17 April 2018

Comments on the judiciary by lawyers

Lawyers are quite entitled to express views publicly which are critical of judicial decisions made in cases where they have not appeared, but they are expected to be careful not to do so in a way that may undermine public confidence in the judicial system when doing so, New Zealand Law Society President Kathryn Beck says.

Ms Beck was responding to reports that an Auckland barrister was being investigated by a lawyers standards committee for comments made about a judge’s decision and the remarks he made.

“Section 188 of the Lawyers and Conveyancers Act 2006 means the Law Society is unable to comment on any specific complaint or own motion investigation undertaken by a standards committee. However, some of the comments made in the media are seeming to imply that any criticism or comment by lawyers on the decisions by judges is not permitted somehow.

“Far from it. 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.

“Decisions by lawyers standards committees, the Legal Complaints Review Officer, and our courts have upheld the rights of lawyers to comment about judges in the context of the decisions which they have made.

“The effect of these decisions is that the comments should be expressed in a reasoned and objective manner. Practising lawyers are officers of the court and under the Lawyers and Conveyancers Act 2006, one of their fundamental obligations is to uphold the rule of law and to facilitate the administration of justice in New Zealand.

“Fair and reasonable comment on the decision by a court facilitates the administration of justice. It is important that lawyers and anyone else feels free to comment on any decision. However, such comment should be reasoned, not personal. It should not be destructive or undermine the operation of the court.

“I believe we are very fortunate to have a judiciary of high calibre and dedicated to the interests of justice. However, it is very important that the freedom of all New Zealanders to discuss and disagree with judicial decisions is emphasised.

“New Zealand has a well-established appellate system which can be used by litigants and parties to appeal decisions which they believe are wrong. The Judicial Conduct Commissioner is also one avenue which can be used if a lawyer has a concern about the conduct of a judge.”

ends

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