Under the Lawyers and Conveyancers Act, the Law Society does not have the power to suspend a lawyer from practice while a disciplinary process against the lawyer is ongoing.
Complaints against lawyers are inquired into by an independent Standards Committee. In serious cases where there is suspected misconduct, the Standards Committee may refer the complaint to the Lawyers and Conveyancers Disciplinary Tribunal, administered by the Ministry of Justice, if it believes there is enough evidence to prove a charge against the lawyer.
At this stage the Disciplinary Tribunal has the power to suspend a lawyer from practising before the charge is heard. However, this does not often happen in practice because any person who faces allegations, serious or otherwise, has the right to defend themselves against those allegations. They have the right to do so in a fair process which does not predetermine their guilt.
This means that an interim suspension order will usually only be made where key allegations are not disputed, or cannot reasonably be disputed, and the risk the lawyer poses in their legal practice is so great that they must be prohibited from practising before the charge against them is determined by the Disciplinary Tribunal. These principles of natural justice are universal in New Zealand and don’t just apply to lawyers.
The Law Society has the power to decline a lawyer’s application to renew their practising certificate if they are not a fit and proper person to practise law. Lawyers are required to renew their practicing certificate on 1 July each year.
The Law Society may defer making a decision on the lawyer’s application to renew their practicing certificate in cases where the lawyer is facing serious allegations that are yet to be determined by the Disciplinary Tribunal or another court.
When the Law Society defers its decision to renew a lawyer’s practicing certificate, section 40 of the Lawyers and Conveyancers Act specifies that the lawyer must be treated as if they were the holder of a current practicing certificate. Parliament has defined in legislation that in these types of cases a lawyer is able to continue practising.
Lawyers are also subject to New Zealand laws like anyone else, including obligations under the Employment Relations Act 2000, the Human Rights Act 1993, and the Health and Safety at Work Act 2015. Lawyers who have responsibilities under this legislation must ensure that a lawyer facing serious allegations who is in their employment or otherwise subject to their control in the workplace, does not pose a risk to the health and safety of others in the workplace. The Lawyers and Conveyancers Act does not relieve lawyers from their obligation to keep others safe and free from unlawful discrimination as required under relevant statute law in New Zealand.