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Petitioner: New Zealand Law Society VS Respondent: John Llewellyn Stanley
Court Name: Supreme Court of New Zealand Judge(s): Winkelmann, William Young, Glazebrook, O Regan, Ellen France Title: New Zealand Law Society vs John Llewellyn Stanley Case No.: SC No. 41/2019 Date of Judgment:2020-08-17 Reported As: 2020 SCMR 1972 Result: Appeal Dismissed
JUDGMENT
JUDGMENT WILLIAM YOUNG, O'REGAN AND ELLEN FRANCE, JJ (Given by Ellen France, J) Introduction [1] Mr Stanley , the respondent, completed the necessary academic and professional qualifications for admission as a barrister and solicitor of the High Court as a mature student. (He is now 67 years of age.) The New Zealand Law Society (the Law Society), the appellant, refused to give him a certificate of character essentially because of concerns about his character . Those concerns relate to his history of criminal offending, which includes four convictions for driving with excess breath/blood alcohol, and his attitude towards that offending. Without a certificate of character 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 in terms of the Lawyers and Conveyancers Act 2006 (the Act) and refused his application. [2] Mr Stanley appealed successfully from this decision to the Court of Appeal. The 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. Mr Stanley has now been admitted as a barrister and solicitor and has been issued with a practising certificate. [3] The Law Society appeals with the leave of this Court from the decision of the Court of Appeal determining that Mr Stanley was a fit and proper person.The appeal raises questions about the approach to be taken to s 55 of the Act. Section 55 provides that for the purpose of determining whether or not an applicant for admission is a "fit and proper person" to be admitted, the High Court or the Law Society "may take into account 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:1 2 3 4 5
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(a) whether the person is of good character: .... (c) whether the person has been convicted of an of fence in New Zealand or a foreign country; and, if so,-- (i) the nature of the of fence; and (ii) the time that has elapsed since the of fence was committed; and (iii) the person's age when the of fence was committed: ... [4] To determine the appeal it is necessary to consider three questions. The first question is the approach to be taken to the fit and proper person standa rd in s 55(1) where the applicant for admission has previous convictions. That will require consideration of the statutory scheme and the way in which it has been interpreted to date. The second question is how the principles apply to Mr. Stanley . The remaining question is whether (and, if so, how) Mr. Stanley's name could be removed from, the roll of barristers and solicitors should the appeal be allowed. The statutory scheme [5] The legislative history of the discipline of the legal profession, the establishment of the Law Society and the Society's role in professional discipline is discussed in some detail by McGrath J in Auckland District Law Society v B. For present purposes it is sufficient to note that two aspects common to professional discipline generally , that is, controls on those who wish to enter the profession and on the conduct of those within the profession, have been reflected in New Zealand law governing the legal profession since the Supreme Court Ordinances of 1841 and 1844. [6] A wide range of professions have good character and competence requirements for entry . The content of those requirements may vary according to the profession, In terms of lawyers in New Zealand, the content of the fit and proper person and good character requirements needs to be considered in light of the statutory scheme. The purposes of the Act provide the starting point. The relevant purposes are set out in s 3(1) as follows: (a) to maintain public confidence in the provision of legal services ....: (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, amongst other things, reformed the law relating to lawyers and provided for a "more responsive regulatory regime" for lawyers. To achieve the purposes, the Act also prescribes the "fundamental obligations with which, in the public interest, all lawyers.... must comply in providing regulated services". These fundamental obligations are set out in s 4 and include the following: (a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand: .... (c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients: (d) the obligation to protect, subject to his or her overriding duties as an officer 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 solicitors in New Zealand are set out in Part 3 of the Act. Under s 48(1), every person admitted by the High Court under the Act "must be admitted as a barrister and solicitor". Once admitted, every person so admitted is generally entitled "while his or her qualification continues, to practise in or before any court or tribunal". [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 least one of the categories in the section. Relevantly , s 49(2) provides that the first category comprises those persons who: (a) have all the qualifications for admission prescribed or required by the New Zealand Council of Legal Education; and (b) are fit and proper persons to be admitted as barristers and solicitors of the High Court; and (c) meet the criteria prescribed by rules made under section 54.6 7 8 9 10 11 12 13 14 15
