Finlayson on lawyer standards

September 20th, 2009 at 10:00 am by David Farrar

The SST reports:

Attorney-General has made a scathing attack on lawyers, saying he wants “incompetent” members of the profession to foot the bill for unjustified costs if they string out court cases.

Technically that is a scathing attack on incompetent lawyers, not all lawyers.

Finlayson, the country’s chief law officer and the government’s main legal adviser, said the community had tolerated for too long the gamesmanship of lawyers, to the detriment of clients, the courts and justice.

He is considering giving judges the power to impose financial penalties on bungling lawyers who waste time and create unwarranted court costs. Finlayson believes this was needed to compel lawyers to act in the interests of a “just, speedy and inexpensive” justice system.

Wow that will be as popular amongst some lawyers as pork at a Bar Mitzvah.

In a speech to the New Zealand Bar Association on September 12, Finlayson said most legal education courses in New Zealand were considered a joke and the time had come to lift standards. The audience of lawyers, at Wellington’s Holiday Inn, greeted with audible gasps his more frank comments.

Chris does not mince his words.

Finlayson said the courts were clogged because “the overall standard of the bar, and particularly the criminal bar, is not high enough in New Zealand”.

“Too many lawyers practising at the bar are incompetent, or worse, and there is no proper means of assessing their competence or requiring them to be properly educated.

“We’re breeding a class of barristers who don’t even know how to address the court, much less know how to cross-examine, write submissions and act in a professional manner.”

Finlayson said he wanted to change court rules to ensure lawyers did not use the “discovery” of documents and evidence to go on fishing expeditions and delay cases. He believes giving judges the power to order a lawyer to pay costs will ensure professional standards were upheld. He will consult the legal fraternity before taking a submission to cabinet, but he supports “some way where an associate judge or judge can impose a modest cost order on lawyers for wasting time and imposing unnecessary cost”.

Well I think the Judges will like it!

Finlayson said it was a tragedy some lawyers were letting down the entire profession. “Not only are they [lawyers] incapable of doing pro bono work, being law reformers and teachers, they can’t even get the basics right.

“We have tolerated them too long. Something needs to change. We cannot, as a profession, tolerate those who, whether wilfully or not, undermine the system and cannot co-operate in the just, speedy and inexpensive determination of proceedings. If litigation, both civil and criminal, has reached a crisis point in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out.”

If Chris succeeds in implementing that in the legal profession, then I reckon we make him Minister of Education after that to do the same with the teaching profession!

High-profile criminal lawyer and QC Robert Lithgow said Finlayson was trying to boss lawyers around and that allowing judges to order lawyers to pay costs was itself a waste. “The parties and the lawyers will be arguing the fines and the `telling off’ when they should be focused on the real court case. You can’t impose penalties on someone without an appeal process.”

I suspect the extra time taken up by fines and appeals against fines, would be small compared to the reduction in delays due to this new incentive. It is all about having the right incentives in place.

John Marshall, QC, president of the New Zealand Law Society, representing 10,700 lawyers, said the society was developing a competency assurance programme, which was likely to include senior lawyers mentoring juniors.

As well as more training, from January 1, a barrister would need three years’ experience before practising under their own authority, or “sole”. A barrister now can practise sole immediately after graduating from law school.

Marshall said the issue of ordering lawyers to pay costs would be discussed when the law society next meets Finlayson in about 10 days, but it would affect only a small number of lawyers.

Interesting changes.

54 Responses to “Finlayson on lawyer standards”

  1. Redbaiter (12,013 comments) says:

    Very courageous of Mr. Finlayson. When it comes to lawyers, I’m most often found agreeing with this man-

    “All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it. If all lawyers were hanged tomorrow, and their bones sold to a mah jong factory, we’d be freer and safer, and our taxes would be reduced by almost a half.”

    “H.L. Mencken (1880-1956), “Breathing Space”, The Baltimore Evening Sun, 1924

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  2. kiwirights (48 comments) says:

    You’re right David, about Chris F not mincing his words, or anything else. Such a straight shooter, and clearly frustrated, at being alone, in his attempts to improve the legal profession. More power to his right elbow I say. So very courageous to come out like that.

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  3. F E Smith (3,504 comments) says:

    Please don’t forget that the Attorney-General was a barrister himself before entering Parliament. I don’t know if he includes himself in the general malaise of the lessening standards of the bar.

    As one who practices at the independent bar, I feel a little shell-shocked by this. While I know the Attorney-General is not referring to ALL barristers, I am sure the effect of this reporting is to actually lower the reputation and call into the question of the entire bar.

    That is not a good thing.

    Every area has lawyers who should not appear in court. Just like every area has members of all professions who are not truly competent. We at the bar have no way of preventing those people who should not be there from appearing. The NZLS takes no leadership in the role, either. With regards criminal legal aid lawyers, there is no clear line of authority from either the NZLS or the LSA to review the competence of lawyers.

    This speech has, I suspect, two antecedents. One is the general idiocy of Simon Power. The other is the complaining of the judges in various areas as to the ability of counsel. In this it may come back to bite them as less lawyers will be willing to risk appearing in court due to the potential of costs awards. Even now a lot of firms are choosing to brief barristers rather than conducting litigation in-house.

