Veteran Christchurch solicitor, Murray Withers, lost his High Court battle to keep practicing last week
following Justices Cameron Mander and Graham Panckhursts’ joint decision to dismiss Withers’ appeal, saying his disciplinary record is of “significant concern”.
“Mr Withers’ disciplinary history and this further misconduct reflect a lack of integrity and judgment. These are essential qualities of any practitioner. The point has been reached where protection must prevail at the expense of the possibility of rehabilitation,” reads the court decision.
However, while the court decision outlines misbehaviour dating back to a complaint in1998 and two further complaints in 2011/12, Withers has been a barrister – and a generally well-regarded one – for almost 40 years. He tells NZ Lawyer that while he admits he was in the wrong, there were issues going on behind the scenes at the time.
Court documents reveal he’d been battling depression for what may have been a “significant period”, but that, despite the fact that such institutions as the Canterbury Rugby Football Union, New Zealand Squash, Christchurch Rotary and Lifeline Christchurch came to his defence, his misconduct was deemed too significant to overlook.
“Regrettably, in some cases misconduct will trump positive personal considerations, particularly where the misconduct is of a nature to indicate a flaw of character. Sadly, that was the situation in this case,” the High Court decision reads.
All three charges from the original hearing relate to a property deal initiated in March, 2007, where Withers acted for both a purchaser and a vendor without disclosing his conflict of interest (a claim disputed by Withers in the original hearing).
“My greatest fault was that I did not deal with the issues in an appropriate manner and this is a lesson for younger practitioners, as well as sole practitioners,” says Withers. “Once the complaint was made, it arrived at a very difficult time. It was made in 2011, with earthquakes and other personal tragedies… I was under a lot of pressure.
“It is a lame excuse, but because of all the other issues occurring, I did not deal with these issues appropriately and I do believe that this is part of the reason I was struck off. Previously, I had dealt with matters and prided myself on this; I do not have a lot of problem files. I have a clean audit record and have not been sued.”
Withers says he did not disclose the initial complaint to anyone - not even staff or family members - choosing instead to keep it to himself. He believes this was a mistake.
“When I was in a larger firm, we implemented a practice
that if a complaint was received, the file was then shifted to another author. My view on this is that it would have been a great help if my attorney or someone else was notified…I was not functioning as well as I should have been,” he admits.
While Withers remains relatively philosophical about the outcome of his appeal, he says it’s important for practitioners to know what might occur in this kind of situation.
“I was told we might be in a position to successfully defend it and then I might be suspended at worst. [Being struck off] came as a huge shock. I selected my attorney, more or less on the basis of what or who might do things if I was ill or dead; not if I was struck off.”
He says the lesson for sole practitioners is to ensure that they give “real thought” to their attorney and that they somehow separate the personal aspects of their lives from their work.
“It might sound silly, but my power bill, Sky bill and many others were all sent to my work address. While in practice I was receiving and responding to about 140 emails a day and you go to the situation of receiving none….As a sole practitioner, although I now have a feel for the way the firm is going, I do not control or have a say in the financial management of the firm. While suspended, I am aware both my attorney and the locum employed have render fee accounts, but I do not have details of those.
I was not prepared for the locks being changed on my premises, my password being changed on my personal PC, my firm bank accounts being frozen and my being excluded from every aspect of my legal practice. I am simply at the behest of the Law Society, told nothing and yet my personal assets are exposed.”
The appeal process, he says, is a battle.
“Once you are found wanting by the tribunal, I personally do not think the appeal is worth pursuing. The reason I proceeded with it was because of the proximity to the lodging of the appeal to the hearing date and the outside chance of a suspension. So the lessons from this, for a practitioner, are to be aware of the outcome of a complaint. My crime was acting in a conflict situation and breaching an undertaking during immensely stressful times.
“If a complaint is made, deal with it in an appropriate fashion. It will not go away.”