Mahvash Ikram
A senior lawyer charged with four counts of misconduct – including practising unlawfully on her own account for five years and failing to properly supervise junior staff – has admitted one of the four charges but the Lawyers and Conveyancers Disciplinary Tribunal has imposed an interim suppression order on the details relating to this charge.
The tribunal reconvened last week to continue hearing evidence, following an eight-day hearing that took place in May.
The practitioner has denied practising without the correct certification and failing to supervise her staff, whose grievances eventually sparked a walkout by several of the firms junior lawyers. She has also denied a charge of failing to provide professional legal services to clients.
Suppression orders are in place preventing the identification of the practitioner and her firm.
Outside its scope?
At last week’s hearing, the practitioner got the chance to tell her side of the story.
On the allegation of practising unlawfully, her lawyer, Karen Feint KC, challenged the power of the regulator, the New Zealand Law Society (NZLS), to revoke an earlier certificate it had issue to the practitioner that enabled her to practise on her own account.
The practitioner was issued this certificate in 2005, but her firm (name also suppressed) was shuttered in 2014. The NZLS then declined to renew her certificate, instead granting her permission to practise as an employed lawyer. The practitioner joined another law firm as an employee in 2014, the tribunal heard.
The National Legal Standards Committee, which brought the charges, says between 2017 and 2022, while employed as senior legal counsel at a law firm, the practitioner worked without supervision and acted “de facto on [her] own account,” despite not having a certificate to practise independently.
But Feint said NZLS had no express statutory power to revoke its earlier approval for the woman to practise on her own account.
“Approval… can’t be revoked unless and until you’ve committed a disciplinary offence,” she told the tribunal. When practitioners applied to renew their certificates, the regulator had only the “blunt tool” of issuing the certificate or declining the application.
NZLS did not have the power to impose conditions on her mode of practice, such as allowing her to be an “employed lawyer”, Feint said.
“There’s no such thing as a practising certificate to practise on your own account or a practising certificate to practise as an employed lawyer.”
But the standards committee’s counsel, Timothy Bain, said this argument was ‘bizarre’, because it undermined the regulatory role of NZLS.
“They have accepted explicitly that the Law Society has the role of reviewing practising certificates every year… but [claim] that the Law Society cannot have a role in reviewing whether or not a person is fit and proper to practise on their own account every year,” he said.
Lack of supervision
Having assumed de facto control of the provision of legal services, the practitioner was duty-bound to supervise and support junior staff, the standards committee said.
But, it’s alleged, she asked staff to carry out tasks beyond their skill level, without supervision and did not provide sufficient training. This culminated in the resignation of several staff after one received an unpleasant email from the practitioner after raising a rostering issue.
Other complaints against the practitioner included providing vague instructions, communicating mostly via Skype or audio messages (occasionally providing handwritten notes) and ignoring questions or delaying her responses to queries.
Employees claimed they could not talk to the practitioner unless they were summoned to her office as she was too busy to deal with them.
But Feint said the standards committee’s evidence relied on broad impressions rather than a regular pattern of professional failure. The charges were odd, in that they arose from complaints made by junior lawyers who resigned on the same day, she said.
“[The lawyer] acknowledges that their experiences [at the law firm] were unhappy ones, but at the same time she does not consider that she has breached her professional obligations as a lawyer.”
The standards committee needed to prove that actual breaches of duties to clients or the court occurred and that these were a direct result of the lawyer’s lack of supervision, Feint said.
“The tribunal first needs to determine the purpose and parameters of the disciplinary regime and its relationship with the Employment Law jurisdiction.”
Feint also told the tribunal there may have been a “degree of groupthink” amongst the junior lawyers.
“I’m not suggesting that they did collude. All I’m saying is that it’s a natural human tendency because they were talking to each other at the time about their stressful experience.”
Rarely present
The standards committee alleges the practitioner spent most of her time overseas between 2017 and 2020, being present at the office, on average, only a few days each month.
The tribunal questioned whether the junior staff were given enough opportunity to learn by observing the practitioner.
“Do you accept that the learning experience would have been easier for the juniors if she’d been in the office next door and they could simply knock on the door and have a discussion?” it asked.
But Feint was having none of this, arguing there was no standard practice when it came to the way law firms chose to communicate with staff.
Legislation and case law did not provide legal yardstick to determine what supervision entails, she said.
The practitioner was contactable via phone, text and Skype. She had also provided evidence of regular communication with her staff, meaning the tribunal could not assume the supervision was inadequate because she was not physically present in the office.
But Bain said while there were no standard rules for what constituted supervision, when all aspects of the case were considered – such as high staff turnover, lack of senior oversight and problematic client communication – it was clear that supervision was lacking.
“The standards committee is not asking the tribunal to say that a lawyer can never supervise employees remotely. But what we are saying is that when you look at the combination of factors… the tribunal will arrive at the inescapable factual conclusion that supervision was inadequate.”
Workplace issues
The grievances raised by the junior lawyers were not disciplinary matters for the standards committee, Feint said. Rather, they were employment law concerns.
“The issues… to do with an unhealthy work culture… hours worked, requirements to work occasional weekends and the like… should be dealt with through the employment jurisdiction rather than the professional one.”
Pushing back on claims that the staff were required to work beyond their capacity, Feint said they were assigned standard tasks such as legal research, drafting evidence and correspondence.
“Junior lawyers learn to practise law by practising law, and there’s nothing unusual about that,” she said.
It was likely that the staff struggled, which was common for junior lawyers, but their stress was not linked to the practitioner’s expectations of them.
The charges
The standards committee said that by practising independently, the lawyer was guilty of misconduct under s 241 (a) of the Lawyers and Conveyancers Act 2006, meaning that under s 7 (1)(a)(i) the conduct would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable.
Under s 7 (1)(a)(ii), the committee alleged the conduct was a wilful or reckless contravention of the Act or of any regulations or practice rules made under the Act.
In the alternative, the committee has proposed a charge of unsatisfactory conduct under s 241 (b), meaning that under s 12 (b), (c) and (d), the lawyer’s conduct would be regarded by lawyers of good standing as being unacceptable.
The lawyer breached the Act, the committee said, and her conduct showed a failure to comply with the conditions of her practising certificate.
In addition, her failure to supervise the firm’s junior lawyers constituted a wilful or reckless violation of Rule 10 of the Act’s Conduct and Care Rules. This meant she had failed to maintain and/or promote professional standards and this brought the profession into disrepute.
In failing to provide professional services to a client, the lawyer breached Rule 3, 3.1 and 3.2 relating to competence and client services, the committee said, and Rules 4.2 and 4.2.4 which relate to retainers and the availability of lawyers to the public, Rule 7.1, which relates to keeping the client informed about progress on a retainer, and Rule 10, requiring the practitioner to maintain professional standards.
The standards committee also proposed a charge of negligence or incompetence under s 241(c).
The tribunal has reserved its decision.
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