When Thomas Erskine, the storied lawyer of eighteenth century London, took the case of Thomas Paine, an American Revolutionary charged with seditious libel, many Londoners wondered why he would be prepared to act in such an unattractive case. For many, the idea of working to defend a traitor appeared tantamount to treason itself. However, Erskine – who was a firm defender of the principle that lawyers should be prepared to act for any client who sought them – rejected the idea. Instead, he told the jury:
If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the Judge before the day of judgment.
What Erskine meant – and it is a principle that has long been at the heart of the legal profession – is that every person is entitled to his or her day in Court. And if lawyers refuse to work for cases that they regard as unattractive, or for defendants whom they personally dislike, then those people are deprived of the very right that the legal system is designed to protect. As Erskine went on to say:
From the moment that any advocate can be permitted to saythat he will or will not stand between the Crown and the subject arraigned inthe court where he daily sits to practise, from that moment the liberties ofEngland are at an end.
This principle is now enshrined in what is called, in New Zealand and in England, the ‘cab-rank rule’. It is the principle that a lawyer must act for any client who seeks her help – so long as she is not too busy, the client can pay her fee, and the work is in an area she understands. This principle guarantees that clients – regardless of their circumstances – will always be able to have a lawyer to represent them.
However, this long-standing principle remains controversial in some areas and a recent disciplinary case involving Wellington lawyer, Stephen Franks, demonstrates that the principle is one that still requires an active defence.
The controversial letter
The case arose from a letter that Mr Franks, on behalf of a client that advocates against “gender-affirming care”, sent to 20 health professionals. The letter – which was sent on the instructions of the client – set out its purpose as being:
… to give fair warning that our client intends to assist claimants in possible future litigation against health professionals who havebeen involved in “gender-affirming care” performed negligently or in disregard of their rights as healthcare consumers.
It also recorded the client’s views that those who provided such care might be legally liable in the future and said that clinicians “may become a party to a legal proceeding”, warning them to preserve any documents that they hold incase this should take place in the future.
The purpose of the letter itself was clear – to advocate against this kind of care, and to encourage the recipients not to provide it. The letter itself was immediately controversial and attracted critical comments in several newspapers.
Those initial reports also contained comments from several people – including at least one lawyer – recording that they either had complained, or intended to complain, to the Law Society about the letter. Those comments were accurate, as the Law Society received at least six separate complaints about the letter – not from its actual recipients, but from other people (including two lawyers) who were concerned that Mr Franks had breached his ethical obligations by sending it.
The disciplinary proceedings
These complaints were considered together by a Standards Committee, which ultimately found that sending the letter was “unsatisfactory conduct” on the part of Mr Franks. While a number of different grounds of complaint were rejected, a majority of the committee concluded that Mr Franks had “used a legal process for an improper purpose” and imposed a modest fine based on what the majority described as “the serious nature of the conduct.”
Mr Franks challenged this decision before the Legal Complaints Review Officer (LCRO). In a thorough and carefully reasoned decision, the LCRO overturned the Standards Committee decision, and held that Mr Franks’ conduct did not breach any professional standards.
The LCRO held that sending a letter for a client was not a “legal process” – and so not a process that could be abused, as the Standards Committee had found. But more importantly, the LCRO also held that sending the letter – advocating for people to cease providing gender-affirming care – could not be said to be “for an improper purpose”.
As the LCRO held, the letter was not intended to embarrass or cause inconvenience. It was intended to persuade. While the letter tried to persuade the recipients not to provide care that is ‘lawful’, this was a legitimate purpose for a lawyer’s letter to be sent. In short, the fact that the complainants disagreed with the views of the people sending the letter and opposed what they were trying to do, did not make those things improper.
The wider context
Viewed in isolation, this complaint may seem like an unusual and fact-specific situation. Letters like this, especially ones that attract real attention, are rare. And while a lawyer should be prepared to act for any client, the reality here is that Mr Franks appears, in the words of the LCRO “as enthusiastic as his client” about the policy issue in question. However, this case is one of several recent decisions where lawyers have faced potential disciplinary penalties for their actions.
