Chapman Tripp have two crisp public comments for directors. The first applauds Judge Jan Doogue's refreshingly unequivocal decision in the Feltex case, though noting some chinks that could undermine its precedent power. 

The second Chapman Tripp comment reminds directors of new risks down the line, if public enforcement of directors duties codified into the Companies Act is not confined to directors who have been bad or reckless, and not merely foolish or careless.

On the comfort to draw from the Feltex decision Chapman Tripp say:

"We consider that, on balance, the judgment should be a source of considerable reassurance for New Zealand directors.  While directors must always give appropriate consideration to material placed before them, they are entitled to trust those advising them, so long as such trust is warranted and there are no reasons to suspect that it may be misplaced."

I'm less sanguine, for two reasons:

a) the fact that the Companies Office used its powers and our money to prosecute a case where there was no evidence of impropriety should worry everyone. Many laws now stipulate for strict liability in unfairly broad terms. People have reassured each other that they should not worry. because the authorities would only use them against people who deserved it. The Feltex case (and probably the Nufarm case) say – wake up!

b) look carefully at the qualifications at the end of Chapman Tripp's assessment – "so long as such trust is warranted and there are no reasons to suspect that it may be misplaced."  

They no doubt seem reasonable to lawyers, sitting in comfortable hindsight. But most business decisions are made  under uncertainty.  One simply does not know whether "such trust is warranted". If you do know then the decision is a no brainer – indeed it justifies the challenge of the Shareholders Association Chairman cited by Chapman Tripp – "that begs the question of why directors have to be paid so well for exercising their judgement”. Instead most business decisions are necessarily judgments which balance the cost and practicality of getting better information against the costs and losses from delay, including  loss of opportunity. 

In practice there are also frequently "reasons to suspect that [the trust] may be misplaced". A director works with the material given. One often has "reason to suspect" that the people on whom one is relying are less than optimum. Some will be learning on the job, and making the mistakes that we all must make. Others will be known to be out of their depth, but retained because they are the devil we know, and in a tight labour market they are better than no one. Some may even be being "managed out" because labour law says they can not be dismissed. So the "no reason to suspect" qualification phrase  in the Chapman Tripp assessment is weasel words.

Using them is excusable – they are drawn from the sanctimonious phrasing of section 138 of the Companies Act. But they are dangerous until they are recast, or bold judges like Jan Doogue find a way to make them mean something like "no reason to conclude, after balancing the relevant risks and costs and benefits as they then appeared to the director, that it was imprudent to rely on those advising them".

It is rare that one has "no reason" to suspect possible unreliability. The usual case is that there is some reason, but it is outweighed by much more reason to rely, and to act on that reliance, knowing that sometimes it will be misplaced.  That is the risk shareholders want the directors to weigh and to take on their behalf.

To answer the question of the Chairman of the Shareholders Association – if shareholders want the upside of good faith judgment when it proves right and want the blood of directors when that same good faith judgment proves to have been unwarranted, then the shareholders will find that the directors will demand a goodly part of the return that the shareholders are expecting. If directors pick up the downside risk for shareholders they will want the return to justify it.

The emails are mysterious in one respect – it seems that much of the early discussion between Jim Farmer QC and Sir Edmund Thomas preceded a thorough understanding of the facts. Astonishingly it seems Jim Farmer may not have seen the relevant company indebtedness documentation and accounts at any time covered by the correspondence. Nor did he seem to think until very late that it could be necessary to know exactly what his client and the other eminent people involved had actually said to each other or to the court.

It is possible that Ted Thomas was unduly agitated by a premature and overheated account from Farmer. Perhaps Jim Farmer's evolving views on how he should advise his friend Alan Galbraith will be excused as a necessary retracing of steps as more of the basic information became clear. 

Nevertheless it is easy to understand Thomas'  mounting alarm and estrangement from Farmer after Farmer decides that it is not up to him (or Alan Galbraith QC or Colin Carruthers QC) to take steps to cleanse the Court even if Cheif Justice Dame Sian Elias remains indecisive.

Thomas was entitled to expect that Farmer would not have consulted him without knowing most of the relevant facts.

