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Lawyer discipline

  • July 16th, 2010

The pathetic suspension penalty for Comeskey's admitted dishonesty draws attention to the law profession's loss of control of its own standards in 2006.

Until then, when the messy mix of union protection and state control that is the Lawyers and Conveyancers Act 2006 was passed, the profession could vote for leaders who might replace members of a tribunal responsible for condoning such a serious erosion of standards.

I am proud of my part in delaying passage of that Act for several years. Phil Goff knew it was conceptual rubbish, so he did not push it through over the concerns I was promoting with the other lawyers in the House. But he was too busy with Foreign Affairs to fix the flaws. Unfortunately, the Disciplinary functions are now performed by the Minister's prefects. The profession can not elevate its own standards.

Which is not to say that it necessarily would if it still had the chance. I've posted before on the wet leadership of the profession when it comes to matching rhetoric about honesty, with action.


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Perhaps Stephen, NZ requires a legal profession taskforce like this one being held in Australia
National Legal Profession Taskforce
c/o Assistant Secretary
National Legal Profession Branch
Attorney-General’s Department
3-5 National Circuit

Last August I made a submission to the New Zealand Ministry of Economic Development who were seeking new ideas for regulatory protection of investors. (1)

Although their request was limited to one area of law, I took a blanket approach in seeking fiduciary protection law to ensure everyone at the frontlines of fiduciary power are bound to the same set of rules to ensure common standards of care.

From local financial advisors up through the ranks of powerful bankers, lawyers, judges and politicians, my paper, Fiduciary Protection Law, suggests everyone in fiduciary power must be accountable. If not, for whatever reason, fiduciaries will fail the high standards they claim to uphold.

The warnings I made identified that although rules and regulatory bodies may give the appearance the public are protected, in reality, the failures more often than not are caused by those in positions taking it upon themselves permission to abuse the fiduciary duty of trust and care they are responsible for.

Fiduciary care is a constant duty of care where the interests of the client must come first. It would be abundantly clear, the legal profession have not just failed that responsibility but abused it to extreme degrees. No other profession could ever get away with it.

Perhaps of most importance, I have pushed for better controls of our most important fiduciaries, the judges and politicians, who hide their failings behind the protections of Crown and Judicial immunity.

The Australian Federal government correctly identified the urgent need to control the conflicts of interest financial advisors face. They have in the past had their advice compromised by the greed of hidden higher commissions. This has resulted in clients being offered dangerous investment packages because the advisor have been more interested in higher income irrespective of the dangers and costs the clients incur. With respect, lawyers do exactly the same with their advice.

Therefore I suggest new laws need to reflect the recognition that these are the same dangers a client is liable to when seeking legal advice from lawyers and barristers. Legal advice must be free of the motivations of hidden financial reward by ensuring that matters placed in his care are not dragged out for as long as possible.

I have spent some 30 years at the frontline of business, litigation and politics. During that time I have spent many thousands of hours interacting with government agencies, politicians, lawyers and bankers. I have spent $5.5m as the plaintiff in the equity case of Arklow vs Maclean Privy Council 1999.

From experience I observed a legal society that are not just into time wasting games to improve their incomes, but whom at times produce extremely poor outcomes from which there is no method to appeal given they self regulate and control all areas of complaint. And they do this irrespective of the high ethics they claim to uphold. (2)

Today I wrote an article titled – The legal profession works as a business not a profession. (3)

I hope my experience and advice has at least one good idea for you.


Christopher Wingate


Arklow vs Maclean, a work of judicial fiction – Google "wingate matakana"


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