceed to trial; that he told WJ he had no chance of successfully defending the charges and advised him wrongly in respect of likely sentencing outcomes.
It was found by Judge McNaughton that “neither the applicant nor Ms O were actually aware that 29 August was the date for the firm fixture”. His Honour rejected Mr Arman’s evidence that his client had got “cold feet” and pointed to the obvious discrepancy between that and the urgent summonsing of Ms O concerning the plea proposal that day.
The pressured plea was vacated
In his careful decision, Judge McNaughton granted the application to vacate WJ’s guilty pleas, having found there had been a substantial miscarriage of justice. The Judge concluded there had always been an available defence and that WJ had not received competent or correct legal advice, and that he had not pleaded guilty freely or on an informed basis.
The Judge’s comments about the practitioner’s evidence were that he had been “glib, discursive, careless as to matters of detail and ultimately a completely unconvincing witness”.
Sanction
We do not consider that a six-month suspension properly reflects the seriousness of this matter.
Having regard to consistency with other decisions we do not consider it would be proper to suspend the practitioner for more than 10 months. However, we accept the Standards Committee submission that he ought not to practice alone.
(Mike Frisch)