Yesterday I was proud to move the admission to the bar of  Jordan Williams, from my firm's staff. The presiding judge (former Waitangi Tribunal Chair  Joe Williams)  reminded the new entrants (and their moving counsel) to live up to the professional standards required to maintain our centuries-built inheritance of the rule of law. That means placing service ahead of personal interests.

Foremost is our duty to the court – the only duty that prevails over our duty to the client. Justice Williams emphasized integrity.

I get a charge from these ceremonies, seeing young lawyers set out to play their part in maintaining and renewing the institutions of the rule of law. The celebration lunch with Jordan and his family was unalloyed pleasure.

Then I went back to the office and became sick at heart.

Along with no doubt hundreds of other lawyers who should have been racking up chargeable hours yesterday, instead I clicked on  NBR links to emails between retired senior judge Sir Edmund (Ted) Thomas and Jim Farmer QC.

They say Chief Justice Dame Sian Elias  was "sick to the stomach" about  the Bill Wilson problem.

My hour on the emails does not resolve  whether Justice Wilson knowingly failed to disclose a material conflict of interests (the Supreme Court has already held that his interests were disclosed inadequately).  We still do not know enough to judge whether a reasonable person would conclude that Wilson's judgment could be affected by a feeling of obligation to Galbraith, counsel for the winning side in the Saxmere case.

But they do reveal enough of Farmer's thinking (and in hearsay the thinking of his client and friend Alan Galbraith QC, and friend Colin Carruthers QC) to justify Ted Thomas' fears that they were each more concerned about the interests of their friends (including the Chief Justice) than the integrity of the Supreme Court. For Farmer and Carruthers there is some defence – they were always subject to duties to their clients.

The Herald story cites from a  passage in a 24 July 2009 email from Jim Farmer. They include only the second sentence. The full paragraph says more. It reads:

"I thought that from my last email and our discussion at Court the other day that you had got the message that if this matter is probed, it will be likely to bring down Sian as well as Bill. While I have no brief for Bill, I do regard Sian as a close friend and I will always put friendship and loyalty above concerns about the 'system' which has its own processes for looking after itself. I would always have thought that would be your position too but am now worried that you won't leave this alone".

Whatever the Judicial Conduct Panel now does, the damage is done. The passage encapsulates the issue that suffuses the email debate. It appears to have driven Sir Edmund throughout. As a system insider (though often the establishment's pet outsider in court decisions) he is acutely aware of the system's vulnerability to group loyalty. His despair and willingness to sacrifice his friendship with Farmer show pungently the point I tried to get home during the Parliamentary debates on ending our right of appeal to the Privy Council, that integrity can go very quickly from a system which is expected to cleanse itself.  

The current damage started when no MP challenged what I am told was the refusal of the then MInister of Justice Doug Graham to lead or to allow Parliamentary impeachment of Northland District Court Judge Martin Beattie. Beattie was acquitted on charges with a defence that should itself have disqualified him from judicial office (essentially – I was too stupid to understand that I could not fiddle my expenses). His fellow judge Robert Hesketh did the decent thing and accepted punishment. He was rightly re-elevated afterwards to his current position as Director of the Office of Human Rights Proceedings.

The foolish law under which the Panel is appointed was said to have grown out of that experience with Beattie. It legitimised Parliamentary cowardice, by eliminating the simple notice of motion procedure that would have made impeachment unnecessary. The Speaker would have discreetly mentioned to the Chief Justice or directly to Wilson J that there was mounting pressure within Parliament for an impeachment. Because Parliament can act to cleanse the appearance of impropriety without needing proof to any defined standard, the persons embarassing the system must then either decide to go with what dignity they can muster, or persuade themselves that their cause is so simon-pure that it will prevail in Parliamentary debate.

Instead the Panel process will be an expensive show. Whatever it decides the stain is likely to remain. Ted Thomas' concerns are relevant even if Bill Wilson is vindicated – the people in the system are seen to be too close to each other to be sure that they really wanted to know the truth, and each player (other than Thomas) seems to have wanted to leave decisive action to others (called the "system" in the emails). Perhaps that word made it easier to avoid admitting that it was the court they were shying from serving.

