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Catriona MacLennan takes on the Law Society

Written By: - Date published: 6:16 pm, April 19th, 2018 - 49 comments
Categories: Abuse of power, accountability, censorship, domestic violence, law, uncategorized - Tags:

Last week Catriona MacLennan, a lawyer and media commentator, wrote a piece published at newsroom about disciplinary action being taken against her by the Law Society.  I won’t put large excerpts here, as I think it’s important to go there and read the whole thing, especially the details of her experiences as a woman lawyer.

In short, she was asked by the NZ Herald to make comments on the statements of a judge who had “granted a discharge without conviction to a man who had assaulted his wife, a male friend and his daughter.”  The statements of the judge were dismissive of the seriousness of the offence, possibly using that old trope that catching your wife cheating on you was enough to drive a man insane and excuse any crime of violence he might commit.  Women, of course, don’t get any such leeway and until the 20th century a wife could not use evidence of her husband’s adultery to get a divorce.  It’s similar to the notion that a man could be excused for committing violence against another man who made a pass at him.

The removal of the “provocation” defense was supposed to change this kind of thinking, particularly in the courts.  But clearly the Queenstown judge was having none of it, stating “Really, this is a situation that does your wife no credit and does the [male] no credit” and “There would be many people who would have done exactly what you did, even though it may be against the law to do so.”

Because Catriona made comment in the media, this is apparently grounds for the National Standards Committee of the Law Society to begin a disciplinary hearing.  The same Law Society that has failed to take any disciplinary action against lawyers who commit sexual assault and harassment, because no-one has ever filed a for disciplinary proceedings.  This committee would have seen and heard all the media reports regarding Russell McVeagh, and one would hope was working on some disciplinary action around that.

I can imagine it would be less than ideal if all lawyers went to the media and started slamming judges for their ruling and sentences.  I understand that the Law Society would want to maintain the integrity of the justice system, and the part lawyers play in it, and therefore it wouldn’t be useful to undermine the judiciary by going after them when a lawyer loses their case.  I can imagine that being a judge is a tough job, and judges have to make some difficult calls.

But there are times when judges make decisions and statements that are so beyond the pale that they need to be called up on it.  A trained and qualified lawyer who has experience practicing in that particular area of law (Catriona having “21 years of commentary on domestic violence”) would surely be the best person to make comment.  The Law Society and their disciplinary committee have discretion over cases they would take forward process, at least according to this page.

It is inconceivable to me that someone of the stature, courage, experience, advocacy and expertise of Catriona would be put through this.  It looks like nothing but silencing.  Out of interest, I would love to see what the gender (and ethnic) make-up of this committee is, because it’s very hard not to see this as the old-boys network protecting their own.

The other thing that really strikes me about this whole issue is the lack of prominence it’s been getting.  This is a freedom of speech issue, and yet the usual suspects who make lots of noise about freedom of speech are not so vocal – although I may have missed it.  Last year there was an open letter about freedom of speech being in danger at our universities, and it would be lovely if those 27 “high-profile New Zealanders” might have something to say about the kind of suppression that is happening here.  It seems to me that the freedom-of-speech advocates tend only to be vocal when it’s the current power structures and systems that are threatened to be upheld.  They tend not to be so loud protecting the free speech rights of marginalised groups.

Well here’s your chance, people.  Catriona has every right to make comment about a judgement and a judge who has done what this one did.  The Law Society really needs to take a good hard look at itself here, and make meaningful change.

[Photo from here]

49 comments on “Catriona MacLennan takes on the Law Society”

  1. Matthew Whitehead 1

    Newsroom is still looking into this issue, btw, with a follow-up story into other judges also demonstrating less-than-qualified opinions on domestic violence:

    https://www.newsroom.co.nz/2018/04/18/105481/family-court-judges-comments-ludicrous

    This is an urgent problem. If our judges in the family court don’t understand how domestic violence works, they’re not qualified to hear the most critical cases.

