New Zealand Law Society - Arbiters of our profession

Arbiters of our profession

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Legal practice in New Zealand is regulated.

The frontline regulation is sometimes described as self-regulation. The profession itself sets the standard of practice expected of lawyers, and members of the profession are themselves responsible for ensuring such standards are met.

The hierarchy of regulation is also described as “co-regulatory”, in that the Justice Minister must ultimately approve the regulated standards, and government retains some oversight of the disciplinary process followed when lawyers fail to meet expected standards.

While much work is done by the New Zealand Law Society to establish and foster professional standards at the “top of the cliff”, it’s the job of the Lawyers Complaints Service to hear and handle complaints after things go wrong – when there are claims that the requisite standard has not been met. The bulk of this often complex regulatory work is carried out by volunteers on the Law Society’s 24 Lawyers Standards Committees around New Zealand.

At the Lawyers Standards Committees National Training Day in March then-Law Society President Chris Moore thanked the almost 100 volunteers and complaints staff in attendance – both lawyers and laypeople (Lawyers and Conveyancers Act-speak for non-lawyers) – for performing what was otherwise a largely “thankless” task.

Lawyers understand “the rule of law”, but also know that “laws themselves” are “negotiable” – that the “sovereign words of parliament can be vague, ambiguous, contradictory and on occasion largely meaningless”, professional ethics academic Duncan Webb has said.

We are trained to view the law “for what it is” – “contingent, negotiable, and frequently flawed”.

So, legal practitioners can be a hard lot to regulate.

The “most visible part of the organised profession”, Standards Committees are under “constant scrutiny” – by the profession, the public, the media and the government, “not to mention the LCRO” (Legal Complaints Review Officer), Mr Moore said.

Yet the quality of the Standards Committees’ decisions is consistently at a high level, thanks to members’ “expertise, energy, skill and time”.

“The reputation of the profession rides on how well it is able to deal with the maintenance of standards and enforce those standards.”

Grassroots good practice guidance

Standards Committees are “the arbiters of our profession”, “the regulators in the field”. “Their determinations are vital,” said Nigel Hampton QC to the training day attendees.

Mr Hampton co-chairs the National Standards Committee – a specialist committee charged with hearing complaints that may be of particular public interest or special importance to the profession.

Standards Committees provide the “most important guidance about proper ethical conduct”, he said. They are the “grassroots”.

They show practitioners “where the line is – between good ethical conduct, unsatisfactory conduct and misconduct”.

Mr Hampton has been involved with lawyers’ disciplinary matters – both as chair of the Disciplinary Tribunal in New Zealand under the pre-Lawyers and Conveyancers Act 2006 (LCA) system, and internationally for the International Criminal Court at The Hague – for more than 35 years.

“I like the new Act,” he said.

“Some things are so much better than what we had before”.

“Lay” regulators – non-lawyer SC members

“The inclusion of ‘lay members’ on these committees adds a point of view complementary to the lawyer members’ and more representative of the general public’s,” says non-lawyer Standards Committee member Sue Beggs, previously Chief Executive and Registrar of the Physiotherapy Board.

“I think it is particularly important that the public realises that there are lay members on the committee to ensure it is not just lawyers hearing complaints about lawyers.”

Now “retired from the paid workforce”, Mrs Beggs says her Lawyers Standards Committee work keeps her in touch with the professional world and lets her learn more about the law, “a field I have had a range of exposure to, and find very interesting”.

She’d seen a job application in the newspaper, applied, was interviewed and then gratefully selected.

“Because of the experience and expertise I have from my previous professional role I felt I had the appropriate attributes to be of service in this role.”

My emphasis when considering the actions of any given lawyer in any given situation … is one of: ‘how a reasonable member of the public would react to the actions of the lawyer’.

“I think we ‘lay members’ bring a real common sense approach to the committee, rather than getting too involved in the legal aspects of each case.

“On more than one case this perspective has had a noticeable impact on the decision reached by the committee.”

Mrs Beggs says regulation of the profession, by the profession and non-lawyers “should provide confidence to every lawyer that their peers are performing adequately and if not, that their actions will be scrutinised accordingly.

“It should also provide a level of confidence to their clients and the general public that such a mechanism is in place.

“Where a lawyer’s actions have been found wanting, I like to promote an educative or rehabilitative course of action where appropriate rather than simply a punitive outcome. This serves to give the public greater confidence that the profession is maintaining and improving its high standards.”

Retired Presbyterian minister the Very Reverend Bruce Hansen’s work on the Canterbury Standards Committee contributes to the maintenance of high standards of legal practice across New Zealand, which he says is “vital” to the country’s well-being.

“Clearly it is important for the members of the profession,” he says.

