Newstalk ZB
A lawyer censured and fined – before it was quashed – for sending a gender affirming letter for a client has hit back at the committee which censured him, describing them as “dimwits.” Stephen Franks and his Wellington firm, Franks Ogilvie, were called before the Law Society’s standards committee over a letter he sent on behalf of his client, Inflection Point New Zealand. The letter was critical of prescribing puberty blockers to gender-dysphoric adolescents. The finding, a rare majority decision, was subsequently overturned by the Legal Complaints Review Officer. Franks says the original ruling was “stupid” and embarrassing for the legal profession, which showed itself “so hostile to basic elements of practice and freedom of speech”. The three-page letter, sent in February last year, became public, generating strong reactions and prompting Health New Zealand to reassure clinicians they could continue to provide gender-affirming care based on their best clinical judgment. Six complaints were made to the Law Society, although none were from the 20 health care practitioners who received the letter. Two were from lawyers. Broadly, the six alleged professional conduct issues. These included inappropriately threatening legal action; causing distress; failing to exercise independent professional judgment; advancing a controversial political stance; and issuing a letter that was both unprofessional and inconsistent with a lawyer’s obligation to promote and maintain professional standards. Stephen Franks. Photo / Supplied Not a proper purpose? Franks denied the allegations, saying he’d met his professional obligations to his client and the letter had a proper purpose. In October, the committee dismissed all the claims, except one, that he’d failed to use legal processes for a proper purpose. That rule says a lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests, or occupation. It found the purpose of sending the letter was to specifically target individual medical professionals and place pressure on them to reconsider and/or refrain from continuing to provide gender-affirming care. The committee found the dominant purpose of the letter being sent on the law firm’s letterhead was to lend weight to the implied threat of litigation. “The Standards Committee considered that Mr Franks then erred in his own professional obligation by drafting and sending the Letter in the absence of any clear purpose other than to pressure the recipients to reconsider and/or refrain from continuing to provide gender-affirming care.” Instead, it suggested Franks should have advised his client to send the letter, or a similar letter, under the client’s own name. The committee issued a finding of unsatisfactory conduct, ordering a censure and a fine of an undisclosed sum. Franks sought a review, arguing that sending the letter was conventional correspondence. The legal complaints review officer Fraser Goldsmith agreed. He found the letter “did not suggest or imply that [the] client had any right to initiate litigation against medical practitioners for the stated reason”. It was therefore not the use of a legal process. He rejected the notion advanced by the complainants, that any letter sent by a lawyer constituted using a legal process, simply because it was sent by a lawyer. ‘This cannot conceivably be improper’ “The very purpose of a lawyer or firm sending a letter on behalf of a client is, in many if not most instances, to endeavour to lend weight to whatever concern, position or purpose the client seeks to express or advance. “That is what lawyers do. That is why a client comes to its lawyer and says, ‘We need a lawyer’s letter about this’. This cannot conceivably be improper in principle,” Goldsmith said. He expressed surprise that the committee failed to consider whether the complaints had sufficient...
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