Couch case casts lawyers in different light

It is common knowledge lawyers have as much credibility among the public as used car salesmen.

There are numerous examples of some being a venal and mercenary bunch driven by greed and avarice, whose price gouging  knows no bounds. 

Who else could charge anything from $350 to $1000 for an hour’s consultation without batting an eyelid?

But occasionally, just occasionally, something comes along to challenge our perceptions of them, such as Susan Couch’s compensation claim, settled last night.

The sole survivor of William Bell’s murderous rampage at the Mt Wellington-Panmure RSA has been battling for 11 years to get compensation from the Corrections Department.

She was left permanently brain damaged by Bell who was on parole after serving five years in jail for aggravated robbery.

Since then she has lived on an invalid’s benefit in rented accommodation with her son, while seeking $500,000 in exemplary damages from the Corrections department.

It would be no exaggeration to say the government department shamelessly blocked her every move to get anything as a result of its failure to adequately supervise Bell.

And, as NBR ONLINE revealed some weeks back, it spent almost half a million dollars of taxpayer money in legal action doing just that.

The sledgehammer tactics should have crushed her, but Corrections wasn’t counting on the white knight who came to her aid.

For eight years lawyer Brian Henry argued her case in the High Court, the Court of Appeal and the Supreme Court.

During this time he racked up legal costs of at least $150,000.

But here’s the thing: Mr Henry has never charged Ms Couch a cent for his marathon effort in shaming Corrections into owning up to its negligence.

Now, it seems, his great deeds have paid off for her, with Corrections caving in.

Garth McVicar of Sensible Sentencing is in awe of what Mr Henry has done.

“Sue has been hindered, obstructed and blocked at every step of the way and if it was not for the goodness of Brian Henry in taking this case pro bono the Crown would have got away with blatant abuse of power.”

Mr Henry is clearly owed a debt of thanks by all and sundry and may force some of us to reappraise our opinions of lawyers.

Especially when the pro bono work of many others is taken into consideration.

There has always been a coterie of lawyers like Mr Henry doing God’s work, but now its almost become de rigeur for major law firms to step up to the mark.

Russell McVeagh, for one, says it takes its social responsibilities very seriously and has been providing pro bono assistance for much of the firm’s history.

“The motivation is not to seek publicity or try to look good for our clients,” says the blurb on its website.

“Members of the firm genuinely want to give back and take a wider responsibility for the community in which we work and live.”

The law firm says it gives free legal representation and advice to a multitude of organisations which include community law centres, Cure Kids, Auckland Women’s Refuge Trust, World Vision, Breast Cancer Research Trust and the South Auckland Health Foundation.

Bell Gully is another convert to the pro bono cause and is now into its fourth year of a programme providing free or discounted legal assistance to worthy causes.

It’s work falls into three categories:

  1. Free, for clients who would otherwise be denied access to justice because they have no means to pay for it.
  2. Discounted, for non-government and charitable organisations with funding and other support from third parties.
  3. Free or discounted, for limited art, culture, heritage, sports and recreation groups and individuals who merit pro bono support.

Chairman Roger Partridge says the firm has “an annual pro bono budget of $1 million fee equivalent and has committed a further $200,000 in cash and $200,000 in pro bono legal services towards rebuilding Christchurch”.

Mr Partridge says a significant proportion of its pro bono work is directed at three local community law centres.

“Every partner and member of staff is encouraged to get involved in pro bono work, with full fee credit given to all legal staff for at least 25 hours of pro bono work each year.

“The reality is that many receive fee credit for significantly more pro bono time,” he said.

It seems a number of New Zealand law firms have taken their lead from Australian, British and US practices where there is a longer tradition of pro bono work.

It’s a practice which is already well entrenched in Australia where a national pro bono resource centre has a benchmark target of at least 35 hours of pro bono work per lawyer per year.

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Quite frankly, most lawyers act pro bono or at a discount. But it is the larger fees fully charged that allow this to happen.

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I'm glad to see things have moved on since I had a job interview with Simpson Grierson some years ago and asked, 'What pro bono work do you do?' I had read my John Gresham and knew that big firms did pro bono work! - and the interviewers struggled to answer, and I was told that no one had ever asked that question before at an interview. (I didn't get the job. Not just because of that, I suspect.)

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Well done Brian Henry.
It is finally nice to see one lawyer doing his bit - he should be knighted for it as it's a vast departure from the rest of his profession.

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"Who else could charge anything from $350 to $1000 for an hour’s consultation without batting an eyelid?"

Pretty much any professional - doctor, pyschologist, dentist, accountant, investment banker, etc, etc.....

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Teacher if working 48 weeks of year.

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Most lawyers undertake pro-bono work in various forms: from the formal programmes of the big firms, through the personal dedication to specific causes by lawyers who devote countless hours to charities and non-profits, etc; and for vast numbers of lawyers throughout the country the countless hours discounted literally on a daily basis for ordinary clients for whom full fees would be too much of a hardship or, ironically, for clients facing battalions of lawyers acting for deep-pocketed corporates or government agencies. It has clearly been a terrible ordeal for Ms Couch, and all credit to her tenacity and Mr Henry's skills, capabilities and big heart in the best traditions of the legal profession.

