A former Kaitaia lawyer has been struck off the roll of barristers and solicitors after the NZ Lawyers' and Conveyancers' Disciplinary Tribunal found he was "not a fit and proper person" to be a legal practitioner.
The misconduct, misappropriation of client funds, which Junior Lambert Witehira had admitted, occurred while he was the principal of his own firm, Far North Law, in Kaitaia. The funds had been taken from his solicitor's trust fund and lodged in his own bank account. Neither client had authorised the transfers. In the first case he took $22,917, and in the second $810.
A party whose name was suppressed had lodged allegations of misappropriation with the Lawyers' Complaints Service in November 2010. Mr Witehira had denied the allegations but eventually admitted them. He had repaid the sums on October 21, 2010.
Mr Witehira had told the Standards Committee that he had been having difficulties in receiving payment from legal aid and that his practice had been unable to generate sufficient billings to meet costs. He also cited on-going issues with his personal relationship, exhaustion and illness (details of which were suppressed).
On September 24, 2010, he had been due to pay his bank $7500. An expected legal aid payment had not arrived, so he withdrew $22,917 from his trust account to meet the bank payment until he could cover it. The Standards Committee described that as misconduct of a very serious nature. The requirement for confidence in the profession and protection of the public were noted as key elements when addressing misconduct of that nature.
The committee said the misconduct was deliberate, and reflecting on Mr Witehira's fitness to practise. A severe sanction was needed.
Mr Witehira's counsel submitted that there had been one isolated act of misconduct rather than sustained inappropriate conduct. Counsel argued that his client had been a sole practitioner who was struggling with work, personal and financial pressures, and was likely to have been unwell.
His judgement had been affected ; he had panicked when he was faced with repayment of his overdraft was due and he had taken client funds without stopping to consider alternative actions.
Counsel noted Mr Witehira's ready admission, rectification by repayment and acceptance of the need to rehabilitate. He had taken employment with a practitioner in Auckland, engaging only in litigation and having nothing to do with the firm's trust account or client funds, or payments to or by the firm.
The tribunal did not accept that Mr Witehira was guilty of a single, spur-of-the-moment lapse in judgement, but he had deliberately misappropriated funds on two separate occasions. The evidence indicated that it was highly likely that he had intended that action remain hidden.
The tribunal noted that Mr Witehira had been found guilty of professional misconduct (failing to honour an undertaking) in 2007, and of unsatisfactory conduct in 2011 (relating to an error that transferred $7,000 from his trust account to his general account in 2005, a matter he had still not rectified in 2010).
Mr Witehira had been advised of the Standards Committee's concerns over that matter days before he misappropriated the sums leading to the current charge.
"It may be that the resolution of the committee at the time, to take no further action ... gave Mr Witehira some misplaced confidence about his ability to use client funds without sanction," the tribunal said.
"More importantly, it meant that he would have been well aware at the time he decided to take the client funds [that are] the subject of the current charge that it was inappropriate ...