Barry Hart loses strike-off appeal

Barry Hart

Struck-off and bankrupt lawyer Barry Hart has lost his fight to be a lawyer.

The High Court has thrown out Mr Hart’s appeal against his striking-off by a lawyers’ disciplinary tribunal last year.

Chief High Court Judge Helen Winkelmann and Justice Graham Lang have just released their reserved decision, saying the New Zealand Law Society was correct to strike Mr Hart off after he was found guilty of professional misconduct in grossly overcharging some of his clients.

It was not the first time Mr Hart was found guilty of overcharging. The Law Society also found him guilty of doing so 30 years ago, in 1982.

Justices Winkelmann and Lang said in their decision that Mr Hart’s disciplinary history strongly suggested he had a tendency to overcharge clients and had not learned from past mistakes and sanctions.

This did not bode well for his rehabilitation in the future. Nor does the fact that he appears not to appreciate the seriousness of his conduct, the judges said.

“There is also little to suggest that he accepts responsibility for it or that he is committed to changing the manner in which he interacts with others in his professional life.

Mr Hart's tilt for alternative punishments of supervision or suspension were rejected.

“Mr Hart’s unsatisfactory response to disciplinary proceedings to date suggests he is unlikely to be compliant with supervision by another practitioner. It would be difficult, in any event, to supervise Mr Hart to the extent required to ensure the protection of the public.”

The judges said Mr Hart’s conduct required a firm response that properly protected the public from similar conduct in the future.

“At the end of any period of suspension Mr Hart would be free to return to the legal profession. The stance taken by Mr Hart to date means that there can be no guarantee that he will co-operate with, and subject himself to oversight by, investigative bodies in the future. 

"For that reason the only way in which the public can be properly protected is for an order to made preventing him from practising at all."

Failure to comply with the Tribunal’s order requiring him to repay the sum of $20,000 to the complainant, suggested Mr Hart’s willingness to ignore orders made buy lawfully constituted disciplinary authorities, the judges said.

The tribunal’s orders for Mr Hart to pay costs still stand. He must pay $20,000 to the family he overcharged, $98,965 of the standards committee's costs, and the disciplinary tribunal’s costs of $45,000. 

The mega debt-ridden former criminal barrister was made bankrupt at Auckland High Court before Christmas.

Mr Hart has been manoeuvring the courts for months over ANZ bank’s bid to bankrupt him, the mortgagee sale of his land and his striking-off.

MEDIA RELEASE – For immediate use, 5 February 2013

Law Society comments on High Court decision

Today’s High Court judgment upholding the New Zealand Lawyers and Conveyancers Disciplinary Tribunal decision to strike Barry John Hart from the roll of barristers and solicitors endorses the Law Society’s determination to persist with disciplinary charges against Mr Hart.

“This has been a long and drawn-out proceeding and the judgment shows very clearly that our justice system takes a very serious view of a failure to co-operate promptly with the disciplinary process,” Law Society President Jonathan Temm said today.

“The High Court has found that Mr Hart did not readily comply with lawful requests made by the disciplinary bodies and that he deliberately obstructed the investigation and misused the process in order to delay matters.

“This decision of the High Court reminds the legal profession that a failure to co-operate with the organisations which are required to maintain discipline among lawyers could lower public confidence in the legal profession.”

Mr Temm said being struck off was a very severe penalty. While it meant the end of a lawyer’s career, both the Tribunal and the High Court had upheld the need to protect the community and ensure all New Zealanders could be confident that lawyers would co-operate fully with investigation of any matters relating to their professional conduct.

“In New Zealand we have a legal profession which performs to a high standard and generally delivers excellent advice and services. The High Court’s decision today demonstrates that anyone using a lawyer can be confident that the system of regulation is robust and effective.”

He said the High Court had also dismissed Mr Hart’s appeal against the finding that he had grossly overcharged a client. The Law Society welcomed the court’s comments that lawyers must not exploit clients and must not charge more than their work is worth.

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