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Open letter to the Law Society in relation to investigation by National Standards Committee

Kathryn Beck

President

New Zealand

Law Society

AUCKLAND 

Thursday, 3 May 2018

Investigation of Catriona MacLennan by National Standards Committee 

  1. This letter is sent on behalf of the Auckland Women Lawyers’ Association (AWLA). More information on AWLA and its functions is available on our website, www.awla.org.nz. 
  2. We are aware that the National Standards Committee (NSC) has decided to investigate Catriona MacLennan for making comments which were published in the New Zealand Herald relating to statements made by His Honour Judge Brandts-Giesen in discharging without conviction a man charged with domestic violence offences. 
  3. Specifically, Ms MacLennan, who is the spokeswoman for the Auckland Coalition for the Safety of Women and Children, said that Judge Brandts-Giesen should not continue sitting on the bench after he made comments normalising and minimising domestic violence, and appeared to blame the victims for the “nasty assault”. 
  4. We are writing to express AWLA’s:(a) support for Ms MacLennan in relation to the comments she made which are now under investigation; and(b) concern about the manner in which we understand the investigation is being undertaken. 

Concerns about the investigation into Ms MacLennan

  1. Given Ms MacLennan’s 21 years’ experience in the area of preventing and addressing domestic violence as a lawyer, researcher, advocate and media commentator we fully support Ms MacLennan’s conduct and consider her fully qualified to make the comments she did. We consider that her comments drew on her experience and understanding of the issues and were delivered in a reasoned and responsible way. 
  2. AWLA believes that the obligation on lawyers to treat other lawyers with respect and courtesy should not be exerted in a punitive way such to discourage lawyers from calling out inappropriate conduct in the profession. This is a time when media attention has highlighted a tendency within the profession to close ranks when confronted by unacceptable conduct, rather than hold those responsible to account. Ms MacLennan’s actions in this case, to openly criticise (albeit in a temperate and reasoned way) perverse views being wielded by a member of the judiciary were a brave step. AWLA is alarmed that the primary, and apparently only, concern of the NSC is to investigate Ms MacLennan rather than condemn Judge Brandts-Giesen’s comments, which are out of step with efforts to reduce domestic violence in this country. 
  3. New Zealand has the highest rate of family violence in the developed world and AWLA takes any dismissal or words to that effect by members of the judiciary very seriously. The comments made by Judge Brandts-Giesen show a lack of understanding of the issues around domestic violence in New Zealand and are particularly concerning in that they tacitly condone unlawful conduct. Ms MacLennan’s concerns about the harm of those comments were shared by Justice Gendall in the High Court, who overturned the case on appeal and Chief District Court Judge Doogue who publicly declined to defend the comments. 

Concerns about the process of the investigation

  1. We understand the NSC has decided this matter warrants a hearing on the papers which is to be held on 7 May 2018. We also understand that despite requests Ms MacLennan has not been informed of the reasons why the NSC has decided to conduct an own-motion disciplinary investigation and hearing. Requests have also been made that the hearing is held in person, so Ms MacLennan could give her evidence orally, and we understand that no response has been provided to this request. 
  2. Prima facie, this conduct gives rise to serious questions in relation to due process and natural justice. 
  3. Given the questions the legal profession currently faces around its lack of transparency in dealing with issues in an open and frank manner, we are very concerned with the method in which the NSC is conducting its investigation, particularly given that the Law Society is an organisation that should be the most conscious of its obligations in this regard.
  4. It is most regrettable that this stance has been taken at a time when the legal profession is already receiving troubling public scrutiny for attitudes towards women and towards those in less powerful positions.
  5. Further, we are disappointed the NSC has felt Ms MacLennan’s words have warranted an investigation of its own volition in the first place. 

Conclusion

  1. It is our view that this investigation should never have been commenced. Furthermore, the continuation of the investigation and manner in which the investigation is being continued is likely to further damage the legal profession as a whole. When the Law Society pursues someone, who speaks up about violence against women, it stifles debate about these important issues at a time when discussion and action is sorely needed. Please note we will be publishing this letter on our website and sending it to our members. 
  2. AWLA requests that the investigation is dismissed immediately, and a public apology is issued to Ms MacLennan. 
  3. If the matter continues AWLA will stand by Ms MacLennan and provide its full support. 

Tracey Fitzgibbon

Vice-president

Auckland Women Lawyers’ Association