But, and perhaps more importantly from a non-lawyer’s perspective – “for the public it is important to know that all people are [legally] represented in a competent and professional manner and that they receive the best [legal] advice and support.

“When there is the perception that that has not happened there needs to be a robust way in which that perception can be reviewed and action taken where necessary.

“’Lay members of the committee have a major role in the discussion as to what ‘lay people’ may or may not consider to be an acceptable standard of practice.

“I believe that the present process with its statutory guidelines and regulations provides a system of review in which the public can have confidence.”

It was Mr Hansen’s experience working closely with mostly non-lawyer members of the church community that led him to apply to be on a standards committee – after the suggestion of his local MP.

“I had the ability to form an opinion when reading the submitted material and I was able to present an argument in support of my opinion,” Mr Hansen says.

While not legally trained, Mr Hansen has worked in the world of professional standards regulation for many years, holding the positions of Complaints Officer for the Methodist Church of New Zealand and ‘Diocesan Monitor’ for the Anglican Diocese of Christchurch since 2001, as well as several other leadership roles within his church.

“Different churches follow different practices”, with regard to regulating the services provided by their members, Mr Hansen says.

“All of them have developed their disciplinary procedures to meet the requirements of the day, just as the Law Society has.”

The LCA formally introduced “layers” of regulatory authority – ie, standards committees, the LCRO and the courts, Mr Hansen says.

“Each church has an investigatory system equivalent to a standards committee and then the ‘higher’ levels of ‘appeal’ and enforcement.

“In my role in the churches I am engaged more at the ‘investigatory’ level, and each church then has its own bishop or ‘higher court’ with responsibility to determine and ‘enforce’ the outcome.”

Somewhat “like the Law Society”, Mr Hansen notes, in recent years the churches have found themselves having to develop “more transparent and rigorous ways” of handling complaints.

“I enjoy working on our committee,” he says.

“I have always treated [the] role with great seriousness and have expressed my opinion with care and diligence.”

“We work as a team, we have a common commitment to what we are doing and it is intellectually stimulating and different from anything else that I do in my life.”

From the LPA to LCA and “lay-members”

Before 1 August 2008, legal standards were governed by the Law Practitioners Act 1982 (LPA). The new Lawyers and Conveyancers Act introduced a much stronger and more consistent regulatory regime than had existed in the past, says Law Society Executive Director Christine Grice.

The LPA’s prime concern was with maintenance of confidence in the profession. A few bad apples can spoil the public’s opinion of the entire crop.

Only professional incompetence of such severity that it “reflected on a lawyer’s fitness to practice” would trigger the disciplinary process.

Under the LCA the focus shifted from lawyers’ fitness to practise to include and prioritise protection of the public.

Its purpose includes the protection of consumers of legal services and maintenance of confidence in the profession.

One of those closely involved with drafting the new Rules of Conduct and Client Care was New Zealand legal ethics expert Duncan Webb, who went on to be appointed the first Legal Complaints Review Officer.

The new regulatory system had an “extraordinarily long and difficult conception, gestation and birth,” he has previously written.

A lawyer’s work is significant. It is consequential. It can involve advocating for individuals’ fundamental rights in fraught situations, or the responsibility of handling vast sums of money on behalf of others. Most lawyers pay for professional indemnity insurance, because their work is important to people, and there can be serious liabilities if things go wrong.

Lawyers assist everyday people every day, with some of the most important moments or events of their lives – for example, buying a home, having children, defending a criminal charge, losing a job, selling a business, separating marriages and so on.

Thus, the regulations that govern lawyers’ work are “of special importance”.

“They are not mere customer service guidelines or best industry practice principles.”

Hence the importance of non-lawyers, “lay members”, on Lawyers Standards Committees, since 2008 and the new LCA system.

To protect the public, the consumers of legal services, members of the public ought to have some say about the standards that lawyers are held to.

Not an ‘old-boys’ network’

Hawkes Bay Standards Committee Convenor Ingrid Squire recognises the importance of robust and consistent professional regulation of the nation’s lawyers.

A partner at Gifford Devine specialising in family law, Ms Squire manages to volunteer for her local standards committee alongside looking after two small children and working part-time from both her office and home.

“I was on the local branch Council of NZLS when the Act came into effect.

“Having been involved in complaint work on the Council, it was a natural fit to continue, and I applied to do so.

“We receive complaints made by consumers, and determine them,” Mrs Squire puts simply.

“As convenor, I chair our meetings, allocate the files to members for oversight, and review all decisions before they are signed and dispatched.

“It is remarkably interesting work.

“I learn about how members practise in fields other than mine, and I appreciate the reminders about what not to do!

“I believe that the profession benefits greatly in having other practitioners and lay people determine their complaints,” Ms Squire says.

