Northland lawyer who acted for neighbours in leaky building case fined for misconduct

Bridgewater Apartments at Paihia. Photo/Google Streetview

A lawyer and Justice of the Peace who once acted for his friends and neighbours in failed and costly litigation has been fined for misconduct - but is appealing the decision.

Former National MP Barry Brill was censured in January by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal when it found him guilty of misconduct.

According to a penalty decision released yesterday, the Northland lawyer has been fined $7500 and ordered to pay total costs of $36,417.

Brill was now appealing the tribunal's decision and the penalty.

He told Open Justice the appeal focused on whether he was entitled to act for clients in a leaky building claim as the employee of his firm, investment company BE Brill Ltd.

He was seeking a reversal of the determination, dismissal of the charge and costs. The appeal is scheduled to be heard in early August.

The tribunal said in its January decision that Brill had been practising outside what he was approved to do, including that he acted for friends and neighbours in a leaky building claim, which was ultimately costly for them when they lost.

Between March 2015 and September 2017 Brill represented nine parties in a number of proceedings related to a leaky building claim for the Bridgewater Bay Apartments in Paihia.

Brill acted on an unpaid basis for the parties who eventually incurred costs of between $100,000 and $130,000.

He was unsuccessful in the Appeal Court, the High Court and the Supreme Court when he was denied leave to appeal.

Indemnity costs were then awarded against the parties represented by Brill in the claim described by a judge as "hopeless".

It was during this time that Brill also represented his wife in litigation and did not advise the Law Society.

Brill was sole director and held 98 per cent of shares in BE Brill Ltd, which was not a law firm, but an investment firm.

Companies Office records showed that from 1973 to 1990 it was known as Carribean [sic] Developments Ltd.

Barry Brill. Photo / World Tourism Network

He was also an employee of the company and held a practising certificate on that basis, meaning he was not approved to practice on his own account, but could work only as an in-house lawyer.

Brill has appealed the tribunal's decision on a number of points around what he claimed was a failure to consider the argument that in acting for the Bridgewater litigants, he was not acting in the capacity of an employee, as was required to meet the definition of misconduct.

He also claimed the tribunal was wrong in finding that a section of the Client Care Rules forbid any lawyer from representing his wife, or any co-plaintiff when pursuing
litigation in which they had a mutual interest.

Between 2010 and 2016 the New Zealand Law Society and Brill engaged in correspondence about the status of his practising certificate.

He was advised that he was unable to practise other than as an employee and could only "advise his employer".

In September 2018, the Law Society's Practice Approval Committee became aware of Brill's role as counsel in the cases and misconduct charges followed. After a hearing in 2020 the tribunal sought more evidence and an amended charge was laid. Brill objected and another hearing was held last year, which resulted in the decision released in January this year.

A lawyer who acted for friends and neighbours in a costly leaky building case has been censured and fine. Photo / 123RF

The tribunal rejected Brill's submission that his clients in the litigation were not "the public", according to the rules.

It found they were clearly "the public" and the fact that they came together as a group for the purposes of the litigation and their relationship as neighbours did not change this.

The tribunal said the risks associated with services provided by employees of organisations that were not law firms included they were unlikely to have systems in place designed to protect clients.

They were less likely to carry professional indemnity insurance, which would protect the client in the event of negligence.

The tribunal said consumers of legal services were entitled to be represented by authorised practitioners who were aware of and adhered to basic professional requirements.

Brill's clients were not given any of the usual client care advice and were exposed to substantial adverse costs awards after Brill pursued arguments that the Court of Appeal referred to as bordering on "pointless", "vexatious" and "frivolous".

The tribunal said in censuring Brill that strict adherence to the rules was necessary to ensure high professional standards were maintained and to ensure public confidence in the legal profession.

The 81-year-old has been a lawyer since 1965. He practised initially in Paraparaumu until he was elected MP for Kapiti in 1975.

He served as Parliamentary Under-Secretary for a number of portfolios including Energy and National Development from 1978 to 1981.

After losing his seat in 1981 he forged a business career as director for several listed companies and in leadership positions for national business organisations.

The outspoken climate change sceptic and current chairman of the New Zealand Climate Science Coalition was appointed an Officer of the Order of the British Empire (OBE) for services to manufacturing in the 1996 New Year's Honours list.