Key's top legal eagle attacks lawyers
Attorney-General Chris Finlayson has made a scathing attack on lawyers, saying he wants "incompetent" members of the profession to foot the bill for unjustified costs if they string out court cases.
Finlayson, the country's chief law officer and the government's main legal adviser, said the community had tolerated for too long the gamesmanship of lawyers, to the detriment of clients, the courts and justice.
He is considering giving judges the power to impose financial penalties on bungling lawyers who waste time and create unwarranted court costs. Finlayson believes this was needed to compel lawyers to act in the interests of a "just, speedy and inexpensive" justice system.
But lawyers accused Finlayson of trying to bully them and said the idea of financial penalties would only waste more court time.
In a speech to the New Zealand Bar Association on September 12, Finlayson said most legal education courses in New Zealand were considered a joke and the time had come to lift standards. The audience of lawyers, at Wellington's Holiday Inn, greeted with audible gasps his more frank comments.
Finlayson said the courts were clogged because "the overall standard of the bar, and particularly the criminal bar, is not high enough in New Zealand".
"Too many lawyers practising at the bar are incompetent, or worse, and there is no proper means of assessing their competence or requiring them to be properly educated.
"We're breeding a class of barristers who don't even know how to address the court, much less know how to cross-examine, write submissions and act in a professional manner."
Finlayson said he wanted to change court rules to ensure lawyers did not use the "discovery" of documents and evidence to go on fishing expeditions and delay cases. He believes giving judges the power to order a lawyer to pay costs will ensure professional standards were upheld. He will consult the legal fraternity before taking a submission to cabinet, but he supports "some way where an associate judge or judge can impose a modest cost order on lawyers for wasting time and imposing unnecessary cost".
Finlayson said it was a tragedy some lawyers were letting down the entire profession. "Not only are they [lawyers] incapable of doing pro bono work, being law reformers and teachers, they can't even get the basics right.
"We have tolerated them too long. Something needs to change. We cannot, as a profession, tolerate those who, whether wilfully or not, undermine the system and cannot co-operate in the just, speedy and inexpensive determination of proceedings. If litigation, both civil and criminal, has reached a crisis point in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out."
High-profile criminal lawyer and QC Robert Lithgow said Finlayson was trying to boss lawyers around and that allowing judges to order lawyers to pay costs was itself a waste. "The parties and the lawyers will be arguing the fines and the `telling off' when they should be focused on the real court case. You can't impose penalties on someone without an appeal process."
John Marshall, QC, president of the New Zealand Law Society, representing 10,700 lawyers, said the society was developing a competency assurance programme, which was likely to include senior lawyers mentoring juniors.
As well as more training, from January 1, a barrister would need three years' experience before practising under their own authority, or "sole". A barrister now can practise sole immediately after graduating from law school.
Marshall said the issue of ordering lawyers to pay costs would be discussed when the law society next meets Finlayson in about 10 days, but it would affect only a small number of lawyers.
"Lawyers are officers of the court and they owe a duty to the court. If there are some lawyers breaching that duty then the preferable way of dealing with it is a complaint to the law society, and we would deal with it. What Chris Finlayson is talking about is a small minority of lawyers who are giving the rest of the profession a bad name."
Finlayson's attack on lawyers comes only weeks after Dame Margaret Bazley accused some legal aid lawyers of turning up for court unprepared, overcommitting themselves with cases and seeking unnecessary adjournments.
Sunday Star Times