Consultation feedback

The New Zealand Law Society | Te Kāhui Ture o Aotearoa sought feedback on changes proposed by the Ministry of Justice to the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008. These changes would provide the Law Society with some discretion around the details included on the public register of lawyers (the Register), where the health and safety of a lawyer is at risk.

The potential changes would:

Introduce Regulation 10A, a new ‘purpose provision’ that would specify the purpose of the Register.
Enable the Law Society to restrict public access to ‘specified information’ about a lawyer, in order to protect the lawyer’s privacy or personal safety. ‘Specified information’ would be defined in regulation 10C(4) as information that is specified in regulation 10B(1)(b) and (c): the lawyer’s work address, and their phone number at the work address. Regulation 10C(3) would provide that access to specified information could be restricted if the lawyer asks the Law Society to restrict access, if permitting access would be likely to result in physical or mental harm to the lawyer or someone with whom they reside.
Introduce Regulation 10D, which would specify the purposes for which the Register may be searched. Searches in breach of Regulation 10D would be treated, for the purposes of Parts 52 and 63 of the Privacy Act 2020, as having breached an information privacy principle under section 69(2)(a)(i) of that Act.

Overview

The Council of the Law Society received a copy of the Consultation Document prior to commencement of consultation with the profession. The Council includes representatives of the NZ Bar Association, Large Law Firm Corporation, Pacific Lawyers Association, and Te Hunga Rōia Māori o Aotearoa. The Law Society also directly contacted a range of stakeholders, advising them of the consultation and inviting feedback.

Consultation on the proposed changes ran from 8 September 2022 to 9 October 2022. A consultation document was published, and feedback was sought via email to a dedicated email address. The Consultation Document was made available on the Law Society’s website, and promoted each week in LawPoints.

The Law Society received 16 submissions, 2 of which were organisational submissions. Overall, there was majority support for each of the proposed changes. The results are outlined below.

Results of the consultation

Only one submitter opposed the proposed changes. The remainder of submitters either expressed agreement with the totality of the proposed changes, or provided additional comment around the operation and drafting of proposed Regulations 10B and 10C. This is outlined below.

Proposed Regulation 10B

One submitter recommended moving ‘work address’ to Regulation 10B(2), so that it may be disclosed on the Register only if the lawyer so elects. This submitter noted the prevalence of sole practitioners, many of whom must provide their home address as their ‘work address’.

Six submitters commented that PO Boxes should be sufficient for the purpose of ‘work address’ under Regulation 10B. One of these submitters opposed the proposed changes unless PO Box number is specified as adequate for these purposes. Reference was made to the Law Society’s letter to the Ministry 17 September 2019, which recommended amendment to clarify the meaning of ‘work address’, so that any verifiable means of contact (such as PO Box or other postal or electronic address) is sufficient.

The Law Society considers the use of a PO Box number on the Register is currently permitted, and submitters were advised of this.

Proposed Regulation 10C

The majority of feedback we received related to Regulation 10(C). The following table sets out the themes of the feedback amongst those supportive of the proposed amendments.

Theme	Submission	Note
Threshold	The default position should be that a lawyer’s home address is not published on the Register (even if that is also their work address), unless they have requested it be published.	This would largely apply to sole practitioners, who are currently able to provide a PO Box number if desired.
Threshold	The threshold for meeting Regulation 10C(3) should be low, so that safety can be pre-emptively assured. One submitter noted the threshold was quite different to that under the Family Violence Act (FVA), and suggested that holding an order under this Act would be insufficient to satisfy Regulation 10C(3). They consider an FVA order should be sufficient to make out the requirements of Regulation 10C(3).	The Law Society agrees Regulation 10C(3) should be able to prevent harm, rather than relying on instances of harm or near harm to justify restriction. We consider the test of ‘likelihood’ simply means ‘more than a mere possibility’ and a ‘real risk’. It should not be an onerous threshold to meet.[1] We anticipate staff will work with applicants to ensure any evidential requirements are understood. It seems unlikely an individual could hold an order under the Family Violence Act and not meet the proposed test for Regulation 10C(3).
Decision-maker	The Law Society should not be the decison-maker, it is not clear who within the Law Society or the Ministry is qualified to make such a decision.	This was the feedback of one submitter. Ultimately, a decision-maker will be required, as the Register is being retained, alongside a requirement for public access to that Register. While that remains the case, it would be inconsistent with the purpose of the Register to allow lawyers to ‘self elect’ whether information is publicly available.
Review	One submitter queried what accountability there will be for incorrect decision (i.e. if an application for restriction is declined and harm results)	The Law Society has no comment on this feedback. We would hope that with appropriate procedures (see below) and communication between staff and the applicant lawyer, the potential for such an outcome and subsequent challenge to this through the court process would be limited.
Review	Consideration should be given to implementing a process for applicant lawyers who are dissatisfied with the decision made by the Law Society (i.e. where a decision is made not to restrict the availability of personal details).	If the proposed changes are implemented, the Law Society will need to establish appropriate administrative procedures. This will include internal review of a decision where the applicant lawyer is dissatisfied.
Time-frame of restriction	It would be useful to clarify how long public access to the specified information will be restricted. Specifying a certain period (three years is suggested) is most appropriate, as it balances protection against the purposes of the Register. At the end of the period, the lawyer could make a further application if continued restriction is necessary.	The Law Society agrees it is worthwhile considering whether Regulation 10C(3) should specify the length of time for which public access to specified information will be restricted. This could be for a period of up to three years. This would not prevent further applications being made.
Form	A standard form should be developed for applicant lawyers to provide to the Law Society. This should specify the nature of the evidence required to establish that physical or mental harm is ‘likely’. This will ensure consistency, and streamline the process for applicants.	The Law Society agrees with this feedback. As is normal, an implementation plan will be developed with guidelines and the requisite form.

[1] ‘Would be likely’ is the test employed under section 6 of the Official Information Act 1982. The Court of Appeal interpreted this in Commissioner of Police v Ombudsman [1988] 1 NZLR 385 to mean ‘a serious or real and substantial risk… a risk that might well eventuate’.

Proposed Regulation 10D

One submitter opposed proposed Regulation 10D, considering it to be unworkable, as it relies on establishing the mental state of the individual when they access the Register.