Lawyers are free to speak out against the judiciary, NZLS president says

Catriona MacLennan is being investigated by a NZLS standards committee after criticising a judge and a sentence he handed out. Photo / File

Lawyers are free to criticise and speak out on judges' decisions providing it does not undermine public confidence in the judicial system, according to New Zealand Law Society president Kathryn Beck.

The law society has spoken about the comments lawyers can make on the judiciary and its investigation processes after lawyer Catriona MacLennan revealed she was being investigated by its National Standards Committee for criticising a Queenstown judge last year.

MacLennan has now appointed her own lawyer, Jan McCartney QC, who has asked the committee to identify the alleged misconduct or unsatisfactory conduct which prompted it to investigate.

Meanwhile Beck said the implication that lawyers could not criticise the judiciary was incorrect.

"New Zealand has a free and open system of justice and it is one in which anyone - including lawyers and legal commentators - is able to scrutinise and comment on judicial decisions."

However, the comments should be expressed in a reasoned and objective manner and not be personal, she said.

"It should not be destructive or undermine the operation of the court."

Under the Lawyers and Conveyancers Act, the society could not disclose any information about particular investigations or even confirm whether one was happening.

It also had a policy not to reveal any of the members of its 24 lawyers standards committees. However, of the nine members on the National Standards Committee which is understood to be investigating MacLennan's conduct, seven are lawyers.

NZLS acting executive director Mary Ollivier said the standards committees made their own decisions based on fact after considering the views of all parties.

The committee could, however, decide at any time during the investigation process to make a "no further action" finding, which was quite common and a way of saying the lawyer had not breached their professional obligations, she said.

"There is a necessary process to be followed and this requires the gathering of evidence, setting down of hearings on the papers and communications to the parties."

A standards committee finding could be appealed to the independent Legal Complaints Review Officer and in some cases could also be appealed to the courts.

Lawyers could also raise any concerns about the conduct of a judge to the Judicial Conduct Commissioner.

At the weekend, High Court lawyer Benedict Tompkins, who works in both New Zealand and the United Kingdom, called on the NZLS to remove the members of the National Standards Committee for allowing what he described as a "repugnant" investigation into MacLennan.

MacLennan, who specialises in domestic violence law, said she was being investigated after she made comments in the Herald calling for Queenstown District Court Judge John Brandts-Giesen to be sacked for his comments during a domestic violence sentencing last year.

Judge Brandts-Giesen discharged the man without conviction after he was found guilty of assaulting his wife, children and a friend and said: "There would be many people who would have done exactly what you did, even though it may be against the law to do so."

Probe called 'repugnant': High court barrister calls for Law Society committee to be sacked