A senior lawyer who was found to be unfit after making more than half a million dollars in unauthorised transactions from a family trust and his late parents’ bank accounts has appealed the disciplinary findings against him.

The lawyer, referred to as Mr G because of interim suppression orders, was represented by Felix Geiringer in a two-day appeal in the High Court at Hamilton last week.

During a liability hearing in April, he denied the payments had been “self-serving” and spoke of his stress and emotional turmoil as he tried to manage his parents’ care amid a breakdown in his relationship with his sister.

He described himself as a “man on a mission” operating in a day-to-day “pragmatic way” and took only what he knew he would ultimately be entitled to.

But the tribunal did not consider the stresses upon him at the time, “even if accepted as described by [the lawyer]”, justified or excused his “repeated and long-lasting failures”.

A penalty hearing was previously scheduled for this week, but instead the matter went to the High Court for appeal.

The first part of the appeal challenged the Lawyers and Conveyancers Disciplinary Tribunal’s decision not to grant a stay of proceedings; the second challenged the liability findings from the proceedings that went ahead.

The oral submissions were lengthy and technical, and traversed the long, complex history of the Standards Committee’s prosecution, which stemmed from a complaint laid by the practitioner’s sister in 2019.

However, even when the proceedings began was in dispute, with Geiringer submitting the clock should have started when the sister laid an earlier complaint in 2013, despite the Standards Committee deciding it warranted no further action.

“At least some account needs to be taken for the fact that the appellant has been facing formal accusations from the same complainant about the same matters for 13 years,” he said, submitting the length of time was “unheard of”.

He submitted the delays had been lengthy and “undue” and a stay should have been granted, noting five successful appeals by Mr G in the course of the prosecution.

These included issues related to the tribunal’s refusal to disclose documents related to the initial complaint and to decline Mr G’s name suppression.

Another related to issues stemming from Mr G pleading guilty to charges, partway through an earlier hearing of the case, after the prosecutor at the time indicated to defence counsel during a break that he didn’t think it would be a strike-off offence.

Later, when the Standards Committee indicated it would seek strike-off, Mr G sought to withdraw his plea.

That led to further disputes over whether, after the withdrawal of plea was allowed by the High Court, the same prosecutor and tribunal panel could be involved in a rehearing.

Geiringer submitted the substantial delays were largely “caused by errors by prosecution or errors by the tribunal”.

The tribunal, in refusing to grant a stay earlier this year, viewed the successful appeals as the system working as it should to correct errors.

The tribunal removed two older allegations it conceded could not be fairly heard because of the lapse of time, but decided the remaining allegations were serious and able to be fairly tried.

But Geiringer said whether the court felt the prosecution had a strong case shouldn’t determine whether a stay was granted; instead, the issue was whether there was a breach of the right to have a trial without undue delay.

“If you take this as an approach of ‘it’s going to depend on whether we think they’re guilty or not’, ‘it’s going to depend on how outraged we are by the thing that they’ve been accused of’, then it is no longer a right that a person has,” he said.

He said his client had been “dealing with the stress of it, who’s been dealing with the harm to his practice of it, to the impact on the staff of it, to the loss of financial resources from it”.

The delays also led to an unfair liability hearing, in Geiringer’s submission, as the repeated successful appeals exhausted Mr G’s finances.

The tribunal had declined to give him interim costs after the successful appeals, so he represented himself in the liability hearing where he had “struggled a lot”, was “exhausted” and the lines were blurred as to whether Mr G was giving evidence or making legal submissions.

Geiringer was permitted to attend the hearing as a “Mackenzie friend”.

Questions raised over documents used to bring complaint

Geiringer’s overarching submissions related to the unfairness of the liability hearing and flaws in the evidence that was allowed to be heard or was missing.

He raised the issue of documents obtained by the complainant through a separate High Court proceeding, which she then took to the Law Society in making a complaint about the transactions.

Geiringer argued that material should not be used for the separate disciplinary complaint without the High Court’s permission, and this had never been sought or granted.

This amounted to an abuse of process, in his submission, as without the alleged “breach of undertaking”, the complaint and referral to the tribunal would not have occurred.

Justice Laura O’Gorman, KC, questioned this, as the documents disclosed by the practitioner through the High Court process and later used in the complaint were arguably related to his statutory duties as a trustee.

She also asked how things might have played out had Mr G refused to answer questions or provide documentation about the transactions.

“Without any information and with the person who conducted the transactions refusing to answer, would that put your client in a stronger position on the very issues that the tribunal had to determine?” she asked.

She also noted the practitioner had admitted the transactions were done without authority, and questioned how and why the tribunal should not be permitted to look at that.

Geiringer said specific transactions came from compelled material in the High Court process and while he accepted another lawful route might have produced a complaint, that was not what happened.

His underlying point was that but for the alleged breach of undertaking by the complainant, there may never have been a complaint to answer in the first place.

Other aspects of the appeal included the decision to allow a transcript of an earlier hearing to be referred to and form part of the evidence in the rehearing.

Geiringer also said notes made by Mr G’s parents about their expenses were important and this was not properly assessed by the tribunal.

He argued these documents could have explained some of the expenditure, as Mr G’s case was that some money was transferred as reimbursement for costs he’d incurred in the care of his parents.

Justice O’Gorman observed that a trustee or fiduciary who incurred the expenses would ordinarily keep their own records, and missing copies held by the practitioner’s mother would not be a complete answer to compliance with those duties.

It was accepted Mr G was a poor record keeper and Geiringer acknowledged the limitations of his “spoliation” argument, but said those failures did not eliminate the relevance of the allegedly removed records belonging to Mr G’s mother.

Geiringer also raised issues related to a witness, who was too sick to attend and has since died, and whether the hearing should have been able to proceed without him.

Justice O’Gorman reserved her decision, concluding the hearing with reference to the “voluminous” submissions, and noting some critical points in dispute did not have New Zealand case law.

She said there was “quite a bit of work to do in assessing those generic questions of law”, even before factual determinations.

Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.

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