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 personal interest to warrant its engagement.
“I am even more surprised that two of the complainants were practising lawyers and wonder what their stance on the professional conduct issues would have been if the boot had been on the other foot.”
In challenging the committee’s findings, the reviewer also made this observation.
“To exert pressure on a health care provider to refrain from undertaking medical procedures that a relevant interest group objects to, on whatever grounds, is legitimate provided the means of doing so is lawful.
“A lawyer writing a letter on behalf of a lobbyist client expressing the client’s views on a policy issue and on potential future legal developments in the field and asserted legal risks associated with it is a lawful activity.”
As a result, he found that the committee’s finding that Frank’s purpose in writing the letter was not proper and could not stand.
He reversed the committee’s unsatisfactory conduct determination and consequently its disciplinary orders.
Finally, he noted that the majority decision was relatively rare, saying he could only recall reading one other.
‘Dimwits’
Franks says it was absurd to be criticised for writing a lawyer’s letter that might upset someone, for suggesting someone was doing something that may or may not be illegal.
“Lawyers have been writing those warnings for ever since I started practice, and I’ve been in practice for 50 years.”
In a way, it was a necessary illustration of how the regulatory powers of the profession have been taken over by dimwits, he said.
“It’s indicative of a capture, not just of a law, but of the regulatory apparatus of a number of professions by people who probably several generations ago would have priests and nuns and burning witches if they could.”
They are people looking for ways to moralise and shut down any type of communication they don’t like, he said.
Yet he said there are many things that can’t be expressed nicely, and there was no reason his client’s concerns had to be delivered nicely.
Franks said he was glad it was a majority decision because, in his view, it showed they were not all “idiots”.
But he’s angry after the thousands of free hours he’s put into the Law Society over the years – including as convenor of both the company law and commercial law committees – that no one bothered to call and apologise.
“Or just anything that was recognition of how embarrassing it is for the profession to show itself so hostile to basic elements of practice and freedom of speech,” he said.
In the 2024/25 year 1366 complaints were referred for Standards Committee consideration. Photo / 123rf
In response, the Law Society spokesperson said Standards Committees were independent decision-making bodies, comprised of both lawyers and lay members.
They are appointed by the Law Society Board for fixed terms but cannot serve more than nine years in total.
During the 2024/25 year, 1366 complaints were referred for Standards Committee consideration.
During the same reporting period, the Legal Complaints Review Officer received 165 applications for review.
According to the LCRO Annual Report for the 2024/25 year, 89 Standards Committee decisions were confirmed, 23 were confirmed but modified, and 26 were reversed or partially reversed.
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.