    • stargazer 1.1

      yes, and this piece at newsroom is also excellent: https://www.newsroom.co.nz/2018/04/16/104977/benedict-tompkins

      it’s well known that judges need a lot more training. apparently district court judges got some in 2015: https://nzfvc.org.nz/news/judges-receive-professional-development-family-violence

      and there was funding announced last year for court staff & prosecutors, as well as judiciary to get training on sexual violence: https://nzfvc.org.nz/news/funding-sexual-violence-training-judges-and-legal-professionals

      but judges need to be called out when they are blatantly getting it wrong. and someone like catriona needs to be able to do so without being pulled through disciplinary proceedings.

      • Matthew Whitehead 1.1.1

        Yep. It’s a good case that we need to repeal the provision about “scandalizing the court” given that lawyers are honestly going to be the ones best equipped to tell the public if a judge is going totally beyond the pale. We need them to feel empowered to stand up against objectively bad law, while still protecting judges from those accusations being levied by lawyers with personal interests in the cases in question.

        It’s absolutely ridiculous that they’re coming for Catriona for speaking up and telling the public things we needed to know, and I am wishing her all the best with her disciplinary investigation.

      • tracey 1.1.2

        Benedict’s piece is well thought out and legally sound. He is a very young barrister but is prepared to put his head above the parapet where much more experienced barrister’s will not.

        Judge’s bring their life experience with them to the bench. For some this is private schooling (single sex schooling), high paid legal careers, cocktail parties and mixing with people mostly like themselves.

        We need to demand better of the guardians of our justice systems. These are the folk we rely upon to hold our Executive to account. There are some GREAT Judges out there so we are capable of appointing quality, with world views that are not narrow.

  2. Bill 2

    All “closed shops” promote conservative mind sets. And all “closed shops” ‘protect their own’ – certainly no washing of the dirty laundry in public. And the legal profession is one of the few “closed shops” left. (The medical profession is another)

    I don’t know anything about this case beyond what’s written here and haven’t been through all the links yet, but this bit on the larger picture stuck out.

    I’m not understanding the suggestion that – It seems to me that the freedom-of-speech advocates tend only to be vocal when it’s the current power structures and systems that are threatened.

    I’d have thought, if anything, the exact opposite is the case. Freedom of speech is all well and good (even laudable) as long it doesn’t threaten current power structures.

    • stargazer 2.1

      whoops, you’re right, typo. i’ll edit the post.

    • Carolyn_Nth 2.2

      Actually, it can be both.

      Depends who’s claiming freedom of speech. So yer supporters of the status quo get upset and claim sexism & racism when when someone is critical of old white men dominating company boards, but claim free speech when old white man calls that someone misogynist names.

      • tracey 2.2.1

        This ^^^^

      • Bill 2.2.2

        The powerful (often enough) silence the less powerful by denying them the right to free speech (as in this instance) while (often enough and hypocritically) exercising that same right as a means to denigrate those they wish to silence.

        That’s convoluted. But gets there 🙂

        And comes back to what I said above that “free speech” is less likely to be championed by the “freedom of speech” brigade when it challenges authority in a meaningful way.

    • tracey 2.3

      Bill

      I know of one lawyer who has had 4 bills over turned by the Law Society in 3 years. From working with this lawyer i know many more had grounds but did not report him/her to the Law Society. In one case the BIll was reduced from 23,000 to 6,000 and in a case involving over $100k in fees it was reduced by 60%. If he/she spent as much time on quality service to his/her clients and less on challenging law Society complaints about fees, he/she would be a better lawyer.

      The Auckland Law Society considers the name of the lawyer should not be published because it is not in the public interest. This is a serial fee over charger. How are the public supposed to protect themselves?

      • Bill 2.3.1

        I have no idea how the public protects itself effectively from “closed shop” entities like the legal profession or the medical profession.

  3. patricia bremner 3

    Again a case of “an entitled man” not liking being challenged.

  4. mickysavage 4

    Good on her. If there are barricades somewhere I am happy to join her there.

    • tracey 4.1

      As someone who is still a registered barrister and solicitor of the High Court, but not holding a current practice certificate, I have written to the Law Society condemning their action, and the waste of time and resources.

