Tennet v Wellington Standards Committee 2

[2023] NZHC 1932

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000308

[2023] NZHC 1932

BETWEEN

CHRISTOPHER TENNET

Appellant

AND

WELLINGTON STANDARDS COMMITTEE 2

Respondent

Hearing:

7 July 2023

Counsel:

W C Pyke for Appellant

M Mortimer-Wang for Respondent

Judgment:

21 July 2023

JUDGMENT OF ELLIS J

[1]    Mr Tennet is a well known Wellington criminal defence barrister. He has practised law for over 40 years.

[2]    On 26 October 2022 Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found a charge of misconduct proved against him.1 On 17 May 2023, the Tribunal suspended Mr Tennet from practice as a lawyer for 12 months.2 The Tribunal ordered that the suspension was to begin on 22 June 2023. The Tribunal also ordered a period of supervision upon his return to practice, and that Mr Tennet was to:3

1      Wellington Standards Committee 2 v Tennet [2022] NZLCDT 37 [Liability Decision]. As noted later, the charge had two discrete aspects.

2      Wellington Standards Committee 2 v Tennet [2023] NZLCDT 20 [Penalty Decision].

3      Penalty Decision, above n 2, at [26].

TENNET v WELLINGTON STANDARDS COMMITTEE 2 [2023] NZHC 1932 [21 July 2023]

(a)attend courses on ethics, professional behaviour and self management;

(b)undergo counselling;

(c)pay costs of $40,798.40; and

(d)pay the Tribunal costs of $12,182 by way of reimbursement to the Law Society.

[3]    Mr Tennet accepts the Tribunal’s liability findings but has appealed the penalty, saying he should not be suspended at all. He applied for a stay of the suspension order, pending that appeal.

[4]    Although the Standards Committee was prepared to consent to a stay on an “interim interim” basis (until the stay application could be heard) the Committee firmly opposed any extension of the stay until the penalty appeal hearing, which was initially scheduled for 25 September 2023.

The liability decision

[5]    The Tribunal found Mr Tennet guilty of two instances of misconduct arising from a single charge. He rendered an invoice for $3,450 to a vulnerable client for a private assessment report relevant to sentencing, when the true cost was only $1,200. Then he destroyed the report, without giving it to her.

[6]    Mr Tennet had accepted that the conduct relating to the invoice was “unsatisfactory”, but the Tribunal went further. It found that falsifying the invoice (and then actively trying to solicit payment) would “reasonably be regarded by lawyers of good standing as disgraceful or dishonourable”.4 It breached the obligation to treat a client with respect and courtesy, and the duty of trust and confidence he owed to her. The Tribunal said the conduct “eats at the fundamental relationship of trust that a client should be able to expect”.5

4      Liability Decision, above n 1, at [42].

5      Liability Decision, above n 1, at [44].

[7]    The Tribunal also found that deleting the report (and failing to alert his former client and her new lawyer to it) “were breaches of his duties and the rules in all respects as we have found in respect of the falsely stated invoice”.6

The penalty decision

[8]    In the course of its penalty decision, the Tribunal noted three other recent findings against Mr Tennet made by Standards Committees and the Legal Complaints Review Officer. The Tribunal said these evidenced “a series of destructive behaviours in recent years”.7

[9]    The Tribunal’s “starting point”  for  the  penalty  was  striking  off.  It  said Mr Tennet’s “behaviours are not consonant with [him] being a fit and proper person to practise as a lawyer”.8 But in light of the many positive references from colleagues and clients (which had a “considerable impact” on disposition) the Tribunal reduced the penalty to suspension for a year.9 The Tribunal said this penalty offered Mr Tennet “the opportunity of redemption”.10

Stay?

[10]   Rule 20.10(1) of the High Court Rules 2016 provides that appealing a decision does not operate as a stay either of the proceedings themselves or of enforcement of the decision. But r 20.10(2) confers a discretion on the Court to order such a stay or to “grant any interim relief”.11 There is therefore no dispute that the Court has the jurisdiction to make an order of the kind sought here.

[11]Nor is there any dispute as to the guiding principles. The r 20.10 power

involves “a broad discretion to be exercised in the interests of justice”.12 Although a

6      Liability Decision, above n 1, at [54].

7      Penalty Decision, above n 2, at [13].

8      Penalty Decision, above n 2, at [14].

9      Penalty Decision, above n 2, at [15]; the maximum available period of suspension is 36 months.

10     Penalty Decision, above n 2, at [15].

11 Mr Mortimer-Wang submitted, what is sought here is more properly described as “interim relief” (that the suspension order not take effect pending resolution of the appeal) because a suspension order is not something that is “enforced”. It is convenient, however, simply to use the term “stay” as a form of shorthand in this judgment.

