A panel has recommended a major shake-up to the way the New Zealand Law Society operates. Photo / NZME
A panel has recommended a major shake-up to the way the New Zealand Law Society operates. Photo / NZME
An independent panel has recommended stripping the New Zealand Law Society of its statutory powers after describing its function at the moment as “lawyers looking after lawyers”.
In a report released today, the latest in a series commissioned by the Law Society, the Independent Review Panel said the society is biased and lacked transparency.
It also found the body failed to meet the needs of both the consumer and the lawyers it represented and regulated.
The report found a primary issue with the Law Society was that its function was to represent lawyers in NZ and also have a hand in holding them to account when they break the rules of the Lawyers and Conveyancers Act 2006.
The panel advised it was time for the creation of a new regulator, separate from the Law Society, that would handle investigations into lawyer misconduct and lay charges against them when appropriate.
The Russell McVeagh episode
The review was commissioned after the industry was rocked by allegations made against a partner at law firm Russell McVeagh.
James Gardner-Hopkins' behaviour was found to meet the threshold of "disgraceful or dishonourable".
Under the current format, once a complaint is laid against a lawyer, the Law Society can’t provide updates about its investigation - even to the complainant themselves.
This often results in complainants feeling like they’ve been left in the dark during the investigation process.
If charges are laid, these are heard and decided at a hearing of the Lawyers and Conveyancers Disciplinary Tribunal.
At the time of the McVeagh investigation, the Law Society commissioned a survey of the legal profession and found that one-third of all female lawyers interviewed had been sexually harassed during their working life and more than half of all lawyers had experienced bullying in the workplace.
In 2018 a working group commissioned by the Law Society found sexual violence, harassment, discrimination, and bullying had become “part of the fabric of the legal profession” and had remained unchecked for too long.
“The elimination of this type of behaviour is imperative for the reputation of the profession and to secure its future. The legal community must be a safe place for all,” the report said.
Following that report, the Government said it wouldn’t be possible to make any changes to the Lawyers and Conveyancers Act to enable the Law Society to deal with complaints about sexual harassment and other unacceptable conduct more effectively.
As a stop-gap, the Law Society implemented new rules that didn’t require legislative change such as defining discrimination, bullying, harassment, and sexual harassment.
Reporting unacceptable conduct became clearer and those who run law firms are now required to submit a report each year about how they are managing those issues appropriately.
In 2021 the Law Society appointed a panel comprising Professor Ron Paterson, Jane Meares and Professor Jacinta Ruru, who began work in March 2022 to look at whether a new regulator should be created, how unacceptable conduct by lawyers should be prevented and addressed, how complaints are handled, and how the Treaty of Waitangi and biculturalism should be included in its framework as well as inclusion and diversity.
Findings
In the review released today, the panel had harsh words for how the Law Society was currently run.
“The Law Society’s regulatory work tends to be reactive and is not transparent. It has a bias towards preserving the status quo,” it said.
“The current complaints system is not working. It is slow, adversarial, produces inconsistent outcomes, is perceived as biased towards lawyers, and is not consumer-centred or restorative.
“It is not meeting the needs of consumers or lawyers.”
The panel went on to recommend that a new regulator sitting alongside the Law Society would be a board of eight members with an equal split between lawyer and public members - as opposed to the large elected council and board it described as “unwieldy and outdated”.
Establishing a new regulator would mean the Law Society would no longer have any statutory powers and become solely a membership body - representing lawyers rather than also having the power to prosecute them.
The panel also recommended introducing a “freelance” model where the requirement that lawyers seek the approval of the Law Society, before being able to practice on their own, would be abolished.
It labelled the requirement as “outdated” and said it was failing lawyers and consumers.
In a recent hearing of the Lawyers and Conveyancers Disciplinary Tribunal in Auckland a lawyer called Hierophantic Human with just 18 months of experience in the profession was denied a sole practicing certificate because his lack of experience was deemed a danger to the public.
Hierophantic Human argued his case to practice solo before the Lawyers and Conveyancers Disciplinary Tribunal earlier this year. Photo / Facebook.
Under the new proposed model, Human wouldn’t need to ask for the Law Society’s permission to set up as a sole practitioner.
The panel also recommended freeing up employed lawyers from being able to do pro-bono work and said the blanket ban on them working for free to help their communities was overly broad and not justifiable.
Complaints
“The complaints system is not working,” the panel said, but conceded it was not an easy fix.
The current model required every complaint to be considered by one of 22 Standards Committees, which comprise a majority of volunteer lawyers and operate independently from the Law Society.
In the report, the process was described as slow, highly adversarial, not restorative in nature, not producing consistent decisions, and examining more complaints than comparable legal regulators overseas.
The panel found even the most minor of complaints could take almost a year to be addressed, with adverse effects on the mental health of the parties involved.
Instead, the panel recommended the Standards Committees be abolished in favour of giving the proposed new regulator the power to investigate and resolve complaints using in-house staff.
A new pathway would also be established for minor matters that did not require penalty but would instead focus on dispute resolution.
Under that model, consumer complaints about lawyer’s fees would no longer prompt disciplinary investigations and sanctions, other than in the most egregious cases.
The Legal Complaints Review Office - which reviews decisions made by the Standards Committees before they go to the disciplinary tribunal level - would also be redundant, with their responsibilities being taken up by the new regulator.
