Frazer Barton's exoneration 'a whitewash'

Frazer Barton. PHOTO: ODT FILES
Frazer Barton. PHOTO: ODT FILES
A person interviewed as part of the investigation into Dunedin lawyer Frazer Barton has slammed his exoneration as ‘‘a whitewash’’.

The president of the New Zealand Law Society will resume his position today after a six-month leave of absence while complaints about his role in the destruction of historical abuse records by Presbyterian Support Otago (PSO) was investigated.

A standards committee inquiry — sparked by two complaints from within the legal fraternity

— was released yesterday, which found Mr Barton had not breached any rule or met the definition of unsatisfactory conduct. But University of Auckland ethics professor Tim Dare said Mr Barton should ‘‘absolutely not’’ remain president of the law society.

‘‘It just looks like they are concerned to protect him and not the people who are genuinely vulnerable,’’ he said.

A source, who did not wish to be named, said questions asked of them by a law society’s investigator last year were brief and superficial, and there had been no follow-up meeting offered to discuss matters more fully.

‘‘Despite saying I wanted to be interviewed, I was only talked to in a cursory way. We always knew it would be a whitewash. Lawyers investigating lawyers — what a joke. He is being protected by his lawyer colleagues,’’ they said.

‘‘At the end of the day I am really sad for the survivors, who are paying the price of what was done to them.’’

Network of Survivors of Faith Based Institutions spokesman Steve Goodlass said the outcome was not surprising and he highlighted the fact there was no reference to the cost to those whose records had been destroyed.

‘‘The law society gets to investigate its own, based on a rule book that provides complete opacity as to process and determination. The use of the term ‘independent’ is a misnomer,’’ he said.

The case revolved around an email exchange on February 3, 2016, between Mr Barton, a PSO board member, and then-CEO Gillian Bremner.

Ms Bremner asked: ‘‘. . . on balance do you think we are best to destroy the rest of the files and keep only minimal info? The connection is with [name of staff member in charge of looking after the files] and I think when she retires in the next five years we would do just that as we would have no connection and frame of reference to that bit of history and no legal obligation to hold them.’’

Mr Barton responded one minute later: ‘‘Yes, I think so but at an appropriate milestone or anniversary.’’

He previously told the Otago Daily Times Ms Bremner’s question about the destruction was preceded by an inquiry about whether a file should be released to the lawyer of someone alleging abuse while in PSO care. Mr Barton had said yes.

The standards committee said the lawyer could not have reasonably foreseen that his response would be relied on without follow-up discussion around what an appropriate milestone might be.

And there was no evidence that there had been contemplation of an impending royal commission of inquiry, it ruled.

‘‘In the committee’s view, to find a breach in circumstances of this type risks imposing an unrealistic burden on lawyers generally in terms of having to foresee unexpected actions,’’ a statement said.

But that was disputed by Prof Dare.

‘‘Frazer Barton was a senior lawyer who was deeply involved in an organisation caring for children in the context where it was well known there was concerns about abuse, so he should have foreseen the interest in those records and he must have known why [Mrs Bremner] was inquiring,’’ he said.

The complaints against Mr Barton highlighted professional issues that arose for lawyers when serving on boards in a nonlegal role, the law society added.

It was important that lawyers were mindful of the risks involved in providing guidance that could constitute legal advice and ensured that any such advice was clear and considered, even when given in what might be taken as an informal context.

‘‘On behalf of the law society board, I’d like to express our confidence in Mr Barton,’’ vice-president David Campbell said.

‘‘He brings a wealth of experience, knowledge, integrity and community service to his position.’’

Mr Barton was also welcomed back to his position on the University Council by University of Otago chancellor Trish Oakley

‘‘We are looking forward to his return and contribution to council business,’’ she said.

 

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