In Hardie and Brant v New Zealand Law Society [2024] NZCA 90, two lawyers received an anonymous Law Society complaint for an email exchange between them about a cricket competition where they made jokes about a transgender cricketer. While the Standards Committee ultimately did not make any adverse findings on the complaint – it first conducted an own motion investigation of the matter and it also made a number of comments in its decision that the lawyers took as criticisms. The email exchange itself was described as being “at the lower end of the type of conduct that could attract a disciplinary response” and the committee advised the lawyers “to consider the tone and content [of] correspondence sent from their professional email accounts, particularly where their lawyer sign-off is included”.
The lawyers challenged these comments, and the approach taken, by judicial review – first in the High Court and then the Court of Appeal. The Court of Appeal agreed with their criticisms and concluded that the Standards Committee should not have investigated the matter, and should not have made adverse comment without hearing from the lawyers concerned.
Another similar case, this time before the Lawyers and Conveyancers Disciplinary Tribunal, occurred in Nelson Standards Committee v Grey [2023] NZLCDT 33, where lawyer Susan Grey was charged with misconduct on the basis of comments she made online about the Government’s Covid-19 response. She applied, successfully, to have the charges struck out on the grounds that her statements represented opinions she was entitled to share – and which did not bring the profession into disrepute. The Disciplinary Tribunal agreed, holding that:
There is a need for lawyers to be robust, even bold, in a democratic society and to be able to express minority or to some, unpalatable views. We do not consider that such lawyers should be considered necessarily to be bringing their profession into disrepute.
Together, these three cases all show the extent to which disciplinary processes can be misused to target those whose opinions and speech stray into the verboten. All represent efforts by individuals who disapprove of the speech to see that lawyers who make these statements are punished for them. While all three ultimately failed to achieve that aim, it is also significant that in all three cases the initial process of review – the Standards Committee – took an adverse view of the lawyers’ conduct that was later overturned.
Complaints as public comment
Another commonality that the Stephen Franks case shares with earlier examples is the way that the disciplinary process is being used as a tool in public. Although Law Society processes are private, and the fact that a complaint has been made is effectively suppressed automatically, in the case of the Franks letter, complainants – including at least one lawyer – were happy to tell journalists that they were complaining and that they were encouraging others to do the same.
The same was true when the Royal Commission report on Abuse in Care identified that lawyer Frazer Barton had provided advice around record destruction to one organisation that was investigated. There, again two lawyers made public statements to journalists that they had made a complaint to the Law Society against Mr Barton. While the complaints in this case related to the question of whether Mr Barton had recommended an unlawful course of action, the decision to publicise the complaints is anomalous and undermines the confidentiality these processes are intended to have.
These cases suggest a trend of using a Law Society complaint as a public tool – to add weight to criticisms made of lawyers. This undermines the integrity of those processes, and means that the fact that those complaints are ultimately dismissed (as both were) will carry less vindication when the lawyer has already faced the public criticism of a complaint being made.
Discipline and the chilling effect
Lawyers hold a privileged position in society and must be accountable for their actions. However, that accountability must not undermine their ability to freely and fearlessly represent their clients. The cases outlined above show that this is a principle that still requires an active defence.
The reality is that lawyers are frequently targeted – for representing vicious criminals or for representing unpopular ideas. This criticism undermines the important role that lawyers play in ensuring that everyone gets a fair go.
Historically, lawyers have led the charge in many areas of progress – including being at the forefront on major developments in civil rights. To be able to be able to pursue these goals, they had to be able to advocate for unpopular opinions and, at times, even for things that in their time were illegal.
For lawyers to be able to continue that work, and to work against the injustices of today, lawyers need to be free to represent even unpopular positions, across the political spectrum. The use of disciplinary processes to undermine that freedom is damaging for all of us.
This is a guest post from Tim Conder, a litigation partner at Holland Beckett whose practice focuses on regulatory and public law matters. Tim is an experienced trial and appellate lawyer and also lectures in Public Law at the University of Waikato. These are his personal views.
