Barry Hart saga disgrace to lawyers (including the judges)

Judges and lawyers should be shamed by NBR's story about Barry Hart overcharging a widow four times what the Law Society says was a fair fee, and not paying the $55,000 to be refunded.

Hart has made a long-running spectacle of the law as he has defied his mortagees, clients and disciplinary procedures to postpone effective enforcement.

The pathetic impotence of the courts in the face of exploitation of protective procedure makes them look like accomplices.

In fact they (and Hart's creditors) are victims of collective legal funk, and judicial incompetence at pruning legal process excesses. Leading judges have been unwilling to cut through the mess created by 'natural justice'. As a trump card it has freed judges and lawyers from having to sacrifice their perfectionism, and from subjecting what they do to the normal disciplines (for everyone else) of constrained resources and time.

They could have clung to the overwhelming importance of what they do, if they had been prepared to compensate with simple measures to balance asymmetric incentives. For example, there is no need to sacrifice valuable protections of rights, as long as it is clear that those who are found to have exploited them, or made the processes needlessly expensive, are stung with correspondingly more severe outcomes when it is all over.

The Hart shame sits together with the hilarious tangle Messrs Orlov and Deliu have managed to create in Auckland, as disciplinary procedures bog down in a mire of cross complaints and technical challenges. A decade or so earlier Russell McVeagh saw off the Auckland District Law Society's investigation of their shameful horse dealings with clients, because the Society could not afford to throw more money after the millions it spent trying to get past the procedural and jurisdictional skirmishing stages.

Lawyers squealing now (justifiably to some extent) over changes imposed by the Justice Department and Parliament in procedural areas and in legal aid, are paying the price for a lack of leadership and imagination at senior judicial levels, to head off the necessity for more crude reforms.

I foresee an extended time of Parliamentary 'intrusion' on matters that have been left to lawyers and judges, including an unapologetic push-back on judicial review over-reach, because my profession has forfeited its right to cleanse its own house.

Former ACT MP turned National Party candidate Stephen Franks is principal of commercial and public law firm Franks and Ogilvie. He blogs at www.stephenfranks.co.nz.