A lawyer who certified that she had completed her annual CPD requirements despite knowing that she had not undertaken the necessary hours has been found guilty of unsatisfactory conduct by a Standards Committee. 

The Standards Committee also found that the lawyer’s failure to correct her declaration when she learnt it was inaccurate amounted to unsatisfactory conduct.    

The lawyer, L, had registered for a course which, once completed, would satisfy the number of hours needed, and mistakenly believed she was permitted to make the declaration in anticipation. 

The Committee did not agree and found that by doing so she had breached Rule 2.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) which requires lawyers to take reasonable steps to ensure that a matter certified is true, having taken appropriate steps to ensure its accuracy.  

While the Committee accepted that L believed she was entitled to make the declaration in anticipation (due to what a previous employer had informed her), it determined that RCCC 2.5 imposed a positive duty on L to be aware of her obligations. Simply relying on what a previous employer had told her was not sufficient to discharge that positive duty. 

Her current employer advised her that as she had possibly breached her obligations by not having completed her hours before making the declaration that she had done so, they had made a confidential report to the local branch of the New Zealand Law Society.   

L assumed therefore that as one part of the Law Society knew, all sections of the Law Society including the CPD division would therefore be aware of the situation, and that since she was correcting the inaccuracy by completing another course, she had not breached RCCC 2.6.  

RCCC 2.6 requires a lawyer to take immediate reasonable steps to remedy any error that the lawyer subsequently becomes aware of in a matter certified, and the Committee considered that this created a positive duty on L to take steps to correct the declaration (which L had not done). Instead, L had assumed that others would do that for her. L also believed that by subsequently completing the required number of hours she could merely apply them retrospectively. The Committee determined that L had therefore also breached RCCC 2.6. 

The Committee determined that making the false declaration was sufficiently serious to warrant a finding of unsatisfactory conduct and that the additional breach of RCCC 2.6 also merited the same finding. It considered mitigating factors, such as L’s honest belief that she was entitled to make the declaration, and her stress at the time, and did not make any punitive orders.