Sue Grey would not stand down after a judge ordered her to do so
A Nelson lawyer who would not comply with a judge’s order to stand down was fined $2,000 by The Lawyers Standards Committee.
The committee ruled that Sue Grey’s actions displayed unsatisfactory conduct under the Lawyers and Conveyancers Act 2006 (Lawyers: Conduct and Client Care) Rules 2008 (the Rules). The finding has resulted Grey’s censuring.
The incident occurred during a Nelson District Court hearing; according to Grey, she attended the hearing at the request of the defendant but not in a formal capacity as counsel. She said she had met with the defendant previously and identified a potential defence; however, the day before the hearing, the defendant stated his intent to apply a jurisdictional argument that she was not an expert in.
Grey told the defendant that she could not execute such a defence for him but agreed to be present at the hearing "to provide assistance to him on a standby counsel or other basis", according to a statement published by the NZ Law Society.
During the hearing, the judge sought confirmation on whether Grey was the defendant’s lawyer, given her seating arrangement behind the defendant and not beside him. The judge informed Grey that she could appear as the defendant’s McKenzie friend, which would allow her to speak with the defendant but not directly address the court; however, if she was not appearing in that capacity, she needed to sit down.
Grey then asked the court for permission to serve as court-appointed counsel, citing Fahey v R1 [2017] NZCA 596. The judge denied this request and repeated that Grey could only participate as a McKenzie friend; she was once again told to stand down.
However, Grey continued to advocate for her request despite several orders from the judge to desist. As a result, the judge ruled that her behaviour was disruptive, and she was removed from the courtroom and into custody under the Contempt of Court Act 2019.
Later on the same day, Grey was called to a contempt hearing before the same judge, where she expressed her concern regarding the defendant’s ability to mount a defence for himself. She wanted an appointment to assist the court, highlighting the Fahey judgment that emphasised the pros of assisting counsel, but felt that she was not heard.
In an oral judgment, the judge characterised Grey’s conduct as disrespectful and noted that it “had the effect of inciting the defendant’s supporters in attendance at the hearing”. He formed the impression that Grey had not displayed professional judgment; subsequently, he reported the matter to the New Zealand Law Society | Te Kāhui Ture o Aotearoa.
The standards committee launched an own motion investigation, where it reviewed the transcript, audio, and video footage of the hearing. The committee found that Grey did not violate rr 2, 2.1, and 2.2 of the Rules, which pertained to the rule of law and the administration of justice. The committee acknowledged that Grey was there on her client's instructions and was aiming to raise a procedural point; it noted that she was not trying to obstruct justice.
However, the committee concluded that Grey’s actions violated the rules related to professionalism and the protection of court processes. Specifically, it found that she violated r 13.2, which states that a lawyer “must not act in a way that undermines the processes of the court or the dignity of the judiciary”. The committee also identified a breach of r 10, which requires lawyers to promote and maintain professional standards, as well as a breach of r 10.2, which prohibits lawyers from engaging in conduct that impacts the profession’s reputation negatively.
Under s 12(c) of the Act, these violations were considered unsatisfactory conduct.
The committee also noted the aggravating feature where Grey’s action saw her engage in “direct confrontation with [the judge]” in the presence of the members of the public. It emphasised that a lawyer’s obligation to comply with a judge’s orders during a hearing is a “cornerstone of the legal profession”.
“Litigators need to take direction from the judge, even in situations where the lawyer may feel that they are not being heard or that the judge is wrong”, the committee stated.
In determining the penalty, Grey’s expression of regret was taken into account, as was her acknowledgment that she should have obeyed the judge’s order. Mitigating factors included the time spent in custody and the judge’s public reprimand.
In addition to the $2,000 fine, Grey was ordered to shoulder costs amounting to $500.
The Law Society board approved the committee’s request to publish the ruling – including the reveal of Grey’s identity – on the grounds of public interest. Grey did not object.