    I note that the A-G mentions the role of associate judges. This implies that the malaise that he alleges exists includes those practising in the civil litigation area as well as the usual and mostly fatuous complaints against criminal lawyers. (Interestingly, do you note that the public’s complaint is that the criminal defence bar defends ‘guilty people with made up defences’ while Power’s complaint is that we are. effectively, delaying guilty pleas?) The problem with those practising civil litigation today is that the Courts have implemented so many interventions in order to prevent cases from getting to trial that very few civil litigators get much trial time at all. I know that my experience in Court far outstrips that of comparably experienced civil litigators. In fact, turning up to a call-over once a month is often the closest that a civil lawyer gets to a hearing.

    And you wonder why the standards aren’t so high? When they tell us that the litigation skills course adds the equivalent of 4 years to one’s experience? Sorry, it added a few months to mine. That only applied to the civil lawyers.

    The issues with the criminal defence bar can be traced to a couple of problems, and most of the problem is in Auckland. Mind you, some of the comments about the competence of judges sitting in Auckland tend to show that this isn’t just a problem at the bar, but that is for another day.

    Anyway, the issue of ‘car boot lawyers’, those who could not get jobs and went out straight away as barristers has caused concern for the NZLS and the criminal bar. We are, however, powerless to stop them. Well, we were, now they need permission for it. But one thing that the profession is remiss in is that it is no longer training up the younger generations. In my area you can count the number of truly junior specialist criminal lawyers on one hand. What will that mean in 20 years time, when most of the seniors are retired?

    Because legal aid is so badly paid, firms are refusing to do it. That means no junior lawyers are becoming experienced in court under the supervision of a senior lawyer. Also, most barristers chambers do not employ pupils. We do not have a tradition of it in NZ because most barristers have come from firms, having been trained there. When that ceases to happen we get to the stage where the criminal bar is shrinking. It makes up less than 10% of the country’s lawyers and most of the work is done by under 5% of the country’s lawyers. Most of them are in their 40s or older, and few are replacing them.

    Probably even less in the future, now that the country has been told that barristers are often incompetent.

    If you want to raise standards at the criminal bar by really training the younger lawyers then force the LSA to pay for junior counsel on every case where the Crown has two counsel. Right now getting a junior is, for most cases, almost impossible. In fact, the only people that get a junior paid for with ease is the Public Defender’s Office. The rest of the profession is given little chance to give our juniors the trial experience they need, and that our senior lawyers got, to be effective advocates.

    I don’t know how to fix the civil lawyer issue because it seems to be the will of the Courts that all cases should be resolved short of a hearing. If that is the case then why not have mediators involved instead of lawyers?

    This speech by the Attorney-General is an attack on the A-G’s own profession that threatens but does not give solution. That is bad form.

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  4. F E Smith (3,504 comments) says:

    Red, the disproportionate influence of lawyers in the USA is because of the Constitutional set-up they have, with legislation being able to be challenged in the Courts.

    Interestingly, in the USA plea bargaining sees less than 2% of all criminal charges go to a hearing, so it would seem that the main problem with litigation is in the civil area and not with criminal lawyers. Actually, I am told that in the USA criminal defence lawyers are in fact a dying breed, with them only really existing in big cities with public defender offices. The high profile defence lawyers we see on American TV are extremely rare.

    Of course, Shakespeare wrote about ‘first thing we do is kill all the lawyers’, but that was actually making the point that in the UK lawyers have an important role in maintaining freedom and the government is better able to control the populace without them. As the UK government has found out many times over the last 700 years.

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  5. kaya (1,360 comments) says:

    What redbaiter said.

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  6. kiwirights (48 comments) says:

    Interesting – so F E Smith is suggesting lawyers doing legal aid should be paid more to improve their services? Is that just throwing money at the problem, or would it be better to provide active training and supervision for some of these barristers? Having juniors be paid out of the public purse to train them under senior barristers would cost something but it might be an investment maybe? F E Smith is right that the A-G should have come out with more solutions, though.

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  7. Redbaiter (12,013 comments) says:

    I believe Singapore has a rate of about 1300 citizens to every lawyer. California about 200.

    Anyone know the rate in NZ?

    I also believe that in the last ten years, there has been an increase of only about 70 lawyers in Singapore.

    How has the number of lawyers in NZ grown over the last ten years?

    I don’t know the figures, but I think this country is suffering from a surfeit of lawyers, and a surfeit of incompetent poorly trained and poorly educated lawyers.

    The big problem is that the Law Society, (in my experience anyway) fully supports the status quo.

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  8. Patrick Starr (3,674 comments) says:

    “As one who practices at the independent bar”

    I dont need any practice at the bar i go to. I’m bloody good at it now

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  9. bchapman (649 comments) says:

    Yep, the popularist formula amongst politicians is alive and well. This govt seems as prone its use as the previous one. First find a convenient hate group- in this case lawyers instead of boy racers, gang members, welfare recipients, local mayors, public servants, migrants etc.. then start instructing the professionals how to do their job. You don’t get the health minister telling doctors how to practice medicine, engineers how to construct roads or the police how to investigate crimes so why is he telling judges how to do their job.

    As for professional standards isn’t that a much wider issue as pointed out in previous posts. The body in charge of professional standards is the Law Institute. The Attorney General is in charge of developing policy and supporting the legal profession. If he is worried about legal standards he probably will need a much more comprehensive policy than legislating to impose fines from above in true nanny state style.

    One line popularist comments like this play well to the media but they do little to develop trust and co-operation between members of professions and they usually disppear from the limelight as quickly as they appear. That is until later when we learn that you can’t solve complex problems with simplistic solutions and the utterer usually ends up with egg on their face.

