The conduct occurred in the context of a hearing in the Nelson District Court. Ms Grey says she was present at the hearing at the defendant’s request, but not formally as his counsel. Ms Grey says she had previously met with the defendant and identified a possible defence. The day before the hearing, he informed her that he wanted to defend the charges using a jurisdictional argument of which she had no expertise. Ms Grey says she informed the defendant that she could not run that line of defence for him but, agreed to attend the hearing “to provide assistance to him on a standby counsel or other basis.”

At the hearing, the Judge asked Ms Grey to confirm whether she was the defendant’s lawyer as she was seated behind the defendant rather than at the defendant’s side in the usual position for counsel. The Judge advised Ms Grey that she may appear as the defendant’s McKenzie friend (i.e. able to speak with the defendant but not directly address the Court). The Judge said that if Ms Grey was not appearing as the defendant’s McKenzie friend, she would need to sit down.

Ms Grey requested the Court’s permission to appear in the role of court appointed counsel, referring to the Court of Appeal decision of Fahey v R1 [2017] NZCA 596 where such a role is discussed.

The Judge refused and reiterated his decision that Ms Grey could only appear as the defendant’s McKenzie friend and asked her to stand down.

Despite the Judge ordering her to desist several times, Ms Grey persisted in her attempts to persuade the Court to grant her request. Because of this the Judge had her removed into custody under the Contempt of Court Act 2019 for what the Judge described as “disruptive behaviour”.

Ms Grey was called to a contempt hearing later that day to address her conduct. Before the same judge, Ms Grey explained that she was concerned with the defendant’s ability to defend himself and sought to be appointed to assist the Court. Ms Grey added that she was trying to point the Court to the Fahey decision, which she said highlights the benefits of assisting counsel, and felt that her request went unheard.

In his oral judgment, the Judge considered Ms Grey’s conduct disrespectful and added “that it had the effect of inciting the defendant’s supporters in attendance at the hearing.” His impression was that Ms Grey demonstrated a lack of professional judgment and he wrote to the New Zealand Law Society Te Kāhui Ture o Aotearoa detailing his concerns.

The Judge’s concerns were referred to the Committee, who commenced an own motion investigation into the conduct and reviewed the full transcript, audio and video recordings of the hearing where the conduct occurred.

In determining liability, the Committee concluded Ms Grey had not breached rr 2, 2.1 and 2.2 of the Rules relating to the rule of law and administration of justice. It accepted that Ms Grey attended the hearing on her client’s instructions, and that she was acting on her client’s instructions by attempting to raise a procedural point. It considered Ms Grey had been attempting to facilitate the course of justice as opposed to attempting to obstruct it.

However, the Committee agreed that Ms Grey’s conduct breached Rules relating to professionalism and protection of court processes. Specifically, Ms Grey breached r 13.2, which provides that a lawyer “must not act in a way that undermines the processes of the court or the dignity of the judiciary.” The Committee concluded she had also breached r 10 (a lawyer must promote and maintain professional standards) and r 10.2 (a lawyer must not engage in conduct that tends to bring the profession into disrepute). The Committee held that those breaches amounted to unsatisfactory conduct in terms of s 12(c) of the Act.

The Committee considered Ms Grey’s repeated refusal to stand down when told to do so by the Judge in open court concerning. An aggravating feature was that the conduct involved “a direct confrontation with [the Judge]” in the presence of several members of the public. It noted that those present witnessed a lawyer behaving in a way that could have undermined their expectations about lawyers’ professionalism. The Committee said that a lawyer’s obligation to the Court, including complying with a judge’s orders during a court hearing, is a “cornerstone of the legal profession.”

The Committee noted Ms Grey’s concern that she was not heard when trying to address the Court; however, it did not accept the circumstances overrode Ms Grey’s fundamental obligations to the Court. The Committee considered that “litigators need to take direction from the judge, even in situations where the lawyer may feel that they are not being heard or that the judge is wrong.”

In assessing penalty, the Committee noted that Ms Grey expressed regret for her actions and acknowledged that she should have complied with the Judge’s order. The Committee considered the amount of time Ms Grey spent in custody and the public reprimand by the Judge as mitigating factors. It censured Ms Grey, fined her $2,000 and ordered her to pay costs of $500.

The Committee sought and was granted approval from the Law Society’s Board to publish its decision and name the practitioner. Ms Grey did not oppose publication. The Committee considered that it was necessary and desirable in the public interest to publish its decision including Ms Grey’s identity.