Recent events have shone a light on harassment and unacceptable behaviour in our profession. It has rightly provoked a conversation about how to eradicate behaviour which has no place in the practice of law and is contrary to the values we stand for.

Essential work is being undertaken to help create a culture where the victims of harassment or unacceptable behaviour feel more enabled to seek support from the New Zealand Law Society. Even with the best support, we know that making a complaint and investigating it can be a confronting experience for victims. We are committed to exploring ways to address this and a working group has been established with this as one of its aims.

Questions have also been raised about the mechanisms that are currently in place to ensure sexual harassment, assault, discrimination, bullying and other forms of unacceptable conduct are reported so that the conduct can be challenged, investigated and addressed. What tools do we currently have to report this type of behaviour to stop it from reoccurring?

Two main channels under the current rules are designed to capture the types of conduct being discussed.

The first channel is via the lodging of a complaint.

The second channel is via the provision of a confidential report, which can lead to an investigation of the lawyer’s conduct that is independent of the reporter. Confidential reports can be made by any lawyer, whether they were the victim of the conduct or became aware of what took place as supervisor, employer, colleague or witness/bystander. The obligation on lawyers to report unacceptable conduct applies equally to lawyers who witness the conduct as to those directly involved.

The obligations for making a confidential report are set out in rules 2.8 and 2.9 of the Lawyers and Conveyancers Act 2006 (Lawyers: Conduct and Client Care) Rules 2008. It is likely that a great deal of the unacceptable behaviour currently being discussed should be reported under these rules.

Rules 2.8 and 2.9 provide a mechanism for lawyers to disclose information in situations where they are concerned about the conduct of other lawyers. The broad purposes of these two rules are the protection of the public and the maintenance of the integrity and reputation of the profession. Both are vital to ensuring lawyers retain the trust of the public and clients they serve.

Reporting misconduct – Rule 2.8

Rule 2.8 provides:

“2.8 Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of misconduct must make a confidential report to the Law Society at the earliest opportunity.

“2.8.1 This rule applies despite the lawyer’s duty to protect confidential non-privileged information.

“2.8.2 Where a report by a lawyer to the Law Society under rule 2.8 may breach the lawyer’s duty to protect confidential non-privileged information, the lawyer should also advise his or her client of the report.”

The rule requires all lawyers to submit a confidential report to the Law Society if they have reasonable grounds to suspect another lawyer has been guilty of misconduct. The definition of misconduct is set out in section 7 of the Lawyers and Conveyancers Act 2006.

This essentially provides that misconduct includes conduct that occurs at a time when a lawyer is providing regulated services which would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable. It might also amount to a wilful or reckless breach of any practising condition or restriction or of any regulation or practice rule relating to the provision of regulated services. It also includes grossly excessive charges for legal work.

Misconduct can also include conduct that is not connected with the provision of regulated services which would justify a finding that the lawyer is not a fit and proper person or is otherwise unsuited to the practice of law.

The reporting lawyer is not expected to act as judge and jury and make a definitive decision about whether the reported conduct is misconduct. Instead, any lawyer who is concerned about another lawyer’s conduct should stand back and consider whether it is likely that a reasonable member of the legal profession would consider the behaviour falls within the scope of misconduct. We recommend that lawyers confide in a trusted colleague or seek advice from a National Friends Panel member (see below) when deciding whether they should make a formal report.

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has typically found misconduct to be:

• Dishonest or misleading conduct (Court/client or third party);
• Serious and repeated client care or trust account breaches;
• Gross or serious negligence resulting in loss to the client;
• Taking advantage of a vulnerable client;
• Repeated rules breaches over a lengthy period of time;
• Serious convictions;
• Instances where the lawyer has obtained any inappropriate financial benefit from the client.

While discrimination, sexual harassment and assault are absent from the list, they would not appear to be out of place. Indeed, the findings and observations made by the Tribunal in relation to other instances of misconduct could also be applied to much of the behaviour being discussed:

“It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands.” — Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 298 cited in Auckland Standards Committee No 1 v Murray [2015] NZLCDT 6.

“To maintain the reputation of the solicitors profession ... and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission ... otherwise the whole profession and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires.”