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  10. reid (21,429 comments) says:

    Finlayson I think is using the competency argument as a cover to deliver the real message: stop dragging your feet, FFS.

    While lawyers charge by the hour, they have a vested interest in taking as long as possible. Not all people take advantage but in my perception it’s gotten to a point where many people are stringing it out, both on straight-forward matters and on complex ones as well.

    There is nothing so vigorously defended as a vested interest disguised as an intellectual conviction, and sometimes it may be difficult for some lawyers to tell the difference between doing the right thing for the client, and doing the right thing for themselves. I think that’s what Chris is getting at.

    I’d really like to see some historical data on the average duration of various types of criminal cases.

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  11. side show bob (3,476 comments) says:

    This can’t be right, surly Finlayson has got it all wrong. I remember the Dear One and the white witch telling us that we had a mature, experienced, grown up legal system. Thus no need for those old legal fossils in the UK, the privy council. Yeah, just another crock of shit care of the scabby arse socialist fuckwits.

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  12. reid (21,429 comments) says:

    One example of stringing it out is I think, Peter Kaye saying he would advise his Hungarian client to appeal the 10-year minimum sentence for murdering that old guy in Onehunga.

    I mean, why? To get it reduced by six months?

    Is that really worth all the legal aid. Peter Kaye is a senior member of the Bar and he is very competent. Yet to me, he should also be considering the value to the taxpayer rather than just blinding himself to that factor. And why would that be a calamity to the client’s rights, I ask in anticipation that someone might raise that point.

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  13. dimmocrazy (286 comments) says:

    Perhaps I am allowed a parable.

    Imagine a very, very bad road, full of potholes, parts without seal at all, many humps and bumps etc.
    Nevertheless there is an enormous amount of traffic on that road, and therefore there are books and books full of road rules in order to keep the traffic flowing, but to no avail, the whole thing is a mess.

    Now imagine ambulance drivers, who have to try to get their severely sick patients from one city to the next over this road, through all this traffic, and complying with all the rules, and also do that quick and cheap.

    Obviously this doesn’t work, and the patients and all other road users complain to the man in charge of the roads and the rules that there are too many patients dying or getting sicker during their transport.

    The man in charge of the roads and the rules comes with an answer, he says “its because these ambulance drivers are no good at all, we should give them fines, and train them better”

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  14. Seán (374 comments) says:

    DPF said : “Technically that is a scathing attack on incompetent lawyers, not all lawyers.”.

    Chuck a “Yeah, right” after that and you have a ‘quote of the day’.

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  15. scanner (343 comments) says:

    Watch the lawyers go into self preservation mode, what do expect from an organisation that police’s itself.
    Tarred with the same brush as teachers and the medical profession.
    The whole lot should be employed on a “no result – no payment” basis
    Remember the golden rule ” as long as there is misery there will be lawyers”

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  16. tvb (5,517 comments) says:

    Chris has a serious point to make. Decisions made by Lawyers have significant implications for Court time and money. A lawyers duty to the Court should be clarified so that proper use of Court time and resources is a factor that Lawyers have a duty to consider when acting for their clients. In some cases where the court resources are grossly wasted for no proper purpose then costs should be awarded. This apples to both civil and criminal jurisdictions.

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  17. Jack5 (9,299 comments) says:

    Finlayson is a very intelligent man and a highly accomplished lawyer. His maiden speech to Parliament (link below) makes interesting reading.

    Like everyone, Finlayson has his weak points, and I question his judgment of people when he describes Ngai Tahu”s O’Regan as a great New Zealander. Also I’m not sure Finlayson can be so proud of the settlement he played a big part in obtaining for Ngai Tahu beyond the satisfaction of getting a good deal for his client. The right given to Ngai Tahu in perpetuity of first and second rights of purchase of South Island crown property is, IMHO, an injustice to all other South Islanders and their descendants — white, Maori, whatever.

    The link to the Finlayson speech:

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  18. Adolf Fiinkensein (3,638 comments) says:

    It gives me great pleasure to repeat, ad nauseam, “On any given day you will find incarcerated in the country’s prisons more lawyers than insurance salesmen.”

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  19. peterwn (4,288 comments) says:

    Agreed and Crown Solicitors are included too IMO. The time has come when courts should be far more ready to award ‘indemnity’ (ie full) costs in the case of time wasting lawyers (there is too much emphasis on incompetence, what is worse are the time wasting lawyers who try and spin things out to wear down the other party). Enough of Jarndyce v Jarndyce behaviour, Kiwis are entitled to justice and should not be put off by “Suffer any wrong that can be done you rather than come here (court)!.”

    I would not be at all surprised if Nick Smith had not been winding Chris up. Nick is (or was – have not heard anything for ages) on the receiving end of a defamation suit with the apparent objective to wear him down into bankrupcy so he loses his Parliamentary seat. Nick would no doubt welcome reform in this rea.

    In the last few years at leat two lawyers have been clobbered hard for taking hopeless cases. Another lawyer several years ago suggested to a woman out of the blue that perhaps the father had been molesting her child. This meant the father lost access for a few years until matters were sorted out. The lawyer got a dressing down by the judge, but the judge did not have the guts to award hefty costs against the woman’s lawyer.

    I have been on a jury twice over the years and in both cases I felt extremely unhappy with aspects of the Crown Solicitor’s behaviour. In the latter case I felt like wringing his neck when he was closing the prosecution case – IMO he misrepresented the law. Not guilty in both cases and they were IMO beyond doubt the right verdicts.

