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

[Sunday – Messrs Deliu and Orlov have contacted me to complain about being compared to Mr Hart. I think they are over-sensitive – the opinion that their matters "sit together" with other disciplinary processes that seem interminable, does not prejudge the outcome. I doubt that anyone thinks they are like the greedy Mr Hart, or that anything of which they are accused would be in the same moral territory.

The point is that judges and lawyers are tangled up in the same snares that have made disciplinary proceedings for everyone else a hideously expensive nightmare (employers, professions, schools included) and have been even less adept at getting out of their self-set traps. All lawyers should be embarrassed by the profession's inability to bring these things to conclusion in any timely  way.  It may be some sour consolation to the employers who've suffered the second guessing of employment law that puts foolish process ahead of substantive merits and distressing precedent's effect on future conduct.

Mr Orlov believes he is fighting corruption among lawyers and alleges it against judges. On pressing for what he means by that term he did not describe anything I would describe in that way. He thinks that judges and other lawyers are "twisting the law" to get him stopped from fighting for free speech, and for the rights of the oppressed. He claimed that this blog described him as 'farcical'. From my conversation I'm concerned that he may not share an essential commitment of lawyers to the precise use of language.]