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[10] A certificate of character from the Law Society is evidence the applicant is a fit and proper person. Section 51 provides that: A certificate purporting to be signed by the executive director of the New Zealand Law Society , or a person authorised for the purpose, ... by the Council of the New Zealand Law Society , and certifying that [an applicant] is both a fit and proper person to be admitted as a barrister and solicitor of the High Court and a person who meets the criteria prescribed by rules made under section 54 is, in the absence of proof to the contrary, sufficient evidence of those facts. [11] If a person wishes to be admitted on the grounds that he or she is qualified under the first category described in s 49(2), the applicant must apply to the High Court in accordance with the Act and any rules made under the Act. Section 52(2) provides that the High Court must make an order admitting the person as a barrister and solicitor if: (a) the High Court is satisfied that the [applicant] is qualified for admission 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 proper person to be admitted as a barrister and solicitor of the High Court, the High Cour t or the New Zealand Law Society may take into account any matters it considers relevant and, in particular , may take into account any of the following matters: (a) whether the person is of good character: (b) whether the person has, at any time, been declared bankrupt or been a director of a company that has been put into receivership or liquidation: (c) whether the person has been convicted of an of fence in New Zealand or a foreign country; and, if so- (i) the nature of the of fence; and (ii) the time that has elapsed since the of fence was committed; and (iii) the person's age when the of fence was committed: (d) whether the person has engaged in legal practice in New Zealand when not admitted under this Act or a corresponding law , or not holding an appropriate New Zealand practising certificate, as required by 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 do so; or (ii) if permitted to do so, in contravention of a condition of the permission: (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 or disciplinary body for persons engaging in legal practice under a corresponding foreign law: (g) whether the person- (i) is a subject of current disciplinary action in another profession or occupation in New Zealand or a foreign country; or (ii) has been the subject of disciplinary action of that kind that has involved a finding of guilty , however expressed: (h) whether the person's name has been removed from a foreign roll, and that person's name has not been restored: (i) whether the person's right of practice as a lawyer has been cancelled or suspended in a foreign country: (j) whether the person has contravened, in New Zealand or a foreign country , a law about trust money or a trust account: (k) whether the person is subject to an order under this Act or a corresponding 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 physic al condition, the person is unable to perfo rm the functions required for the practice of the law . [13] Under the previous legislative regime, the Law Practitioners Act 1982 and the Rules made under that Act, every applicant for admission was required to show evidence of good character "and" evidence that the applicant16
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was a fit and proper person. Those requirements were treated as "discrete and conjunctive requirements for admission". Under the current Act, good character is a subset of the fit and proper person standard. As Wylie J said in Brown v New Zealand Law Society, "it is possible that a person could be of good character but not fit and proper for unrelated reasons". [14] Section 55(2) makes it clear that either the Court or the Law Society may decide that a person is fit and proper even though that person falls within any of the categories mentioned in any of the paragraphs in s 55(1) or does not meet all of the criteria prescribed by rules made under s 54. Finally , s 55(3) also expressly provides that s 55(1) does not limit the grounds on which it may be "determined that [an applicant] is not a fit and proper person" or the criteria that may. be prescribed by rules made under s 54. The inquiry is not constrained in the sense that factors other than Use listed matters may be considered. The section is a guide. [15] Under s 56 of the Act, the Registrar must maintain a roll of barristers and solicitors. Once the High Court makes an order admitting any person as a barrister and solicitor , and on payment of the relevant admission fee, the Registrar "must place that person's name on the roll" . [16] The Law Society's functions include controlling and regulating the practice in New Zealand by barristers and solicitors of the profession of law and upholding the fundamental obligations imposed on lawyers who provide regulated services in New Zealand. The functions also include assisting and promoting, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law". Under s 67(2)(d) the Law Society is expre ssly given the power to "oppose any application made for admission as a barrister and solicitor , or any other application made under [the] Act". [17] Section 94 requires the Law Society to have practice rules providing for specified matters which include "(a) the criteria for eligibility for a practising certificate", "(e) standards of professional conduct and client care", and "(o) the kinds of conduct, including criminal offences, for which a practitioner or 'former practitioner may be disciplined". 