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  20. Jack5 (9,299 comments) says:

    Re Adolf at 12.45…

    Since you have declared open season on lawyers…

    So here’s a joke doing the net rounds:

    A physician, an engineer and a lawyer were arguing about whose profession was the oldest.

    The surgeon announced, “Remember how God removed a rib from Adam to create Eve? Obviously, medicine is the oldest profession.”

    The engineer replied, “But before that, God created the heavens and the earth from chaos, in less than a week. You have to admit that was a remarkable feat of engineering, and that makes engineering an older profession than medicine.”

    The lawyer smirked, and said, “Who do you think created the chaos?”

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  21. Gooner (929 comments) says:

    In the last few years at least two lawyers have been clobbered hard for taking hopeless cases. Another lawyer several years ago suggested to a woman out of the blue that perhaps the father had been molesting her child.

    Is this the best you can do? Three cases in three years out of, probably, thousands.

    I suggested a week or so ago that Steven Joyce was an idiot for suggesting reducing blood alcohol levels as this would punish 98% of the population for the wrongs of the other 2%. What Finlayson is saying is almost the same.

    Those working as Barristers do have an incentive to drag cases out – I’ll admit that. But the vast majority of lawyers in this country are not at the Bar; they are working on commercial deals and the time limit on those matters is finite.

    If Finlayson wants to attack legal aid barristers for dragging things along in the district courts then fine, do that. But 98% of the legal community do not do that so please don’t tar them with the 2% brush.

    This almost sounds like Clayton Cosgrove’s attack on the real estate industry where again 98% of agents do a decent and fair job. Yet Cosgrove has introduced incredibly draconian legislation to deal with the 2% that are dishonset. All this is going to do, and I have first hand knowledge of this, is make the honest 98% real estate agents use lawyers to draft up complex terms of trade, along with agency agreements that comply with the new legislation and then advise and defend agents on the vague and poorly-drafted legislation when they come up against it.

    And that, everyone, is not lawyers’ fault. It is the parliamentarians fault. That is the problem. There is too much poor legislation thought up by politicians to score political points, not to solve problems.

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  22. mickysavage (791 comments) says:

    Dog whistle alert …

    In the US the Republicans beat up on lawyers all the time and blame them for all sorts of things. Unfortunately the public standing of lawyers is slightly above used car salesmen and about the same as politicians so this tends to be quite popular. It looks like the Nats will be using the same tactics.

    I bet Finlayson does not have a skerret of that very important thing for lawyers called “truth” to back up his claims.

    He should either front up with it or STFU.

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  23. F E Smith (3,504 comments) says:

    Adolf, not sure you are correct on that. How many lawyers are actually in prison at the moment? Other than Capill, I can’t think of anyone else. A number of accountants, though.

    Kiwirights: no, I am not saying that. I am saying that the low fees, compared to normal charge out rates, are the reason lawyers are pulling out of doing legal aid. All of the lawyers I know do exactly the same work whether we are on legal aid or being instructed privately. Private pays far better, though. You have it partially correct on my point re having junior counsel in case- the pay would be on a case by case basis, not by way of a salary.

    Red, good point on the number of lawyers. It has grown, but in every area except criminal lawyers. The number of registered criminal legal aid lawyers has stayed mostly constant for over ten years, with the numbers of actively involved criminal legal aid lawyers dropping as a percentage of the profession.

    Peterwn, you last paragraph especially true. The reason that we have so many jury trials is primarily because the police are charging people indictably and Crown Solicitors are financially incentivised to continue the process even when they think they will lose.

    tvb, true, but I find it hard to clarify the duty further. To really hold counsel accountable you need to allow us to make the decisions that currently rest with our clients. There are lawyers who make a relatively good living while only ever doing guilty pleas- when their client wants to defend the matter the client gets sacked! Not ethical, but definitely profitable.

    Reid: Technically I charge by the hour, but most of my work is done on the estimate basis that really takes away the hourly charging issue. So if you come to me I can estimate pretty much what a particular process will cost you. In fact, I will give you a set fee quite happily on most things. Firms won’t, but that is because they charge more than most barristers.

    Scanner: a no-win, no-fee basis will actually increase litigation. It is often permitted in jurisdictions where there is concern about those of average or low incomes not getting access to justice in civil suits. It doesn’t work in criminal work.

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  24. F E Smith (3,504 comments) says:

    Gooner: “Those working as Barristers do have an incentive to drag cases out “. Sorry, I call BS on that. The firms are usually more expensive than barristers. They charge for everything when we usually don’t, and they often don’t have the expertise that we don’t. Go to a firm in my area for to defend a criminal matter and you will get no change out of $5000. I do it for under $2000, and even my most hard nosed friends at the bar will do it for $3000.

    The fact is that we are experts in our field, many firms, usually the bigger ones, are often generalists and haven’t a clue what they are doing when addressing criminal issues.

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  25. F E Smith (3,504 comments) says:

    Oh, and Gooner? The figures are actually 8.5% and 91.5%. But even then you are still wrong.

