[picture id="4L84YUD_Alwyn_O_Connor_jpg" crop="16x10" layout="full"] Photo: NZ Herald / Jeremy Wilkinson
This story discusses graphic details of chid assault.
A lawyer who was once described by a judge as a "conman" was admitted to the bar despite the Law Society knowing he had a long history of dishonesty convictions as well as serving time in prison for assaulting a three-year-old.
Alwyn O'Connor's past was raised at the Lawyers and Conveyancers Disciplinary Tribunal hearing today, but it was offending that began just 18 months after he became a lawyer that has led to him potentially being struck off.
O'Connor was found guilty earlier this month of misconduct for using his imprisoned client's bank account as his own "personal credit facility" in a process the standards committee called a "money-go-round" where he took $150,000.
The lawyer put most of that money back before the man was released from prison but a further $22,000 worth of ATM cash withdrawals remains outstanding. O'Connor denies it was his doing but the tribunal didn't believe him and accused him of lying about it.
At the hearing to decide O'Connor's penalty, prosecutor Nikki Pender brought to light his previous convictions as proof that he hadn't reformed, as he'd claimed to the Law Society in 2014.
Over the past year, NZME has asked the Law Society on multiple occasions if O'Connor disclosed his convictions before being admitted but the requests have always been declined on the grounds of privacy.
The criminal offending began when O'Connor was just 18 and appeared in front of a judge in 2000 facing four dishonesty charges. Five years later he was convicted of a further nine similar charges with the judge describing him as a "conman" who seemed indifferent to consequences.
In 2006, he was convicted of three charges of assaulting his partner's three-year-old son by rubbing his face into carpet, flushing his head in a toilet and two further charges of indecent assault which were eventually overturned on appeal.
However, O'Connor pleaded guilty to the details of that offending where he admitted inserting a pen into the same boy's anus and a drawing pin into the head of his penis.
"He is not, and never was a fit person to be a member of the legal profession," Pender told the tribunal today.
She was seeking a strike off for O'Connor, $100,000 in legal costs and $25,000 in compensation for the primary victim.
"There is no way back from here," she said.
O'Connor has gone by six different names throughout the course of his offending and registered four of those with the Law Society.
What he didn't tell them was that he'd been bankrupt twice before becoming a lawyer. Bankruptcy generally precludes a lawyer from qualifying as a fit and proper person to practice law because of the large sums of money they handle on behalf of their clients.
NZME has approached O'Connor for comment but he has not responded.
Misconduct
At the conclusion of O'Connor's hearing in May when the tribunal found him guilty of misconduct, he was suspended from practicing law pending the latest hearing. The suppression of that suspension order has now been lifted.
During the earlier hearing, O'Connor admitted using $150,000 of his client Wayne Coles' money but denied the $22,000 worth of cash withdrawals made from ATMs. He claimed to have not had access to Coles' bank card.
However, the tribunal concluded O'Connor was lying and said it was him who'd made those withdrawals. The money remains outstanding.
It took the five-person panel less than half an hour to return a guilty verdict with its chairman Dr John Adams describing O'Connor as having exhibited some "seriously deficient conduct.
"His laxity in using clients' funds as his own and failing to ensure his client was independently advised occurred in circumstances when he was in a conflicted situation and the extent of that behaviour is significantly grave," Adams said.
"We think the accumulation of factors falls well below minimal or forgivable breaches."
Adams said O'Connor had lied to the tribunal, used his client's funds as if they were his own and failed to provide Coles and the tribunal with sufficient records.
During the hearing, O'Connor admitted to borrowing $50,000 from another former client in order to top-up Coles' account as he came up for parole. He then used Coles' account to repay the money he'd borrowed from the first client.
The standards committee described this as a "money-go-round.
"I absolutely regret it," O'Connor told the tribunal at that hearing and said under cross-examination he had lacked the financial means to repay his debts.
"I would use some and replenish it, then I would use some more and replenish it. I think it was only at the end that it exceeded $25,000."
However, bank records showed the account balance dropped to as little as $1000 before O'Connor deposited $70,000 into it shortly before Coles was released from prison.
O'Connor told the tribunal he didn't keep a record of what he used the money for, claiming the transaction history of the account was sufficient.
He provided only redacted records of his own bank account to the Law Society despite repeated requests from investigators for him to provide a full and unredacted accounting.
While O'Connor has repeatedly denied having access to Coles' bank card while he was in prison and making the $22,000 worth of cash withdrawals, he did admit to having purchased shirts on behalf of Coles for a court appearance.
The tribunal pointed out the shirts had been purchased using the bank card in question.
Strike-off
Pender, on behalf of the standards committee, told the tribunal today that she was seeking O'Connor be struck off for the offending against Coles.
"Those in and of themselves are enough to warrant a strike-off order," she said.
However, she said his previous dishonesty offending and child assault convictions proved he had not rehabilitated, as he assured the Law Society he had before he was admitted to the bar.
Pender went on to say O'Connor's offending against the three-year-old was a breach of trust against someone in a vulnerable position and that despite his assurances of reformation his most recent offending had again taken advantage of someone in a vulnerable position.
"Part of the privilege of being a lawyer is frequently being in positions of trust with vulnerable clients," she said.
Pender said the dishonesty offending also resonated with the facts of his offending against Coles and that striking O'Connor from the roll of barristers was the "only conceivable sanction".
O'Connor's lawyer Gordon Paine said it was inappropriate to essentially relitigate his client's prior offending because he'd disclosed his convictions to the Law Society over 10 years ago and it had deemed him to fit to be granted a practicing certificate.
"One would have thought at the time of his application there would have been some serious discussions within the Law Society about whether or not he should be admitted," Paine said.
"It is not appropriate to revisit something the Law Society has already dealt with and seek to use that in support of a strike off."
Paine went on to say that a strike-off would be the worst possible option for his client, especially given the $100,000 the standards committee was seeking in legal costs. Striking him off would leave him with no ability to pay those costs.
"I make the submission that by striking him off his availability to help people in need goes, he does a lot of pro bono work and is obviously concerned that these people who are vulnerable are not going to be able to get the legal representation they desperately need," Paine said.
"I do make the submission that it would be appropriate for this tribunal to allow him to continue practicing with restrictions so that he's no longer able to go anywhere near client money and that he reports to the society on a regular basis."
The tribunal reserved its decision on the penalty for O'Connor and will issue it in writing in the near future. It did however extend his interim suspension which has been in place since 10 May.
* This story originally appeared in the New Zealand Herald.