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Angular lawyers and the Lawyers’ Rules

  • August 29th, 2008

Brian Henry may fall into a category of lawyers we would be poorer without, but who are among the reason why applying professional ethical rules is not straightforward.

They are driven to take on risky, often unrewarding cases. They accept the risk of being tainted by the unpopular causes they defend. As emotional people some of them let emotion overcome their judgment. They take cases which more pursed-lip laywers avoid to maintain their winner's brand. They miss out on the silky reputation needed for the biggest jobs, and eventually judgeship.

They offend the Establishment. They become accustomed to being offside with nearly everyone. They can come to treat rules with contempt and their integrity becomes suspect. And sometimes their conduct damages respect for the law. They are the target of those who administer the rules, for good reasons and bad.

Still, they are often the lonely reasons why the profession as a whole can still claim to be the defenders of liberties against power.

Brian Henry is a candidate. His willingness to take on the cases of Tai Hobson and Susan Couch against Corrections for the appalling casualness that let Bell commit the RSA murders will for me cover a multitude of sins.

Among those sins I stand his apparently casual admission to the Select Committee that his earlier conflicting statements to the media were not true. If Owen Glenn is to be believed then Mr Henry may also be in trouble over his evidence to the Privileges Committee.

I do not know whether the Law Society has an investigation underway. It should.

The public may think that "lying lawyer" is a redundancy, but the profession should fight that perception lest it become reality. Just because it is such a difficult boundary, full of temptation the boundary must be patrolled constantly between ensuring the client's case is expressed as well as it can be, and lying.

The new Lawyers Conduct and Client Care Rules 2008 came into effect this month. There are many untested new words that could be tested in a case like this. In addition the preface says :

"A charge of misconduct or unsatisfactory conduct may be brought and a conviction may be obtained despite the charge not being based on a breach of any specific rule…"

 Some of the Rules that might apply include:

"2.2 A lawyer must not attempt to obstruct, prevent, pervert, or defeat the course of justice.

 2.4 A lawyer must not advise a client to engage in conduct that the lawyer knows to be fraudulent or criminal, nor assist any person in an activity that the lawyer knows is fraudulent or criminal. A lawyer must not knowingly assist in the concealment of fraud or crime.

2.4.1 A lawyer may assist a client in seeking to avoid or minimise any penalty or adverse effects that flow from fraud or crime.

2.5 A lawyer must not certify the truth of any matter to any person unless he or she believes on reasonable grounds that the matter certified is true after having taken appropriate steps to ensure the accuracy of the certification.

2.6 If a lawyer subsequently discovers that a certificate given by the lawyer was or has become inaccurate or incomplete to a material extent, the lawyer must immediately take reasonable steps to correct the certificate.

11.1 A lawyer must not engage in conduct that is misleading or deceptive or likely to mislead or deceive anyone on any aspect of the lawyer’s practice. 

The new Rules also have something to say about fee charging practices. To the extent they are new they are not relevant to  Mr Henry's peculiar practices in the past. But if they are declaratory of what the profession considers to be minimum standards from the past and for the future they do not reflect well on his declared practice.

9.6 A lawyer must render a final account to the client or person charged within a reasonable time of concluding a matter or the retainer being otherwise terminated. The lawyer must provide with the account sufficient information to identify the matter, the period to which it relates, and the work undertaken.

5.9 A lawyer must not directly or indirectly offer to, or receive from, a third party any reward or inducement in respect of any advice given, referrals made, products or services purchased, or any work done for a client. This rule does not apply to arrangements under which a third party has agreed to pay or contribute to normal fees payable by a client with the knowledge and consent of that client.


  • Chuck Bird
  • August 30th, 2008
  • 8:51 am

I do not have much confidence in the Law Society. I tried to buy Helen’s art forgery for $1,000. I got very much outbid by lawyer and Labour supporter, Simon Mitchell who bought the painting for $5,000. and burned it.

The police decided not to charge him for attempting to obstruct justice.

I had discussions with a lawyer friend of mine who was considering doing a private prosecution against Clark for a very good rate. The absence of evidence would have made it a lot more difficult.

I was outraged that a lawyer could act like this and made a written complaint to the Auckland District Law Society. After some time my complaint was declined without reason. The ADLS refused to give any reason or discuss the matter at all.

I just hope that if National gets in with a majority that will show the public how corrupt this government has been. Ian Wishart, has tried without success if to find out if Clark has used her position to get her husband out of America as he was being investigated for a criminal offence. This may or may not be true. However, I can say some National MPs privately believe it could quite possibly be true.

In light of Clark misleading the public for six months to help Peters I think they have right to know if Clark did use her power to get her husband out of the country on a diplomatic passport. As Minister of Foreign Affairs, Peters would know something about it if there was anything to know. Could that be another reason why she is so careful how she treats him?

  • mikr mckee
  • September 2nd, 2008
  • 12:59 pm

So why don’t the Big media get this story on the front page?

How hard is it to go to the US and troll through public documents and pay off officials for access?

Maybe it’s because there is no story and Wishart is making a mountain out of a molehill?

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