Case Note

Hardie and Brant v New Zealand Law Society

In 2019, the Kent Cricket Club gave their Woman Club Player of the Year trophy to Maxine Blythin, a natal male. The decision generated controversy and attracted attention even in New Zealand, where two friends referenced the award in a satirical email exchange organising an annual game against each other. One suggested that his friend’s team would be “working hard transitioning their losing side” and “launching an initiative to make cricket available to Transgender persons,” inspired by Kent’s decision to give their award to Blythin, who they described as “a fully and entire man”. In reply, the other said, “we are fully inclusive and aware and will be selecting a cauliflower in our team as opening bat to represent the oppressed plant life of the planet ... We will also be selecting a koala as opening bowler as representing all non-human animal life which has been oppressed by Man ... all WASPs [white Anglo-Saxon Protestants] in our team will be obliged to apologise to everybody for everything before the game (which will be non-competitive of course).”

The friends were both lawyers, and the emails were sent from their work accounts and included their usual professional sign-offs. An anonymous recipient of the messages complained to the Law Society that the emails were, among other things, “extremely discriminatory, unprofessional, and unbecoming of lawyers and the parties’ respective law firms.” The NZLS referred the complaint to a standards committee, which decided to investigate.

After notifying the lawyers of this in March 2020 and corresponding with them, the committee decided it would not take any further action on the complaint when it met in July 2020. However, and “remarkably,” this was not communicated to the lawyers until a formal Notice of Decision was issued in June 2021. The Notice of Decision stated that the lawyers’ conduct “was at the lower end of the type of conduct by lawyers that could attract a disciplinary response” but advised them “to consider the tone and content [of] correspondence sent from their professional email accounts, particularly where their lawyer sign-off is included”. The committee also treated the Notice of Decision as confidential and declined to permit its publication.

The lawyers challenged the committee’s decision in the High Court and, after losing there, in the Court of Appeal.

Were “regulated services” being provided so that the committee had jurisdiction?

The standards committee had jurisdiction over complaints about “misconduct” or “unsatisfactory conduct”, both of which focus on whether the lawyer complained about was providing “regulated services”—essentially, professional services as a lawyer—at the time of the incident. (Misconduct also includes conduct unconnected to the provision of regulated services if it shows that the lawyer involved is “not a fit and proper person” to practice, which was not at issue in this case.)

The lawyers argued that their emails were purely personal and were not connected with the provision of regulated services. However, the committee’s Notice of Decision stated that the email exchange “sits uncomfortably astride the divide between professional conduct and personal conduct.” Although “largely of a personal nature ... it is nonetheless not unconnected to the provision of regulated services.” This was because, according to the committee, “all email correspondence sent from a lawyer’s professional email account could potentially be considered to be connected to the provision of regulated services, particularly where their professional email signature is included.”

However, the Court of Appeal noted that whether a lawyer is acting in a professional or a personal capacity “must be considered objectively.” The judges considered that it was “apparent from the content of the emails and the intended recipients that the appellants were acting in their personal capacity. They were plainly not sent in conjunction with the provision of regulated services.”

In other words, the committee had no jurisdiction to investigate and, as a result, the Court said, the committee could and should have declined to take any action in response to the complaint.

Did the committee make an “adverse finding” so that it should have given an opportunity to be heard?

The next important issue was whether the committee had made an “adverse finding” against the lawyers when it issued the Notice of Decision. Natural justice generally requires that someone who is “likely to be significantly criticised” should be given an opportunity to respond to the proposed finding, which the committee had not done.

However, the committee argued that the conclusion that the lawyers’ conduct “was at the lower end of the type of conduct by lawyers that could attract a disciplinary response” was not sufficiently serious that the lawyers should have been given an opportunity to respond. The High Court had agreed, stating that “any reasonably informed person” would have understood the decision “as devoid of criticism detracting from [the lawyers’] professional standing or reputation.”

The Court of Appeal disagreed. The reference to the “lower end” of the spectrum of conduct that may draw a disciplinary response “implied that their conduct may have constituted unsatisfactory conduct.” While this was not an especially serious finding, “even mild criticism from a disciplinary body can have significant implications for practitioners and their careers,” for example, when appointments to judicial or other offices or to boards are considered, or when applying for professional indemnity insurance.

The decision was significant enough that the committee “should have given the appellants an opportunity to respond before issuing the decision containing such comments. The fact that the [committee] did not intend to take any further steps in the investigation did not absolve it from that obligation.”

Was the committee right to treat the Notice of Decision as confidential and to refuse publication?

The lawyers had asked for permission to share a redacted copy of the Notice of Decision with other lawyers “for educational purposes”, intending that the redactions would respect the committee’s stipulation of confidentiality. This was refused.

In the High Court, the NZLS and the committee had argued that “the request for publication of the [Notice of] Decision comes not from a bona fide desire to educate the legal profession, but rather largely as an attempt to advance an ideological platform.” The judge agreed that would not be “a legitimate reason for publication” and considered that the committee “was justified in taking an arguably cautious approach in these circumstances in declining to publish the [Notice of] Decision.” He also went further, ordering not only that non-publication of the decision should continue in force, but that publishing his judgment was likewise prohibited.

The Court of Appeal noted that that the committee had not told the lawyers that it had these concerns or that they might affect its decision about publication of the decision. Therefore the lawyers had had no opportunity to address these points and this too had infringed their right to be heard and meant that “they were not treated fairly.”

The Court of Appeal not only set aside the committee’s non-publication decision, but concluded that the High Court’s confidentiality order was “neither necessary nor appropriate.” It too was set aside and, in April 2024, four years after the lawyers were first notified of the complaint, their appeal was allowed.

Hardie and Brant v New Zealand Law Society [2024] NZCA90

Alex Penk
January 24, 2025
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