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  26. scanner (343 comments) says:

    FE Smith – Point taken, the thing it would possibly do is force the greedy few to reconsider what they take on.
    It sadens to see the legal profession milking some of the cash cows, legal aid being the case in point, especially when you look at the legal bill run up by scumbag Clayton W’s legal team, and then to see Sophie Elliots family having to mortgage their family home to attend the trial, it kind of sees the scales of justice swing in the wrong direction, again Misery = Lawyer

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  27. F E Smith (3,504 comments) says:

    Scanner, not sure I agree with you on that. True, some counsel take on everything and are incredibly busy. That has to be detrimental. I see that Weatherston was actually on legal aid and the bill comes to about $100,000. That is for 2 top lawyers and 4 medical experts, over a 4 week odd trial (?) with a lot of prep. Seems about right to me for that length of trial. Don’t forget that Ablett-Kerr QC probably took a $300 – $400 per hour pay cut to do the trial. Greg is a little cheaper, but even so it is cheap compared to the private cost. It is possible that the deps were private, though. That would seem unlikely though if aid was granted for the trial.

    And yes, we are there when things go pear shaped. Crime, family, financial difficulties. But what else do you suggest? Gooner is correct when he says that most of my colleagues are in commercial practice. There is a lot of money in commercial conveyancing, of all things. Those working on Mergers and Acquisitions mak a fortune, as to IP lawyers and Banking lawyers.

    But then, doctors are also usually only called on when things go bad, and I don’t see a lot of criticism of them!

    [DPF: The so called pay cut you cite only applies if JAK (for example) had enough work to be earning the full rate. $180 an hour may be less than $400 an hour but it is more than $0 an hour. And in almost all professions a longer period of services will lead to a cheaper hourly fee. I’d rather have a client who will pay me $180 an hour for a 200 hour case than a client who only needs me for 5 hours, even at say $300 an hour.]

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  28. alex Masterley (2,049 comments) says:

    Spare me the bollocks. Legal Aid is not a cash cow. If it was every lawyer I know would be queing up for legal aid briefs. FES has on many occasions patiently explained the workings of legal aid, and has particularly made the point that doing legal aid work is not a route to choose if you want to be rich. And he has also made the point that postponing things and delay doesn’t mean more money.
    The reality is that the courts are full to bursting because of the number of informations laid by the police, the space avaliable to hear cases, the number and availability of judges to hear cases, mainly becuase of P trials being banded into the district court, and because in criminal law the number of things that can go wrong is exponentialy greater than any other form of endeavour I know. I also commented on another post on this subject that there is an increasing number of self represented defendants who are prosecutioned for matters that mean they are not entitled to legal aid and cannot afford legal representation.
    And another point from a purely practical point of view the game playing that the AG complains of happens for tactical reasons with the approval of the client. In one of the arcane areas of law, and it’s not criminal law, in which I practice, game playing happens for that reason almost all the time.
    Gooner, if you look at the new real estate act the drafter used as a template the LCA which is also draconian in it’s effects. who ever ramdrodded that act through parliament realy needs to be tazered.

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  29. peterwn (4,288 comments) says:

    FES – the Crown law office is the public prosecutor in NZ as well as being the Government’s in-house law firm. For criminal prosecutions it is very much a client-firm relationship between the police and Crown Law. AFAIK the police have the last say on whether take a criminal prosecution although in most but not all cases the police will accept Crown Law advice. There is some tendency for Crown Law to be the police’s hired gun.

    It is worth noting too that the crown Prosecutor is paid at a significantly higher rate than a legal aided defence lawyer.

    Police and other governmment agencies are very well aware of the emotional, financial and reputational harm that a major lawsuit (criminal or civil) has on persons even if they are completely vindicated. I get the feeling that government agencies and major corporates will embark on some cases even if the chance of success is low to act as an informal ‘punishment’ and especially to deter anyone else from stepping out of line in a similar manner.

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  30. F E Smith (3,504 comments) says:

    Peterwn, the police have the say on whether to charge a person or not in all circumstances. They may take advice (although that is generally rare), but they have final discretion. Interestingly, in many overseas jurisdictions the police do not have that authority.

    The Crown Law Office is a government department in Wellington that provides advice to the Government and also handles most appeals to the Court of Appeal where criminal charges or a government department is involved. We definitely do not have a public prosecutor. The Police Prosecutions Service does summary prosecutions, but that is not what I think you are talking about.

    However, in NZ we do have the Crown Solicitor’s network to undertake the prosecution of all criminal jury trials, other than SFO matters. Once a matter has been committed for trial then the file is sent to the relevant Crown Solicitor’s office for that district (it coincides with the location of a High Court in the area) and the Crown Solicitor makes the final decision on whether to indict a person or not. The Crown Solicitor is not under any obligation to bring an indictment, it is entirely a matter of their discretion. They supposedly do this under the auspices of the Solicitor General’s guidelines, the S-G being the most senior active prosecutor in the country (technically it is actually the A-G who is, but by tradition he/she does not do so in NZ).

    Now, ALL Crown Solicitors in NZ are partners in private firms. NONE of them are employed by the Government. Each one is appointed by a warrant from the Crown and is funded through Crown Law, but this is not a government department we are talking about. These firms often have a monopoly on the Crown Solicitor’s warrant and it is basically a licence to print money. The operate on a per hour basis in EXACTLY the same way the defence bar do with legal aid. As you say, the pay rate for the firms are much higher than for legal aid. Indeed, often a junior lawyer prosecuting can earn more than a senior lawyer defending.

    Pay rates for solicitors working in Crown Solicitor’s firms are, however, often poor! The Partnership in a firm with a Crown warrant does very well out of it.

    I very much disagree that Police and government agencies are aware fo the emotional and other harm that a prosecution or law suit has. In my experience they quite simply don’t care. Police often will say to me that they aren’t sure what happened but they are happy to let the Court sort it out. That sucks, quite frankly. There is no disincentive for the Police to be cautious about prosecuting people because there is no penalty at all if they do so frivolously. And they do, a lot.

