New Zealand Law Society - Failure to inform and comply with employment law obligations unsatisfactory conduct

Failure to inform and comply with employment law obligations unsatisfactory conduct

Where an employer lawyer was found to have breached provisions of employment legislation in respect of their employee by the Employment Relations Authority (ERA) and the Employment Court (EmpC), a Standards Committee (Committee) has found that same conduct to be unsatisfactory conduct. The Committee censured the lawyer and ordered them to pay costs, but no fine.

The ERA and EmpC found employment breaches following a successful personal grievance by the employee legal secretary in respect of a failure to provide an employment agreement and a failure to keep accurate holiday and leave records, amongst other conduct.

In dismissing the lawyer’s argument of double jeopardy, and noting the lawyer had admitted to the conduct, the Committee considered the conduct occurred at a time when the lawyer was providing regulated services or was otherwise conduct related to the provision of regulated services by way of operation of a law practice.

The Committee further considered the conduct contravened the lawyer’s obligations under rr 11 and 11.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Conduct and Client Care Rules) as they stood at the time (rr 11 and 11.1 currently). These rules establish a lawyer:

  • must administer their practice in a manner that ensures the reputation of the legal profession is preserved; and
  • must ensure the practice is always competently supervised and managed.

In defending themselves, the lawyer argued ignorance of employment law as it was an area in which they had never practised. The Committee considered the failure of the lawyer to inform themselves of, and comply with, employment obligations (and statute) within their own practice was unacceptable, noting those “failures were inconsistent with [the lawyer’s] obligation to administer, supervise, and manage [their] law practice in a manner that ensured the reputation of the profession was preserved.”

Having found breaches of the Conduct and Client Care Rules, the Committee censured the lawyer and ordered costs. A fine was considered inappropriate taking account of the orders already made by the EmpC.