Samira Taghavi
Recently, I wrote about the New Zealand Law Society’s latest reform package – changes promoted by NZLS as modernising, consumer-focused and “transparent”.
Since then, The Law Association (TLANZ) has filed a detailed submission. Its message is clear: most of the proposals expand already intrusive powers while thinning out the very safeguards that make regulation legitimate confidentiality, natural justice, proportionality and independent oversight.
As TLANZ warns, the effects can be predicted: chilled advocacy, more tactical complaints, deeper distress across the profession and – ironically – less public confidence in a fair and neutral complaints regime.
This is not a minor recalibration. It erodes first principles. And it proceeds while the central structural problem remains unsolved: the Law Society’s dual role, combining representation and regulation within one institution. Any enlargement of coercive power inside that conflicted model is constitutionally unsound.
The anchor principles that keep getting forgotten
Regulation is not performance art. Its purpose is to protect the public, sustain professional independence and preserve legitimacy. Systems that appear partial, opaque or “punitive-by-process” corrode trust for both consumers and practitioners. The benchmark for change is settled and sober: necessity, legality, proportionality, least-restrictive means, transparency of standards and independent oversight that actually bites.
Measured against those yardsticks, TLANZ’s critique is astute and pertinent.
The dual-role fault-line: fix structure before power
The Law Society is still wearing two hats: regulatory and representative.
Those mandates tug in opposite directions. Predictably, both constituencies – public and profession – lose confidence in the society. The so-called “Independent Review” commissioned by NZLS itself arrived at one sensible take-away (at least at some level of abstraction): the model is not working; the public and profession would be better served by a standalone regulator.
New Zealand already has credible, energetic representative bodies. There is no vacuum. An obvious sequence should follow: legislate a separation roadmap, with clear milestones and a public timetable, concede that representative bodies are the advocacy voice and confine NZLS to transparently rule-bound, reviewable regulation.
Expanding powers before that separation is just “trust us” and not a substitute for independent architecture.
Fee adjustments without findings: discipline by impression
One of the most troubling proposals would allow standards committees to adjust fees “where just” without first making an unsatisfactory-conduct finding. TLANZ calls this what it is: a “discipline-lite” track that destabilises disciplinary thresholds and invites inconsistency.
The law already defines the yardstick. If a fee exceeds what is fair and reasonable, it breaches client-care obligations. That is conduct measured against a rule. Collapse that rule into an amorphous “justice” discretion and you erase the bright line between (1) proving a contravention and (2) choosing a remedy.
Once those steps are blurred, reasons become opaque, appellate review is dulled and nobody can say with confidence what counts as wrongdoing. The inevitable outcomes? Forum shopping, a flood of weak fee complaints and after-the-fact reductions driven by disappointment rather than breach.
Fee orders affect property rights. They should follow proved contraventions against objective criteria – not “impressionistic equity”.
Apology orders to ‘anyone’: compelled speech by another name
Another proposal deletes the words “to the complainant”, effectively permitting apology orders to anyone – including “the “public”.
That is compelled speech in a loose cloak. It exposes lawful advocacy and client representation to ideological pressure and reputational theatre, especially around contentious cases where robust advice is easily reframed as offence. And as the NZLS “Independent Review” showed us, the Law Society is a willing confederate when it comes to ideological trends.
TLANZ’s position is simple and principled. Confine apology orders to complainants or persons demonstrably and directly affected, and only after an unsatisfactory-conduct finding. Require reasons addressing necessity and proportionality. Preserve LCRO (Legal Complaints Review Officer) review. Anything broader turns a remedial tool into a billboard.
Abolishing gateway LCRO review: cutting the oxygen from accountability
The Law Society proposes to remove LCRO review of two gateway determinations: a standards committee’s decision to lay charges in the tribunal and its decision to appoint an investigator.
