NBR (and Penny Bright) have asked for comment on Whaledumped emails that apparently refer to my firm,  Franks Ogilvie.

One reportedly asks Cameron Slater  what his ‘charging structure’ is, apparently with a view to hiring his services on behalf of a client of Franks & Ogilvie. NBR go on to ask:

” Are you concerned with Franks & Ogilvie being associated with the Whale Oil blog’s alleged practice of smearing individuals and organisations for commercial consideration? ….and

Is it appropriate for a solicitor to broker, on behalf of a client, services intended to either enhance of the reputation of the client or denigrate the reputation of an opponent or opponents of the client?”

I respect Nick and his paper, so I replied at length, along the following lines (with some editing).

“I have not accessed the emails and do not intend to unless or until something is drawn to my attention that requires it.

Ordinarily I would respond to such queries with ‘no comment’. That is  to maintain confidentiality of client matters. Entering discussion tends to result in spurious  significance for the particular point at which a line is drawn between what can and cannot be discussed without risk of conveying more than a client might want.

But I am happy to offer general comments on our practices.

A public voice for clients, and for views of what the law should be, does not shun effective platforms.

We have in the past, do now, and will in the future, write, publish, talk about and promote causes and interests in any medium that seems to us likely to be effective. Of course that includes social media. I have my own blog. I comment on the blog posts of others. Frequently the participation is on issues where I or the firm have a view, and our participation is a pro bono attempt to add expert correction or advice to the public discussion. Sometimes participation promotes the firm. Sometimes it is expressly to advance a client’s cause.

Like most people, we are probably more effective and more energetic on issues where our views coincide with those of the client. With their approval we’ll use as many channels as is practicable to ensure that the client position is communicated to the people who should have the information. We are public advocates. We do not eschew any lawful form of communication.

We will not be involved in peddling material which we know to be false. But otherwise we do not discriminate  between paid, earned and uninvited or unplanned communication. If the client’s interests are advanced by getting information out, unless specifically instructed otherwise, we’ll help them achieve that in any way that seems to us effective. That may be by blog commentary, writing blog posts, tweets, commissioned articles in MSM, public speaking engagements, questions at media conferences, personal lobbying, commissioning or supporting polling, encouraging investigative reporting, obtaining and releasing official information, formal submissions and hearings, and mixtures of those.

The channel matters, but effectiveness is the measure

We are obviously influenced by how we think information or messages may be affected by the channel, and the people associated with it. We look to get the best result for the least cost, and with the least risk of the message being distorted by the medium, or recipient perceptions of the medium. But personally  liking or not liking  a medium, or an individual (including a blog writer or reporter) or dislike of others who also use the medium, will not cause us to dismiss the use of a medium that would otherwise be the most effective for the client.

 Lawyers can’t be precious. Client interests prevail over personal interests, however unpopular the client

Subordinating personal preferences is orthodox. Indeed an undiscriminating approach to whatever is effective is probably required under lawyer ethical obligations to act solely in the client’s best interests, even at the cost of our interests, including reputation interests. Lawyers are not permitted to turn down a client, or to act otherwise than in accordance with instructions, except in very limited circumstances, such as where we do not have requisite capacity, or the client instructs the lawyer to mislead a court.  We are obliged to advise objectively on the clients’ courses of action without fear or favour.

You see those principles in action every day, with lawyers representing clients in and out of court, ensuring that they put their case and cause in the best light possible. Criminal lawyers are often adversely affected by public revulsion for their clients. It does not excuse them from following instructions. Our legal and political system depends on the constant testing of their limits and  protective mechanisms, often by people for whom there will be little public sympathy. We are hired to be the skilled voice of the clients, not our own. Lawyers have for decades placed paid advertisements in NZ Truth, for example, where it was considered likely to come to the attention of the target persons, despite that newspaper being also a preferred advertising medium for massage parlours. It maintained its circulation on the basis of salacious stories with which neither the lawyer nor the clients would want any association, but if it was the best channel for the message, it was used.

Are we unusual?

We probably use a wider range of media to advance client interests than most lawyers. But that is largely a reflection of the nature of our practice, and the reasons why clients engage us as public lawyers. Most clients of most lawyers probably want to avoid the public eye.  In public law the opposite is commonly the case.

Using the courts as a last resort – public advocacy is often necessary, more effective and it is more democratic.

