Barry Hart verdict
In a decision which could see him struck off, Auckland barrister Barry Hart has been found guilty by the Lawyers and Conveyancers Disciplinary Tribunal of professional misconduct by grossly overcharging a client.
Mr Hart – who is also fighting the mortgagee sale of his Waimauku property – was also found guilty of obstructing a law society complaints committee, by failing to provide a case file, and not telling a private investigator his fee had to be approved by the Legal Services Agency.
The barrister charged a Samoan family $35,000 in the case of a 19-year-old in court for aggravated robbery, his first criminal charge, in late 2008.
The tribunal, chaired by Judge Dale Clarkson, says it could not see how Mr Hart could justify billing seven hours at $1000 an hour for a first attendance at district court.
The decision says Mr Hart's lack of disclosure "is evidence of an 'exploitative attitude'."
"We consider that charging such an excessive fee in itself would constitute professional misconduct, but if we are wrong in that when combined with Mr Hart's actions to properly advise the clients about his hourly rate and the attendances for which they would be charged, professional misconduct is certainly made out."
Also in 2008, Mr Hart engaged a private investigator regarding a client facing criminal charges, who had legal aid. Mr Hart did not say the private investigator's fee had to be approved by the LSA and only paid after a complaint was lodged with the Law Society in 2009.
The tribunal says Mr Hart's misconduct was more serious than conduct unbecoming a lawyer.
"Mr Hart was cavalier in his professional responsibility to this complainant and in doing so brings the profession into disrepute.
"We expect very high standards from lawyers undertaking work on a legal aid basis in respect of all of their professional obligations."
The tribunal described as "self serving" a statement made by Mr Hart to justify delays in complying with a request from the Law Society's complaints committee.
His obfuscation was deliberate, the tribunal found, and the breach was "extremely serious".
Controversial criminal lawyer Davina Murray, who worked for Mr Hart on the overcharging case, gave evidence at the tribunal hearing.
The tribunal says Ms Murray was not a "particularly insightful or clear witness", whose evidence had "seeming inaccuracies" and her memory, in many respects, was "quite unclear".
"Ms Murray appeared to see her role as an advocate for Mr Hart," the decision says.
In a separate matter, Mr Hart is representing Ms Murray, who is charged with smuggling an iPhone and cigarettes to convicted rapist and murderer Liam Reid while he was in Mt Eden Prison last year.
[Ms Murray contacted NBR ONLINE on August 6 to say Mr Hart ceased acting for her on August 2 and she was now represented by Howard Lawry]
The tribunal decision follows a two-day hearing last month, at which Mr Hart failed to appear. It was the fifth time the hearing had been scheduled.
Lawyer Paul Collins, who represented the Auckland District Law Society's standards committee at Mr Hart's hearing, said: "It's a pleasing outcome in terms of the intended objective of the proceeding but we take no pleasure or joy from a lawyer being found guilty of misconduct."
Mr Collins says the committee will make submissions to the tribunal on penalties.
He says the full range of penalties are available, "from a relatively mild but still serious censure or reprimand, but which doesn't curtail a person's entitlement to practice, right through to the ultimate sanction of striking off".
A tribunal hearing, usually held in public, will determine Mr Hart's punishment.
Neither Barry Hart nor his lawyer Nigel Cooke could be contacted for comment.
UPDATED / 2.10pm, July 17: A senior lawyer - who can now be revealed as John Billington, QC - has told a disciplinary hearing today it would be difficult for Barry Hart to justify charging a Samoan family $35,000 for legal work.
Mr Billington gave evidence to the Lawyers and Conveyancers Disciplinary Tribunal in a law society prosecution which could result in Mr Hart being struck off.
Brought in to look at what had been charged, and determine whether it was fair, he says the work could have been done for $16,000.
In late 2008, Mr Hart charged the family $10,000 for an initial court appearance, $15,000 for an appeal on bail, and a further $10,000 for another court appearance.
All three hearings lasted a total of one hour and 16 minutes.
Mr Billington says if Mr Hart did all the preparation work and attended two court appearances, he could have charged $24,000.
However, by using junior lawyers to do much of the preparation work, which Mr Billington said is typical in situations such as this, the bill could have been significantly reduced.
“You could do it for about $16,000.
“Equally, you could justify $24,000. You might, if the client was totally in agreement, get to $35,000.
“The biggest omission is not so much the charge, but the failure to engage with the client on the basis of charging.
“It’s hard to see how you could justify going much higher than $24,000, and if you were careful it could be considerably less.”
A junior lawyer who worked for Mr Hart, Sumudu Thode, earlier told the tribunal she did most of the grunt work on the case.
Yesterday, the hearing heard from the sister of the client for whom the fee was charged.
She said Mr Hart was vague about the cost and did not provide them with invoices.
She also said it was not clear to them that Mr Hart’s chambers were charging her and her family for calls to the office to discuss the case.
The tribunal will reserve its decision when the hearing wraps up tomorrow, and if it finds against Mr Hart will hold a hearing to consider an appropriate penalty.
This morning, July 17: A young lawyer with two months' experience at the time says she did the "grunt work" for which Auckland barrister Barry Hart is accused of charging a Samoan family $35,000.
The Law Society’s standards committee is prosecuting Mr Hart for professional misconduct at a hearing of the Lawyers and Conveyancers Disciplinary Tribunal.
Neither Mr Hart, nor any lawyer representing, has turned up for the hearing.
The tribunal has this morning heard from Sumudu Thode, who worked on the Samoan case for Mr Hart in 2008.
She had been admitted to the bar just two months earlier and claims she did much of the grunt work on the case.
This included preparing important documents, such as a submission for a bail appeal hearing at the High Court.
Law Society lawyer Paul Collins asked the witness if she was being supervised.
Ms Thode says she had a close relationship with more senior lawyers, but can’t remember who would have checked the work.
“I’m sure someone would have checked the submissions but I’m not sure whom.”
Mr Collins asked Ms Thode why she sat with the family during a court hearing in December 2008.
“I had done all the preparation, had done all the work. I wanted to know what the outcome would be.
“The family felt comfortable with me being there because I was the person they had been dealing with, not so much Barry.”
When asked by Mr Collins why she stopped working for Mr Hart, Ms Thode replied: “There were issues with the finances and I wasn’t happy with how things were being dealt with.
“I had started invoicing Barry directly and I had heard from the others in the office that he isn’t regular with payments for his staff.
“There was one invoice where he didn’t put the payment through."
Ms Thode says she provided Mr Hart with one invoice for $1800, plus GST. This was paid after she finished working for him.
“I’d decided by that stage that I wasn’t going to work pro bono. I didn’t get paid and I put my foot down and decided I wasn’t going to go back.”
The hearing continues.