It’s been more than a decade since the Lawyers and Conveyancers Act 2006 (the Act) came into force and during that time many issues have arisen in relation to how the legislation works in practice and the need to keep pace with modern society.
By the time this issue of LawTalk is published, it will be about six weeks since the Law Society’s Board decided to commission an independent review of our structure and function. This decision, endorsed by our Council, will result in a comprehensive review.
One issue is that the Act sets out a ‘dual’ model for the Law Society, meaning we regulate lawyers as well as acting as a membership organisation for them. There is tension in this model, particularly in the complaints area, which has been brought into stark relief over the past two years. It is time we looked at this and decide whether it is still an appropriate framework for the Law Society.
After the recent effect on public confidence which centred on complaints about the conduct of lawyers against other lawyers, it became clear to me a few months into my presidency that incremental change was not going to achieve the outcomes we need. Particularly where you have an Act which contains a complaints process primarily focused on the protection of consumers.
Dame Silvia Cartwright, who chaired the Law Society Working Group which published its report last year, proposing regulatory change to address sexual violence and harassment, bullying and discrimination in the legal profession got to the heart of the issue when she stated in her foreword:
“Disciplinary procedures designed to protect consumers of legal services simply could not accommodate such sensitive complaints.”
As you would expect, since the report was released there has been a strong focus by the Law Society on strengthening our policies and processes when dealing with sensitive complaints. However, we are very constrained by our existing legislation.
On a strict reading of the Act, behaviour by a lawyer that is unconnected to the provision of legal services may only be subject to the current disciplinary regime if it is at the highest level of misconduct, justifying a finding that the lawyer is no longer fit to continue to practise. This leaves out of reach a wide range of unacceptable behaviour which is damaging to the reputation of the whole profession.
This is not a position we can tolerate as a profession, or that the public will tolerate of us. There is an expectation within the profession and wider society that we will protect those who are vulnerable and hold to account those who are responsible for perpetrating unacceptable behaviour.
This is also an opportunity for the profession to make some fundamental decisions about who we are and, more importantly, who we want to be. The Act sets the framework and purpose of the Law Society. Therefore, in turn, it is necessary to ask ourselves what the purpose of the profession is, and whether we are meeting that purpose.
I have been greatly moved by the level of support for this view from the Law Society Board and the Council, two bodies of elected members who are the primary governance groups for our profession. Many others from the profession have also written to me offering their full support.
There is a whakataukī which says: waiho i te toipoto, kaua i te toiroa; let us keep close together, not far apart.
The verbal and emotional support from the Board and Council to take this courageous step echoes this sentiment. I have never felt us so united as a profession over the need to be strong and look forward.
The process to develop the draft Terms of Reference has begun. There will be plenty of opportunities to have your say as we will consult widely on the framing and extent of the review.
Other jurisdictions, including Ireland, Scotland and England and Wales have all examined their regulatory and membership frameworks, and related legislation, in recent years and each jurisdiction has made varying reforms. We need to look at the changes made internationally and consider what might work best for us in a New Zealand context.
This process of review, and any subsequent reforms, will outlast my presidency. Which is why having support from leaders in the profession is pivotal to any future reform.
To quote Barack Obama: “Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”
President, New Zealand Law Society