Published on 29 June 2018

A lawyers standards committee decided to take no further action against a lawyer who said it was inappropriate for a District Court Judge to continue to serve on the bench.

Auckland barrister Catriona MacLennan’s statements were the subject of an investigation following her public criticism of Judge John Brandts-Giesen.

Judge Brandts-Giesen discharged a Queenstown man without conviction in a domestic violence case last year. The man had assaulted his wife, a male friend and his daughter.

The judge said, “This is a situation that does your wife no credit and does the [male] no credit,” and “there would be many people who would have done exactly what you did, even though it may be against the law to do so”.

A member of the public complained about Ms MacLennan’s criticism of the judge, prompting the committee to investigate.

Acting Executive Director of the New Zealand Law Society Mary Ollivier says the standards committee considered the explanation Ms MacLennan provided for her comments.

“It accepted that lawyers can express their views on the performance of judges but that those comments must be considered and not cross a line that could cause the public to lose confidence in the role of the judiciary and the role judges play in the administration of justice.

“The committee did not consider that Ms MacLennan’s comments had crossed that line. Her experience as an advocate for victims of domestic violence and the sentiment in which the comments were made were factors in the decision,” Mrs Ollivier says.

Mrs Ollivier says the high level of interest in the investigation by the public and the legal profession warranted the rare move of releasing the full decision by the standards committee.

In the decision, the standards committee said that where a lawyer criticises a member of the judiciary, it considers the role of Law Society standards committees analogous to that of the Attorney-General and the Solicitor-General when those law officers of the Crown exercise their responsibilities in protecting the judiciary in matters of contempt of court by members of the public (occurring outside of the court) which can undermine public confidence in the administration of justice.

“In particular, it is the role of standards committees to investigate a lawyer’s conduct in circumstances where the lawyer may have acted in a way that undermines the processes of the court or the dignity of the judiciary.”

The right to criticise the judiciary is well-established and has been accepted by the courts, the decision said. While freedom of expression and the right to comment on the performance and role of the judiciary is afforded to all persons, including lawyers, such freedom of expression is not unfettered and a lawyer’s comments are subject to the professional obligation that rule 13.2 of the Rules of Conduct and Client Care impose.