New Zealand Law Society - Serious breaches of professional obligations
Published on 29 November 2019
Anthony Morahan has been censured and fined $2,500 for serious breaches of the professional obligations he owed to both the court and his client.
A lawyers standards committee commenced an own motion investigation after a District Court Judge referred a copy of his minute to the New Zealand Law Society. The minute noted that Mr Morahan had failed to appear for his client “on at least three occasions ... or to adequately explain to the Court why he could not appear”. The client was due to stand trial in respect of a criminal matter.
The minute ordered Mr Morahan to personally pay $400 costs, pursuant to section 364 of the Criminal Procedure Act 2011.
When ordered by the District Court to file a memorandum explaining his failure to appear, Mr Morahan responded by emailing the case manager. Mr Morahan apologised for “any inconvenience to the Court resulting from my indisposition and inability to attend when this matter was called”. He said he had “endeavoured to emphasise” to his client that he was incapacitated, “out of action”, and unable to work. He said he had advised his client to instruct new counsel since he “would not begin rehabilitation nor be able to return to work until next month”.
Upon receipt of Mr Morahan’s response, court staff conducted an internet search and learned that Mr Morahan was suspended from practice. A three-month suspension had been ordered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in respect of an unrelated matter. Mr Morahan had appealed that suspension but it was confirmed by the High Court about two months before Mr Morahan’s failure to appear.
The committee was concerned about Mr Morahan’s failure to inform the District Court about his suspension. “With a trial scheduled the matter was clearly urgent,” the committee said. Yet Mr Morahan, by his own admission, “took no steps to inform the Court of his suspension ahead of the trial date.”
“Mr Morahan, as an officer of the Court, had a positive duty to ensure that it was aware of his suspension so that arrangements could be made ahead of time to reschedule [the] trial.”
The committee said it “could see no reason why Mr Morahan could not have been completely frank in his dealings with the Court, particularly given the inconvenience that had already been caused by his failure to appear on [his client’s] behalf.”
The committee was also concerned that Mr Morahan had breached his duties to his client. It considered that, immediately upon learning that his suspension had been confirmed by the High Court, Mr Morahan should have contacted his client and advised him he was about to be suspended, explained that he could no longer act for him, and explained to his client that he would need to find alternative counsel. Mr Morahan was unable to provide any evidence to show he had done this.
The committee accepted that Mr Morahan did eventually advise his client to seek alternative counsel but considered that he had been deliberately vague when telling his client why he could not act. It considered Mr Morahan should have disclosed the fact of his suspension, so that his client had an understanding of the real reason he was unable to act.
Further, despite claims by Mr Morahan that he had been attempting to help his client find alternative representation, his client was still without representation by the time a standby trial date arrived. “In the circumstances [Mr Morahan’s client] was required to attend Court unrepresented, with the result that the trial could not proceed,” the committee said.
The committee concluded that “Mr Morahan’s failure to promptly advise [his client] of the fact of his suspension and to take steps to ensure, at a much earlier date, that [his client] had found alternative counsel for his standby trial date of 9 February 2016 was a breach of his professional obligations.”
The committee determined there had been two incidents of unsatisfactory conduct by Mr Morahan – the first in respect of breaches of his duties to the court, and the second in respect of breaches of his duties to his client. It rejected Mr Morahan’s submission that he had already been “punished” by the imposition of a costs order by the court and should therefore not be subject to further penalties, on the principle of double jeopardy. The purpose of the court’s costs award was not to punish Mr Morahan for any possible breach of professional standards, the committee said.
“Rather the costs award was intended to sanction Mr Morahan for the very real disruption and inconvenience, in terms of time and money, which had been suffered by the Court and the various participants in the Court process as a result of his failure to appear.”
As well as the fine of $2,500, being $1,250 for each of the two findings of unsatisfactory conduct, the committee ordered Mr Morahan to pay $1,500 costs to the New Zealand Law Society and ordered publication of his identity.
The Legal Complaints Review Officer upheld the committee’s decision on review.