New Zealand Law Society - Jonathan Temm viewpoints

Jonathan Temm viewpoints

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The New Zealand Law Society’s 28th President took office in April 2010. LawTalk asked him how things are going so far.

You’ve been President since April. How have you found the role in the past six months? Is it what you imagined?

I had no preconceptions; I did not really know what it was going to be like. But I have to say it’s a unique and privileged role and I’m really enjoying it. Every day begins and you never know quite how it’s going to unfold. You can have public and media interest develop very quickly around some issues, such as the Comeskey hearing and sentencing.

One of the things about the job that I hadn’t appreciated, but do now, is that you actually get to see the very best of the profession. I travel around the country and am taken to places with opportunities to meet members of the profession. Some of the work being done and the people involved are really of the highest calibre. So I am enjoying that role. There’s a lot to be proud of in what I see of the work being done by lawyers.

As President you’re also obviously a very busy working lawyer. How have you found balancing your own practice?

It’s been quite demanding. I have reduced my own professional practice significantly. I’m now operating probably about a quarter of my normal practice. I had taken on work on behalf of existing clients before this role commenced and I had obligations to continue their work and that’s being done. I have reduced the amount of work that’s coming forward but I will continue to maintain my practice as I’ll have to go back to that when this role is over. The advice I’ve received from others is that it’s important to keep your practice in existence.

Just last month, for example, I did two High Court trials in Rotorua, one after the other. I think I’m going to do about 18 trials altogether this year. Last year I would have done 70-75 briefs on different matters.

I will make this observation: I think the role of the President of the New Zealand Law Society under the One Society model has changed and broadened quite a bit from being President under the previous federal model. I have had the privilege of going to functions and bar dinners and seminars, and I’ve been invited to numerous functions that perhaps in the past the New Zealand Law Society President may not have gone to. I think there’s been a lot more travelling involved.

So that means it’s important to go right around the country?

In the One Society model I accept that it’s important that the President of the Society does go right around the whole profession across the country I think one of the concerns about One Society was whether everything would suddenly become Wellington-based and Wellington-centric. I’m very anxious that doesn’t occur and people don’t perceive it as being that. The profession has had in the past, under our old federal structure, a certain amount of autonomy in the provinces. I don’t want things to be dictated to the profession from Wellington. I think the One Society model means that everyone gets to contribute and the whole profession thinks and acts as one. That’s what we’re about. So, I’m happy to move around the country.

How would you say the One Society model has worked out?

If you go and ask the Canterbury practitioners in the light of the difficulties they’ve had down there, I think they’d tell you that One Society is brilliant. There was a group of practitioners who under the old model would have been left in isolation with their own organisation trying to cope. No doubt NZLS would have tried to assist in some way, but under One Society they got plenty of support and a lot of resources, and other practitioners were able to be called upon to assist them. I think that example there, in a microcosm, is an example of how good it can be – when we are all focused in the same direction.

I think it’s taking a little bit of time for some misconceptions to evaporate and for people to understand that in the One Society model what’s really intended is that the whole profession tends to move in one direction and not in distinct geographical areas. In fact, many of the problems in Otago are the same problems we have in Northland. I think there’s potential to let the model develop more fully, and once the representative services are being delivered in full nationally, I think people will see some substantial advantages in the model.

Since you’ve been President, what would you say have been the two or three biggest issues that have confronted the Law Society?

I think the biggest issue has to be the public and political criticism of the profession that we’ve been subjected to, at least for the last 12 months. That’s been damaging and it’s shone a very harsh light on the profession and on some members of the profession – and many of the profession haven’t enjoyed that, I suspect. No right-thinking member of the profession likes to see other members falling short of the professional standards that we want to see. It’s a matter of some consternation that there are people in the profession who are not holding to the well-established rules of professional conduct and ethics that the profession expects.

The bad news for those people is that if they are identified, and if there is evidence in relation to any kind of misconduct, then they can expect proceedings to be commenced. Our regulatory role is the very bedrock of the way that the legal profession in New Zealand is set up.

Another big issue is legal aid and where that fits in the overall picture. As I’ve said previously, I’m very concerned about the 8,000 lawyers who don’t do legal aid. They are being effectively misrepresented in the public eye because the only lawyers we do see are the occasional high profile criminal lawyer or lawyers being disciplined.

The reality is that there are another 8,000 lawyers all engaged in a whole raft of high calibre, good quality work, about which no complaint is made and I think that’s overlooked. In the legal aid area, I have confidence that 95% of the profession are performing extremely well. The focus is on putting in place some guidelines so that we can ensure that people don’t fall below the minimum standard.

Just to go back to complaints; do you think lawyers have got worse, or is there just more scrutiny now?

I don’t think they’ve got worse. I still see some very high quality legal work done. But I think we live in an environment now where the mechanism by which complaints are to be made is more open, more readily available. This is not limited to the legal profession. People can put balls into play very very easily, and the system that’s set up now must deal with every one, whether they have merit or not. I saw the figures recently for 2009/10: there were about 1400 complaints in the last 12 months, of which nearly 1,060 got no further action. Almost 81% of complaints had no substance and the complaint was dealt with almost immediately by dismissal.

But then you flip it around and look at the other complaints which have been upheld. The primary areas of complaint are in overcharging for legal services, failing to respond in a timely way, failing to correspond or communicate adequately with clients. So the primary complaint is for overcharging, then there are the delays and the process, and failure to communicate very well. So you can see that what’s left in the substantive complaints can be disposed of very easily with better billing and better communication with clients.

So, the Law Society is the best regulator of the profession then?

I believe so, and when I look at the overseas experience of other law societies and the cost to the profession of having outside regulators, I’m absolutely sure that in a small profession like ours, with just 11,000 members, co-regulation is a fundamental and important obligation that we have. The profession is mindful that it must carry out the regulation to a high standard and the continuation of the new regulatory framework under the Lawyers and Conveyancers Act has enabled us to establish a high quality system with much wider powers now in the hands of the Lawyers Standards Committees.

Looking ahead over 2011, what do you think are the main priorities for the New Zealand Law Society?

I’d really like the One Society model to reach its full potential. I’d like it to unfold in the next 12 months so that people can say “Yes, this was the right decision”. That is something I’ll be very very pleased about. In conjunction with that focus is resolution of the issues in Auckland which are clearly dividing the profession there, and which are getting in the way of achieving the potential that One Society has. I have been working with Anna Fitzgibbon, the President of ADLS Inc, and her Council on bringing the two groups together. These discussions are showing good progress and it is likely that ADLS Inc will be taking this matter to its members in the near future.,

I also think that in the One Society model, it was important to even out the imbalances so that the entire profession – whether in Timaru, Gore, Rotorua or central Auckland – everyone could get access to the resources needed for providing quality legal services.

Is the legal profession in good heart?

I think the profession is on solid ground, but not necessarily in good heart. I think its image has been battered in recent times, and I think the economic recession which clearly has occurred in New Zealand has affected the prosperity of some practitioners’ business and of their clients.

Where does the Law Society sit in the life of an ordinary lawyer?

It partly sits there as a gatekeeper, it partly sits there as a regulator because the Society promulgates codes of conduct and discipline and things like that, and it partly is a provider of legal information and legal services. For most people, you could practice year in and year out and have little contact with the Society if you wanted. My experience, though, is that more often than not lawyers do have contact with the Society, although they may not see that. They sit on committees, they go to collegial functions, they do continuing legal education, they read LawPoints or LawTalk – in lots of ways they are engaging with the Society, but I don’t think they quite see it in those terms.

This article was published in LawTalk 761, 1 November 2010, page 18.

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