Sasha Borissenko: Law Society review - about blimmin' time

The much anticipated results into the Society's working group - headed by Dame Silvia Cartwright, were released last December. Photo/Dean Purcell.

COMMENT:

It's been a big two years for the Law Society.

Last year Andrew Little threatened to conduct an independent review into the Law Society in the wake of the Russell McVeagh allegations, but the Law Society has beaten him to it, having made the announcement last Wednesday.

To recap: the Society launched a survey into lawyers' workplace environment following the Russell McVeagh revelations around serious sexual misconduct. The results were grim, with nearly a third of lawyers reporting sexual harassment during their working life.

Only twelve percent had made complaints throughout their careers, and of those only seven percent reported it to the Society. In terms of disciplinary processes, it seemed that sexual violence fell outside the professional body paradigm, with the majority of proceedings relating to fraudulent or client-based matters.

The much anticipated results into the Society's working group - headed by Dame Silvia Cartwright, were released last December recommending changes to the rules around professional standards and reporting, minimum obligations for workplaces, changes to its complaints process, and changes to the NZ Lawyers and Conveyancers Disciplinary Tribunal.

And so it was. The decision to conduct an independent review reflects the constraints the Lawyers and Conveyancers Act 2006 has placed on the Society's ability to be transparent about its complaints process, and to deal with complaints of sexual harassment and bullying within the profession, the Law Society said last week.

"After more than a decade since the current Act took effect in 2008, and the recent effect on public confidence which centred on complaints about the conduct of lawyers against other lawyers, it is time to have a wide-ranging review of the current model. Any recommendation for legislative change would need to go through the normal process involving the Ministry of Justice and seeking approval from the Minister," new president Tiana Epati said.

Only twelve percent had made complaints throughout their careers

In order to better understand the Society's functions and how they work, it is best to look at their annual reports, the latest ending June 2018. Under the Act, the Society is fundamentally required to regulate and represent the profession - a contradiction in terms? Possibly.

Essentially the Council and Executive Board make up the representative side of the Law Society. For context, the Council and Executive Board represent all Law Society members, who are divided into 13 geographical branches throughout the country.

The Executive Board comprises the president and the four vice-presidents.

The 13 branches are divided into four areas for the purposes of electing vice presidents - one from Auckland, one for Central North Island (Waikato, Bay of Plenty, Gisborne, Taranaki, Whanganui, and Manawatu branches) one for the Wellington branch, and one for the South Island (Marlborough, Nelson, Canterbury-Westland, Otago, and Southland branches).

The Law Society's Council has the president, four vice-presidents, a representative of each branch, the chair/president of each Law Society section, the president of the NZ Bar Association, and a representative of the Large Firm Corporation.

At all meetings of the Council, except when a poll is demanded, the president, the president-elect, the vice-presidents, and each other member of the Council present is entitled to one vote.

Where a poll is demanded the Law Society constitution states each member of the Council has one vote, and in the case of branch representatives, they have one vote for every 500 members. As at 30 June 2018, Southland (142), Marlborough (60), Nelson (189), Whanganui (68), Taranaki (152), Manawatu (165), and Gisborne (62) were really getting their money's worth of votes.

For branches that have more than 500 members, there is an additional vote for each 500 members in excess (1000 members); and any additional part of 500 members where there's an excess of 250 members gets an extra vote.

The wording of the constitution is confusing here as it suggests that you need either 1000 members to get two votes, or 750 to get two votes. The Law Society declined to talk to the issue of voting. Calculations aside, you're in trouble at the very least if you have 749.

I'm referring to Canterbury Westland here, which had 1468 members in June 2018, and taking the 250 per one vote after 500 method, it was 32 members short of securing five votes.

It seems, each branch isn't made equal. They don't seem to have equal representation and there's little transparency around how to become a representative. The constitution as per the Act outlines that each branch makes its own rules, providing it has Council approval. Thirteen branches, 13 ways to be inconsistent, it seems.

Feeling confused as ever, it's time to move onto the regulatory functions of the Law Society. The profession is required to fund all costs associated with the regulation of legal services. The costs are met by an annual payment in advance for each practising year
(which runs from 1 July to 30 June), otherwise known as the cost of a practising certificate.

In 2018 barristers and employed lawyers paid $125 of the total $1287 for the Legal Complaints Review Officer levy. It's been the same since 2016, but it was once $67 (of $1262) in 2014, and $75 (of $1282) in 2015.

Interestingly, a very high proportion of complaints investigated by standards committees are not upheld (which is a standards committee decision to take no further action). In the year to 30 June 2018, 82% of complaints were not upheld. When complaints which were withdrawn, unfounded, resolved by negotiation, conciliation or mediation were included, 87% of complaints which were investigated and resolved in 2017/18 were not upheld. (In 2018, 1072 complaints were unfounded, 42 were referred to and resolved by negotiation, conciliation or mediation, 25 were withdrawn, discontinued, or settled. There were 183 orders made by the standards committee, and as of June 2018 779 were yet to be resolved.)

The average time to close complaints on the standard path was 222 days as of June 2018. The average time for all complaints to be closed was 153 days, up from an average of 148 days in the previous year. Over 93% of complaints were closed within 12 months.

One side of the coin is that the Law Society is not doing enough, the threshold for unacceptable behaviour is too high, and that it hides behind the confidentiality requirements that are outlined in the Act. Note that the senior lawyer of the two alleged perpetrators behind the Russell McVeagh revelations still holds a practising certificate, according to the Law Society website, for example.

But the other side of the coin is the negative impact of vexatious or unfounded complaints. If more than 80% of complaints were unfounded in the year ending June 2018, and the process took about a year, you have to ask what are the financial and emotional costs to those going through these processes.

Ultimately I'm eagerly waiting to see next year's annual report, but until then, the terms of reference for the independent review "will be agreed after extensive consultation with the legal profession and other stakeholders," the Law Society said.

If you've got any tips, legal tidbits, or appointments that might be of interest, please email Sasha - on sasha.borissenko@gmail.com