The New Zealand Law Society has thrown its support behind establishing a new, independent watchdog after accepting in principle the review panel’s recommendation.
The remainder of the panel’s proposals have also been backed by NZLS, which rejected none. But while most have been accepted in principle, some will require further consideration before the membership and regulatory body settles on a view.
The creation of a new, independent regulator headlines the Law Society’s response, which includes accepting in principle a Treaty of Waitangi clause in any new regulatory framework and overhauling how complaints about lawyers are handled.
Progress on the recommendations now sits with the Minister of Justice as any substantive reforms will require amending the Lawyers and Conveyancers Act 2006. NZLS says it is looking to government to indicate whether reform will be a legislative priority.
“Our vision is that all people in Aotearoa benefit from a strong, progressive and trusted legal profession,” says NZLS President Frazer Barton. “To achieve this, we need to be a best practice modern regulator and a strong voice for [the] profession through our representative function.”
Significant consideration
Barton says many in the profession believe the Law Society’s dual role as watchdog and representative doesn’t serve the interests of the public or the profession well.
“The independent review report stated that there is a strong case for a new independent regulator and I think there is a compelling logic to that.”
The NZLS council is comprised of the president and four vice-presidents (the five of whom make up the board), together with 13 regional branch representatives and seven interest group members.
Excluding the board members, most of the councillors support the headline recommendation with three of the 20 respondents accepting it fully and eight in principle. Six believe further consideration is needed while three reject the proposal.
NZLS surveys of the legal profession after the panel released its final report indicate more support for a new regulator: 61% of respondents agree or agree in principle, with 23% rejecting the recommendation. However, the profession’s overall response has been poor: only 5.7% of lawyers responded to the surveys.
“Some [council] respondents queried whether all regulatory functions should be undertaken by an independent regulator or whether there should be a separation of only the complaints and disciplinary functions,” says the Law Society in its response document. “There will be significant consideration of the scope and role of an independent legal regulator.”
Free from influence
On the institutional features of a new regulator, the council is evenly split on the establishment of an independent statutory body, which is not a Crown entity and not subject to ministerial direction.
NZLS says it has received clear feedback that any new regulator should not be a Crown entity, “and it must be completely free from government and ministerial influence, both through funding and the appointment of board members”.
The panel had recommended an eight-person board, equally split between lawyers and members of the public, chaired by a public member and containing at least two members with strong insights of te ao Māori. However, further consideration is needed on the board’s composition and the appointment process.
Feedback indicates that the necessity for a diverse board with relevant skills and experience is generally accepted, although the specifics are not yet clear. Strong concerns have been expressed about the actual or perceived risk of political bias with ministerial appointments.
‘All persons’
NZLS accepts in principle the panel’s recommendation that a standalone, overarching te Tiriti o Waitangi clause should be inserted in the new legislation.
As currently drafted, the clause states that “all persons exercising powers and performing functions and duties under this Act” will have to “give effect” to the principles of the treaty.
Twelve of the 20 council responses accept or accept in principle the recommendation, with six requesting further consideration and two rejecting it. Some respondents are concerned about the practical implications for the regulator and that care will be needed to ensure the profession and users of legal services understand the clause’s scope and application.
Broader consultation has indicated mixed views on including the clause, mainly due to a lack of clarity about its implications on the regulated profession. To assuage concerns, Barton has repeatedly said the proposed recommendation “applies to a new regulator and not to lawyers or the duties they have”.
However, NZLS accepts the draft clause’s current wording will apply more broadly than simply to the independent regulator as “the language requires ‘all persons’ exercising functions and powers under the legislation to give effect to the principles of te Tiriti”. And the panel’s report states a treaty clause, while signalling the importance of te Tiriti to New Zealand’s constitution and legal system, will “guide how the regulator engages with the profession and the public and fulfils its functions”.
As the Law Society’s response document states, “the wording of any proposed te Tiriti clause would need to be considered in detail to ensure it is fit for purpose for a professional regulator.”
Too long
Further consideration is needed on the panel’s recommendation that complaints about lawyers should be assessed and determined by in-house specialist staff, instead of the current standards committee volunteers.
Council members are evenly split, with half either accepting it fully or in principle. However, nine members consider the recommendation needs further thought.
NZLS accepts in principle the recommendation to reserve formal and disciplinary processes for matters requiring a disciplinary response from the regulator. As all complaints – regardless of their seriousness or nature – must be processed by a standards committee, just one complaint takes on average 304 calendar days to be processed. The Law Society agrees this delay is too long.
Under the panel’s proposed framework, complaints about fees, delay, poor communication and other “consumer matters” will go through a process focused on resolution and restoration, while more serious responses will warrant investigation. NZLS says this multi-track approach will make the complaints process significantly more efficient and responsive.
That lawyers will be subject to a new duty to ensure they deal with complaints “promptly, fairly, and free of charge” has been accepted in principle, as has the recommendation that the identity of a lawyer whose conduct is deemed “unsatisfactory” will not be publicly disclosed other than in exceptional circumstances.
The recommendation received majority support from council members and the wider profession, with 77% either accepting it fully or in principle.
See also ‘ NZLS jumps the gun in panel recommendations to government‘.
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