Jock Anderson 's Opinion

A look behind the scenes of the legal profession

Jock Anderson's Caseload: What lawyers worry about

From left: Auckland barrister Tony Bouchier, Police Commissioner Mike Bush and Nicky Hager. Photos / NZ Herald.
From left: Auckland barrister Tony Bouchier, Police Commissioner Mike Bush and Nicky Hager. Photos / NZ Herald.

Crime barristers are up in arms over an increase in the number of self-represented litigants and a surge in appeals based on the competency of lawyers.

But a bigger worry is the prospect of bulk funding of legal aid, which Criminal Bar Association (CBA) president and Auckland barrister Tony Bouchier predicts will be the death knell of the independent bar.

Mr Bouchier says bulk funding, which he expects will be introduced if a National government is returned in September, will require lawyers to cluster together in legal chambers.

He says this will take competition out of crime work and make it impossible for young barristers to take on crime work except by working for the Crown or public defender service.

"We must have a strong, independent bar - we keep the State honest," Mr Bouchier says.

These were hotly debated topics at last weekend's annual conference of the CBA, many of whose members are recipients of legal aid payments.

Mr Bouchier told CaseLoad appeals on the grounds of legal competency means experienced criminal lawyers are now having their competency questioned by less experienced and less competent lawyers representing disgruntled clients.

He says it is sometimes a case of a lawyer giving good advice to a client - such as it may not be a good idea to call the client to give evidence.

[CaseLoad knows this often results in the client shooting themselves in both feet and clinching their guilt].

"If the client doesn't like the outcome of the case then there's an appeal based on competency of counsel," Mr Bouchier says. "But fewer than 10 per cent of such appeals is successful."

He says the CBA will put together a team of senior barristers to draw up guidelines to ensure members get clear written instructions from clients, including during trials.

Coupled with a capped $1,500 legal aid fee for taking appeals to the High Court and Court of Appeal - regardless of how much time and effort is involved - Mr Bouchier says experienced lawyers have had enough and are turning work down.

He says this means less experienced lawyers take on appeals, which creates its own additional problems for courts and judges.

The CBA has fought long and hard against continuing cuts to legal aid payments, arguing the cuts drive experienced lawyers out of legal aid work, leaving it in the hands of less experienced lawyers - sometimes with unforseen consequences.

This year's Auckland conference broke with its favoured Queenstown venue.

Money raised at an earlier CBA dinner to assist Christchurch lawyers affected by the earthquakes was used to enable about 20 Christchurch lawyers to attend.

"That was much appreciated by Christchurch members -many of whom continue to struggle - and sparked a re-invigoration of the CBA," Mr Bouchier says.


Why A Question Hangs Over Nicky Hager

For those keenly interested in where the latest private material published in a book by Mr Nicky Hager goes from here, let's not forget where it came from.

There is a view Mr Hager - who appears to make a habit of this sort of thing - may have broken the law by accepting for publication material which was almost certainly stolen.

Those who hacked the material certainly broke the law.

Observers have reminded CaseLoad about the Proceeds of Crime Act, which says:

"Proceeds, in relation to a serious offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence."

A serious offence means an offence punishable by imprisonment for five years or more.

Others wonder if Chief High Court judge Helen Winkelmann's view that sources used by New Zealand Herald senior journalist David Fisher in his recent book about Kim Dotcom were not protected by journalistic privilege - and could be identified if sought - might be used to require Mr Hager to reveal his sources.

This side of the story is far from over.


Tell The Truth About Urewera

Police Commissioner Mike Bush says sorry - not for the 2007 anti-terrorist raids against a gun-toting gang of bomb-throwers in the Ureweras - but for the distress caused to some innocent folk when police carried out road blocks.

It remains now for those individuals who attended Urewera "training camps" learning how to shoot guns and use Molotov cocktails to tell the truth about what they were up to, what they were training for and what they intended.

While not all of them are Tuhoe tribe members, perhaps Tuhoe could exert its influence on those who are, to come clean.

That way mana might be restored to all sides.


"Daddy" Crutchley's Last Sitting

Described respectfully by those who remember him as one of the last old-style magistrates, Edgar Stanley James Crutchley, died this month at Lower Hutt, a few days short of his 97th birthday.

Edgar Crutchley's legal career culminated in 16 years as a Stipendiary Magistrate - forerunners to district court judges - based in Christchurch, where he was known for his courtesy and professional demeanour.

