Lawyers’ work chat ‘witch hunt’ not cricket

Two lawyers’ sarcastic email exchange over trans issues while organising a cricket match resulted in a secret Law Society investigation and a four-year battle all the way to the High Court and beyond.

The bizarre saga raised questions of where the boundary between work and private thought lies. The lawyers argued that their professional watchdog shouldn’t be policing its members’ private opinions and fought to lift a veil of secrecy around the probe, which has been dubbed a “witch hunt” by a free speech advocate.

Details of the spat have been revealed in a Court of Appeal judgment between Waikato lawyers Peter Hardie and Giles Brant and the New Zealand Law Society and its National Standards Committee.

The culture war clash began in November 2019 via the unlikely avenue of emails, sent between their work addresses, about an upcoming cricket game.

One sent by Hardie made reference to cricket awards in England in which the Club Player of the Year in the women’s category was awarded to a transgender woman.

“Meantime the Newstead Nancy Boys CC have been working hard transitioning their losing side and have dedicated themselves to becoming more diverse and better more inclusive people,” he said.

In response, Brant emailed that they would be selecting a cauliflower for their team “to represent the oppressed plant life of our planet”. “We will also be selecting a koala as opening bowler as representing all non-human life which has been oppressed by Man.”

He also suggested all WASPs in the team – white Anglo-Saxon protestants – “will be obliged to apologise to everybody for everything before the game”.

Later, an anonymous complaint about the emails was made to the New Zealand Law Society, describing them as “distastefully sarcastic, extremely discriminatory, unprofessional and unbecoming of lawyers and the parties’ respective law firms”.

Hardie, however, pushed back at the National Standards Committee probe into the emails. “He stated that the NZLS had no power to regulate private opinions or otherwise interfere with the right of lawyers to freely express themselves in private correspondence”. He argued the Law Society and the committee had no jurisdiction to investigate. He also argued that at the time of writing the email, he was not acting as a lawyer providing “regulated services”.

“The fact it was sent from a work email account was irrelevant,” he argued.

A later meeting of the committee saw the investigation dropped, after it deemed the pair’s conduct “at the lower end of the type of conduct by lawyers that could attract a disciplinary response”. The committee did suggest, however, that the two “consider the tone and content of correspondence sent from their professional email accounts”.

Hardie and Brant then launched court proceedings against the Law Society and the committee seeking publication of the affair to clear the air around their reputations and also for it to release details of how the bodies handled the anonymous complaint.

Both men claimed non-publication of the decision “did not mean they would not suffer reputational harm” and also that they didn’t get a chance to respond before the committee released its decision.

The Court of Appeal seems to have agreed, saying the committee’s evaluation of the pair’s conduct could not be “dismissed as insignificant”.