Sticking their oar in: When anyone can drag a lawyer before a standards committee – Deborah Chambers

Why should people with no involvement be allowed to stick their oar in?

If they disagreed with the contents of the letter, they were perfectly free to write their own article, fire off a social media thread, or lobby politicians. That is how public debate is supposed to work. But instead, they made a formal complaint to the New Zealand Law Society complaints service. It went to a standards committee, which upheld one of the many claimed breaches of professional conduct rules and found Franks guilty of professional misconduct. He appealed to the Legal Complaints Review Officer, Fraser Goldsmith, who ruled that the standards committee was quite wrong. In the end, it was decided there had been no professional duty breached by the letter Franks sent on behalf of his client.

That did not stop the whole process running from February 2025 through to last week, with all the stress, time and cost that involved for Franks and his firm.

New Zealand’s system is unusually loose. Under the Lawyers and Conveyancers Act, literally anyone can complain about a lawyer. There is a provision that lets standards committees later decide a complainant lacks “sufficient personal interest” and take no action, but that is not a barrier to filing in the first place. It is just a discretionary filter that, in this case, was not properly applied. Goldsmith was clearly surprised that the standards committee did not even consider whether these people had the right to make a complaint. He held that a member of the public did not have sufficient interest to make a complaint. The correct result was reached. The case demonstrates there needs to be a gate when a complaint is received as to who has a proper nexus to drag a lawyer in front of the professional standards committees.

This is not how it works in England and Wales, Canada or the United States, where free-speech traditions and tighter regulator control make it much harder for ideological outsiders to weaponise the process.

The profession itself has repeatedly recognised the proper role of lawyers in other decisions. Lawyers are “entitled, and sometimes even expected, to engage in robust correspondence on behalf of their clients”. Freedom of expression must be “jealously guarded” and lawyers “must not be fearful of saying unpopular things”.

Yet complaints from people with no direct stake in the matter can relabel perfectly ordinary (if firm) advocacy as “bullying”, “discourtesy” or “causing distress”. The complainants made numerous claims of alleged breaches of some nine professional conduct rules. So they really went to town. That creates an obvious chilling effect, especially in high-stakes areas such as relationship property, family violence, employment disputes or criminal cases. A lawyer who is constantly looking over their shoulder risks softening their advocacy, and that is bad for the client.

There is a clear line here. Courts already deal ruthlessly with conduct that genuinely threatens the administration of justice – abuse of process, misleading the court, contempt, you name it. Standards committees do not need to wade into every spat where an opponent (or a bystander) simply feels upset.

And the public cost is enormous. In relationship property cases, the complaints made all too often come from the opposing spouse or partner, not from the client of the lawyer. Why should litigation opponents be allowed to weaponise the disciplinary process during litigation or after litigation when, subject to our obligations as an officer of the court, our overarching duty is to vigorously protect and advance our clients’ interests, often in a contentious and adversarial environment.

The same dynamic plays out in criminal law. Convicted offenders routinely file complaints against prosecutors from their jail cells as a form of collateral attack. They already have extensive appeal rights, including the ability to raise allegations of prosecutorial misconduct. They should not be allowed yet another bite at the cherry.

Meanwhile, the taxpayer foots the bill. Government agencies divert resources from actual prosecutions and victims. Crown prosecutors spend hours responding instead of preparing cases. And none of this adds one jot to New Zealand’s productivity.

In the year ending June 30, 2024, the New Zealand Law Society received 1231 complaints. Only 28 resulted in Disciplinary Tribunal decisions. The vast majority went nowhere, resulting in no disciplinary finding at all. Yet even meritless complaints consume huge amounts of time, emotional energy and money. Lawyers have to respond. Insurers get involved. Files get reviewed. Those costs are ultimately passed on to clients. And all of this occurs against the backdrop of a profession already struggling with retention, workload and stress.

This overly broad system is, in part, the New Zealand Law Society’s own creation. It had significant input into the Lawyers and Conveyancers Act and the rules around complaints. It became the regulator under the act and has continued to influence amendments and rules. It is another example of the organisation failing to robustly protect the interests of its own members by choosing to wear two hats, which is exactly why so many practising lawyers view the Law Society with wariness, if not outright frustration.

What Franks described as people “looking for ways to moralise and shut down any type of communication they don’t like” is not confined to the legal profession. Similar tendencies are appearing across professional regulatory bodies more generally. Licensing regimes, training requirements and professional standards are increasingly being used to enforce ideological conformity in sectors ranging from healthcare and real estate to architecture and education.

Professional regulators exist to protect the public from genuine incompetence, misconduct and dishonesty – not to police political opinion or compel adherence to fashionable orthodoxies, nor to sustain a sprawling complaints bureaucracy that invites intervention by omnipotent moral busybodies entirely unaffected by a lawyer’s conduct.

Clients should plainly be able to complain about their lawyers. Judges and police should too. Employees should be able to complain about bullying or exploitation within firms. Law partners should be required to report breaches of professional conduct rules within their firms. A person directly affected by a lawyer’s misconduct, for example, a breached undertaking or a victim of sexual harassment, should be able to complain. It is difficult to see why any other category of person should be entitled to activate the disciplinary process.

Once lawyers start second-guessing every robust letter because some outsider might file a complaint, the profession becomes more timid, more cautious and less willing to act fearlessly for unpopular clients.

And when that happens, it is not the lawyers who ultimately lose.

It is the public.

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