There is no ethical excuse for shunning social media if a client seeks effective political or regulatory or other change. The conventional early public law recourse to judicial review is usually too expensive for most clients. It is also often less effective, much slower, less permanent in outcome and less consistent with democracy, than securing changes by persuading voters and the people with power more directly. Many of our clients want changes that are not vulnerable to regulatory or political whim. Improving the balance of information in the community so that democratically elected leaders see the need to change the law or change their priorities for the long term, requires engagement with people where they communicate. We do not adhere to the school of lobbying that sees it as primarily pretending to hold the key to access to Ministers. Access is commonly not difficult in New Zealand. But robust regulatory results often depend more on winning the hearts and minds of decision-makers and the opinion leaders in the community who mould consensus values. Social media are  vital in that regard. Choosing not to participate out of refined sensibilities would simply leave the field to those with less scruple.

 Negative information – MSM hypocrisy

You ask about a ‘blog practice of smearing individuals and organisations for commercial consideration’. I set  aside for the moment the irony of that characterisation from an employee of a business which (in my opinion quite properly) survives commercially by beating  its competitors to publicise for private profit, accounts of scandal, failure, embarrassment, and other dismaying circumstances for individual and organisations. If you are doing your job properly you will frequently be exposing information that the subjects would dearly prefer to remain secret. Your ethics and morality will constantly be attacked (wrongly) by embarrassed or angry targets. Your stories will be incomplete, and sometimes one-sided, however hard you might try to avoid that. We share a common public interest in your prompt publication despite the risks of unfairness even though from the target’s perspective you have no  interest other than to sell your services, and your publication. Many targets do not see that as morally legitimate.

Negative information vital to the public interest, and the main purpose of freedom of speech

Fostering engagement in public debate over matters that may affect the reputation (positively or negatively) of people in public life is among the most vital purposes of freedom of expression. Reputation mechanisms are critical to healthy operation of civil society. Without effective and continual testing of reputation including by sincere challenges that may prove to be baseless after full exploration, society would be left to rely for good behaviour sanctions and incentives on constipated official processes. That in turn subordinates society to lawyers and officials (and their political masters).

The proper boundaries to public discourse are set by defamation law. The fact that modern courts have allowed many of our civil remedies to become hideously expensive and slow, and beyond the reach of most people, does not invalidate the traditional standards set by the courts in more efficient days. Procedural reform of defamation law was a cause I advanced while in Parliament, and since.

Applicable principles

The law recognises the difficult boundary between,  on the one hand evidence as to character and modus operandi and prior conduct that is material to evaluation of current claims and explanations and charges, and on the other, such evidence that is designed simply to raise prejudice against an individual. We believe we should draw a similar distinction in our public discourse. Informative contribution to debate, including about the character, purposes and conduct of individuals can be  relevant  to an issue. On the other side is abuse and denigration for its own sake, for the base pleasure chooks presumably share in pecking off the feathers of a target hen.

The targets of both legitimate and unfair and unethical criticism and exposure may equally claim that it is ad hominem argument, or vilification. The mere claim does not dispose of the question.

 Our practice

That said, I cannot recall any occasion when we have been involved in public advocacy designed  only to discredit an individual, and we would be loathe to do it, whatever the instructions. I cannot recall us paying for any form of media exposure (including blog) that even someone who might have been on the other side would have properly characterised as vilification of an individual.  In all my time in public affairs I’ve tried to remain courteous to opponents, and even without the lawyers’ conduct rules I want our firm to reflect that value. And of course we will not disseminate statements we know to be untrue. But if there are  facts that should be in the public domain, including about people exercising power, for others to take into account in assessing their true character and motives, ensuring such disclosure would be a legitimate exercise of free speech for us and our clients.  The vigour and health of our public discourse depends on the likelihood that hypocrisy will be unmasked, and that false claims to trust or respect will be exposed.

 Slater’s effectiveness

As to Mr Slater, we’ve seen his blog as a very effective medium for breaking public interest stories that MSM were not prepared to investigate or run. We do not like the bombast or the offensive language that has been disclosed in his private communication, but there are many effective people in all walks of life whose private communication would shock us all were it to be public. The black humour that research shows to be a common coping mechanism for people in stressful occupations like policing, and emergency medicine, and probably journalism, is never meant to see the light of day. That does not mean we favour responding in kind to boastful and vainglorious expression, but we focus on our clients’ reasons for communicating through the medium that reaches the target recipients, not our reaction to the backroom culture.”

NBR also asked about Whaledump material connected to Jordan Williams. I confirmed that he left the firm to run the Taxpayers’ Union full time. We were sorry to lose him. We have great respect for his talents, for his motives and for his achievements. We think he has said publicly that he has learnt from this experience to be more circumspect in conversation, and he has apologised for some of his conduct. I approve of the way he has responded but it is now none of our business.