This is exactly when scrutiny matters most. A charge is not a neutral waypoint; it instantly damages reputations, upends employment and insurance and exposes practitioners to interim suspension. An investigatory appointment is not administrative housekeeping; it unlocks coercive powers, often intruding into privileged and commercially sensitive material across multiple entities.
Parliament wrote the review guarantee widely: any “determination, requirement, order, or direction” of a standards committee relating to a complaint or inquiry is reviewable. Hollowing out that by implication and suggesting that a later tribunal strike-out suffices is to miss the point entirely.
A strike-out arrives too late to avert the front-loaded harm and it does nothing to test the necessity, scope or proportionality of an investigator’s powers at the moment they are activated.
If delay is the worry, legislate speed – short-form reasons, focused records, expedited LCRO timetables – not abolition of scrutiny.
Disclosure drift: from protection to punishment by process
A centrepiece of the package broadens disclosure under s 188 to undefined “affected persons” and to “any agency” acting in a regulatory or law-enforcement capacity.
In justification, the reformers invoke transparency. TLANZ calls out the mismatch: the current s 188 is a non-disclosure provision designed to protect the integrity and confidentiality of investigations. Re-engineering it into a broadcasting channel for complaint content is neither necessary nor safe.
Complaint files hold allegations that may never be substantiated, along with privileged and deeply sensitive material. Once released beyond the controlled confines of a proceeding, information can circulate without practical restraint.
Publication directions concern final decisions; they cannot reverse reputational harm from pre-decision leaks or wide “notifications”. Worse, “affected person” is undefined – an engraved invitation for scope creep. And “any agency” is the opposite of a legal threshold; it is a blank cheque.
If the true goal is to keep people directly and adversely impacted, informed about process milestones, use the procedural notice provisions – ss 137, 139, and 158 – narrowly and with teeth: strict necessity and proportionality, confidentiality undertakings, rigorous redaction, mandatory reasons and LCRO review.
That is transparency with guardrails and not publicity as punishment.
Sections 194/195 ‘inconsistencies’: fix the drafting, don’t widen the net
The Law Society proposes copying the “is or was a related person/entity” wording from s 153(4)(b) into ss 194 and 195. In practice, that would allow former employers, partners or directors – people with no current connection – to receive confidential standards committee determinations and to seek review by the LCRO.
That approach spreads sensitive material far wider than necessary, undermines the default of confidentiality and invites marginal reviews that would clog the LCRO without any real gain in fairness. Expanding the audience for confidential determinations increases the risk of collateral dissemination and distracts oversight resources from cases where review is genuinely needed.
The proportionate solution is a precise tidy-up, not a blow-out. Keep notice and review tightly tied to the relevant time. For complaints under s 194, limit standing to those who were related when the complaint was made. For own-motion inquiries under s 195, limit standing to those who were related when the inquiry commenced.
Preserve confidentiality unless a publication order is made or the practitioner expressly waives it.
In short, clarify the timing, keep the audience narrow and protect confidentiality. That targeted fix addresses the drafting issue without weakening safeguards or overburdening the review system.
Practise on own account: ditch risk tiers, prove competence
The proposal to calibrate minimum experience by “risk category” resuscitates a logic the “Independent Review” expressly criticised – time-served proxies masquerading as consumer protection. Risk labels and hours in a chair do not equal competence.
Tiering also has equality consequences that are both foreseeable and serious: it bears down hardest on returners from parental leave, part-time practitioners, rural lawyers with mixed portfolios and potentially Māori, Pasifika, and minority-led practices already serving high-need communities. It chisels supply where demand is greatest, raising cost and delay.
The present rules already permit nuanced, risk-sensitive authorisation: they take into account the applicant’s experience (including overseas), intended practice mode, systems, supervision and areas of work.
The right next step is to remove the minimum-hours proxy and embed a competence-based pathway: portfolio evidence tied to explicit competencies; targeted CPD mapped to the proposed scope; structured peer attestations; system-readiness checks; and time-limited supervised transition plans.
