New Zealand Law Society - Disciplinary Tribunal strikes out charge against Sue Grey

Disciplinary Tribunal strikes out charge against Sue Grey

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has struck out a charge laid against Nelson lawyer Sue Grey. The charge related to comments that Ms Grey had made on social media in 2021 during the Covid-19 pandemic. The Tribunal found that these comments were made in Ms Grey’s personal capacity so did not meet the threshold for professional misconduct. The comments did not raise concerns regarding Ms Grey’s fitness to practise and therefore the threshold for personal misconduct was not met. The Tribunal also found that, when balanced against the right to freedom of speech, a charge of unsatisfactory conduct could not be made out. In its decision, the Tribunal, however, reminded the profession of its obligations when making public statements.

Ms Grey is a well-known lawyer and a politician. Her “personal and political activism has involved strident criticism of the government’s program of response to the Covid -19 pandemic”. Ms Grey made a number of posts on her personal Facebook page and her political party’s page commenting on the Government’s Covid-19 response, which led to complaints being made by members of the public (none of whom were Ms Grey’s clients). Some of the posts sought information from the public about sudden deaths, with a view to potentially linking it to the Covid-19 vaccine. Other comments were about the vaccination program and its alleged adverse effects, including:

I wonder what those who got led away toward the trains then queued for the gas chambers would have done differently had they realized their fate sooner.

The Tribunal noted that not all the comments could be attributed to Ms Grey as there were a number of administrators controlling the accounts.

The Tribunal did not consider that the Facebook posts were connected with the provision of regulated services. It found that it was “improper” and “unfair” for the Facebook posts made in her individual and political capacity to be linked to her professional conduct by reference to her actions in connection with the provision of regulated services (for example providing a to link to “a format for affidavit to report post death jabs” on her website) and did not accept that Standards Committee’s case that these roles were tied up together. The Tribunal found that “just because she was wearing her lawyer’s hat for completely proper lawyer conduct, that does not mean that conduct when she was wearing a different hat is judged as lawyer’s conduct”. The Tribunal then turned to considering personal misconduct, which has a higher threshold and would justify a finding that the lawyer is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer. The Standards Committee conceded that none of Ms Grey’s posts reached that level. Therefore, the Tribunal struck out the misconduct charge in both forms.

The Tribunal then considered the charge of unsatisfactory conduct. The Tribunal noted that this was a novel case and that Ms Grey’s statements needed to be considered in the context of the time they were made. The Tribunal found the strongest contention was that the comments brought the profession into disrepute but found that the views expressed by Ms Grey were genuinely held and accepted that the political natural of the speech was important. The Tribunal found that, while it disapproved of some of her comments, which it viewed as “reflecting poorly on her judgement and appreciation of the position she holds a member of the profession”, these comments did not bring the profession into disrepute. The Tribunal found that “in the end, we consider that freedom of expression must be jealously guarded and that lawyers, within limits, must not be fearful of saying unpopular things”. The Tribunal noted that the balancing exercise required was a “fact-specific, individual exercise” and held that a charge of unsatisfactory conduct could not be made out.

The Tribunal then noted the following to members of the profession:

[59] We nevertheless make plain that the membership of an honourable profession such as the Law brings with it an obligation to be careful and measured in their language- to adopt the medical truism to - “first do no harm”. Had posts made in Ms Grey’s name been better managed or approved by her, it would have prevented the linking of the more extreme statements to her personally. Further, caution should be adopted before the families of deceased are interrogated through social media using the name of a lawyer.  Requests for information might be acceptable, but there is a risk of being seen as objectifying tragedy. Intrusive inquiry into the lives of bereaved is distasteful and undignified and to be avoided”.

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