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 for discipline" . [18] Finally , reference should be made to the Lawyers and Conveyancres 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 , and fitness of applicants, and "generally in respect of any matter relating to the admission of [applicants] as barristers and solicitors". Section 54(2) states that the rules may prescribe "non-educational criteria" which "may preclude the admiss ion of a person who has, at any time, been convicted of an offence of a kind or class specified in rules made under this section or who has, at any time, been declared bankrupt". The present Rules do not prescribe any such criteria. [19] Under r 5(1) of these Rules, a person in Mr. Stanley's position is required to apply to the New Zealand Council of Legal Education for a certificate of completion and to the Law Society for a certificate of character . These documents are then exhibited to the affidavit in support of the application for admission required to be filed by r 5(2). We interpolate here that in this case the Society delegated the decision as to whether or not to issue a certificate of character to its Practice Approval Committee. This Committee has delegated authority from the Board of the Law Society to deal with non-standard practice approval matters. (20] Rule 6 addresses the situation in which Mr Stanley found himself when the Law Society declined to provide a certificate of character . In that situation, the applicant for admission must serve a copy of their application on the Law Society within two days of filing it in the High Court. Under r 6(4)(a), the Law Society must, within 21 days of receipt, serve on the applicant a notice of opposition setting out the grounds 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 a hearing" at which the Law Society must be represented. [21] Rule 8(1) provides for every application for admission to be determined by a High Court judge. The position in comparable jurisdictions [22] In England and Wales, Australia and Canada there are similar "fit and proper person" and/or "good character" requirements for entry to the legal profession. England and W ales17 18 19 20 21 22 23 24 25 26 27 28
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[23] In England and Wales, a. certificate of "character and suitability" is a prerequisite to becoming a solicitor . Character and suitability is assessed by the Solicitors Regulation Authority (SRA), which is the approved regulator for solicitors under the Legal Services Act 2007 (UK). The phrase "character and suitability" replaced the previous requirement of "moral fitness"; an example of more modern language. [24] In assessing character and suitability , the SRA takes into account: (a) the "overriding need" to "protect the public and the public interest" and "mainta in public trust and confidence in the solicitors' profession and in legal services provided by authorised persons"; and (b) the nature of the individual's role and individual circumstances on a case by case basis. [25] The SRA Assessment of Character and Suitability Rules also provide that the SRA will consider criminal conduct when assessing character and suitability . This is subject to legislation equating to New Zealand's Criminal Records (Clean Slate) Act 2004 (the Clean Slate legislation), although convictions and cautions which are "spent" in the terms of the equivalent legislation must, with some exceptions, be disclosed to the SRA. The SRA also bears in mind "the public interest in supporting the rehabilitation of offenders". Criminal conduct is assessed in accordance with a table in the Rules which sets out a non-exhaustive list of types of offending categorised as "most serious", which is "likely to result in refusal", and "serious", which "may result in refusal". Finally, the Rules set out a non-exhaustive list of aggravating and mitigating factors informing the character and suitability assessment. For example, the absence of evidence of successful rehabilitation is an aggravating factor, while the converse, evidence of successful rehabilitation, is a mitigating factor. [26] Similarly , those who wish to become barristers must pass a "fit and proper person" check. The test for determining fitness and propriety is whether the applicant is "capable of upholding the Core Duties which underpin the behaviour expected of barristers". The purpose of the inquiry is to ensure public confidence in, and maintain the reputation of, the profession. 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 Barring Service]" . Such disclosure will not automatically result in an application being refused. Rather, the type of offence, the sentence imposed and the length of time since the sentence ended must be considered. Other factors that may be considered include the 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 or alcohol was a factor, the applicant's attitude towards the events, and evidence of rehabilitation. Australia [27] In Australia, one of the requirements for admission is that the person is a fit and proper person to be admitted to the legal profession. Apart from South Australia, legislation or rules in the other Australian jurisdictions list "suitability matters" for the decision maker to consider in determining whether the person is a fit and proper person. The suitability matters