Suspending a lawyer accused of misusing his clients’ money was likely to be a last chance for him to prove that he was fit to continue after his suspension, the Supreme Court has been told.
Summing up his case against Siosifa Tu’utafaiva, Lord Chief Justice Whitten said that striking Tu’utafaiva’s name from the Roll of Law Practitioners was not presently warranted.
“He should be given, by way of suspension, what is very likely to be, a last chance to demonstrate his ability and willingness to abide by all the professional, legal and moral obligations of a law practitioner, should he wish to continue as one.
“However, the conditions of his suspension will be sufficiently onerous to reflect the seriousness of his misconduct.”
Lord Chief Justice Whitten said Mr Tu’utafaiva had a history of offending, for which suspension had been recommended twice and ordered once.
As Kaniva News reported earlier, a Supreme Court Order suspended Tu’utafaiva, who has served in a number of high-profile cases and is a former Minister of Police and MP, from practice as a law practitioner for a period of 12 months from July 10, 2013.
That punishment came after the Tonga Law Society’s Disciplinary Committee found him “guilty of two counts of professional misconduct contrary to Section 21(1)(a) of the Act” on October 4, 2012.
The court was told at the time that Tu’utafaiva had received substantial sums through legal fees, that he had not performed the services for which he had been paid and that he had not repaid the money received, despite repeated requests. He later paid back the money.
Misconduct
In the latest case, the Supreme Court was told that between March 8, 2022 and August 11, 2022, the Tongan Law society received three complaints of professional misconduct against Mr Tu’utafaiva. One was subsequently withdrawn.
Lata Motuliki complained that between late 2021 and 2022, she paid Mr Tu’utafaiva a total of $1,400 for legal services which he never provided.
Tom Weston KC, a New Zealand lawyer, complained that in May 2022, he was engaged by Poasi Tei to provide legal advice on certain election petitions. He was to be instructed by Tu’utafaiva. Weston KC, provided a fee estimate for the work of NZ$8,000. That sum was paid into Tu’utafaiva’s bank account. Weston KC provided the advice and issued an invoice for his fees in accordance with the estimate. Tu’utafaiva failed to pay the invoice or respond at all.
Both complaints were referred to the Tongan Law society’s Disciplinary Committee. On April 4 this year the Committee found Tu’utafaiva guilty of two counts of professional misconduct and recommended that his name be struck off the Roll of Law Practitioners in Tonga. The decision was referred to Lord Chief Justice Whitten who has the power to determine what action should be taken in such cases.
Lord Chief Justice Whitten said Tu’utafaiva’s behaviour had fallen below the standards of trustworthiness and integrity required of a lawyer.
In his summing up, the judge said he had breached the expectation of trust when he did not use moneys he had been paid by clients.
“A breach of trust, in the relevant sense, will almost always involve some element or degree of dishonesty,” the judge said.
“There is ample evidence that Mr Tu’utafaiva was aware that he was transgressing ordinary standards of honest behaviour and that his conduct was dishonest by the standards of ordinary decent people.
“Mr Tu’utafaiva’s failure to contradict, explain or even respond to the charges supports that analysis.”
The lawyer had not repaid any money and showed no remorse or insight into what he had done.
He was therefore suspended from practicing law in Tonga from April 26.
Tu’utafaiva will be eligible to apply for a practising certificate after a period of three years commencing from the date on which he provides evidence that he has repaid his clients with interest.
For more information
Lawyer Tū‘utafaiva’s license suspended again, ordered to pay $10,000 after breach over career