What must happen is now clear. The government should tell us very quickly how they propose to restore assurance that we can get objective justice. They've had plenty of time to think. We need  to send cases to the High Court of Australia, or to take on outside judges on the Supreme Court when the people on our top court know too many of the parties, or have worked for them, or have relatives or close friends with such complicating interests, or have investments that will be affected by a decision, or are known to have longstanding friendships (or the opposite) with parties or their counsel, or have passionate known views on issues. 

The Chief Justice should have recused herself on the Ngati Apa case that plunged us into the seabed and foreshore mire. But it is no solution to say that we should not appoint judges like Dame Sian. We do not want only judges who have been so incurious or toadyish or colourless or spineless as to have never participated in the great debates of our society.

So we need a mechanism to neutralise the suspicions that will attend  such judges in areas of passion. We need access in some cases to patently impartial international umpires, outside the cosy hot-house that is our senior legal society.

Under the headline 'German Giants Flee Wall Street' Der Spiegel notes another stage in the decline of the NYSE as the world's dominant exchange.

" … With expensive accounting rules, an increased threat of litigation and hundreds of millions of dollars in fines for some firms, the once prestigious New York Stock Exchange and other American markets have become unattractive to Germany's biggest companies. Daimler and Deutsche Telekom have fled this year and the few remaining are likely to follow. On June 18, the symbol of the German company Deutsche Telekom, DT, made its last run across the ticker at the New York Stock Exchange. Europe's largest telecom company left the world's biggest and most recognizable exchange after nearly 14 years of trading. The company is currently in the process of delisting from all foreign exchanges and will soon only be traded on its home stock market in Frankfurt. Deutsche Telekom is just the latest German blue chip to say goodbye to the American capital market. In an emblematic departure, Daimler, the first German firm to be listed in New York in 1993, officially quit trading on the NYSE on June 4, saying that it no longer needed a presence in New York to attract international investors. And Munich-based insurance and financial services giant Allianz abandoned the NYSE last fall."

I hope the MED officials working on our Securities Law Reform package see it. Because this article is not about the effect of the latest package of politico-regulatory responses to the GFC, now expected to add between 300 and 700 new regulations for capital markets to deal with. The current exodus is reported to be a response to existing regulatory costs (largely for disclosure  including Sarbanes Oxley)

"On average, companies must add another five to 10 people to their payroll for SEC compliance alone, and a company may need a dozen workers for required executive compensation disclosures,..".

and the risks of personal litigation liability  

"What the SEC fully doesn't grasp to today is that dealing with the US regulation system is a nightmare,…it's another reason to run to the exit door.

Sarbanes-Oxley reforms also require a company executive to approve on all financial reports. "The most important thing (about Sarbanes-Oxley) is that the CEO and CFO sign for the financial statements,….All it takes is one person in the company to make a mistake and (an executive) can go to jail. Executives who sign off on incorrect financial statements can face a sentence of up to 20 years."

Our new law must target crooks, people with criminal mens rea (guilty minds). It must not treat foolishness and over-optimism and carelessness as if they are similar species of wickedness. Because law that conflates them all will scare honest people into doing nothing, or spending time on fruitless compliance back-covering. They know that good faith business mistakes are inevitable if they are to take the kinds of risks on behalf of shareholders that have allowed people living off the work of our businesses to come to think that poverty is not normal. 

Politicians are now being pushed by voters who think that big losses should not be as normal as big profits, or that if they suffer them, taxpayers should take them over, or make rules to ensure they can never suffer them again.

The NYSE is suffering the consequences of such failure to distinguish wickedness from foolishness.

Keith Locke's call for gun registration maintains the Greens' usual faith in government  It follows last week's Sunday Star Times 'expose' of how many firearms are circulating. But both come at a curious time.

Because New Zealand's law has just been praised  by the authors of an international survey of firearms law, and firearms murder rates. The Herald's story on that study knocks the stuffing out of the efforts of Mr Locke and the SST.

Sadly for  Taupo's Jeremy Graves a willingness to look at the law and the evidence together is still too much for the Police to handle. Mr Graves was charged and convicted of assault for pointing an unloaded air pistol with a laser dot aiming device at Police who entered his home in the night.  A neighbour called Police when he heard glass smashing. Mr Graves broke into his own house after losing his key.