  5. OnceWasTIm 5

    ” I understand that the Law Society would want to maintain the integrity of the justice system, and the part lawyers play in it, and therefore it wouldn’t be useful to undermine the judiciary by going after them when a lawyer loses their case. ”

    Ha! The judicial wing has been constantly undermined, bit by bit over the past 30 years when the neo-liberal agenda kicked in.
    Whether it be by judicial functions being brought in to the executive and administrative wings, or simply by complete under-funding.

    Why (for example) are we waiting for an associate minister to deliver a decision on a Mr Middleton.
    Why is the Ombudsm**n’s Office struggling.

    It’s a shame the Judicial wing hasn’t been more vocal in recent years, but thankfully that’s changing. I think a few might be freaking as a result as it now feels more comfortable to assert itself

    law SOCIETY?
    That sort of implies the following definition:
    “the aggregate of people living together in a more or less ordered community”

  6. koreropono 6

    I think it is very telling that despite the Chief District Court Judge noting that the judge’s comments were inappropriate, the National Standards Committee of the Law Society still feel it appropriate to undertake a disciplinary ‘investigation’ against Catriona.

    This in context of the rest of the article, I believe that Cartonia views this as an issue of male privilege. I think that is why she starts her article with example after example of being treated appallingly by men within the profession, even to the point that one Queen’s Counsel felt it appropriate to have a junior staff member monitor what she said during her radio show.

    Not only are they policing her, they are trying to silence her, using their dominance, their male privilege and the power structures that seek to reinforce their dominance and privilege.

    Perhaps her male colleagues do not like the fact that she may expose flaws in how the law is being applied and the impact this is having on vulnerable women and children? https://www.newsroom.co.nz/2017/07/07/37783/catriona-maclennan-dva-decision

  7. Anne 7

    What a story but oh so familiar. It doesn’t just apply to lawyers of course but women everywhere who have tried to break through a professional barrier which had hitherto been largely the province of men. The variety of tactics used, the sexist and abusive behaviour plus the constant put-downs are never ending.

    I put most of it down to the fact these men feel threatened because so many of these women are proving to be not only their equal, but in many cases far better then them.

  8. joe90 8

    My SO once worked in a law office. Apparently the partners were absolute pricks, their lessors just as bad, everything you’ve ever heard about their behaviour is true and it beat meat packing in a goat abattoir as the worst job ever by a country mile.

  9. Ad 9

    NZLS are as close as you get to a full replica of the English class system, and adore themselves for it.

    From my reasonably close observation they are just one great private school, with all the attendant markets of rank and distinction that get enforced with nods, winks, exclusions, invitations and non-invitations, dubious specialisations, red-faced guffawing hubris, politesse as enforcement, coteries, cliques, referrals, patronage lineage, false bonhomie, implied and official rank, patrilineal conferral, golf-loving, yacht-captaining, scrabbling upwards mobility, sneering contempt, affairs, drinking, ‘conferences’ , implied monied markers, and general circle-jerking.

    They are a lifeboat of almost pure white Britishness in a sea of unwashed brown criminals, and they love it.

    They have a mild function providing professional development updates, but the main two law schools could easily provide that.

    NZLS and ADLS should be disbanded.

    • Anne 9.1

      …one great private school, with all the attendant markets of rank and distinction that get enforced with nods, winks, exclusions, invitations and non-invitations, dubious specialisations, red-faced guffawing hubris, politesse as enforcement, coteries, cliques, referrals, patronage lineage, false bonhomie, implied and official rank, patrilineal conferral, golf-loving, yacht-captaining, scrabbling upwards mobility, sneering contempt, affairs, drinking, ‘conferences’ , implied monied markers, and general circle-jerking.

      Beautiful.

      But as always there are exceptions to the rule.

      • tracey 9.1.1

        And all practising barristers and solicitors are members of the LS by legislation, through their practising certificates.

        yes there are exceptions but the brave are rare in the profession.

  10. Zorb6 10

    Justice Mahon,Tony Molloy,Catriona’s in good company.
    Still reeling about the judge Lance fiasco.

