Summary
Stephen Franks and Franks Ogilvie were found, by the LCRO to have not engaged in unsatisfactory conduct by sending a letter on client instructions advancing its policy interests regarding gender affirming care.
Background
On client instructions, Mr Franks sent a letter to medical professionals warning them of his client’s intention to assist claimants in possible future litigation against health professionals involved in “gender-affirming care” performed negligently or in disregard of their rights as healthcare consumers.
Although neither Mr Franks nor Franks Ogilvie made the letter publicly available, it received media attention. Six complaints were made to the New Zealand Law Society about their conduct in sending the letter. None of the complainants were addressees or intended recipients of the letter. Two of the complainants were lawyers.
The complaints alleged that Mr Franks (and Franks Ogilvie) had breached a number of rules under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)Rules 2008 (“Rules”).
The National Standards Committee (No 1) (“Committee”) found in favour of Mr Franks and Franks Ogilvie on all issues except one, finding a breach of Rule 2.3. This requires a lawyer to use legal processes only for proper purposes.
The Committee made an unsatisfactory conduct finding against them and ordered censure and a fine.
Mr Franks and Franks Ogilvie applied for a review of the Committee’s decision to the Legal Complaints Review Officer (“LCRO”).
The LCRO
Personal Interest in Subject Matter
A standards committee can decide to take no further action on a complaint if the complainant does not have sufficient personal interest in its subject matter.
Mr Franks and Franks Ogilvie argued that this discretion should be exercised given the complainants were not intended recipients and merely opposed the letter based on the position it advanced. This argument was not addressed by the Committee.
The LCRO stated on review that “having a personal interest in the subject matter of a complaint… is different from being personally interested in the gender-related health care issues…”, as the complainants were.
He expressed “surprise” that the Committee failed to address whether it should have taken no further action and was even more surprised that two of the complainants were practising lawyers, stating:
[I]wonder what their stance on the professional conduct issues would have been if the boot had been on the other foot.
The LCRO elected not to dismiss the matter under this discretion, considering there was a degree of public interest in the issues raised by the Committee’s decision on rule 2.3.
Legal Process
Mr Franks and Franks Ogilvie argued the Committee was wrong to find the letter was the use of a legal process, and that it was conventional correspondence.
The LCRO agreed, stating that:
there must be a sufficient connection with an identifiable process of a legal nature that the lawyer’s client claims to have the right to pursue and at least intimates an intention to pursue if it has not yet commenced.
It was found the letter “did not suggest or imply that [the] client had any right to initiate litigation against medical practitioners for the stated reason”. It was therefore not the use of a legal process.
Proper Purpose
The LCRO identified several issues with the Committee’s finding that the letter was not sent for a proper purpose.
The Committee had contradicted itself by stating that the letter intimated that “legal action[was] imminent”, when it had later drawn the opposite conclusion.
Opinions of the Committee formed part of its decision. It suggested there were other options available to Mr Franks or the client, and that it wasn’t “necessary” to send the letter. The LCRO commented that the Committee was not the client’s legal adviser.
Confirming Mr Franks and Franks Ogilvie’s position, the LCRO concluded:
The very purpose of a lawyer or firm sending a letter on behalf of a client is, in many if not most instances, to endeavour to lend weight to whatever concern, position or purpose the client seeks to express or advance. That is what lawyers do. This is why a client comes to its lawyer and says, “we need a lawyer’s letter about this”. This cannot conceivably be improper in principle.
The LCRO also referenced other advocacy organisations and lobby groups who might seek to place pressure on those in the health care field engaging in practices they consider objectionable, such as abortion, assisted dying, vaccination, blood transfusion etc. The LCRO commented that “gender-related health care services are in no special category”.
The LCRO unequivocally asserted that:
A lawyer writing a letter on behalf of a lobbyist client expressing the client’s views on a policy issue and on potential future legal developments in the field and asserted legal risks associated with it is a lawful activity.
Result
The LCRO reversed the Committee’s finding, determining that there was no breach of Rule 2.3. The unsatisfactory conduct finding was subsequently reversed along with the penalties imposed by the Committee.
The LCRO’s decision champions a lawyer’s ability to fearlessly advocate for their client, regardless of the views or interests they represent. The ruling cites previous cases, declaring their insights on freedom of expression “necessary reading ”for critics of lawyers' professional conduct. Even with the Committee’s prior finding of no harassment, the LCRO definitively stated that “a statement by a lawyer of what its client intends to do, lawful or not, cannot constitute harassment by the lawyer”. This provides vital clarity, empowering lawyers to legitimately advance a client’s underlying policy interests.
For further information on this or similar cases please contact Director Brigitte Morten.
