It is nearly four years since the Supreme Court delivered its judgment in this case which provides guidance about the fit and proper person standard in the context of admission to the legal profession. Barrister Paul Collins was counsel acting for the Law Society in this case. He reflects on the legacy of Stanley and its importance to the legal profession and in the regulation of other occupations.
It is now over four years since the Supreme Court delivered its judgment in New Zealand Law Society v Stanley, providing guidance about the fit and proper person standard in the context of admission to the legal profession but relevant in other areas of professional regulation and discipline. This article discusses the legacy of Stanley and its importance in the legal profession and in the regulation of other occupations.
Stanley was a 3:2 majority judgment in which the Law Society’s appeal from the Court of Appeal was dismissed. Mr Stanley was 67 years old at the time of the Supreme Court judgment, described as having come to the law after a career in business. He had been convicted of excess breath or blood alcohol driving offences four times, most recently for offending in 2013. The Law Society declined Mr Stanley’s application for a certificate of character. In addition to the convictions, it was dissatisfied about his insight into his offending and his respect for the law. The High Court agreed that Mr Stanley was not a fit and proper person, but Mr Stanley succeeded in the Court of Appeal. The majority in the Supreme Court found that Mr Stanley met the test for admission. William Young, O’Regan and Ellen France JJ found that the offending did not raise character issues that directly related to the practice of law. Weight was given to Mr Stanley’s full disclosure and co-operation with the Law Society, the age of the convictions and the fact that Mr Stanley had lived an otherwise productive life and had expressed a commitment to stop drinking alcohol.
The minority (Winkelmann CJ and Glazebrook J) would have allowed the appeal, chiefly because of the seriousness of Mr Stanley’s drink driving record and because their Honours saw a closer link than the majority did, between that category of offending and fitness to practise as a lawyer.2
Some recent jurisprudence provided interesting background to Stanley. That included an appeal to the Privy Council in Layne v Attorney General of Grenada concerning an application for admission by a person who had been convicted of murder about 40 years earlier, and a recent admission case in the Court of Appeal, Lincoln v New Zealand Law Society, where the appellant had failed to satisfy the Court and the High Court about his status as a fit and proper person.
Although Stanley was a split judgment, there was no disagreement about the essential principles involved in the fit and proper person standard or the modernisation of some of the relevant concepts from the historic New Zealand jurisprudence (beginning with ReLundon in 1926):6
Following the delivery of the Supreme Court’s judgment, Stanley quickly became this country’s leading authority in an essential aspect of regulation of the legal profession, but also other occupations where the fit and proper person standard applies.
In the legal profession, the fit and proper person standard is directly relevant to: admission into the profession, eligibility for a practising certificate, professional discipline including the penalties of suspension or striking off, and restoration to the roll. An example of Stanley being applied in a prominent disciplinary case is National Standards Committee (No 1) of theNew Zealand Law Society v Gardner-Hopkins. Another example, in an application for restoration to the roll, is Reid v New Zealand Law Society.8 Stanley is routinely relied on in decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. Its influence does not end there, and it has proved its importance in occupational areas such as insolvency practitioners9 and real estate agents.10
An important aspect of Stanley was the modernisation of the language used in this area, where the Courts had in the past referred to concepts such as “frailties or defects of character” and whether a person’s previous convictions could be regarded as “entirely spent” or “safely ignored”. The Supreme Court recast this language by referring to the question whether past convictions remain relevant to the fit and proper person standard and the extent to which the conduct is relevant at the time of the current inquiry.11
Stanley has contributed to the development of this country’s jurisprudence in professional and occupational regulation involving both clarification of the law and modernisation of the relevant terminology. Its influence is likely to endure both in the legal profession and other areas of occupational regulation.
Paul Collins appeared as counsel for the New Zealand Law Society in New Zealand Law Society v Stanley.
The Law Society’s Practice Approval Committees apply the fit and proper person standard set out in New Zealand Law Society v Stanley when considering ‘non-standard’ regulatory applications which can’t be approved administratively. The fit and proper person test is a forward-looking exercise and requires an evaluation of the individual at the time they apply.