1,000 Decisions to Question

Clayton Luke (pictured) is an Auckland barrister who purports to have determined 1,000 Disputes Tribunal cases in the past ten years as a Judicial Officer/Referee.   Contemporaneous to his role as a Crown adjudicator of small claims Luke sells legal advice specifically to small claims parties through a web portal www.smallclaimsadvice.co.nz.  Aside from the conflict of interest, Luke appears generally to be exploiting a tribunal where lawyers cannot appear on behalf of parties, rules of evidence are less restrictive and the resultant decisions more difficult to appeal.  The evident breach by Luke of legal ethics and a barrister’s lawful obligations have resulted in complaints being lodged with the Disputes Tribunal court and the New Zealand Law Society.

While the ‘small claims’ URL discloses Clayton Luke’s company Clayton Luke Barrister Limited ‘owns and operates’ the site, it falsely claims his limited liability company is “an incorporated legal practice”.  Clayton Luke barrister is the sole registered legal practice with the New Zealand Law Society.

More troubling, the web portal charges users $119 in advance for an answer to one legal question, an evident unlawful practice because barristers cannot receive money in advance of providing legal services as they lack the required trust account to retain such advances.  The scheme is additionally suspect as to what service is being offered.  The website advertises it “provides inexpensive legal advice without the costs and overheads of formally engaging a lawyer”.  This notice appears an attempt by Luke to insulate himself from charges of conflict of interest as well as any responsibility for legal advice given through the URL by claiming no lawyer/client contract eventuates from the engagement, another violation of a lawyer’s responsibilities.  Moreover, the representation raises fundamental concerns as to what Luke is selling if not a lawyer’s service.  This concern is heightened by the legal naivete of Luke’s target clientele who typically cannot afford a lawyer and don’t know their rights in respect to engaging one.

The issue has broader risks beyond the potential damage to unwitting customers.  In a case last month where an application was made for Luke’s disqualification on grounds of bias, Luke refused to address the application, saying it “did not exist”.  When challenged, Luke said that while the application may physically exist it does not legally exist because the Disputes Tribunal Act 1988 does not specifically allow for such an application.

Relevantly, the Disputes Tribunal Act is no different from enactments which govern any other courts (i.e. High Court, Supreme Court, etc.) in that all these court-defining enactments neither provide for nor disallow disqualification of a judicial officer with cause.  The mechanism for disqualification is a common law remedy.  Kiwisfirst is attempting to obtain a copy of the transcript.

One lawyer with extensive Law Society experience said that while the small claims advice website is disgraceful practice for someone in Luke’s position and exposes Luke as a “bottom-feader”, the Law Society is likely to minimise the conduct in light of Luke’s position and given the potential fallout on the Tribunal.   The approach is sometimes called ‘noble cause corruption’, where the Law Society determines the harm on a judicial office of exposing an errant judicial officer warrants looking the other way to maintain the broader public good/image.  It is the philosophy adopted from the Catholic church which employed it successfully over many decades in respect to pedophile priests.  The alleged offending is significant in the case of Luke due to the exceptionally large number of small claims cases he has adjudicated.

Luke also runs a private mediation service.  The multiple vehicles operated by Luke would routinely put him in positions where he has a conflict of interest.  If his handling of the recent application for his disqualification in the Disputes Tribunal is indicative of his approach generally, Crown authorities will have a mammoth task keeping a lid on it.