Protect consumers by design, not by label.
Practising certificate conditions: say no to a free-floating discretion
The Law Society also seeks a broad, open-ended power to impose conditions on practising certificates whenever it “considers appropriate”. With a dual-role body, this expansion of the coercive toolkit could not be worse. Pre-finding conditions operate as de facto sanctions: they reshape client relationships, restrict practice and mark reputations before any breach is proved.
That offends natural justice and invites administrative law challenge.
Where genuine risk exists, the statute already provides avenues: standards committees and the LCRO after findings; the tribunal for penalty; the High Court in practising on own account contexts and undertakings managed by NZLS itself.
If Parliament nevertheless insists on an interim mechanism, it must be ring-fenced: say, by a serious and imminent risk trigger; least-restrictive-means; short-form reasons; automatic and expedited LCRO review with stay powers; and confidentiality by default until final determination.
Anything broader is overreach.
The human cost we cannot ignore
Complaints are not abstractions. They land on real people with families, clients, mortgages and staff. Delay is not neutral; it hardens into punishment when reputations and livelihoods remain suspended for months or years.
A regime that widens disclosure, strips review and lowers intervention thresholds while leaving timelines elastic is a regime that institutionalises punishment by process.
Natural justice must be the spine, not the slogan: a real right to be heard before adverse steps are taken; an impartial decision-maker; reasons that grapple with the evidence; and decisions within a reasonable time. Confidentiality protects clients as much as counsel.
Independent review is not a bureaucratic luxury; it is the oxygen of accountability. And proportionality means remedies track what is proven, not what is feared.
Cosmetic justifications, real harms
Much of the Law Society’s explanatory rhetoric is a re-labelling exercise.
The vocabulary is new; the powers are not. Transparency is invoked to justify broader disclosure. Consistency is invoked to justify fewer checks. Consumer protection is invoked to justify pre-finding constraints.
But the experience on the ground – especially in criminal, family, legal aid and rural practice – tells a different story: more front-loaded harm, more tactical complaints, more attrition and fewer people willing to take the hard cases.
That is not consumer protection – it is system fragility.
What TLANZ has said – and what must happen next
TLANZ’s submission distils the path forward into six practical imperatives:
- Preserve gateway LCRO reviews for charge-laying and investigator appointments – and expedite them.
- Protect confidentiality until facts are found; use narrow, process-notice pathways rather than broadcasting complaint content.
- Modernise practise on own account by removing hours proxies and adopting competence-based authorisation.
- Keep fee orders tethered to proven excess and a genuinely remedial purpose – no “justice” reductions without breach findings.
- Limit apology orders to complainants or directly affected persons after a finding, with reasons and review.
- Commit to structural separation with NZLS exiting representation and retaining only regulation, with a public timetable.
That is principled regulation: restraint where coercion is tempting; precision where power is broad; and independence where trust is fragile.
Conclusion: choose principle over convenience
The profession and the public deserve a regime that is independent in structure, proportionate in power and trusted in practice.
The Law Society’s present package points the other way – toward wider discretions with thinner safeguards inside a conflicted institution. The fix is neither complicated nor easy: separate functions; codify tight thresholds; preserve confidentiality until findings are made; guarantee swift, external review; and measure competence rather than time-served proxies.
A century ago, Lord Hewart reminded us that justice must not only be done, it must be seen to be done. Real transparency is not a louder siren or a bigger net; it is the steady discipline of clear standards, fair process and independent oversight.
If the Law Society wishes to restore confidence, those are the principles it must honour. It must withdraw measures that punish by process and which chill advocacy. It must also confront the dual role at the system’s heart and put structure before power. Only then will reform mean what it says – and leave the public safer.
Samira Taghavi is a barrister and Practice Manager at Active Legal Solutions Ltd, a member of The Law Association’s (TLANZ) Council, convenor of TLANZ Public & Administrative Committee and a member of TLANZ Criminal Law Committee
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