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Court of Appeal upholds decision of misconduct for in-house lawyer who practised on own account

6 Oct 2023

| Author: Jamie Dierick

Lawyers and Conveyancers Act 2006 – whether s 9(1) extends to a lawyer who is not acting in their capacity as an employee when providing regulated services – Law Practitioners Act 1955, s 22 – whether an in-house lawyer can practise on their own account – appeals – whether the question is of public importance – appeal declined – penalties for misconduct – censure – censure quashed

Brill v Auckland Standards Committee [2023] NZCA 465 per Miller and Mallon JJ.

 

Barry Brill is a solicitor who was admitted in 1964 and practised as an in-house lawyer employed by his own company, B E Brill Ltd.

Brill held a practising certificate as an in-house lawyer. It did not entitle him to practise on his own account.

Between March 2015 and September 2017, Brill acted as a solicitor for himself, his wife and four neighbours in a dispute with a body corporate.

The Lawyers and Conveyancers Disciplinary Tribunal found Brill was guilty of misconduct by providing regulated services to the public other than in the course of his employment. The tribunal censured him and fined him $7,500. Brill appealed to the High Court and Downs J dismissed the liability appeal but quashed the censure.

Brill then sought to appeal on several questions:

  • whether a lawyer can be guilty of misconduct under s 9(1) of the Lawyers and Conveyancers Act when he or she wasn’t an employee during provision of regulated services;
  • whether co-owners or co-litigants are considered “the public” under s 9(1);
  • whether a legal practitioner may enter two or more part-time, in-house contracts at the same time; and
  • whether an in-house lawyer is entitled to practise on his or her own account under s 22 of the Law Practitioners Act 1955.

The Court of Appeal rejected these questions, stating that s 9(1) penalised lawyers providing regulated services to the public, even outside the structure of employment. The court found “the public” refers to anyone other than the lawyer’s employer.

The third question was not seen to be a question of law, and even if it were, it was not of general or public importance.

The fourth question was seen to not be of general public importance as it affected only practitioners admitted under earlier enactments who had not practised on their own account for more than 10 years and now wished to do so.

 

Applicable principles: professional conduct and ethics – licensing and registration – prohibited activities of in-house lawyers – professional responsibility.

 

Held: The first three questions did not warrant leave and the fourth was irrelevant. Brill’s argument for independent practice was unfounded. The application for leave to appeal was declined and Brill was directed to cover the standards committee’s costs.

 

Jamie Dierick is a law clerk working for an Auckland criminal defence barrister.

 

Brill v Auckland Standards Committee [2023] NZCA 465.

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