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Good on Corrections for having the bottle to do the right thing after so many years. Far too many agencies stick with a course of action long after it's untenable, seemingly to 'save face', yet it only drives more cost to the taxpayer - and it is better to do the right thing late, than not at all.

But why then do some things seem not quite to gel with the "time to do the right thing" approach seemingly genuinely espoused by the CE and minister?

Are their advisers unable quite to give up the fight that they still feel the need to claw back at every chance? And if so, perhaps the CE or minister didn't quite push back and say what they might have been thinking: "It's now time to do the right thing, not half the right thing."

We'll never know, yet Corrections could:

(a) Apologise.
[With a binding settlement with Ms Couch, and a genuine conviction to do the right thing (in relation to the other victims' families], they've nothing to lose, but not doing so speaks volumes to attitude]

(b) Not penny pinch the amount of compensation.
[They chose to waste more on lawyers fighting it for a decade than the settlement; that should not reduce the amount they pay but instead compounds the grief they have directly caused; and if they have to justify it, a fairer settlement would be cheaper than the costs of yet more legal action in any event]

(c) Pay Ms Couch's legal fees.
[Mr Henry may not charge Ms Couch, but with a win usually comes a contribution to costs, so Mr Henry could render a bill equal to that amount at no cost to Ms Couch - our justice system is predicated on the basis that the one who causes the harm should foot the bill, not ordinary citizens or their advocates without whom they'd never receive a hope of justice]
(d) Review Corrections' legal structures and processes.
[How did they make the call to resist from the outset? And why act as harshly as it appears may have happened? Was the decision reassessed regularly, objectively, and fairly, and why not? Why were it's costs so much higher than Ms Couch's (how its lawyers were instructed plays a vital role in these costs)? And, most important of all, what lessons have been learned? What happens today, and tomorrow, to ensure that Corrections officers cannot act in the same way as allowed this terrible tragedy? And what about the families of the dead victims of this tragedy? Has Corrections just ignored them all these years as it fought Ms Couch? They, too, have suffered as a direct result of the same action for which compensation is finally being made. Is it 'right' for Corrections to simply ignore them because they have no advocate? The real issue for Corrections is if it is now time to do the right thing, half the right thing doesn't cut it.

Some people might then complain about another few hundred thousands of dollars. But that's the nature of big decisions; someone will always complain. And the amount in any event is much more than offset by stopping legal action that has already cost much more than that, and which would suck up vastly more if it were to continue.

And all New Zealanders would sleep better knowing that Corrections has made the right changes to its systems and cultures, and can be trusted to do the right thing, especially when its decisions can affect any one of us and our families.

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I once did a pro bono judicial review case for a Maori family who had their children taken away contrary to due process. The claim was struck out by a certain High Court Judge who shall remain nameless deemed it "hopeless". He then intimated he would order costs against me. I gave him dozens of examples where he praised commercial lawyers (of the Big 6 variety) even though they had argued "hopeless" cases. He ordered indemnity costs against me. 5 years later, and after 4 victories in the Court of Appeal, I was vindicated, though my reputation has been put through the mud for years as a result. In New Zealand, doing pro bono cases has very serious risks for counsel if you are representing the little guy against the state. Mr Henry was very courageous and obviously also dedicated but until the 2010 Supreme Court decision his client's case was "hopeless" and he could have faced personal attack for running it. That makes running pro bono cases trying to evolve the law so professionally dangerous that few in New Zealand will do it. I can count on one hand the lawyers that I know that would do what he did, and that is an indictment on the profession as a whole unfortunately, but partly based on state reprisals for such. On the other hand, the commercial lawyers that run hopeless lawyers for their rich clients will be praised by the Bench. The lesson is one that does not require a law degree to understand, but these things are kept hidden from the Kiwi public, as even though there is nothing false written in this comment NBR will not publish it, the fourth estate covers for the Crown instead of exposing its wrongs in Godzone. The problems in this country's legal system are so entrenched that denial seems to be the last resort. Good on you Brian for fighting the system.

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Let's not forget the lawyers who work full-time, in firms or in-house, and whose volunteer work outside their working life contributes to the pro bono ethic, despite not being 'counted' as pro bono hours because their employer/firm doesn't recognise it as anything more than a personal past-time. Pro bono and volunteer work is alive and well among the legal profession, and it doesn't require validation from the 'big firms' to make it so!

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Agree entirely. Many lawyers undertake pro bono work every day of the week and take no credit for it. Big firms have got onto the pro bono thing simply because it is good for their profile, and therefore good for their (chargeable) business. It's a shame more journalists don't spend time talking to a wider variety of lawyers, who actually have somehting credible to say and don't need the media PR.

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