The tribunal, however, penalised the same person for two new admitted charges
The Lawyers and Conveyancers Disciplinary Tribunal has reversed a previous misconduct finding against ex-Auckland lawyer Marie Devoy, reported the NZ Law Society.
The move was a bid to rectify “an inadvertent miscarriage of justice”, the tribunal said.
Last October, Devoy had been found guilty of misconduct for not complying with a Standards Committee order to return a client file. She did not participate in the proceedings that were held at the time, and was subsequently suspended for six months although she had already ceased practising.
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Evidence was then provided to the New Zealand Law Society | Te Kāhui Ture o Aotearoa that the file in question had been delivered. Thus, the Law Society together with the Standards Committee applied to have the finding and related orders rescinded.
The tribunal concluded that the Standards Committee had acted appropriately when it advanced the 2023 case in the way it did. Given the “unusual and non-contentious circumstances of this case”, the tribunal determined it had the jurisdiction to recall the misconduct decision and overturn the related penalty orders.
However, while Devoy’s misconduct finding was reversed, the tribunal issued penalty orders for two new misconduct charges. The first charge resulted from Devoy’s failure to help the Law Society exercise its regulatory function when it came to her trust account; the Law Society Inspectorate had been communicating with Devoy on the regularisation of the trust account, but she reportedly found the process “overwhelming” and did not provide the required information promptly.
An inspection of Devoy’s trust account revealed that her FIT account had been overdrawn without immediate rectification and that her trust account had not been reconciled from October 2022 to April 2023. Additionally, she had failed to submit monthly trust account certificates to the Law Society.
No claims of dishonesty were made, but the tribunal said that “management of client funds requires reconciliation of accounts and meticulous accounting”. The tribunal described the defaults as “modestly grave” and said that they had created additional work and expense for the Law Society.
The second charge involved Devoy’s “longstanding” failure to serve a client competently in relation to a seemingly simple estate matter. She did not effectively monitor the affidavits necessary for probate, ceased communicating with her client, and did not deliver the file when a new lawyer was instructed. The Tribunal described this as “poor conduct,” pointing out that estate matters are generally distressing for family members; thus, Devoy’s actions had affected the profession’s reputation and inflicted unnecessary distress on the client.
Devoy admitted to both charges via email before the hearing took place. The tribunal acknowledged that these issues arose while Devoy was not well and facing personal challenges; however, these circumstances did not excuse her conduct. The tribunal pointed out that “our duty to protect the public requires us to take an adamant line”, and that “where unwellness intrudes, the professional obligation to obtain help, transfer work, and alert the Law Society to the difficulties must be observed”.
In light of the four previous unsatisfactory conduct findings on Devoy’s record, the tribunal said that while the two new charges would have warranted a 12-month suspension, the error it made with regard to the rescinded misconduct finding meant that Devoy had been slapped with an “unwarranted six months’ suspension”. Thus, the tribunal opted not to suspend Devoy, but instead issued an order for her to stop practising on her own account unless authorisation was obtained from the tribunal.