    • Anne 10.1

      Justice Mahon,Tony Molloy

      Couldn’t agree more and they will be the law professionals who will be written up in the history books with reverence.

      • Tamati Tautuhi 10.1.1

        Justice Mahon was crucified by everyone when a plane was deliberately/mistakenly, driven into Mt Erebus, important documents went missing from the pilots personal home and evidence went missing from the crash site, he described the case as an “orchestrated littany of lies”.

        …. and guess what he was right ?

        Who changed the flight co-ordinates without informing the pilot ?

        • Anne 10.1.1.1

          The Erebus affair was probably the worst example of an establishment cover-up in the history of this nation. And as always, the culprits – which included Rob Muldoon of course – were allowed to get away with it. Unlawful break-ins and Illegal tampering with evidence is not only acceptable but it is also applauded when carried out or approved by the rich and powerful.

          And the people who had the guts to stand up and tell the truth were hounded and harassed for the remainder of their lives. I refer in particular to Justice Mahon and former Air NZ senior captain, Gordon Vette. Both died before their time.

  11. Lara 11

    This is a chilling example of silencing.

    This is dangerous for our democracy. And no, that’s not putting too much weight on it.

    Experienced, professional, qualified woman speaks out on an issue with which she has experience and qualifications and on which others agree… yet the NZLS pursues her, threatening her ability to practice her profession.

    This is not okay. It’s chilling for our freedom of speech. And as so, should be front page news.

    • tracey 11.1

      And each time a white privileged male in a well paid position states he is being discriminated or persecuted I sigh, and think of her experience and how it mirrors millions of women world wide. And those outraged white men at having to now share, stayed silence while they gained advantages at the expense of women like this.

  12. D'Esterre 12

    In general, the judiciary doesn’t take seriously the issue of violence against women and children. I know that they say they do, but incident after incident says otherwise. That judge’s comments are just the latest piece of evidence.

    All power to MacLennan; I hope that she prevails.

  13. Draco T Bastard 13

    The committee has asked me to respond to a series of questions. These include –

    [1.] Whether I undermined the dignity of the judiciary ?; and

    [2.]Whether I failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?

    1. No she didn’t – the judge did that by being an arse.
    2. Yes she did by pointing out that the judge wasn’t.

    If anyone should be in front of the disciplinary committee it’s the judge. If he doesn’t end up there then this is nothing more than an attack brought about solely for the purpose of silencing her.

  14. Tamati Tautuhi 14

    The NZ Law Society is a closed club of pupils from the elitist schools like Kings College, Auckland Grammar School, Whanganui Collegiate, Scots College, Christs College etc

    These people live in a closed bubble and have no real life experiences to draw on. The legal fraternity is a closed shop whereby members grease each others palms and protect each other, in the brotherhood they look after themselves and each other.

    Like they often say “New Zealand is more British than the British” ?

    Trying to extract information or to challenge the legal profession is futile as the costs ie $$$’s involved will bankrupt you, unless you have plenty ie (a truckload} to start with. This is the reason people in NZ do not pursue legal action as the costs are too high.

    If a family solicitor rips off your forebears estates how do you challenge this when the solicitors hold all the family records and documents ?

    • tracey 14.1

      You are right, particularly historically. I just want to say there are great judges working out there, and that they exist means it is possible to get quality people. I count former Justice Becroft as one of this country’s gems.

    • Tamati Tautuhi 14.2

      ….. and St Cuthberts, Diocesan etc. etc

      • tracey 14.2.1

        We still have low female, Maori and PI representatives on our judiciary. Sian Elias is a Dio Graduate but much of her work and decisions reflect a women with a heightened ability to see beyond her own circumstances

  15. dukeofurl 15

    The high Court Judge who heard the crown appeal had this to say

    “An appeal judge has now convicted the man, calling Judge Brandts-Giesen’s comments “quite wrong””

    “Judge Brandts-Giesen’s comments that anyone would have done the same as the defendant were “unfortunate”. Judge Gendall said the comments tried to “normalise and minimise” the offending and blamed the victims.”

    https://www.stuff.co.nz/national/crime/102300152/judge-wrong-queenstown-man-gets-conviction-for-assaults-after-finding-love-text

    You have to wonder who the man at the centre of the case was, since seems to have the a big part of the ‘law system on his side. Name suppressed as usual.