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  31. Nomestradamus (5,214 comments) says:

    F E Smith (and other lawyers):

    Haven’t the courts already addressed this issue?

    I don’t have my legal materials in front of me, so I’m working from memory here, but wasn’t it Harley v McDonald where the Court of Appeal upheld a costs order (found to be within the court’s inherent jurisdiction) that the High Court had made against a barrister? And wasn’t that costs order for wasting the court’s time?

    If that’s the case, then isn’t Finlayson’s proposal just a refined form of window-dressing?

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  32. alex Masterley (2,049 comments) says:

    Yes Harley v MacDonald is an example, as is a recent decision of Harrison J in a case in Auckland where counsel was ordered to pay the other parties costs in an unmeritorius case.
    So the power is already there but sparingly used.
    What will be more often used are the powers of standards committees to order payment of costs and other penalties in cases were lawyers, and not just those at the bar fail to act on behalf of their clients to the appropriate standard.

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  33. Nomestradamus (5,214 comments) says:

    Alex Masterley:

    Thanks for clearing that up.

    I’m left wondering how these standards committees will operate in practice. I suppose a barrister will, as always, have to balance client instructions against the overriding duty to the court.

    I’m not a court lawyer so I don’t know if the following scenario is realistic:
    – Client instructs barrister to run specific defence (eg provocation – any reference to recent case is entirely coincidental!).
    – Barrister considers that defence untenable on the facts and, being mindful of possible adverse costs implications, gently suggests running with alternative defence.
    – Client insists that barrister run with what appears to be untenable defence.
    – The result: Barrister withdraws from the case or, alternatively, client appoints new barrister.

    Now, if a client goes barrister-shopping like this, and each time a new barrister (perhaps a duty solicitor) has to get up to speed with the case, isn’t that adding to overall court costs even though individual lawyers have acted responsibly?

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  34. F E Smith (3,504 comments) says:

    Nome and Alex,

    and don’t forget Chamberlain v Lai that took away our barristerial immunity, which allows counsel to be sued if they screw the case up.

    Of course, lawyers are easy to beat up on because they make convenient hate targets without having to give any real examples of problems. The Bazeley discussion document couldn’t pinpoint any real problems other those that afflict all professions and trades. But nobody will vote for you if you beat up on plumbers, doctors or accountants. Lawyers, on the other hand, are easy targets.

    Plus with John Marshall QC as president they know they won’t get anybody answering back or defending the profession.

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  35. F E Smith (3,504 comments) says:

    Nome, the barrister cannot withdraw in the example you cite. The rules have a specific exception for litigation. See rule 4.2.1 (e) on that not being good cause to terminate a retainer.

    The problem is that the government is demanding that we place the use of court resources far above our obligation to the client. I suspect this is going to lead to civil litigators getting very full instructions from their clients. I suspect it will be along the lines of ‘my counsel has advised me to do everything except go to court but I want to anyway’. Which is a cop out, as it prevents truly independent advice.

    Edit: also, duty solicitors only provide advice on first call, nothing more. The court allows a few sackings of counsel, but in my experience once they get past 4 the court says the person can do it themselves if needs be. That tends to settle the client down. I was sacked on a file earlier this year a couple of days before trial. Judge went nuts and threatened to force it to proceed with me acting. I wouldn’t. I take consolation in the fact that I was the 4th person to work on the case and all had been sacked just before a major event in it!

    Plus, the client was a nutter…

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  36. peterwn (4,288 comments) says:

    FES – Thanks. I think Chris needs to address the bit in Crown Law manual about ‘public interest’ being an aspect when taking prosecutions. I doubt that NZ can justify an independent prosecution agency for indictable offences, but the police-Crown Law relationship should be re-cast so the decision to prosecute rests with other than the police or investigation agency. The decision maker could be the Crown Solicitor or preferably the assistant one concerned with criminal matters.

    I do not agree with the don’t care bit – in a case I know about the Police ran a rubbish case against a police dog handler when the handler’s main ‘crime’ was being unduly brief with a ‘dog bite’ report. I think they wanted him out and probably succeded despite an acquital on the re-trial (there was probably a cop hater on the jury in the first trial).

    Interestingly it seems the pool of barristers who work the Old Bailey handle both prosecutions and defence.

    I do worry about criminal defence barristers being at the runt end of the profession. Disproportionately few seem to make it to QC or the Bench because they do not have drinkies at the Northern Club, etc.

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  37. Gooner (929 comments) says:

    FES, you may call bullshit but I am technically correct: all I said was the incentive is there to drag cases out. You might do a criminal defended trial for $2K but that’s on the assumption there is a simple process with no s347 applications and no voir dires etc. If barristers are paid per court appearances and time then naturally the longer it takes and the more court appearances there are the more they’re paid. But don’t get upset as I’m talking about a few hundred across the country. I am sure you’re not like that but there is the incentive to do that.

    You also only talk about criminal matters. In the civil litigation I used to do, everytime I came up against someone from the Independent Bar there would be interlocutories, appeals from those etc and pedantic BS about how many flies can dance on a pinhead. It drove me nuts so I packed it in and just focussed on commercial and banking/finance where the files are finite. I couldn’t go back to court work now knowing how costly and unpredictable it is.

