Unlike public servants, lawyers in New Zealand have a statutory obligation not to criticise the judiciary in a personal or undignified way under the client and care rules.
Unlike public servants, lawyers in New Zealand have a statutory obligation not to criticise the judiciary in a personal or undignified way under the client and care rules.
COMMENT:
"Grey J has his head stuck up his old colonial arse…" - if that isn't a memorable line, I don't know what is. Sadly, it's a tweet of fiction.
The Auckland Women Lawyers' Association moot competition kicked off this month at the Auckland High Court, and while students maybe of little interest to the legal profession and patrons of the NZ Herald business section, the fake judgment was incredible.
The fabricated case concerned Susan Te Kani, a lawyer and former "mature student" who was appealing a decision made by the NZ Lawyers and Conveyancers Tribunal. She operated the anonymous Twitter account @JusticeFighterNZ, and had been fined and censured by the Tribunal for criticising the judiciary in her capacity as a lawyer.
Digs at mature students aside, the tweets really tickled me. For example:
"Is anyone surprised re today's Supreme Court decision on relationship property? Reasoning makes no sense, so maybe just 5 rich dudes wanting an easy out after they cheat on their wives? [emoji] *sigh* #criticallegalstudies."
The account had posted 311 tweets and had 481 followers, and the tweets in question had received at least 70 "likes", "which I am informed is a relatively high number for anonymous Twitter commentary of this nature," Sheppard J said in the colourful judgment.
In an amazingly passive aggressive turn of events, the NZ Law Society sent an email to ALL lawyers in the country, giving them a '"general reminder" that lawyers should exercise restraint when commenting on the judiciary, pursuant to Rule 13.2 of the (Lawyers: Conduct and Client Care) Rules 2008. Te Kani continued to Tweet with abandon, someone dobbed her in (which I would have liked to have known who and how this had happened, but that's a tangential point), she was censured after a NZLS "own motion investigation", and Sheppard J upheld the decision.
I tracked down the mastermind behind the judgment. Former judges clerk Jordan Grimmer (together with Jessica Storey) wrote the piece of fiction as a laugh, saying it was "extremely fun to write".
Grimmer was inspired by the 2019 High Court of Australia case, Comcare v Banerji, in which an employee of the Australian immigration department was the subject of an employer dispute after penning an anonymous Twitter account that criticised the department for years.
It was the first time the High Court of Australia considered the constitutionality of limitations on the political expression (vis-à-vis free speech) of public servants.
Unlike public servants, lawyers in New Zealand have a statutory obligation not to criticise the judiciary in a personal or undignified way under the client and care rules.
"On the one hand, the rules make sense as judges can't respond to criticism that's put to them. It's somewhat unconstitutional for them to do so. It would be improper for a judge to go on the radio to defend a decision, for example, and that's important because to do so would undermine their legally binding judgment," Grimmer said.
In the context of lawyers, the rationale is that as officers of the court they shouldn't be seen to be undermining or unnecessarily embarrassing the judiciary.
"But, lawyers, like every citizen, have freedom of speech. And lawyers are often the people who are best placed to comment on judges or their decisions.
"There aren't many other accountability mechanisms for judges, unlike politicians. For example, we don't elect our judges, which is not at all to say they should be elected, that would be improper. But other than criticism, the main options are appealing a decision, or going through the judicial conduct commissioner, which is not always suitable."
It is worth noting that those who are quick to defend their right to free speech often forget about New Zealand's weighty defamation laws. If what you're saying is based on opinion or truth you may be safe, but that is of little consequence if you're up against people with deep pockets, who may, in theory, have no scruples when it comes to litigation.
Catriona MacLennan got offside with the Lawyers Standards Committee in 2018 after questioning a judicial decision. Photo / Doug Sherring
But questioning the judiciary is nothing new. Catriona MacLennan was in trouble with a Lawyers Standards Committee in 2018 after questioning a judicial decision by Queenstown District Court Judge Brandts-Giesen. She called the judge out via the NZHerald over a domestic violence matter, saying he should step down after victim blaming and minimising the assaults.
The case made headlines, and the standards committee decided to take no further action against her.
In 2012, Tony Molloy QC was in the naughty corner after criticising the judiciary via the media. He said it was inappropriate that New Zealand had generalist judges, and likened the situation to asking a gynaecologist to perform brain surgery.
Molloy was eventually let off the hook, but interestingly the Legal Complaints Review Officer indirectly touched upon where and when such comments would be acceptable. Molloy's health-related comment may have been unduly inflammatory, but it had a logical basis.
Tony Molloy, QC Photo / NZ Herald
Such views may have been expressed by colleagues, judges and academics, the judgment read.
My interpretation of this reasoning is that it would have been fine in an academic article context, but not as a soundbite that attracted public attention.
The issue here though, is that if criticism were allowed only in academic circles, there's a question of access. What member of the public reads academic material in their spare time? The implication is that criticism is fine, as long as it's behind closed doors.
What we can all learn from these cases is that questioning the judiciary comes with serious consequences. When I questioned the nature of a certain sailing trip and a Supreme Court judge in an earlier column, I was at one point sweating profusely thinking I'd be done for contempt of court.
But after checking my bank account, and having negative assets, I was reliably informed that going to court would put me in a better financial position because I would have to declare bankruptcy.
In summary, criticise the judiciary at your peril, and avoid the courts unless you're made of money, or you're in financial deficit but you've got a strong stomach.
If you've got any tips, legal tidbits, or appointments that might be of interest, please email Sasha - on sasha.borissenko@gmail.com
