The Legal Complaints Review Officer vacated a lawyer professional disciplinary committee’s fine and censure of Stephen Franks and Franks Ogilvie.
The LCRO has released an extraordinarily prompt and unequivocal decision.
Stephen and the firm applied for a review against a confused conclusion by the National Standards Committee that would have overturned lawyers’ duties to clients. It would have obliged lawyers to refuse client instructions to write a letter that might upset the recipients even where the letter expressed the researched opinion of the firm, honestly conveyed the client’s position and was expressed courteously. The Committee considered that the lawyer should instead tell the client to write themselves, because it would be wrong for the lawyer to write just because the client wanted the letter to be more authoritative.
The Committee appeared to be uninterested in the free speech implications of this new constraint.
The process began a year ago with complaints from 6 people, including 2 practising lawyers. Some of the complainants were very public about their anger over a letter stating how liability could emerge for providers of “gender affirming care”.
We expected the complaints to be swiftly dismissed as ridiculous. Instead, the Complaints Service took them seriously and embarked on what has become a year-long secret process. We were not at all ashamed of adhering to the noble tradition of advocating for clients without fear or favour, so asked that the process not be confidential.
“Until a year or two ago, I’d have scoffed at anyone saying I could end my 50-year career as a lawyer being fined and censured by my profession for writing truthfully on behalf of a client warning recipients of emerging legal risks,” Stephen Franks said.
“As the LCRO Fraser Goldsmith observed – it is what lawyers do.
“Over my career on numerous occasions I’ve been involved in warning people about legal risks in continuing conduct that was previously lawful. Law changes frequently create liabilities for conduct that was previously lawful.”
Our firm specialises in advising and representing clients on law reform issues. As is usual for lawyers we must serve them whether or not we personally agree with client beliefs or objectives. When they seek our advice on the law, we give it honestly. In this case, before writing on the client’s instructions directly to providers of the controversial treatments we had written to two Ministers of Health. We’d tried to engage the Ministry on the legal risks thrown up after the UK Cass Review, and litigation in comparable jurisdictions. We got no substantive response or any engagement at all from the government.
The National Standards Committee criticised us (and our client) for communicating directly with the potentially liable practitioners because they felt we and they should have confined ourselves to advising the proper authorities of our concerns. The Committee did not even enquire what had preceded our letters.
It was novel for us, to be told that lawyers should only report to ‘the authorities’ and that it was wrong to communicate with those our client considers to be at risk of being found to be wrongdoers.
This LCRO decision restores the position that lawyers cannot be disciplined simply because third parties disagree with the views their clients wish to advance, or because those views touch on politically sensitive issues.
As the LCRO stated plainly:
“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.”
And that this “cannot conceivably be improper in principle.”
Significance for the Legal Profession
The LCRO put weight on the fact that none of the twenty recipients of the letter had themselves complained to the Law Society. Two of the complainants were lawyers themselves. The LCRO noted surprise at this, commenting “[I] wonder what their stance on the professional conduct issues would have been if the boot had been on the other foot.”
ENDS
Media enquiries:
Brigitte Morten, Managing Director
022 193 0225
Brigitte.morten@franksogilvie.co.nz
Note to Editors:
The full decision of the Legal Complaints Review Officer(LCRO 169/2025, [2025] NZLCRO 016) is publicly available here. The decision was issued on 23 February 2026.