He began full legal practice in 1949 when he joined the Nelson firm Ralfe, Ralfe and Boyle. Focusing on litigation, he was appointed to the partnership after a few years, with the firm becoming Ralfe, Ralfe and Crutchley (it is now known as Knapps).

He was appointed a Stipendiary Magistrate (SM) in 1960 at the then young age of 42, initially based in Invercargill before moving to Christchurch in 1961 and becoming senior magistrate there by 1968.

Ill-health, including increasing deafness from his wartime artillery experiences, forced Mr Crutchley to resign in 1977, aged 59, but he continued to make a significant impact on the legal profession.

He became closely involved with providing training materials and information for Justice of the Peace associations throughout New Zealand and remained active in the JP movement until 2007.

NZ Law Society Canterbury-Westland branch manager Malcolm Ellis, a former senior court official, described Mr Crutchley's demeanour on the bench as "proper" and without emotion.

His gentlemanly side shone through on adoption days, when parents would line up in the court waiting room to meet him for a chat before the interim adoption was made - the most enjoyable of all his magisterial tasks.

Daughter Nicola, a former deputy Crown solicitor who successfully prosecuted Scott Watson for the Sounds Murders and who now works in Australia, says older court staff described her father - known to them as "Daddy" - as an "old fashioned gentleman" who supported and mentored them.

Nicola Crutchley says her father was a true gentleman. "He loved the law, he loved the work. He was always very generous with his time and advice."

Mr Crutchley's full obituary appears at www.lawsociety.org.nz


How Judicial Praise Can Work For You

Lawyers are said to be queuing up to curry praise from Their Honours, which they can turn to commercial advantage.

This follows a landmark advertising ruling of an American court.

The Philadelphia-based United States Court of Appeals for the Third Circuit says the first amendment to the constitution gives New Jersey employment lawyer Andrew Dwyer the right to use excerpts from quotes of judges praising the quality of his work.

The decision reverses that of a lower court.

Mr Dwyer published the following quotes on his website in 2007:

"Mr Dwyer is, I think, an exceptional lawyer, one of the most exceptional lawyers I've had the pleasure of appearing before me. He is tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position, but no one can fault his zeal and his loyalty to his clients, and no one can question his intellect..." Hon Jose Fuentes, New Jersey Superior Court.

"The inescapable conclusion is...that plaintiffs achieve a spectacular result when the file was in the hands of Mr Dwyer...Mr Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved," - Hon William Wertheimer, New Jersey Superior Court.

The comments were made in the context of the New Jersey Law Against Discrimination's fee-shifting provisions, which require judges to assess the abilities and legal services of plaintiffs' lawyers.

["Something that wouldn't go astray here," said Our Man At The Bar].

When Mr Dwyer refused to remove Judge Wertheimer's comments, it all went to the New Jersey Bar Committee and in 2012 the New Jersey Supreme Court upheld a new advertising guideline and ruled that if lawyers wanted to advertise judicial compliments they had to publish the entire judgment.

But in overturning that in the Court of Appeals, Judge Thomas Ambro said that because the guideline precluded advertising with accurate excerpts from judicial opinions it was unduly burdensome and overly burdened Mr Dwyer's right to advertise his commercial services.

Meanwhile, in New Zealand, a senior judicial spokesperson (gender deleted) says the use by lawyers of judicial praise or compliments, including jolly quips, in advertising or self-promotion, is alive, well and strictly regulated.

"Our judges are world leaders in this type of cross-jurisdictional inter-face revenue sourcing".

"Use of judicial comments for advertising requires lawyers to pay judges a modest fee - known as the Tuscany Fund - which increases incrementally from the inferior district court up to the Supreme Court."

"Where certain judges are known to heap praise willy-nilly, bulk funding options are available for members of recognized legal chambers."

"This is all open, above board, ekes out judicial pensions and does not involve Justice Ministers of any hue."

"Pull the other one," said The Scunner.


Next Time

Why are more lawyers in trouble and who are they?

- NZ Herald

Jock Anderson

A look behind the scenes of the legal profession

With a life-time of court reporting under his belt - and from the sanctuary of the Ladies & Escorts Lounge - journalist Jock Anderson produces law-flavoured news and views with a touch of humour - occasionally aided and abetted by disparate cronies including Our Man At The Bar and The Scunner.

Read more by Jock Anderson

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