Mr Small was working as a sole practitioner for Pegasus Consultancy Ltd, trading as Papamoa Law. From July 2022, Mr Small allowed his trust account to be overdrawn by approximately $55,000. This continued for over a year. By his own admission, for at least three to four months leading up to August 2023 when the New Zealand Law Society Te Kāhui Ture o Aotearoa Inspectorate became involved, Mr Small had employed various means to use client funds for his own purposes. This included creating fictitious invoices to make payments to himself and making payments without client authority. The total amount misappropriated by Mr Small was at least $97,000. Mr Small admitted to the Inspectorate that he used client funds for his personal benefit, and that he was operating a trust account without a practising certificate. Following this admission, his practice was handed over to his attorney.

In terms of liability, the Tribunal considered the amount of money misappropriated, the duration of the conduct, and the number of deceptive techniques employed by Mr Small to misappropriate funds, all of which amounted to misconduct. The Tribunal noted that the number of unlawful transactions (at least 24) was significant, but cautioned “even one intentional transaction of a low amount will still be a very serious matter and almost inevitably result in a finding of misconduct.” It added that “any lawyer who deals with a client’s funds in a dishonest manner, for personal benefit, can also expect to be viewed by lawyers of good standing as having behaved in a disgraceful and dishonourable manner."

Turning to penalty, the Tribunal considered the loss to clients, and in turn the profession via the Fidelity Fund, as well as Mr Small’s disciplinary history (noting that Mr Small has had three previous findings of unsatisfactory conduct against him) as aggravating features. The Tribunal noted Mr Small had told the Law Society he was struggling with a number of personal issues leading up to and at the time he had misappropriated the funds. However, Mr Small had not participated further in the investigative or disciplinary process and therefore had not provided any further information that the Tribunal could consider in terms of mitigation.

The Tribunal was unanimous in its view that Mr Small was no longer a fit and proper person to be a lawyer, asserting that “the public must be able to completely trust a lawyer to deal honestly and with integrity, particularly with client funds. Further, to maintain the confidence of the public in the profession, there needs to be the strongest disciplinary response when a lawyer falls below these standards.” Mr Small was struck off the roll of barristers and solicitors and ordered to pay costs.