  16. Mark 16

    Catriona presumably read the transcript (if there was one) carefully and made herself fully familiar with the facts and circumstances of the case. If that assumption is correct then the Judge’s comments were appalling; if not, the Catriona should be sanctioned.

    • tracey 16.1

      Mark

      ….and the Chief District Court judge should be sanctioned too? if she also didnt “read the transcript (if there was one) carefully and made herself fully familiar with the facts and circumstances of the case”?

      Can you explain what circumstances you would imagine that would make it ok to say that the woman and man and the daughter deserved to be hit? That appears to be what you are suggesting, although your comment is very short and you could mean something else entirely?

  17. Mark 17

    No. Experience (as a trial lawyer in NZ and in WA) tells me that context is everything. I’m just saying that you need to know how serious the assault actually was (did the guy just throw a pillow at them, for instance?) and whether, apart from catching his missus in the act with another chap, there were other circumstances that the judge was aware of that explained his remarks.

  18. Obtrectator 18

    This is not meant as a frivolous comment (the Law Society’s actions stink on ice, and must be fought a l’outrance) but: could Catriona try the John key defence. i.e. “comment made in my capacity as a concerned member of the public, not as a lawyer”?

    • Chris 18.1

      If MacLennan goes down it’ll be something for her to be proud of.

    • Tracey 18.2

      My understanding is that as she has a current practising certificate she is bound by the Act with regard to colleagues and the Judiciary.

  19. Ross 19

    As always, the right to free speech comes with responsibilities. Israel Folau is learning that lesson.

    The President of the Law Society is a woman, so I’m not sure we can put this down to a conspiracy of old, white males but I could be wrong.

    It’s worth noting that MacLennan gave media interviews about the case and didn’t simply comment in the Herald. So the complaint may have resulted from the totality of comments she made. In one interview, on Larry Williams’ show, she said the defendant was guilty. I’m not sure that is for her to comment on publicly. It’s up to the Crown if they wish to appeal (they did, and the defendant was subsequently convicted). I could imagine that if a fellow lawyer or member of the judiciary publicly criticised MacLennan’s performance in Court, she might be a little miffed.

    https://www.lawsociety.org.nz/news-and-communications/people-in-the-law/lawyer-profiles/new-zealand-law-society-president-kathryn-mary-beck

    http://www.newstalkzb.co.nz/on-air/larry-williams-drive/audio/catriona-maclennan-queenstown-judge-under-fire-for-domestic-violence-comments/

    https://www.stuff.co.nz/national/crime/102300152/judge-wrong-queenstown-man-gets-conviction-for-assaults-after-finding-love-text

    • Tracey 19.1

      Judith Collins was President of ADLS and Deputy of NZDLS.

      The NZDLS said it received a complaint, to my memory. I wonder who that was.

  20. Ross 20

    As for the Law Society giving sleazy lawyers a free pass, I’m not sure that is correct either.

    https://www.stuff.co.nz/national/102604273/victim-in-bend-over-barrister-case-speaks-out

    • McFlock 20.1

      Yeah, spending a long day at the office to pay a fine he got for repeated sexual harrassment and threatening colleagues isn’t free. It’s still pretty cheap.

  21. Tamati Tautuhi 21

    Members of the legal fraternity are definitely a different life form IMHO ?

    …. and drawing on experience from dealing with them and members of the Law Society.

  22. Observer Tokoroa 22

    To: Tracey 14.1
    20 April 2018

    “… I just want to say there are great judges working out there, and that they exist means it is possible to get quality people. I count former Justice Becroft as one of this country’s gems.”

    But if we have great Judges working out there, how come they are not combining and assessing what is happening to Catriona MacClennan via smug Law Societies. ?

    Why are the good Judges not appealing to the Law Societies to desist ?

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