    And thanks for your 92/8 split. But the concept is the same. Finlayson is talking about a very small proportion of the 8% so it’s an easy target. I find the ‘attack’ quite disappointing from that perspective.

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  38. F E Smith (3,504 comments) says:

    Gooner: a trial will be $5000 to $10,000 and upwards. Fixtures are far easier and therefore take less prep time. Vior dires are rare in fixtures and 347 applications as separate arguments impossible because the Summary Proceedings Act applies and not the Crimes Act.

    Civil is a lot more tactical, but these days the courts have cut a lot of that right out. As I have said, they are getting now to the stage where civil hearings will be comparatively rare. From what I hear from my very senior colleagues, you are correct with regards civil in the 70s and 80s.

    Finlayson is actually concerned about less than 1% of lawyers. He has just chosen to include all of us in his tirade.

    The problem is now I am going to have people seeing I am a barrister and presuming I am not competent. It is bad enough with everybody presuming that we do legal aid work because we can’t get anything else. Have a look at Finlayson’s comments about not doing pro bono stuff. We do legal aid as a public service (you can laugh, but it is true) because the Government and the Courts want us to.

    Peterwn: the last paragraph of your 6.01pm is spot on. In the UK the Crown Prosecution Service uses both in house counsel and barristers. Interestingly, the Courts have criticised the in house counsel because they prosecute cases that are hopeless when the independent barristers will be far more robust with whether they should proceed.

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  39. vanguard (3 comments) says:

    This beating up on defence lawyers has been going on for months now, and is irresponsible in that it could could well undermine the administration of justice in this country, ultimately. it’s not that much fun to walk into court as duty solicitor to interview the masses, generally the angry, poor, and disenfranchised of society, amongst headlines along the lines of “legal aid lawyers milking the taxpayer.”

    People don’t know who are the “good” or “bad” lawyers, it just has a general defamatory effect of tarring the whole defence bar.

    Barristers should be striking over this carry-on, but then we don’t have the protections of employees (a price of our independence I suppose), and we also have a professional responsibility to the courts and to the people we represent.

    Make no mistake, if all duty solicitors and legal aid lawyers stopped work, the whole edifice of criminal justice would crumble.

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  40. vanguard (3 comments) says:

    And I agree that Chamberlains v Lai is extremely relevant to the issue of delay.

    Now that I can be potentially sued for everything I do or say in court, who can blame me for being extra careful, leaving no stone unturned, obtaining every last tiny scrap of police disclosure?

    If this contributes to “delay” then so be it, because I’m protecting myself AND my client – which is my job – to get the best outcome for my client.

    Although Simon Power seems to know better than me.

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  41. F E Smith (3,504 comments) says:

    Well said, Vanguard.

    Perhaps a withdrawal of legally aided services should be contemplated by the profession? See how the Courts cope? Mind you, we would probably have Simon Power in the media questioning our ethics if we did that.

    But you have to suspect that the Nats do actually want a government run defence bar with little private input.

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  42. alex Masterley (2,049 comments) says:

    FES, Vanguard

    Withdrawing services has been discussed from time to time by members of the criminal bar in Auckland. The reality is that the profession is far too disjointed and disparate to enable such to work. Also the reality is that the lawyers perception of their duties to the court and their clients would not permit them to take that step.

    Gooner, as well as the bar you get the interlocutory bollocks from the big firms with lots of partners, associates, staff solicitors and other general dogsbody’s to feed. At my level of the pond I tend not to go down that path unless absolutely forced to. Indeed if in defending cases I can sit tight and do nothing and wear down a plaintiff with the aim of making them go away then that is a win as far as I am concerned.

    FES, love your last comment in your 5.06. In hindsight Ann Stevens might have been a better president of NZLS.

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  43. philu (13,026 comments) says:

    “..This can’t be right, surly Finlayson has got it all wrong..”

    how long has he had the nickname ‘surly’..?

    (i hadn’t heard that before..)


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  44. philu (13,026 comments) says:

    “..“On any given day you will find incarcerated in the country’s prisons more lawyers than insurance salesmen.”..”

    hard to tell who is the bigger ‘scammer’ tho’

    (double-bunk them..!..i say..!..)


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  45. GPT1 (2,156 comments) says:

    LSA are reaping the crop that was sowed in 1990 when legal aid was cut. On the job training in firms has been replaced by CLE courses and even with the best will in the world a few hours tuition cannot replace constant, mentored, exposure to Court.

    LSA have run the contracts it is up to LSA to decide who is competent or not competent and face the consequences. They cannot flick off applications to law societies and ask them to confirm a set (aribitrary) criteria has been met and claim it is the Law Society who has “approved” and therefore the law society should “deal with” incompetent counsel. Why should the law society branches foot the JR bills when these decisions are challenged?

    The Law Society will do its bit to maintain professional standards – after all the “lawyer” brand is important. Barristers will no longer be able to practice straight out of law school on their own (although they will be able to work within chambers) but that only puts a band aid on the problem – no one is teaching criminal lawyers any more.

    On the civil side discovery procedures are under heavy scrutiny. The DC rules have been rewritten to basically remove that process (parties to exchange informaiton ‘capsules’) and the High Court Rules committee is reviewing it as well – basically because discovery is expensive and time consuming, often for little merit.

