President of the New Zealand Law Society Frazer Barton in 2023. Photo: NZ Law Society / supplied
The president of the New Zealand Law Society has resumed his position today after a six-month leave of absence while he was investigated over his role in the destruction of historical abuse records at Presbyterian Support Otago.
Frazer Barton had been on a leave of absence since 26 July last year, while two complaints over his conduct as a board member at Presbyterian Support Otago were investigated.
A standards committee inquiry found Barton had not breached any rules or met the definition of unsatisfactory conduct, so no further action was necessary.
Both complaints about Barton's conduct were from members of the legal profession and were based on public reporting of the Royal Commission of Inquiry into Abuse in Care report.
It was revealed that Presbyterian Support Otago destroyed records of children in its care in late 2017, before the commission began its inquiry.
One of the complaints was lodged by Sam Benton, who is a partner at Cooper Legal - a law firm representing survivors of abuse in care since the 1990s.
The complaints alleged Barton had brought the profession into disrepute by providing advice to Presbyterian Support Otago's then chief executive officer Gillian Bremner, who then made the decision to destroy documents relevant to the Royal Commission.
Barton was on the Board of Presbyterian Support Otago and was acting in a governance role at the time.
The committee established an email exchange on 3 February 2016 between Barton and the then-chief executive was the only evidence of legal advice he had provided to the organisation.
It said Barton received an informal enquiry about a legal issue in the context of a long-established professional relationship and found no concerns over the advice provided, which was that records could be destroyed at an appropriate time by a private organisation consistent with principles relevant to information management and retention.
The committee's view was that it could not be "reasonably foreseen or expected" that Barton would have known that his response would be relied on in relation to an instruction by the then-chief executive in early 2016 to destroy records without further follow-up discussion, advice or consideration of what an appropriate milestone or anniversary might be.
It considered that the complaints highlighted professional issues that arose for lawyers when serving on boards for organisations in a non-legal role.
"Lawyers make an invaluable contribution in these organisations; however, it is important lawyers are mindful of the risks involved in providing guidance or advice that could constitute legal advice, and ensure that any legal advice is clear and considered, even when given in what may be taken as an informal context."
Presbyterian Support Otago chief executive Robbie Moginie said the organisation deeply regretted that the destruction of records had occurred.
It had provided all available information to support this investigation and Moginie said the process had a significant impact on its volunteer board members and staff, both past and present.
"We have full confidence that the NZ Law Society has undergone a comprehensive investigation and we respect its findings in this matter.
"We are grateful that our board's attention and focus has remained consistently on responding to the recommendations of the Royal Commission and our mission to meet the needs of our communities most vulnerable members."
Barton said he acknowledged the importance of the Royal Commission of Inquiry and the significance of its findings relating to the "appalling abuse and neglect" suffered by children in care.
He said he was looking forward to continuing the society's valuable work.
Law Society vice president David Campbell said the Law Society board had expressed confidence in Barton and fully supported his return.
"Frazer Barton brings a wealth of experience, knowledge, integrity and community service to his position. We back him to bring that valuable expertise to the role of Law Society president."
The Law Society's standards committee inquiry process is confidential and the Lawyers and Conveyancers Act 2006 restricts publication of its decisions, but all parties to the complaint acknowledged there was a significant public interest in releasing the outcome.
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