This issue of LawTalk appears near the end of the consultation phase on the proposals to change the rules which apply to all lawyers. This summary outlines some of the key changes which are proposed. The full set of proposals has been sent to all practising lawyers and is also available on the Law Society website.
Why is change needed?
The revelations and discussion which began in 2018 about bullying and sexual harassment in the legal profession resulted in a commitment by the Law Society to help create healthy, safe, respectful and inclusive legal workplaces. Alongside widespread input from the legal community, important contributors have been the 2018 Legal Workplace Environment Survey, the December 2018 report and recommendations by the Independent Regulatory Working Group chaired by Dame Silvia Cartwright and consultation with executive and departmental government, workers in the regulatory and complaints area, the Law Society Board and members of the Culture Change Taskforce. The result is a set of proposed changes to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) and the (Lawyer: Ongoing Legal Education Continuing Professional Development) Rules 2013 (CPD Rules).
Why not legislative change?
Close contact with Government has been maintained throughout. While the prospect of changes to the Lawyers and Conveyancers Act 2006 was initially considered, the advice was that this was not possible. Substantive changes to the Act could follow the independent review of the structure and function of the Law Society which was announced in October 2019. In the meantime, changes to the RCCC and CPD rules are being proposed in response to the Working Group’s recommendations.
How can any changes be effected?
After the consultation process, any final changes to the RCCC and CPD Rules must be approved by the Council of the Law Society and the Minister of Justice.
The Working Group identified keys areas for regulatory change to address serious conduct issues within the legal community. One of the issues it noted was the fact that the RCCC did not expressly state that sexual violence, sexual harassment, bullying and discrimination amount to breaches of specific RCCC rules. The Working Group also observed it was problematic that it was not clear how sexual violence, harassment, bullying and discrimination fitted within the statutory definitions of “unsatisfactory conduct” and “misconduct” that were in the Act
The proposed RCCC and CPD Rules changes draw on the Working Group’s recommendations for reform and aim to provide:
- Clearer conduct obligations;
- Clearer reporting obligations;
- Protections for those reporting or experiencing unacceptable conduct;
- Closer regulation of legal workplaces; and
- Obligatory education and training aimed at reducing unacceptable behaviour.
Who will the changes affect?
All lawyers and employees of law practices: an individual lawyer practising on own account or everyone employed in any entity providing regulated services to the public. This is defined in RCCC 1.2.
Specific definitions of bullying, discrimination, harassment and violence are included in RCCC 1.2.
“bullying means repeated and unreasonable behaviour directed towards a person or people that may lead to physical or psychological harm”;
“discrimination means discrimination that is unlawful under the Human Rights Act 1993 or any other enactment”;
“harassment means– (a) intimidating, threatening, or degrading behaviour directed towards a person or group that may have a harmful effect on the recipient; and (b) includes repeated behaviour but may be a serious single incident”;
“sexual harassment means– (a) a request made by a person of any other person for sexual intercourse, sexual contact, or any other form of sexual activity that contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment; or (b) subjecting another person to behaviour of a sexual nature that is unwelcome or offensive to that person (whether or not it was conveyed to that person)”;
“violence includes all forms of physical, psychological, and sexual abuse or assault”.
Clarity on obligations
Obligations contained in the Schedule to the RCCC are to be incorporated into the rules themselves to emphasise that the preservation of the integrity and reputation of the profession is the responsibility of all lawyers, to ensure public trust and confidence. Inclusion of these obligations in the body of the rules also makes it clear that there can be a regulatory response when a lawyer’s conduct does not meet these standards. RCCC 1.5.2 would state: “The preservation of the integrity and reputation of the legal profession is the responsibility of every lawyer.”
Changes are proposed to the reporting obligations in RCCC 2.8 to improve the reporting of unacceptable behaviour in the legal community and to provide safeguards for those who report or support reporters and people who are subject to it. The reference to the report being ‘confidential’ is removed, to assist in clarifying the process that will follow when a report is made. The proposed changes are also designed to include protections and exceptions for victims of the behaviour and make it simpler to understand when a report should be submitted.
A new rule RCCC 2.10 specifically says that a lawyer must not victimise a person who, in good faith, makes a complaint or report to the Law Society. The definition of victimisation is wide and includes bullying, intimidating and professionally disadvantaging someone. The intention of the rule is to protect people who come forward with complaints or concerns about conduct and to mark out victimising behaviour as completely unacceptable in the legal community.
Termination of lawyer-client relationships
Changes are proposed in RCCC 4.2 to provide a pathway for a lawyer or a law practice to terminate a retainer with a client if the client engages in sexual harassment, sexual violence, discrimination, bullying and other unacceptable behaviour towards a lawyer or employee.
Lawyers responsible for operating a law practice
RCCC chapters 10 and 11 are re-ordered to differentiate between general obligations which apply to all lawyers (Chapter 10) and specific obligations relevant to lawyers who are responsible for the operation and management of a law practice (Chapter 11). The proposed changes seek to set clear standards of what is expected of lawyers in their professional capacity and should make it easier to differentiate between a lawyer’s individual responsibilities as opposed to a lawyer’s responsibilities when managing a law practice. The overall intention is closer regulation of workplace obligations, a key element of the Working Group’s recommendations.
The heading to RCCC 10 would refer to “Professional standards”, with the statement that “A lawyer must promote and maintain professional standards.”
- Changes to RCCC 10.1 would remove the inconsistency of lawyers being required to treat other lawyers with respect and courtesy as opposed to treating all people they engage with in a professional capacity with respect and courtesy.
- A new RCCC 10.2 would reinforce the overriding obligation to maintain the reputation of the profession, to simplify its enforcement, and to be consistent with the obligations contained in RCCC 11 in relation to how a practice is operated.
- A new RCCC 10.3 would make it clear that discrimination, harassment, bullying, and violence are unacceptable within the legal community, with the intention of simplifying enforcement for any breach.
- A new RCCC 10.4 would reinforce the obligations to respond appropriately to requests for information from the Law Society as regulator.
Changes are proposed to RCCC 11 (to be entitled “Proper professional practice”) to simplify the wording and to expand the obligations to apply to employees and people engaged by the practice, including summer clerks, volunteers, contractors and others who may be affected by unacceptable conduct at the practice.
- The current RCCC 11.3 would be moved forward to 11.1 with the wording simplified to confirm it relates to the operation of the practice.
- A new RCCC 11.2 would confirm each law practice must have effective policies and systems in place to protect employees and other people working for the practice and ensure that the workplace is a safe place for all.
- A new RCCC 11.3 would require a law practice to have a designated person responsible for discharging new reporting obligations designed to ensure unacceptable conduct by lawyers and employees is reported to the Law Society.
- A new RCCC 11.4 to 11.4.3 would establish new reporting obligations designed to ensure unacceptable conduct by lawyers and employees is reported to the Law Society.
- The existing RCCC 3.8, relating to the complaints procedures a law practice must have in place for clients, would be moved to Chapter 11 to create RCCC 11.5. This would group the obligations relevant to operating a practice together.