are similar to the considerations in s 55(1) of the New Zealand Act, including the consideration of "good fame and character", whether there have been past convicti ons and, in the event there have been past convictions, the nature of the offending, the time that has lapsed since the offending and the applicant's age when the of fence was committed. Canada [28] In Canada, law societies must ensure that applicants for admission are of good character and reputation.The terminology commonly used is "good character and reputation" or "good moral character". There is also some reference to the "fit and proper person" standard. In Saskatchewan, "suitability to practise" is defined as "honesty, governability, financial responsibility and respect for the rule of law and the administration of justice" . The authorities [29] The principles applicable to deciding whether an applicant is a fit and proper person or similar standards have been considered in numerous cases in New Zealand and in comparable jurisdictions. There is no controversy as to those principles and so no need to undertake an historic review of those cases. Relevant principles emerging from the cases will be canvassed in the course of the discussion which follows and it suffices at this point simply to briefly summarise the approach taken.29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49
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New Zealand [30] Lincoln v New. Zealand Law Society provides a recent illustration of the approach taken to the assessment of the fit and proper person standard in the New Zealand authorities. The Court of Appeal in that case summarised the approach in this way: (a) The Court should not lightly prevent [an applicant] being admitted when they have achieved the qualifications prescribed by the New Zealand Council for Legal Education. (b) [An applicant] for admission is not to be punished for past wrongdoing. (c) An assessment of the [applicant's] fitness to be admitted as a barrister and solicitor must focus on protecting the public and the profession." (d) The assessment must be prospective. It requires an evaluation of the [applicant] at the time of their application and the risks, if any , they pose in the future to society and the profession's reputation. (e) The concept of a fit and proper person incorporates standards of integrity , and "moral rectitude of character". (f) Where [an applicant] has been involved in some past indiscretion the Court must be satisfied that the "frailty or defect 01 character" indicated by the earlier behaviour can be safely regarded as "spent". (g) The Court is required to make an objective judgement based on all relevant evidence when assessing the ability of the [applicant] to comply with the fundamental obligations imposed upon all lawyers. (footnotes omitted) Comparable jurisdictions [31] The approach taken in the authorities for England and Wales is illustrated by Jideofo v The Law Society , which in turn derived the relevant principles from the leading authority in the context of post-admission conduct of Bolton v Law Society : (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 a risk to the public or a risk that there may be damage to the reputation of the profession; and (iii) ... no one has the right to be admitted as a solicitor and it is for the applicant to discharge the burden of satisfying the test of character and suitability . [32] As in New Zealand, the two regulatory objectives are of protecting the public and maintaining the reputation of the profession in order to maintain public confidence in the profession. [33] There is also no significant difference in approach in either Australia or Canada. Relevantly , there is much the same focus on the particular requirement s of the legal profession 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". [34] We turn now to the approach to be taken to the fit and proper person standard with particular reference to issues arising from past convictions. This discussion draws on the existing body of cases. Those cases include a number of the earlier authorities 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 person standard has to be interpreted in light of the purposes of the Act. Those purposes broadly reflect two aspects. The first aspect is the need to protect the public, in particular by ensuring that those whose admission is approved can be entrusted with their clients' business and fulfil the fundamen tal obligations in s 4 of the Act. The second aspect is a reputational aspect reflecting the need to maintain the public confidence in the profession at the present time and in the future. This second aspect also encompasses relationships between practising lawyers and between lawyers and the court. [36] While some of the language is outdat ed, the. essence of the first aspect is reflected in the judgment of Skerrett CJ in Re Lundon : The 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 for50 51 52 53 54 55 56 57 58 59 60 61
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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. [37] The observations of Kitto J in Ziems v The Prothonotary of the Supreme Court of New South Wales to similar effect also remain pertinent today . With reference to Ziems , Spigelman CJ in a more recent judgmen t of the New South W ales Court of Appeal described "four interrelated interests" as follows: Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the…
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