What a pity the Police did not laugh with Graves in relief on finding the mistake, since his laser dot on the 'intruders' was very effective.  Sadly they easily find judges willing to ignore the Crimes Act provisions on self defence, our history, and why people feel it is better to risk Police persecution in court than the fate of so many people who've suffered criminal home invasions. These judges uncritically apply not the law, but the unlawful Police policy that only they should be allowed to defend themselves with weapons that minimise the risk of the innocent defender coming off worst.

I suspect that Mr Graves would win an appeal. No doubt the Police can count on it being too expensive.

The  judge was silly enough to opine that Mr Graves would have been within his rights to use a baseball bat on the Police. How is that better than scaring them into properly identifying themselves with the red spot of a laser sighting device?

Take Matt Ridley's Ted-Talk of 15 minutes for an inspiring explanation of gains from trade. From the comment thread it seems it helped even some Greens to understand.

Thanks Brent Wheeler and Alan Dormer

TV 7 screens The Court Report on Mondays and Thursdays at 9-35 pm. Last evening I spent an interesting couple of hours with host interviewer Greg King, VUW's Steven Price, NZ Law Society Vice President Jonathan Krebs and barrister Michael Bott as the second in this new series was  filmed. 

This episode covers the Waihopai decision and the intention of the Minister of Justice to patch the law that led to the absurd jury acquittal of the sanctimonious vandals who caused $1m in damage.

The Ministry's advice to their Minister  left him with little choice. Unfortunately it does not reproduce the Judge's directions to the jury, but it says they were consistent with the law as stated by higher courts in New Zealand, and that the jury decison was consistent with the directions.  Without seeing the reasoning I can't persuade myself that can be the case, as the defence of "claim of right" requires a genuine belief that their actions were lawful, not that they were morally justified.

Still, until the law is changed they could go back to do it again (as one of them has apparently said he wishes to do). He'd be sheltered by the reasoning of his previous acquittal. Is it not reasonable for him to conclude that a court has confirmed that his sincerity and purpose made it lawful?

And if he chooses to shift focus for his next crusade to the more traditional Catholic concern about abortion, on the same reasoning he'd be free to burn down an abortion clinic, or the home of a nurse who worked in one.

Despite being grateful to producer Sofia Wenborn and the Gibson Group team for the chance to chew the fat afterwards with her and my legal colleagues, I fear they will find it hard to turn this format into compelling viewing.

They underestimate how counter-intuitive it is to good lawyers to use stories and vivid images and pithy summations in public 'performance'. All our training and the judicial process are designed to produce instinctive mistrust of reasoning by anecdote, of incomplete and imprecise expression, of possible ambiguity, and of unanchored assertion. We are trained to move as quickly as possible from the tricky emotional swamp of incident to the safer ground of principle and abstract reasoning. So to the layman we are bloodless – in other words, boring.

That does not mean lawyers are necessarily the same in private conversation. But we learn to shift menal gears when we put on our professional cloak, and a good thing we do.

But TV producers trying to capture the drama of the clashes of principle and emotion behind contentious legal issues will be deeply frustrated by our profession's determination to suck the blood and emotion out of discussion. They'll also find our collegial courtesy (unwillingness to interrupt even boring repetition)  a challenge.

A few lawyers learn to cross the boundary back to letting their natural zing and passion come through even when they are in uniform. Sir Geoffrey Palmer does, for example. Lets hope Greg and his guests get there quickly.

Why build and husband political capital if it is not applied to show you mean what you say on things that would "make the boat go faster"?

Not only stopping, but going backwards to appease the selfish green lefties is hardly likely to build capital, or even regain what was lost (if it was much). What does the government think it worth risking popularity for?

The  Coromandel-for-us-alone spokesman on Morning Report gave it all away this morning. He had no joy in any gain for the environment. It was all exultation at smashing the government's resolve.

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.

Fantastic Rugby for New Zealanders.

If I were the South African coach I'd be in two minds over whether to expose my team this week to the usual post game video review. How do you inspire your guys to counter general excellence and mistake avoidance, from an entire team?

And if I were Bill English I'd cancel the folly of Auckland's 'party central', and save us all one day's borrowing from foreigners. How will Auckland fill a ghastly old shed on a distant waterfront when they can't muster more than 25,000 spectators for a game like that?