The proposed bill makes clear that members should be free to hold and express their own views on political, historical, social, cultural and other contentious issues.
In short, Franks believes people should be free to express their own opinions, and professional bodies should be politically and ideologically neutral.
Regulatory bodies that ignore the law and fail to act with neutrality risk being sued.
“If they do misuse their powers and that’s established in court, then they have to pay all the costs of the people who’ve challenged it.
“At the moment, of course, it could cost hundreds of thousands to challenge this stuff, and you’re out of pocket, even if you win. So one of the ways to make it less likely for these bodies to ignore it is to make them liable.”
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.
The highly experienced lawyer then hit back at the committee that censured him, describing them as “dimwits”.
Franks, a former MP, says since the case became public, he’s been approached by health professionals, an architect, lawyers and a number of people from the medical fraternity.
He says that, as a result of a generational change, the type of people who are now attracted to these positions want to moralise, akin to rooting out heretics and wanting to punish them.
In the past, he says it was an honour to be invited to sit on a professional body.
“There was a code that directed them very much at the interests of the profession’s standing for its competence and reliability and integrity and so forth.
“I think that’s changed quite dramatically.
“It’s partly because the top performers have opted out, they haven’t made themselves available. I know that’s a real problem with the Law Society.”
The Law Society says it’s confident in the integrity of its Standards Committees, saying they include both experienced lawyers and lay members, ensuring decisions are informed by professional expertise as well as a public perspective.
Members are appointed for fixed terms and bring a wide range of backgrounds and experience.
Franks says that while the definition of “unprofessional conduct” was always vaguely defined, this generation has been quite happy to define unprofessional conduct as “really anything they don’t like, including unfashionable political or religious views, or views on vaccines, Israel and Gaza, the geopolitical stuff”.
He says his case highlighted the problem, in that it was a view that was seen as contentious by some.
Franks says this is particularly important in law, where it is recognised that you have to take on cases, even if you really don’t like the client.
“It’s your duty to ensure the client gets heard as best it can.”
The bill literally covers the A-Z of professional bodies, listing 26 organisations including auctioneers, building practitioners, immigration advisers, chartered accountants, funeral directors, vehicle traders, social workers and vets.
Overhauling the complaints system for lawyers
The Law Society says it undertook a comprehensive independent review of the regulation of lawyers in 2021.
In August 2023, the Law Society said it accepted in principle most of its recommendations, including establishing a new independent regulator and an overhaul of the system for handling complaints about lawyers.
The society provided its response to the Minister of Justice so that it could be considered for the Government’s legislative agenda.
At the time, the Minister of Justice signalled that wholesale reform was unlikely to be a priority in the first term of the current Government.
In the meantime, the Law Society says its focus remains on continuing to strengthen and modernise the regulation of lawyers.
Franks says he has sent the draft bill to MPs on both sides of the House.
He doesn’t expect it to be progressed before the election but hopes it will be picked up in the future.
The Law Society says that if this draft bill progresses to the select committee, it will consider it carefully and prepare a submission.
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.