Following the report’s release, the Law Society received two complaints alleging Barton brought the profession into disrepute. While an independent standards committee reviewed the complaints, Barton took a leave of absence as president.
The issues with ‘advice’?
Cue the standards committee’s findings. “Although Mr Barton was acting as a board member and not as PSO’s lawyer, he was approached by the CEO because of his legal skills and the advice he gave was about a legal issue,” the Law Society’s summary read.
Once the advice was considered within the scope of legal services, the next question was whether it was sound.
For context, the standards committee referenced an email exchange in February 2016 between Barton and PSO’s CEO. The CEO sought advice as a follow-up to a request regarding an individual file and a staff member’s retirement in the next five years.
The committee wasn’t concerned about the advice to destroy records per se, provided it aligned with information management and retention principles. The Royal Commission of Inquiry issued a preservation of documents order that prohibited state and faith-based institutions from destroying potentially relevant information in 2019.
So the advice was legal, but why ask if you can destroy documents if you have nothing to hide?
The committee concluded Barton couldn’t have reasonably foreseen or expected his advice in 2016 to be implemented without a follow-up discussion or consideration of an appropriate milestone or anniversary.
What’s more, the committee couldn’t identify any evidence to suggest the advice was sought in relation to or with reasonable belief that a Royal Commission of Inquiry was to commence.
Why no full report?
I have so many questions, such as why further efforts weren’t made to ascertain why the advice was sought, who knew what and when, or whether PSO victims or staff were among the “key witnesses” involved in the standards committee process.
The issue? Enter the Lawyers and Conveyancers Act, which restricts the publication of standards committee decisions. Specifically, the 2008 regulations state decisions must remain confidential unless there’s an order for publication.
Law Society chief executive Katie Rusbatch told me Barton, the standards committee and the Law Society acknowledged there was a significant public interest in releasing the outcome of the complaints.
She said the summary – consistent with the act’s purpose and the Law Society’s powers and functions – was intended to inform the public and lawyers that professional issues here were investigated and subject to the scrutiny of an independent process.
“There is also an educative opportunity here to clarify obligations that fall on all lawyers, providing guidance to lawyers who contribute their time and expertise in non-legal roles.”
In my view, the summary falls short. Nevertheless, in 2023 the Law Society said it supported – in principle – recommendations made by an independent review to separate its regulatory and representative functions.
“The Law Society is supportive of more transparency around complaints; however, legislative reform is required. The current Government has indicated this will not be a priority this term,” Rusbatch said.
Presidential material?
I’m in two minds over whether Barton should still be president. On the one hand, there’s the rule of law and the right to natural justice insofar as the standards committee put an end to the complaints.
But from an optics or public perception perspective, I’m not so sure. The president’s position sets the tone, and this is not the first time a Law Society president has come under scrutiny. Nor were the complaints made willy-nilly – they were from the very people the president’s role is designed to represent.
What’s more, the move almost undermines the Law Society’s Abuse in Care Inquiry efforts, having made submissions on the Oversight of Oranga Tamariki System Legislation Bill and Responding to Abuse in Care Legislation Amendment Bill, for example. The Law Society even sought lawyers to serve on a panel to advise the Abuse in Care Royal Commission in 2019.
More importantly, what does this say about acknowledging the harm done by the PSO – on the governing board of which Barton served?
Where to from here?
For the Law Society, there is no ability to remove a president from the Law Society’s constitution.
Rusbatch said Barton had the full support of the Law Society board, bringing “a wealth of experience, knowledge, integrity and community service to his position. The [Law Society] board backs him to bring that valuable expertise to the role of Law Society president”.
Barton didn’t respond to my questions, instead referring them to the Law Society.
“Both the Law Society and Frazer Barton acknowledge the importance of the Royal Commission of Inquiry and the significance of its findings,” Rusbatch said.
“Mr Barton is committed and fully focused on getting back to the role and contributing to the ongoing and important advocacy work undertaken across many different areas of law and the legal profession in New Zealand.”