“We consider the lack of integrity demonstrated by the misconduct in this matter, particularly when accompanied by failure to recognise it as such, means that strike off is the only proper response in order to protect the public and the reputation of the profession.” — Bolton v Law Society [1994] 2 All ER 486 (CA) at 492 and National Standards Committee v Poananga [2012] NZLCDT 12 at [41] cited in National Standards Committee v Denham [2017] NZLCDT 30 at [39] and [34].

A number of sources of legal commentary have also commented on this type of conduct and its reflection on the profession:

Avoid discrimination, harassment and bullying

“A lawyer is ethically obliged to recognise the essential dignity of each individual in society and the principles of equal rights and justice, an obligation that applies to lawyers’ relationships. Their status as professionals, coupled with their responsibility to protect individual rights, means that lawyers should lead by example in a non-discriminatory conduct.” — GE Dal Pont Lawyers’ Professional Responsibility (5th ed, Thomson Reuters, 2013) at 704.

Harassment

“It is not possible to deny harassment, including sexual harassment, exists in the legal profession … The rules make no specific reference to harassment, but they do require lawyers to uphold the rule of law, which will include the legal obligation not to discriminate against or treat unfairly any other practitioner by reason of colour, race, ethic or national origin, sex, marital status, or religious or ethical belief of that other practitioner. On these grounds, unwanted and inappropriate behaviour towards other lawyers which amounts to discrimination can also amount to unsatisfactory conduct or misconduct.” — Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis NZ Ltd, 2016) at 399.

A Deputy Legal Complaints Review Officer also made the following personal observations in a letter to LawTalk:

“Sexual harassment is disrespectful, discourteous and does nothing to promote or maintain proper standards of professionalism in lawyers’ dealings with others. Sexual harassment could be an indication of a lack of integrity on a lawyer’s part. While such conduct could be addressed in the human rights and employment jurisdictions, sexual harassment is also conduct of a type that could result in a determination of ‘unsatisfactory conduct’ being made against a lawyer … Some situations where an allegation of sexual harassment is made could result in a lawyer’s conduct being considered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal, which exercises jurisdiction over misconduct and has the power to suspend or strike a practitioner off.” — Letters to the Editor, LawTalk 914, February 2018, page 17.

Reporting Unsatisfactory Conduct – Rule 2.9

What if it does not fit the definitions of misconduct?

“Rule 2.9: Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of unsatisfactory conduct may make a confidential report to the Law Society, in which case rule 2.8.1 will likewise apply.”

If the conduct being discussed is not likely to be misconduct, it could amount to unsatisfactory conduct, which can be reported under the provisions of rule 2.9. Lawyers can choose to submit a report if they have reasonable grounds to suspect another lawyer has been guilty of unsatisfactory conduct.

The definition of unsatisfactory conduct is set out in section 12 of the Lawyers and Conveyancers Act. This essentially provides that unsatisfactory conduct includes conduct that occurs at a time when a lawyer is providing regulated services which falls short of the standard of competence of diligence expected of a reasonably competent lawyer or conduct that lawyers of good standing would regard to be unbecoming or unprofessional. It can also include a contravention of a practising condition or restriction. It might also include a breach of any relevant provision or regulation relating to the provision of regulated services.

Other relevant rules

Harassment and bullying and other inappropriate behaviour could breach a number of Conduct and Client Care Rules, including:

Rule 10 – a lawyer must promote and maintain proper standards of professionalism in the lawyer’s dealings.

Rule 10.1 – a lawyer must treat other lawyers with respect and courtesy.

Rule 11 – a lawyer’s practice must be administered in a manner that ensures duties to the court …. and the reputation of the legal profession is preserved.

Rule 11.3 – a lawyer practising on own account must ensure that the conduct of the practice and employees is at all times competently supervised and managed by a lawyer qualified to practice on their own account. ‘Competently managed and supervised’ presumably would include that the practice meets health and safety requirements – including that it is a safe working environment for employees.

Rule 12 – a lawyer must, when acting in a professional capacity, conduct dealings with others, including self-represented persons, with integrity, respect, and courtesy.

Rule 13.2.1 – a lawyer must not act in a way that undermines the processes of the court and the dignity of the judiciary.

Rule 13.2.1- a lawyer must treat others involved in court processes with respect.

