The Law Society reminds lawyers that they must carefully consider their professional obligations when speaking with the media. This reminder follows two recent decisions from the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) in which lawyers were found to have breached their professional obligations while engaging in media interviews.
In National Standards Committee 1 v Grey, Sue Grey accepted that she had breached a suppression order in place to protect the identity of an infant in a case of high public interest. Ms Grey had assumed the role of spokesperson for her client (with their consent) and gave interviews very soon after the hearing while in a tired state. The Tribunal accepted that the breaches were unintentional, but that “Ms Grey’s enthusiasm about the issue clouded her judgement, and that she did not consider carefully enough the prohibition of identifying particulars”. The Tribunal noted that any deliberate breach of a suppression order would be misconduct, but that Ms Grey’s conduct was not deliberate or reckless and was properly characterised as “mistake, nothing more”. The Tribunal found that Ms Grey had engaged in unsatisfactory conduct and that “she needed to take greater care than she did.”
The Tribunal also considered whether Ms Grey had an obligation to respond to the breaches of the suppression order by the interviewer. It accepted that Ms Grey was unlikely to have the presence of mind to do that in her exhausted state, which highlighted that it was unwise for her to engage in the interview. However, the Tribunal recognised that lawyers should be permitted or even encouraged to speak publicly on important issues (with client instructions) and that holding them responsible for the breaches of others may dampen their involvement in media interviews and be an unreasonable imposition on their freedom of speech. The Tribunal commented that it would urge any lawyer who found themselves participating in an interview where someone else was breaching the suppression order to end the interview. In responding in this way, the Tribunal noted that the lawyer would be upholding the rule of law.
In Auckland Standards Committee 1 v Chambers, Roger Chambers accepted that he had engaged in misconduct by discussing a criminal case in which he acted for the defendant 19 years prior with a news reporter. Mr Chambers made a number of uncomplimentary comments about his former client who was still serving a term of imprisonment at the time. The Tribunal held that Mr Chambers should have known that the duty to uphold client confidentiality continues indefinitely and cautioned the profession to keep in mind that the professional obligation to hold client information in strict confidence endures forever unless the client instructs otherwise. The Tribunal also noted that Mr Chambers’ comments fell short of the respect and courtesy he owed his former client.
The Grey and Chambers decisions highlight that while lawyers can and should speak to the media, they need to be careful they comply with their professional obligations while doing so. Before agreeing to speak to the media about a matter, a lawyer should always speak with their client or former client to confirm they have the client or former client’s authorisation to do so. As part of preparation for the interview, the lawyer should carefully consider their professional obligations in the context of the interview, and, if possible, discuss these with the interviewer as well so the interviewer is aware of the limits of what can be discussed. Lawyers should also avoid giving interviews when physically or mentally stressed if possible as this can affect their ability to ensure that the interview proceeds in a manner that accords with their professional obligations.
Read the full decisions: