The New Zealand Law Society | Te Kāhui Ture o Aotearoa has received the independent Lawyers and Conveyancers Disciplinary Tribunal’s reserved penalty decision imposing a two-year suspension and costs of over $100,000 on James Gardner-Hopkins for findings of misconduct. “While a sterner penalty was sought by the Standards Committee, it is a significant term of suspension,” said Tiana Epati of the Law Society.
“The Standards Committee submitted permanent strike off was appropriate. The Tribunal weighed matters and decided a two-year suspension was the appropriate outcome in all the circumstances. We acknowledge the Tribunal heard all the evidence first-hand and carefully considered the serious nature of the offending with the need for rehabilitation.
“The penalty imposed does not mean Mr Gardner-Hopkins will automatically be able to work as a lawyer after two years. Following suspension, he will need to apply to a Law Society practice approval committee for a new practising certificate. The onus is squarely on him to prove he is fit and proper to be a lawyer again. The Tribunal offered some comment on that process,” Ms Epati said.
While suspended, Mr Gardner-Hopkins cannot offer legal services of any kind as a lawyer to the public.
Ms Epati said the Law Society wants to acknowledge the length of time it has taken, from when the investigation started in 2018, to get to today.
“Our complaints process was, by design, focused on issues relating to consumers of legal services. Coupled with the pandemic, and resourcing constraints, there was delay in having a fully contested matter heard. We have already made changes to our process to make it more suitable for sensitive complaints, like this one.
“We have adopted the recommendations from the inquiry undertaken by Dame Sylvia Cartwright, including mandatory reporting of misconduct, clearer behavioural standards, and a “whistle-blower” protection. It is now firmly the responsibility of those in senior positions who supervise other lawyers to ensure this type of behaviour does not happen and report it if it does.” These new rules came into force on 1 July 2021.
“Other changes to ensure the complaints system can be more agile, more victim focused and transparent require amendments to our legislation. We raised this with the Government and late last year the Minister requested the Law Society consult with the wider legal profession on this,” she said.
The current law prohibits the Law Society from saying anything about or even confirming complaints involving sexual violence, harassment, bullying, and discrimination. The Law Society believes this needs to change to provide transparency and increased accountability.
Ms Epati said this case has already been the catalyst for real and enduring change. “As Dame Sylvia Cartwright said, 2018 was a watershed moment for the culture of the legal profession. In its censure the Tribunal stated that Mr Gardner-Hopkins has brought shame on himself and brought disrepute to the legal profession.
“There is now a collective consciousness about this type of behaviour. It must not be allowed to fade and the current momentum to improve the profession must be maintained, Tiana Epati said.”
The Law Society will not be commenting further as the Standards Committee is yet to consider the Tribunal’s decision.
Complaints and disciplinary process
The New Zealand Law Society is part of a co-regulatory system that considers complaints and disciplinary matters relating to all lawyers. The Law Society administers one aspect of the complaint and disciplinary process – the Lawyers Complaints Service – which receives all complaints about lawyers. All complaints made to us are referred to an independent Standards Committee.
There are 22 Standards Committees across Aotearoa New Zealand made up of lawyers and lay people appointed by the Law Society. Everyone on a Standards Committee is appointed for their skills and experience. Law Society staff support the Standards Committees in carrying out their functions.
Under the Act, Standards Committees are responsible for investigating and deciding on the outcome of complaints made about lawyers. Standards Committees also have the power to undertake an “own motion” investigation. Standards Committees are able to give a direction for negotiation, conciliation, or mediation, make findings of unsatisfactory conduct, make a referral to the Lawyers and Conveyancers Disciplinary Tribunal, or decide to take no further action.
The Tribunal is an independent and separate body administered by the Ministry of Justice which operates much like a court. Only the Tribunal may make a finding of misconduct and suspend a lawyer or strike them from the Roll of Barristers and Solicitors. Being struck off means that a lawyer cannot practise law in the future. The practitioner or a Standards Committee can appeal a decision of the Tribunal under section 253 of the Lawyers and Conveyancers Act 2008. The appeal period is 20 working days.
The Practice Approval Committees are the Law Society’s specialist committees which consider non-standard legal practice applications, including applications by lawyers to return to legal practice after suspension. The Committee must be satisfied the right support systems are in place following a suspension, to ensure the person can practice as a lawyer in a way which protects both legal consumers, and the reputation of the legal profession. Where the Committees feel a formal arrangement should be put in place, they may ask an applicant to undertake to comply with certain conditions. Those conditions are tailored to suit the person’s circumstances. Each committee has five senior lawyer members and one lay member. The Committees operate under the delegation of the Law Society Board.