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‘Fit and proper person’ test divides NZ courts
A man convicted of multiple driving offences, including driving under the influence, has had to convince New Zealand’s courts that he is a fit and proper person to practice as a legal professional, following complaints from the Law Society on his character.
Naomi Neilson
Between 1978 and 2014, John Llewellyn Stanley was convicted of seven offences that related to dangerous driving, driving under the influence and failing to stop for red and blue flashing lights. Despite these charges, Mr Stanley claimed that dependency on alcohol in the past would not affect his ability to practice as a barrister or solicitor.
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Before three courts, the New Zealand Law Society fought against the decision to allow the 67-year-old law student to be admitted to practice, arguing the criminal convictions indicated he was not a fit and proper person to practice in the legal profession. Before the case reached courts, it refused to provide him with a certificate of character.
In deliberating his admittance, the Supreme Court of New Zealand judged three factors on his past offences: the nature of the offence, the time that has elapsed since the last offence and Mr Stanley’s age at the time the offences were committed.
“Some convictions will inevitably be problematic by their very nature. These dishonesty offences are in that category because of the direct connection with legal practice,” the court wrote in its judgement. “Offending involving the failure to comply with disclosure obligations is treated in a similar way. Very serious convictions pose their own issues.”
Mr Stanley, who completed necessary academic and professional qualifications for his admittance as a lawyer of the High Court, told the president and vice-president of the Wellington branch of the Law Society of his regret for the offences and explained that he had early indications of alcohol dependency but it would no longer be an issue.
The interviewers were not satisfied with this insight, “nor were they satisfied that there is no risk of future lapses in judgement or behaviour”. When the matter reached the High Court, the judge concluded there was no sufficient evidence of change in Mr Stanley’s character or satisfaction that he was a fit and proper person to practice.
However, before the Court of Appeal, the judge accepted that while there was a doubt that Mr Stanley would never offend again, it concluded he was fit and proper. The Law Society objected to this, suggesting the court was wrong in ignoring the “resultant risks of further offending with its inevitable consequence for professional discipline”.
In reaching its conclusion, the Court of Appeal argued that the High Court had put too much emphasis on the risk of reoffending and did not consider Mr Stanley’s position – that his conviction did not go “directly to fitness to practice as a lawyer”. The court also found he was of good character and had contributed to the community.
“We accept that in questioning the sense in which Mr Stanley’s offending was a failure to uphold the rule of law, there is some force in the Law Society’s submission that the Court of Appeal understated [the] seriousness of excess breath/blood alcohol offending and this had the effect of downplaying the importance of the obligation of lawyers to uphold the rule of law,” the Supreme Court wrote in its judgement documents.
“It is also fair to say, as the High Court found of Mr Stanley’s attitude, the explanations Mr Stanley gave for his offending tended to avoid an acceptance of responsibility.”
While accepting that Mr Stanley should have provided the High Court with an evidence of his dependence on alcohol, the Supreme Court did not accept the NZ Law Society’s submission that the Court of Appeal “set the bar too low” in the judgement.
In conclusion, the Supreme Court ruled that the Court of Appeal was correct in allowing Mr Stanley to be admitted. Based on this and given his otherwise good character, the Court of Appeal “did not err in determining Mr Stanley met the standard”. The Supreme Court dismissed the appeal, allowing Mr Stanley to remain admitted.
Despite the majority decision, Chief Justice Rt Honourable Helen Winkelmann and the Honourable Justice Susan Glazebrook would have allowed the Law Society’s appeal.
“Driving while impaired due to alcohol is inherently dangerous and can cause serious injury and death. It is thus very serious offending. Multiple drink driving offences would in many cases signal either a drinking problem, a contempt for the law, or both. In our view, both directly affect a person’s ability to practice as a lawyer,” they wrote.
The full judgement before the Supreme Court of New Zealand and further information on the dismissed appeal can be found on Austlii under “New Zealand Law Society v John Llewellyn Stanley [2020] NZSC 37 (17 August 2020)”.
