Stephen Franks is a nationally known lawyer, expert in company and securities law, and law reform.
After early general practice he spent two years in the Office of the Ombudsmen then joined Chapman Tripp in 1979, became a partner in 1981 and served as Chairman of the firm’s National Board. He had six years in Parliament, then four back as a consultant with Chapman Tripp before establishing in July 2009 a specialty law firm, Franks & Ogilvie (Commercial and Public Law Limited) to focus on the intersection of government and commerce.
Stephen ran a vigorous campaign for election in 2008 as the National Party candidate for Wellington Central but the seat was retained by Labour.
He’s been a member of the Securities Commission, the Council of the IOD, and the NZ Stock Exchange’s Market Surveillance Panel. In 2009/10 he served on the Minister of Energy’s expert advisory group on the electricity market structure.
He advised the New Zealand Dairy Board on the route to the creation of Fonterra, the Ministry of Commerce in drafting the Electricity Industry Reform Act, Telecom New Zealand during its privatisation and initial international public offering and the World Bank on legal aspects of corporatisation and privatisation.
Other current interests include a 2,000ha manuka and grazing block, mountain biking, and kayaking. Stephen is married to Catharine and they have four young adult children.
It should not be a surprise that Franks Ogilvie has turned its mind to reform of the law governing the regulation of professions.
We have defended firm clients from attempts to enforce ideological brainwashing under the guise of ‘continuing education’. We have acted for professionals under disciplinary investigation for expressing views unfashionable in Wellington. And recently our principal, Stephen Franks, had to rely on a wise Legal Complaints Review Officer, to vacate a finding of unsatisfactory conduct for writing a letter expressing a client’s concerns about the continuing use of puberty blockers in New Zealand.
When a legal gap or issue is identified, Stephen always asks what the solution should be.
He has now turned his mind to the reforms needed to refocus professional regulatory bodies on their proper role: protecting consumers from incompetence or dishonesty.
Professions need an internal diversity of perspectives for healthy debate and professional growth. For lawyers this is vital for the rule of law itself; if lawyers are condemned for representing clients with unpopular views, access to justice is placed at risk.
Stephen's draft Bill is available here.
We welcome feedback. Please email Senior Solicitor Aly Miller.
Elected councillors are the decision-making brain of local government but too often, they're kept in the dark.
In a recent episode of the New Zealand Taxpayers' Union's Taxpayer Talk podcast, Franks Ogilvie Director Stephen Franks and Senior Solicitor Aly Miller joined the conversation on a critical but underappreciated issue: the right of elected local government representatives to access the information they need to do their jobs.
Councillors across New Zealand routinely face a frustrating reality. Officers can use procedural advice to sideline inconvenient questions. Legal opinions are withheld or framed in ways that suit staff rather than serve elected members. Code of Conduct complaints are weaponised against dissenting voices. And yet, it is the councillors who are accountable to the public.
Stephen and Aly drew on Franks Ogilvie's deep experience advising councillors and councils to explain what the law actually says, where the gaps are, and what needs to change. The firm recently submitted to Parliament on the Local Government (System Improvements) Amendment Bill, advocating specifically for councillors to have a strengthened right to access information about the bodies they govern.
Listen to the episode: taxpayers.org.nz/taxpayer_talk_local_council_info
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.
