Mr Witehira had told the Standards Committee that he had been having difficulties in receiving payment from the Legal Services Agency (legal aid), and that his practice had been unable to generate sufficient billings outside legal aid 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 substantial legal aid payment had not arrived, so he made the decision to withdraw $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 believed the misconduct to have been quite 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 and persistently 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 adversely affected by those factors; he had panicked when he was faced with a situation where his overdraft was due for repayment, and he had taken client funds without stopping to consider alternative actions.
The misconduct had been 'a spur of the moment' decision made out of panic, not being rational and looking at the problem in a proper, considered way.
Nor had there been any systematic or sophisticated plan to cover the offending.
Counsel noted Mr Witehira's ready admission, rectification by repayment and acceptance of the need to rehabilitate. He had taken employment with a sole 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.
His new employer had deposed that he was prepared to "give him a go," and that to date he did not believe his trust and confidence had been abused.
The tribunal, however, did not accept that Mr Witehira was guilty of a single, spur of the moment lapse in judgement, but that he had deliberately misappropriated funds on two separate occasions. Nor did it accept that he had not sought to disguise what he had done. The evidence indicated that it was highly likely that he had intended that the misappropriations not be discovered.
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 apparent bank 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 (later reversed by the legal complaints review officer, resulting in (the) finding of unsatisfactory conduct), 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...
"The public interest has far more weight than his personal interest in this situation, and we consider that his dishonesty, and consequent risk to the public and profession by striking Mr Witehira off the roll."