    I suspect some of Finlayson’s comments come from the type of law he has done (top end civil – ie: big firms and big money). Most lawyers just want to get into court and have the argument but I swear there are some out there in the not so small firms who regard it as success to spend shit loads of money, burn trees and still not get to court with a result. Quite how that justifies an attack on the profession as a whole is beyond me – he would be better focused supporting the simplification projects and rules amendments. Oh and btw a number of members who serve on these committees and assist in these changes do so for free so stick the pro bono snide remark as well. (And, in any event, every time lawyers do legal aid or duty solicitor they are doing a bit of compulsory pro bono).

    Costs can already be ordered against lawyers personally. It is a threat that is over used by grumpy counsel. The last time I saw such a threat the AJ nearly choked as he ordered costs in favour of the threatened! Most judges will not like an added responsibility to take on the bar by way of fines and those who would are already bullies best avoided.

    It’s all very well Finlayson and Powers jumping up and down aon the populist beat up a lawyer platofrm but they’re allegations tend to lack empirical evidence or relates to such a small minority to be pointless. Perhaps I might have some more respect if they marched in to a Police Association conference and told them to stop clogging the courts with pointless charges and delaying proceedings by lack of dislclosure.

    As a registrar said to me recently (to their own surprise) most delays in the criminal court are actually caused by lack of police compliance rather than defence counsel. Beat that doesn’t make the headlines.

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  46. GPT1 (2,156 comments) says:

    As an aside – if I really wanted to rort the system I would have been a commercial lawyer!

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  47. Alan Wilkinson (2,435 comments) says:

    “Finlayson said the courts were clogged because “the overall standard of the bar, and particularly the criminal bar, is not high enough in New Zealand”

    Huh? I thought the courts were clogged because the war on drugs has filled them with drug/criminal cases?

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  48. GPT1 (2,156 comments) says:

    Valid point Alan. There is a lack of empirical evidence that incompetent lawyers are causing delays. I understand that Auckland has some trouble and Judges are having to keep a closer eye on cases but that tends to be anecdotal. Indeed, the Beazley report found the greatest driver was, believe it or not, more charges being laid by police.

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  49. Rich Prick (2,923 comments) says:

    Without wishing to sound overly self-interested, Finlayson misses the point. The problems he attributes to lawyers is largely due to the High Court Rules, or indeed the Rules of any Tribunal or court. Lawyers don’t take steps in litigation “just for the fun of it”. Perhaps, the Minister might want to look at those before getting on the back of those who have to work with what they are given to work with.

    Notwithstanding that, as we have become a more litigious society, and we most certainly have, some practitioners feel motivated to assist their clients outside of their areas of usual practice. This is a direct result of the media’s coverage of the leaky building fiasco where the perception as been nurtured that if something happens to you, some one else should be sued, and the profession is ill-prepared to deal with such clients. I suspect that Finlayson’s criticisms stem more from this cultural change more than anything else.

    As for delays, the removal of “P” trials from the High Court should vacate the court for the next 6 months (and the Court of Appeal for the next 12 to 18). Bar litigation for leaky buildings, and between the both the court would be twiddling its thumbs, in Auckland at least. In Wellington, just curb the enthusiasm of the Commerce Commission.

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  50. Angus (536 comments) says:

    Unfortunately, 95% of all lawyers give the rest a bad name.

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  51. Robert Black (423 comments) says:

    Hey don’t look at me I won my first two jury trials and they were not gifts.

    I agree that barristers should train for some time before they can practice alone.

    It used to be a joke, just junior a couple of trials and then you got your jury ticket.

    But on the other hand there are baby judges too.

    When I was quite an experienced barrister there was this annoying baby judge who walked into court like he was King…. well, you know and he insisted on tackling the lawyers about whether the defence was genuine at plea entering time, which was bearable but then he went on and insisted we disclose the defence.

    This was against our client’s interests, not required at all in law, as a surprise hit to the often unprepared police prosecutors win a lot of cases.

    I was pretty pissed with him at the time as were many other experienced criminal lawyers. I will keep his name out of here for obvious reasons. He is probably a High Court judge by now.

    One must be careful, the judiciary is the judiciary and politics is different to the reality of the court-room.

    Principles of fair justice have been built up and evolved over hundreds of years around the world, not just in little ol hick ville New Zealand.

    The Chinese legal system is actually quite modern and based mostly upon the French and German systems.

    It’s a big big world out there people.

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  52. Robert Black (423 comments) says:

    I don’t know about this Finlayson, don’t even knpow if it is a he or a she and cannot be bothered to find out to be honest, but it smells to me like it has got bored with its legal career and now has political aspirations.

    Lawyers and judges, the judiciary, are very objective, politics is all about ego and moral panic, the ratings.

    Having orator skills like Hitler is different to having the skills to win trials.

    Did he ever win any jury trials? Is this his probem? He never got the success he wanted or his Moma wanted as a lawyer so now he attacks the system as a political orator?

    Just throwing a few ideas that pop into my head quickly.

    After all, he knows NZ public will be quick to buy that shit… just look at Winston and Paul Homes.

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  53. F E Smith (3,504 comments) says:

    (Applauds GPT’s comments)

    Can somebody please explain how an increasing number of criminal informations being laid by the Police and therefore taking up court time is the fault of the lawyers?

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  54. F E Smith (3,504 comments) says:

    Interestingly enough, having talked to some of my colleagues today I can report that in light of Finlayson’s speech some have decided to reconsider their career path, specifically whether to continue with undertaking criminal & family work.

    I suppose that a desire to see a reduction in the numbers of litigators was actually an implied point in the speech. After all, the A-G made no suggestions on how to improve standards other than penalising those practitioners who are actually willing to front up in Court.

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