“As practitioners ourselves, we have an understanding of what is acceptable and required, and what is not. Our lay members add a very valuable perspective from the consumer side of things.

“Practitioners on the committee have a vested interested in preserving our reputation,” she says, which ultimately benefits the public as consumers of lawyers’ services.

“This is not an old-boys’ network!”

The volunteer lawyers working for the Lawyers Complaints Service are other lawyers’ peers, she says, ordinary lawyers, “high-flyers”, and every other type of lawyer in-between.

Greg Thomas, a legal consultant and long-time standards committee volunteer, is the first Convenor of the Committee that considers Early Resolution Service (ERS) matters.

“My role … is to encourage and lead discussion that will result in a consensus decision by our committee on the complaints referred to it,” he says.

The ERS “deals with approximately 40% of all complaints”, either by accepting them for early resolution – that is, a mediated solution – or by dismissing the complaint.

“I volunteer on a standards committee to contribute to the well-being of the profession,” Mr Thomas says.

“My personal benefit is to feel that I do contribute to the profession, that I meet colleagues who feel the same, that we enjoy each other’s company and that we are satisfied with a job well done.”

LCRO decision back-log

“Some things are so much better [under the LCA] than what we had before,” Nigel Hampton QC says. However, “expeditious procedures and resolution are essential”, and there are “still some matters to iron out”.

The “backlog” of cases filed for review by the LCRO is significant. While 2014/15 saw a drop in the number of applications for review – suggesting that Standards Committee determinations are becoming less frequently disagreed with – the reduction has had a “relatively insignificant impact” on the LCRO’s ability to expedite its reviews. In two years, the proportion of reviews that take more than 12 months to complete has risen from 56% to 72%. While there are significant delays, the quality of the decisions coming out of the LCRO office has been maintained, Ms Grice says.

Of the 278 LCRO reviews completed in 2014/15 (that were not withdrawn or declined for lack of jurisdiction), just 9% of Standards Committee determinations were reversed – Annually, fewer than 2% of all Standards Committee decisions will be overturned. This demonstrates the robust nature of the decisions of the Lawyers Complaints Service, Ms Grice says.

Speaking to Standards Committee members at the National Training Day, Legal Complaints Review Officer Rex Maidment said that, while the backlog was “unacceptable”, the disciplinary system was plainly more “patient”, “courteous”, “careful and methodical” than it used to be.

“On the papers” – what it’s like working on a Lawyers Standards Committee

“Our committee has a lead person who presents each case,” Ms Beggs says.

“Usually this will relate to the member’s legal expertise, but we as lay people do lead cases as well if appropriate.

“Documentation for each case is provided in its entirety and there is an excellent précis provided by the Law Society staff.

“At the meeting the lead person presents the case and provides an opinion on what they think the committee’s next step may be. There is then discussion, often robust, on all points of the case and a consensus is normally reached.

“Often there are actual or perceived conflicts of interest, in which case the conflicted member takes no part in the discussion or decision.”

She says the papers are sent electronically about five days before monthly meetings.

“The very detailed documents are mostly written with very legal language so it takes me a long time to understand. I like to be very prepared for the meetings so spend many hours familiarising myself with all of the cases.

“I would spend 10 hours minimum each month and sometimes a lot more if the time is available.

“I think early on I made the mistake of trying to understand all the legal aspects of every case but of course that is what the lawyers are on the committee for. As laypeople we need to provide a perspective representative of the general public’s but still need to have a good understanding of the case in order to do that.”

Mr Hansen says most committee discussions are undertaken “on the papers”, but they do have authority to require a party to appear in person.

“Some cases take a considerable amount of time and are quite complex.

“Whilst we have very robust discussion and even strongly expressed differences of opinion we have always been able to come to a consensus whereby the finding is the finding of the whole committee.”

Ms Squire says her time dedicated to Standards Committee work is hard to estimate, as it varies widely, but it is “much less since ERS” was introduced and “much less than it could be due to the terrific members we have on our committee – who all pull their weight”.

“Succession planning is a topic of conversation for us currently, as no one wants to stand down before their term ends.”

The success of the ERS

The Early Resolution Service (ERS) was introduced in January 2013 and has since become the envy of other professional regulators, says former Law Society President Chris Moore. It processes complaints that are considered less serious and suitable for more timely and flexible resolution. In its first year the ERS was able to fully conclude more than one third of complaints filed with the Lawyers Complaints Service – that is 614 out of 1,742 complaints. It led to significant improvements in the handling time of complaints and users’ perception of the service, Ms Grice says. Complaints were concluded in 35 days, compared with an average resolution time of 188 days for complaints processed on the standard track – with its accompanying statutory process requirements. About 10.5% of complaints are reverted back into the standard track process.

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