A complaint has been laid against Law Society president Frazer Barton relating to advice that he gave to Presbyterian Support Otago. Photo: NZ Law Society / supplied
The Law Society says Frazer Barton will take a leave of absence from his position as president of the organisation while a complaint against him is addressed.
A formal complaint has been laid against Barton after the Royal Commission of Inquiry report indicated he had advised a church group to destroy records for children in its care.
The complaint was lodged by Sam Benton, who is a partner at Cooper Legal - a law firm representing survivors of abuse in care since the 1990s.
It came to light in the Royal Commission of Inquiry report into abuse in care that Law Society president Frazer Barton advised the head of Presbyterian Support Otago she could destroy the records of all of the children and young people it cared for.
The Inquiry said its investigation into abuse at Presbyterian Support Otago was made "particularly difficult" because the organisation destroyed its records in late 2017 and 2018.
The report said Presbyterian Support Otago's chief executive at the time Gillian Bremner, told a staff member to destroy the records - apart from a register of names and dates.
Bremner told the Inquiry she obtained advice from lawyer and ex-Presbyterian Support Otago Board chairperson Frazer Barton - about destroying the records.
A statement from the Law Society said that Barton had on Friday informed the board and council that he would take a leave of absence while any complaints were addressed.
"Mr Barton holds the work and the role of the Law Society in high regard and does not wish the ongoing public interest in his previous governance role at Presbyterian Support Otago to be a distraction," the statement said.
It said his responsibilities would be delegated to other board members in the meantime.
Two complaints laid against Law Society president
Benton said the complaint he lodged against Barton "was that his involvement with providing that advice to Presbyterian Support Otago which was effectively related to the destruction of care records at a time when the Royal Commission of Inquiry was shortly to be announced".
"My concern was essentially was that that conduct in providing that advice might bring the profession into disrepute and be a breach of the code of conduct as a result."
Benton said he was surprised that there was a link to a senior lawyer providing advice on the matter "and that was what caused me the greatest concern".
Law Society members have a mandatory reporting obligation if they suspect potential misconduct, he said.
"So all I said was look, I don't know what's gone on here, I'm not the one making a judgement but there's enough information here I think that you guys need to take a look."
The Royal Commission's report said that Frazer Barton was a former chairperson of the Presbyterian Support Otago board at the time of the complaint, he said.
"I don't know if he was still on the board of simply advising in an informal capacity but he certainly had some significant prior involvement," Benton said.
"I didn't know that the destruction of the records was being contemplated at that time" - Frazer Barton
Barton told Morning Report he did not know that in 2017 and 2018 there was the possibility of an inquiry into abuse in care and that the records would have been crucial for that reason.
"My advice to destroy them at an appropriate time, that's not go ahead and destroy them now," he said.
The report states that Barton's advice was provided orally but Benton said he would like to know if it was noted in writing which would be a very basic step to take, particularly in regards to talking about the destruction of any documentation.
"He [Barton] would have been aware of previous claims against that organisation and claims that were being brought by our firm at the time.
"He should have been very careful about what he said and he should have recorded that in writing even though it was initially done orally."
Benton said he did not know if it had been recorded in writing, but it was basic practice for a lawyer giving advice about anything that might come into question that they take a note of that.
"So hopefully he's got some sort of note about that advice, but you know on the face of it it did cause me ... enough concern to cross the threshold in my mind that it would warrant a potential complaint."
Benton said he had heard from other lawyers who believed Barton should be stripped of his current role as Law Society president.
Benton said he was reluctant to suggest that any resignation was necessary prior to the completion of an investigation.
But he said Barton should "definitely seriously consider his future" at the New Zealand Law Society if the investigation showed that Barton was aware of a pending Royal Commission of Inquiry.
It was not uncommon for records to be destroyed, but what was unusual here was the timing of the destruction of the records at Presbyterian Support Otago, he said.
Benton said police were looking through the entire report for any information that might lead to a potential investigation.
Calls for police to investigate
There are calls for the police to investigate why Presbyterian Support Otago deliberately destroyed 27 years worth of records of children in its care.
They are not the only records missing of children's time in care - some survivors were told their records were accidentally destroyed in fires or floods.
Prime Minister Christopher Luxon said it was wrong to destroy the records.
"That doesn't sound good, it doesn't sound right, it doesn't sound what we're asking churches to do. We're calling on them to responsibility and we expect them to be fully responsible and accountable for the abuse that they've caused."
He said churches needed to face their responsibility and provide records.
"We want to make sure that records are available to the survivors. There's 138 recommendations in the report, we're working through all of them."
And Attorney-General Judith Collins has issued a warning, reminding all state and faith-based institutions of their legal obligation to preserve records relevant to the safety and wellbeing of those in their care.
Massey University professor emeritus of history Peter Lineham said the deliberate destruction of records should be investigated.
"To specifically destroy records after an inquiry about an abuse case suggests to me a deliberate attempt to subvert the work of facing possible legal implications and financial implications."
Lineham said a police investigation would send a warning to all faith-based institutions.
"There's a kind of salutary warning that needs to go out to all organisations about this notion of protecting themselves at the expense of their victims. Not to deal with this would send the message that you could get away with it."
Liz Tonks from the Network for Survivors of Abuse in Faith-based Institutions New Zealand said it was not unusual for records of children's time in religious care homes to go missing.
"We have lots of information where they say the records didn't exist or they were destroyed but it's extremely difficult to get proof that they existed in the first place. It's also extremely difficult to demonstrate that they've been destroyed. In this case we're fortunate that that proof is available."
Tonks said such records should never be destroyed because they are needed for survivors to seek redress, and future generations need to be able to research and understand their history.
"It's not appropriate to get rid of records. They absolutely need to be kept."