The Law Society has abandoned its pursuit of a woman lawyer for criticising a judge in a domestic violence case – but defended itself for starting the investigation.
A decision from the society’s National Standards Committee, out today, says it will take “no further action” against lawyer Catriona MacLennan. The committee, chaired by Christchurch barrister Nigel Hampton QC, had launched the complaint of its own volition after MacLennan said in a media interview a Queenstown judge should no longer sit on the bench.
Judge John Brandts-Giesen discharged a man without conviction for attacking his wife and another man, saying many people would have done exactly what he did. MacLennan, a lawyer in the Family Court for many years, told the New Zealand Herald the comments were “abhorrent”, showed a complete lack of understanding of domestic violence and he “victim-blames and minimises assaults on three people”.
She said it was inappropriate for the judge to continue on the bench.
The decision was overturned by the High Court after police appealed.
A complaint from an unnamed member of the public about MacLennan’s comments was dismissed by the standards committee in March, but a day later it launched its own inquiry requiring MacLennan to explain herself and then decided to hold a hearing, which she was not invited to be present at to argue her case.
Its decision today says the hearing, which in the end did not go ahead, would not have been scheduled had MacLennan provided information it sought in writing. However she says she did so a week after the committee launched its inquiry.
That decision attracted particular criticism because the committee had not done so in the case of complaints of sexual assaults by law clerks at leading law firm Russell McVeagh and the Law Society had been chastised from within and without for its inaction in one of the profession’s most serious scandals.
“With respect, the committee needs training in the meaning of free speech.”
– Former Supreme Court judge Sir Edmund Thomas
MacLennan wrote about the complaint for Newsroom in a powerful defence of her right to speak out.
Today she told Newsroom:
“I am pleased the investigation has been ended. It should never have been started.
“I will be writing to Justice Minister Andrew Little to put my concerns before him and ask him to take action. The fact that a Law Society body would fail to follow natural justice and other basic principles of our legal system is deeply concerning.
“I am also alarmed that the Law Society appears to place so little importance on freedom of speech, which is guaranteed to every New Zealander under section 14 of the New Zealand Bill of Rights Act 1990.
“The case highlights the vital role of the media. I could not have fought the investigation without making it public and having the media scrutinising what was happening.
“I want to thank my lawyers Jan McCartney QC and Frances Joychild QC who acted for me pro bono. They put in countless hours and I’m grateful for their wisdom and also their focus on the fact the key issue here is New Zealand’s shocking domestic violence rate.
“Upholding the rule of law and the dignity of the judiciary does not mean unquestioningly supporting the judiciary even when they err.”
– Catriona MacLennan
“My view is that the role of lawyers is to stand up for the vulnerable and disadvantaged and to speak out about injustice. My opinion is that the Law Society itself should have spoken publicly to criticise Judge Brandts-Giesen’s remarks and his decision to grant a discharge without conviction.
“Upholding the rule of law and the dignity of the judiciary does not mean unquestioningly supporting the judiciary even when they err.”
The committee today defended its own role in the affair, saying it had a duty to “ensure an appropriate balance is struck when a lawyer criticises a member of the judiciary” and that its role was analogous to that of the Attorney-General in protecting the judiciary.
But it found MacLennan did have an “objective foundation” to her comments, being a recognised expert on domestic abuse; and that she made the comments mainly as spokesperson for the Auckland Coalition for the Safety of Women and Children.
“Ms MacLennan has satisfied the NSC that she made her statements in good faith, for the benefit of the public and not in a manner intend to bring the administration of justice into disrepute.”
The standards committee’s decision to pursue MacLennan was strongly criticised within the profession, including a public statement from the Auckland Women Lawyers’ Association and a powerful blog by leading Auckland QC Jim Farmer. A New Zealand solicitor living in the UK, Benedict Tompkins, wrote an open letter published by Newsroom calling for the removal of the committee.
The committee’s withdrawal has not saved it from further criticism.
Former Supreme Court judge Sir Edmund (Ted) Thomas, has told Newsroom the decision completely vindicates MacLennan “but it is otherwise a treatise in self-justification”.
“The committee seeks to justify a decision that should never have been made in the first place. The committee advances seven reasons for taking no further action. All those reasons would have been known to, or easily ascertained by, the committee at the time it launched its own complaint.”
Justice Thomas said the committee did not express regret “let alone proffer an apology” for the decision. “Yet it must know that an ‘own-complaint’ can have a devastating impact on the recipient.”
He said the MacLennan comments had been temperate, measured and responsible and the committee had been unduly precious.
“With respect, the committee needs training in the meaning of free speech.”
He planned to write to the Law Society president and council urging a review of the membership and procedures of its standards committee and whether it accorded with natural justice.
“Domestic violence is a serious problem in New Zealand. Ms MacLennan served the public interest in taking the Judge to task. It is the committee that is out of step. This is confirmed by the massive support Ms MacLennan has received from the profession.”
