In 2021, the New Zealand Law Society (NZLS) commissioned an independent review of whether its current arrangements for regulating and representing lawyers and legal services are fit for purpose.
It was prompted, in part, by concerns about the suitability of the complaints model, the culture and diversity of the legal profession, the powers available to NZLS to deal with unacceptable behaviour and whether a membership body such as the NZLS should also be responsible for regulating the legal profession.
In June 2022, the Independent Legal Review Panel released a discussion document to the profession. The scope is broad. This piece briefly responds to some of the matters raised within that document.
The dual regulatory and representative role of NZLS
Sections 65 and 66 of the Lawyers and Conveyancers Act 2006 prescribe the regulatory and representative functions of the law society. Representation means what it says. Regulation can be divided into two core aspects:
- Disciplinary: investigating, making findings about and enforcing matters of conduct and discipline; and
- Compliance and administration: issuing practising certificates, providing a public-facing register of lawyers, setting and auditing CPD and acting as a point of contact for the profession.
The discussion document describes the potential for tension between NZLS’ dual representative and advocacy functions:
- The democratic nature of the law society means those in office may be disincentivised from taking decisive and strong action to change the status quo;
- There are clear resourcing issues plaguing the regulatory function of NZLS. Those in elected office may be disincentivised from raising practising fees to meet resourcing requirements; and
- This dual function may present an unmanageable conflict, weakening both its regulatory and advocacy functions (a “jack of all trades, master of none”).
In my view, these dual roles are compatible. The above points rest, at least in part, on a false (and overly cynical) assumption. Lawyers – like the public – have an essential interest in a strong, ethical and credible profession. Colleagues who fall short of the expected standards do all members of the profession a disservice and ought to be dealt with appropriately.
Furthermore, the credibility of NZLS as an advocacy group will be bolstered if it takes decisive action to respond to issues of conduct and diversity, and by those campaigning for elected office expressly confronting any cultural, behavioural or resourcing issues. The current structure allows NZLS to show it can walk the walk and put its money where its mouth is.
There is also the question of who ought to regulate lawyers, if not NZLS. Whatever the regulatory body is, it will require lawyers to appear as counsel for those before it, provide it with expert evidence where necessary, and (at least in part) fulfil an adjudicative function (an imperfect cure for allegations of conflict). Retired judges could play a role, but in this respect two issues arise:
- First, retired judges would not bring with them the specialist expertise of recent experience in practice; and
- Second, there is an important constitutional distinction between the regulation of lawyers by judges as officers of the court, and otherwise as professionals by NZLS. This distinction ought to remain.
Finally, NZLS’ scope as an advocacy body will always be diluted by its generality. The law is an incredibly diverse profession and one well served by myriad specialist and regional organisations (including under the NZLS umbrella). While all lawyers share a baseline level of common interest, beyond that there is a sharp divergence. Criminal legal aid lawyers, for example, share vastly different interests to conveyancing solicitors or corporate in-house counsel. NZLS’ broad scope and membership base better explains (on a systematic level) a perceived lack of effective advocacy by NZLS than does a conflict of interest arising from its dual function.
Improving the current regime
Notwithstanding, improvements could be made to the current regulatory regime. The system is not effectively triaging complaints, clogging it up and slowing it down. This leaves all involved in limbo, and hangs a Sword of Damocles over practitioners.
On a macro level, complaints made to NZLS about practitioners may be divided into two categories:
- those about discipline, behaviour or fundamental obligations; and
- those about service, fees, representation and quality.
Complaints about the latter are distinctly different to the former; they do not relate to fundamentals of integrity or character which directly go to whether one is fit and proper to practise law.
Many complaints in the latter category might arise due to a clash of personalities or communication styles between a lawyer and his or her client, cultural misunderstandings, unrealistic expectations or simply due to a disappointing performance by the lawyer. There is scope for NZLS to fulfil a restorative or arbitrative role in such situations in lieu of a formal Standards Committee process. This could include liaising with the client and/or the lawyer and advising the client of their options. This would not require any findings to be made, nor would it be resource- intensive. It could also incorporate cultural practices to cater for the needs of all consumers, including Māori and Pasifika.
A sensible solution would be to adopt a triage system to assess incoming complaints to determine whether they merit a full Standards Committee referral or are better dealt with by a restorative or arbitrative process. This would represent a more purposive approach in many cases, and one which makes best use of limited resources.
The slow and formal Standards Committee process, which is reactive and operates akin to conviction and sentence, may not always address the complaint or the needs of an aggrieved consumer, nor address issues with practitioners ripe for remedy.
This approach could also be adopted in conjunction with Standards Committees being given the power to impose temporary conditions or supervision on practitioners who are consistently subject to meritorious service-level complaints.
The goal of the process should be to proactively ensure the competency of practitioners to assist them to remain in the profession and to protect consumers of legal services.
Such practitioners may benefit from temporary supervision or conditions on practice, as would the public. Conditions and supervision requirements could also apply to practitioners who return to the profession after a significant period out of practice, or due to relevant medical issues (as is the case in some other professions).
Regulatory scope
The Independent Review discussion document also raises the issue of whether other “unregulated providers of legal services” should face greater regulation. This might include non-lawyer police and probation prosecutors, and employment advocates.
It would not be appropriate to bring the regulation of nonlawyers within the purview of NZLS. Its role is to regulate lawyers, not everything legal. Broadening the regulatory purview of NZLS will only exacerbate the issues under discussion.
As to the appropriateness of non-lawyer advocates appearing before the courts, that is a matter for the judiciary. From a consumer perspective, however, Part 2 of the Lawyers and Conveyancers Act 2006 could be enhanced to require non-lawyer providers of legal services to proactively disclose that they are not lawyers.
Conclusion
The Independent Review is a valuable opportunity for all lawyers to contribute to this important discussion. Submissions close at 5pm on 12 August 2022.
William Mohammed is an Auckland barrister and a member of the ADLS Criminal Law committee.
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