12 O’Connor v Wellington Standards Committee (NZLS) [2023] NZHC 1615 at [25].

number of potentially relevant factors have been identified in the various authorities, counsel’s  submissions  focused  principally  on  the  strength  (or  otherwise)  of   Mr Tennet’s penalty appeal, the likely impact on Mr Tennet if a stay is not granted and the protection of the public.

Discussion

[12]   I begin by noting that the Standards Committee does not dispute Mr Tennet’s bona fides in bringing the appeal.

[13] It also cannot be doubted that there is both a general and a specific public interest in the matter. At a general level, the purposes of the Lawyers and Conveyancers Act 2006 include “maintain[ing] public confidence in the provision of legal services” and “protect[ing] the consumers of legal services”.13 And specifically, there is a public interest in ensuring that Mr Tennet’s clients are protected—so far as is reasonably possible—from the possibility further misconduct.

[14]   Conversely, however, there is arguably a degree of public interest in permitting him to continue to work for his clients, provided any risk he is seen as presenting to them can be managed. I will return to that shortly.

[15]   As noted earlier, Mr Tennet seeks on appeal to have his suspension overturned in its entirety. Self-evidently, if that occurs then any period of suspension already “served” by Mr Tennet will have been without foundation and he will have suffered unjustified harm.

[16]   But, Mr Mortimer-Wang says this prospect is most unlikely, given Mr Tennet does not challenge the Tribunal’s liability finding or its assessment of the misconduct concerned. He says it was only the many testimonials and Mr Tennet’s previous good works that saved him from a more serious penalty.

[17]   Mr Mortimer-Wang accepts, however, that there is a possibility that the suspension period might be reduced on appeal.

13     Section 3.

[18]   At least on the face of it, there seems some force in Mr Mortimer-Wang’s submission as to the prospect of success. Beyond that bald observation, however, I do not wish to be seen as engaging in any extensive consideration of the merits here; I am conscious that the appeal is to be heard by another Judge. In any event, I think there are several points that may be made that render such analysis unnecessary here.

[19]   First, two of the disciplinary cases to which I was referred by counsel involved a considerable effluxion of time between the hearing of the appeal and the delivery of judgment.14 In both of those cases the period of supervision was reduced on appeal. If that were to be a gap of that kind here, then—absent a stay—any positive outcome Mr Tennet would, indeed, be rendered nugatory.

[20]   In the present case, there is some indication that the behaviour giving rise to Mr Tennet’s recent interactions with the disciplinary process have been actuated by stress and a downturn in his personal circumstances. The acute stresses experienced by members of the criminal bar in this country has received a considerable amount of attention in recent times.15 And given Mr Tennet’s many years of practice without disciplinary incident, a link of that kind is possible unsurprising.

[21]   Mr Pyke also says Mr Tennet now fully acknowledges the wrong he has done and takes responsibility for it. Although he initially disputed the seriousness of his conduct before the Tribunal, he accepts its findings; he does not appeal the liability decision. He has voluntarily undergone further ethics training and is willing to be subject to supervision while awaiting his penalty appeal. Mr Paul McBride has been identified as willing and able to undertake such a supervisory role.

[22]   In terms of further protection of the public—and as indicated to counsel after the stay hearing—it is possible to give the appeal an expedited hearing date that is a little over a month earlier than that which was originally allocated. Counsel have confirmed their availability on that date: 21 August 2023 and that date has now been allocated. And Mr Pyke had already advised the Court that he would seek an extension

14      Jefferies v National Standards Committee [2017] NZHC 1824; O’Boyle v Auckland Standards Committee 4 [2022] NZHC 3141.

15     See for example Morwenna Grills and James Barnett “A true picture of our broken legal aid system” (2021) 948 LawTalk 15.

of the stay only until then, with a view to the Judge hearing the appeal revisiting it, if considered necessary.

[23]   As is so often the case, there is a balance to be struck between the chance of rendering the appeal nugatory and the protection of the public.

[24]   The reality here is that even by the time of the Tribunal’s penalty decision, some six months had elapsed since its finding of misconduct. And in light of the other protective measures mentioned above I do not consider that the wider public interest or the clear interest in protecting Mr Tennet’s clients will suffer if a brief further stay is granted. That will ensure that—subject to any further order made by the Judge hearing the appeal—Mr Tennet’s interests are also protected.

Result

[25]   The overall balance of convenience favours a stay (by which I mean an order that the suspension shall not yet take effect) and I make an order accordingly.

[26]   The question of stay can, if considered necessary, be revisited after the appeal is heard by the Judge concerned. To the extent ancillary orders are required to facilitate appropriate supervision of Mr Tennet’s practice by Mr McBride in the meantime, memoranda may be submitted.

Rebecca Ellis J

Solicitors:

MC, Auckland for Respondent