Judge appointed 'while subject of investigation'

MARTY SHARPE
Last updated 05:00 15/11/2012

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A lawyer is questioning the appointment of a district court judge who is the subject of investigations by the Justice Ministry and the Law Society.

The ministry is investigating allegations made by Auckland lawyer Tudor Clee in relation to the actions of several ministry staff, including Public Defence Services northern public defender Jonathan Down, who was appointed a judge this month.

Mr Clee said it was "totally reckless" to make the appointment while the investigations were continuing. "Should he be found guilty of any type of misconduct or even unsatisfactory conduct, this would indicate he is not a fit person for such a level of responsibility."

Mr Clee claims Mr Down knowingly let one of his junior staff complain to the Law Society over Mr Clee's actions concerning two young defendants.

Emails obtained by Mr Clee under the Official Information Act show the complaint stemmed from Manukau deputy public defender Lynn Hughes, who claimed Mr Clee had acted unethically.

The clients would not go "on the record" with these claims but another defence lawyer who was present provided an account of the circumstances and these were the basis of a complaint to the Law Society by ministry provider services manager Michael Fitzgerald.

Mr Fitzgerald claimed Mr Clee failed to correctly inform clients of their legal aid entitlement, had misled them regarding their representation and had provided advice without full disclosure.

The Law Society dismissed the complaint against Mr Clee in July, after finding the allegations unsubstantiated.

Mr Clee claims ministry staff breached the clients' privacy and in May he obtained signed affidavits from both clients in which they claimed the allegations made by the lawyer were false and they had never been consulted concerning the claims against Mr Clee.

In May, Mr Clee sent a letter to Justice Minister Judith Collins claiming "serious misconduct by the Justice Ministry and the Public Defence Service".

The letter outlined allegations against senior Public Defence Service and ministry staff, including Mr Down.

Ministry deputy chief executive John Ryan sent Mr Clee a letter confirming the ministry had appointed a senior manager outside the legal and operational services group to investigate his complaints.

Mr Clee also lodged a complaint with the Law Society over the actions of Mr Down and Ms Hughes. Mr Clee would not disclose the details of this complaint.

Last week Attorney-General Chris Finlayson announced Mr Down's appointment as an acting district court judge, to sit in Hastings. He is to be sworn in on December 14.

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Asked why Mr Down was appointed before the completion of the investigations, a spokesman for Mr Finlayson said: "The attorney-general consulted the Law Society on this appointment, as is usual, and was satisfied the appointment was appropriate."

The Law Society would not comment.

Mr Down also declined to comment.

Mr Clee was nicknamed "the king of the crime lawyers" after a review found he took more legal aid cases than any other lawyer in the country - 599 in 2009, earning him $431,000 - before the 2010 reform of the legal aid framework.

In 2010, he made an unsuccessful bid to get an injunction against government reforms that took away a client's right to choose their own lawyer under legal aid.

WHO IS JONATHAN DOWN?

Appointed as an acting district court judge this month, he will sit in Hastings and will be sworn in on December 14 in Auckland.

Admitted to the bar in England/Wales in 1993 and in New Zealand in 2005.

Was senior Crown prosecutor at Meredith Connell, Auckland, in 2005-08.

Since 2008 he has been public defender in the northern region.

He was convener of the Auckland district law committee in 2007-08.

- © Fairfax NZ News

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