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NZ criminal defence lawyer learns hard lessons

NZ criminal defence lawyer learns hard lessons

DISBARRED NEW Zealand criminal lawyer Christopher Harder has warned that defence lawyers who allow stress and exhaustion to permeate their professional lives, or who immerse themselves totally…

DISBARRED NEW Zealand criminal lawyer Christopher Harder has warned that defence lawyers who allow stress and exhaustion to permeate their professional lives, or who immerse themselves totally in their clients, do so at their peril and risk ruining their careers.

Harder has earned a reputation as a courtroom battler, acting on high-profile cases including the Plumley-Walker, Bennett, Donnelly and Witika trials. The New Zealand Law Practitioners Disciplinary Tribunal (NZLPDT) has also brought several disciplinary actions against him over the years.

“There is no doubt that if you spend as much time as I have engrossed in the criminal law without taking appropriate breaks, you’re going to handicap yourself; and I did. I should have learned a long time ago to take regular breaks, but I didn’t, and it can catch up with you,” Harder said. “Stress and exhaustion can fog your judgment and you can make a blunder.”

The charges laid against him by the Auckland District Law Society (ADLS) alleged an accumulation of Harder’s actions, which the ADLS said amounted to professional misconduct, or conduct unbecoming, or negligence. In respect of the three alternative charges there were multiple particulars of alleged conduct relating to three of Harder’s former clients. The alleged conduct also concerned a police officer and a fellow practitioner.

The hearing before the NZLPDT began on 7 February and was expected to last two weeks. On the third day of the hearing, however, the NZLPDT was advised the parties had reached the point where Harder was prepared to admit to a single charge of misconduct in his professional capacity and consent to his name being struck off the roll. The particulars of this new single charge, while less than those in the original charges, related to all five complainants.

As a result of Harder’s agreement to admit charges of professional misconduct and invite a striking off, on 15 February 2006, the Tribunal unanimously agreed there should be such an order.

“All we wanted to do was get him struck off,” Gary Gotlieb, president of the Auckland District Law Society said. “But the reality was we were going to go for months.”

Harder has now levelled serious accusations against Gotlieb and the ADLS regarding the gathering and presentation of the evidence involved in the complaints against him. Gotlieb has advised Lawyers Weekly that it is unable to publish these allegations, as they are the subject of affidavits sealed by order of the NZLPDT.

Among the complaints that were the subject of the charges Harder originally faced, was an allegation that he suggested to a female lawyer they have sex. Harder admitted that on or about 2 September 2004 he made suggestive and inappropriate comments to a female lawyer and that he made suggestive and persistent phone calls to her and that this amounted to misconduct.

There were also complaints he abused a client charged with a sex offence both in conversation and by requiring him to accompany Harder to a brothel to simulate what had occurred with a prostitute. Harder said the client was “desperate to get off this rape charge, and announced he was going to pay the victim’s mother some money to get rid of it. I said, “f*** off you little prick” — sometimes you do have to talk hard. We’ve got a new kind of client now, with methamphetamine. They are the most erratic, irrational people”.

Peter Winter, president of the Criminal Bar Association, said, “Many criminal lawyers will speak to their clients in a way that indicates to them that they understand the world they move in and where the client is coming from and even that they speak the same language; but that’s different to directly insulting somebody — it can’t be excused as a matter of style.”

Of the rape re-enactment with a prostitute, Harder said, “It took less than five minutes — he had his shorts on, she had her shorts and top on, but it was a dumb call, and things can get so easily turned. It’s only clients who get jail — deservedly — who turn.”

“When you’re doing a mass diet of criminal law, you’re in danger of blurring your private with your professional life,” Harder admitted. “It doesn’t pay to socialise with clients in the criminal game, because you leave yourself open to all sorts of allegations. I made myself far too readily available, and sometimes there are consequences for that,” Harder said.

“Being a defence barrister is a great strain — I was there myself,” said a member of the judiciary who has encountered Harder professionally for 20 years. “It has an enormous effect on your personal life; in terms of time, relationships and your ability to lead a normal life — if you do it diligently — and he did.”

“The defence have to do much of their own investigation; the prosecution’s investigation is done largely by the police,” the judge explained. “And often they’re working under tight budget — they’re often on legal aid, where they don’t get the money to engage private enquiry agents, forensic scientists — they can get it, but it’s often difficult and it’s often limited and so they’re working with less tools and less advantages.”

The imbalance between the prosecution and the defence, in terms of tools and advantages can be addressed, Winter said, by “freeing up the policy to allow second counsel to assist in trials, which would also be good training for younger defence lawyers.”

“In the case of legal aid work, recognition that there is an inequality of arms present between the prosecution and the defence is required,” Winter stated. “There needs to be an increase in the remuneration rate paid to defence counsel doing this work, and also, an increase in the amount of preparation time available.”

“[Harder] always focused on doing everything he possibly could to advance his client’s cause … and he goes about it in a very positive way,” one member of the judiciary said. “Sometimes a very aggressive way. And it’s not for me to judge whether his aggression is over the top or not, but he is very forceful.”

“The episodes of yelling at judges in my career,” Harder said, “you can put them on one hand”. “Yes, I have, and when I’ve done it, and when you’re going to take a judge on, you have to absolutely know that you’re right — on the law, or on the facts.”

Harder has received messages of support and commiseration from fellow lawyers — including from Barry Hart, he said — and from former clients. “I will miss the courtroom; it was fun, I’ve had the most exciting cases in this country,” Harder said. “There’s nothing more satisfying than to be able to stand up for the little guy — or even the big guy — who gets caught up in the system, and be able to resolve their nightmare.”

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