Rule 2.3 – a lawyer must not use the law or legal processes for improper purposes and not cause unnecessary distress, embarrassment or inconvenience to a person’s reputation, interests or occupation. This could be engaged if, for example, a senior lawyer attempted to use employment law mechanisms to dissuade another lawyer from disclosing harassment, etc.

Rule 2 – a lawyer must uphold the rule of law (see the quote above from Ethics, Professional Responsibility and the Lawyer).

It is fair to say that the rules and regulations established under the Lawyers and Conveyancers Act typically apply to conduct that occurs in the course of providing legal services to a client. That is not the case with misconduct (see section 7(1)(b)(ii) of the Act. An argument could also be made that harassment of a legal colleague or employee in the workplace could also be deemed to be sufficiently closely connected to the work a lawyer does to fall within the scope of legal work (as discussed in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987; [2015] 2 NZLR 606). A lawyer can also be found guilty of unsatisfactory conduct for a breach of the rules, even if it did not occur when providing legal services (EA v ABO LCRO 237/2010, 29 September 2011).

Who can you talk to?

You can discuss your concerns with an experienced practitioner from the National Friends Panel on a confidential basis, in advance of submitting a complaint or confidential report. They have experience in ethical matters and may be able to assist with any concerns.

Outside of the Friends Panel, talking to a trusted senior colleague on a confidential basis can be invaluable – this could be a chambers mate or an experienced lawyer you have worked with. Most senior lawyers are very happy to offer support and assistance to other members of the profession facing ethical and professional dilemmas or challenges in their professional lives. If you choose to approach a fellow lawyer for assistance, ensure that it is someone you trust and feel comfortable talking to. Care should be taken at the beginning to establish the relationship – a lawyer/client relationship on a pro-bono basis will ensure that the matter is privileged so that issues relating to reporting do not arise for the senior lawyer.

What happens to a report when it is received?

When a confidential report is received it is triaged by experienced Law Society staff. It is then referred to a lawyers standards committee for consideration as to whether the contents of the report should be investigated as potential unsatisfactory conduct or misconduct under section 130(c) of the Lawyers and Conveyancers Act.

While not specifically mentioned in the legislation, it would be expected that any report must be in writing in accordance with the requirements relating to a complaint.

As part of the process of referring the matter to the standards committee it is the usual practice of the Law Society to contact the report writer to discuss the investigation process and what restriction there may be on the disclosure of the report. While this might appear to be contrary to the confidential nature of the report, it is one of the ways to ensure that protection is afforded to the victims of any unacceptable conduct and is necessary if the matter is to be investigated. If there are any issues with disclosing the contents of the report, these must be considered by the standards committee in advance of commencing any investigation.

What can be achieved through reporting?

As indicated above, we accept that the reporting and investigation of this type of conduct can be immensely harmful to the victims and that has led to under reporting in this area. It is a complex issue which cannot be answered in a single way. Allegations need to be considered and determined in compliance with the rules of natural justice.

“While the claim that harassment will amount to unsatisfactory conduct or misconduct is uncontroversial, the victims of harassment rarely seek to remedy the situation formally. The seriousness of such complaints is frequently underestimated, particularly by senior members of the profession. There is an unwillingness to make a complaint against a lawyer for fear of a legalistic response to the complaint, which will only exacerbate the problem. That it is frequently necessary to prove the harassment occurred (with consequent ramifications for the harasser) means making the complaint can be arduous and possibly damaging. Even if the harassment is proved, the consequences for the victim (such as transferring within a firm or being marked out as a complainant) can be nearly as harmful as the harassment.” — Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis NZ Ltd, 2016) at 400.

The steps required to prove unacceptable conduct has occurred must always be balanced with the protections that must be afforded to any victims of the conduct. This is not a simple issue.

The Law Society is working to create an environment where reports and complaints can be made in a way that limits the adverse consequences that can flow for the victim, while preserving the alleged wrongdoers right to natural justice.

“Harassing behaviour is wrongful behaviour; however; a change of culture is necessary rather than a change in the rules to remedy the worrying incidence of such conduct.” — Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis NZ Ltd, 2016) at 400.

The Law Society recognises that unacceptable behaviour needs to be addressed through a combination of regulatory oversight and cultural change. Greater use of the current reporting channels, combined with targeted education and support for victims, can play a key role in achieving this.