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Beware the dishonest lawyer
The tooth fairy, an honest politician and a dishonest lawyer all work in the same workplace. Five hundred dollars goes missing from petty cash. Who stole the money?
Well, obviously two of them are figments of your imagination. So of course the dishonest lawyer did it.
Go on the internet and you will find literally thousands of jokes like this. In fact, it seems that lawyers and used car salesmen have cornered the market when it comes to jokes about dishonesty and untrustworthiness.
This does, of course, come as a constant frustration to the members of those professions who don't exhibit those particular character traits.
But, as they say, it only takes one rotten apple - and a recent decision of the English Employment Tribunal serves to suggest that there may indeed be a few dishonest lawyers left in the world.
Mr Johal, who had worked as a driver, claimed that he had been victimised on the basis of his race, and said that he had been unfairly dismissed by his employer. He brought his claim in the Employment Tribunal.
Johal failed to make out these claims. The tribunal did, however, have some sympathy for him - and commented that, while unsuccessful, his claims were not misconceived.
The tribunal was, however, much less charitable about the way in which the claims had been argued by Johal's representative, Mr Parker.
Parker was neither a barrister nor solicitor. He ran a company which took on employment claims on a contingency fee basis (sometimes referred to as a "no win - no fee" arrangement).
Parker added a number of allegations to Johal's case. Amongst other things, there were alleged breaches of health and safety regulations, departures from working time regulations, and breaches of public interest disclosure provisions. The tribunal found that, in respect of these different allegations, it should have been "abundantly clear" that there was no breach.
More seriously, the tribunal was critical about the way in which Parker conducted Johal's case by grossly exaggerating aspects of evidence. For example, Parker made an allegation that Johal had been required to carry hazardous goods. It transpired, however, that the allegation related to a parcel of pepper that Johal had carried in his van.
Overall, the tribunal concluded that Johal's case should have been argued over one or two days, with no more than four witness statements. Under Parker's guidance, however, the case occupied six days of hearing, 15 witnesses and over 500 pages of documents.
In the ordinary course of events, an unsuccessful party to litigation is ordered to contribute to the legal costs incurred by the successful party. In certain rare circumstances, however, a party's lawyer (or representative) may be ordered to contribute personally to costs. The tribunal decided that the circumstances of this case - and Parker's woeful conduct of the litigation - justified a personal order being made.
Consequently, Parker was ordered to contribute to the costs which had been incurred by the company in responding to Johal's claims.
But Parker had not run out of tricks. He attempted to avoid this costs outcome by asserting that he had been acting "not for profit", and that a costs award could not be imposed against him as a result. The tribunal rejected this argument, and cast doubt upon the evidence that Parker produced in support of his contention.
In short, the Tribunal found that Parker was at best very shoddy - and at worst, dishonest.
So could it happen here?
Contingency fee arrangements are permitted for lawyers in New Zealand - and they are not uncommon in employment law. Put simply, a lawyer may act for a client on the basis that he or she will only charge if the case is ultimately successful. The lawyer may not, however, ask to be paid more than a reasonable fee (taking into account the amount of time required for the case) - and may not have a financial interest in the outcome of the case (for example, the lawyer may not contract to receive a fraction of any ultimate monetary judgment).
Put simply, however, operating on a contingency fee does not make a lawyer dishonest.
And thankfully, claims against lawyers for dishonesty are rare in New Zealand. If a lawyer was found to have acted dishonestly or inappropriately in a case such as this, it is possible that, like Parker, he or she could be required to pay costs personally.
The moral of the story? While rare, dishonest lawyers (at least in England) may not be a figment of your imagination.
