New Zealand Law Society - Summary of Standards Committee decision

Summary of Standards Committee decision

The Law Society’s Lawyers Complaints Service received two complaints about Frazer Barton’s involvement in the destruction of records by Presbyterian Support Otago (PSO), as referred to in the Royal Commission of Inquiry (RCI) into Abuse in Care report. A Standards Committee inquired into the complaints about Mr Barton and decided to take no further action on the complaints.

Mr Barton is the current President of the New Zealand Law Society Te Kahui Ture o Aotearoa. Mr Barton took a leave of absence from his position while any complaints were addressed.

Both complaints about Mr Barton were from members of the legal profession and were based on public reporting of the Royal Commission’s report. They alleged that Mr Barton had brought the profession into disrepute by providing advice to the then Chief Executive Officer of PSO which was relied upon in support of the CEO’s decision to destroy documents relevant to the RCI. Mr Barton was on the Board of PSO and acting in a governance role at the time.

Under the Lawyers and Conveyancers Act 2006 framework there are restrictions around publication of Standards Committee decisions and the process is confidential. In this case, the Committee was constrained by these restrictions from making a publication order. However, the parties to the complaint, Mr Barton, the Committee and the Law Society have acknowledged that there is a significant public interest in releasing the outcome of these complaints.

In relation to process, the Committee decided to inquire into the complaints. It had the advantage of receiving direct evidence from key witnesses. Following this inquiry, the Committee established that an email exchange on 3 February 2016 between Mr Barton and the CEO of PSO was the only evidence of advice provided by Mr Barton to the PSO. Mr Barton received the request for advice as a follow-up to a request relating to an individual file and with reference to the retirement of a staff member in the next five years.

The starting point was an assessment of whether Mr Barton was providing “regulated services” as a lawyer. Many lawyers sit on boards and in that capacity most of their activities will not be “regulated services”. However, there can be situations where due to the nature of the activity, these activities can fall within the scope of regulated services. In this case, the Committee considered that Mr Barton was providing regulated services. Although Mr Barton was acting in his capacity 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.

Having determined that Mr Barton was providing regulated services, the Committee was required to assess his conduct against the standards that apply to all lawyers. Those standards are set out in the Rules of Conduct and Client Care and are also reflected in the definitions of unsatisfactory conduct found in the Act.

Lawyers’ professional obligations do not apply in a vacuum. To assess Mr Barton’s conduct, the Committee was required to examine the context in which the advice was given, including the circumstances known to Mr Barton at the time of the advice and the wording of the email.

The Committee identified that the situation involved a lawyer who received an informal enquiry in February 2016 about a legal issue in the context of a long-established professional relationship.

The Committee identified no concern with the advice provided that records could be destroyed at an appropriate time by a private organisation (i.e., at “an appropriate anniversary or milestone”) consistent with principles relevant to information management and retention.1

The Committee observed that while advice may be technically legally correct on its face, there are circumstances when something beyond stating the bare or technical legal position is required by a lawyer in order to properly discharge their professional obligations. In considering the circumstances of this case, however, the Committee’s view was that it could not be reasonably foreseen or expected that Mr Barton would have known that his response would be relied on in relation to an instruction by the CEO in early 2016 to destroy records without further follow-up discussion or advice or consideration of what an appropriate milestone or anniversary might be. The Committee considered that the wording of the email implicitly invited follow-up for further consideration about when any destruction might appropriately occur.
In addition, the Committee did not identify any evidence that the advice was sought or given in contemplation of, or with reasonable belief that, a Royal Commission of Inquiry was to commence.

After assessing all the evidence before it, the Committee did not consider that Mr Barton’s conduct breached any specific rule or met the definition of unsatisfactory conduct in the Act and so took no further action on the complaints.
In the Committee’s view, to find a breach in circumstances of this type risks imposing an unrealistic burden on lawyers generally in terms of having to foresee unexpected actions. Lawyers must be aware of and foresee the risks and consequences of their actions, but what is required will inevitably depend on the individual context and circumstances reasonably known to the lawyer at the time.

The Committee considered that these complaints highlight professional issues that arise for lawyers when serving on boards for organisations in a non-legal role. The Committee observed that lawyers make an invaluable contribution in these organisations; however, it is important lawyers are mindful of the risks involved in providing guidance or advice that could constitute legal advice and ensure that any legal advice is clear and considered, even when given in what may be taken as an informal context.


1 The preservation (non-destruction) of documents order was made by the RCI on 28 March 2019.