“Bullying, discrimination, racial or sexual harassment and other unacceptable conduct has no place in any profession,” says New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati.

The changes are amendments to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC). The amended rules include:

• Clearer definitions of bullying, discrimination, harassment, including racial, sexual harassment, and violence.
• New reporting requirements for notifying conduct to the Law Society to ensure that there is an appropriate regulatory response.
• Each law practice will need to have effective policies and systems to prevent and protect employees and other people it engages with from bullying, discrimination, harassment or violence. The definition of law practice includes an individual lawyer practising on their own account. This means that sole practitioners and barristers are included.
• Each law practice will need to nominate a designated lawyer to report annually to the Law Society that the law practice has complied with its mandatory reporting obligations.
• Victimising a person who makes a report in good faith is expressly prohibited.

Guidance to support lawyers to understand what’s required of them under the changes has been released in draft by the Law Society. Consultation on the guidance is open until 16 July 2021. You can read the guidance on the Law Society’s website www.lawsociety.org.nz

“Everyone has an individual part to play in securing the well-being of our legal community,” says Ms Epati.

“We also need to ensure the public can have trust and confidence in the legal profession.”

Defined behaviours

Bullying

Repeated and unreasonable behaviour directed towards a person or people that is likely to lead to physical or psychological harm.

Discrimination

Discrimination that is unlawful under the Human Rights Act 1993 or any other enactment.

Harassment

1. intimidating, threatening or degrading behaviour directed towards a person or group that is likely to have a harmful effect on the recipient; and
2. includes repeated behaviour but may be a serious single incident.

Racial harassment

Behaviour that:

1. (expresses hostility against, or contempt or ridicule towards, another person on the ground of race, ethnicity, or national origin; and
2. is likely to be unwelcome or offensive to that person (whether or not it was conveyed directly to that person).

Sexual harassment

Behaviour that:

1. subjecting another person to unreasonable behaviour of a sexual nature that is likely to be unwelcome or offensive to that person (whether or not it was conveyed directly to that person); or
2. 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.

Violence

Includes the following:

1. physical violence.
2. psychological violence.
3. sexual abuse.
4. sexual assault.

Policies and systems to prevent and protect from prohibited behaviour

Policies and systems to prevent and protect all persons from prohibited behaviour should include:

1. A clear statement that bullying, discrimination, harassment, racial harassment, sexual harassment or violence is not accepted by the practice at any level.
2. A clear and simple reporting process.
3. Avenues of support for people affected by prohibited behaviour.
4. Investigation of complaints.
5. Confidentiality and privacy (which cannot operate to exclude reporting requirements to the Law Society).
6. Ensuring the active support of senior lawyers and managers, including modelling respectful behaviours themselves.

All lawyers are obliged to report prohibited behaviour

Under Rule 2.8 if you have reasonable grounds to suspect that misconduct may have occurred, you must report it to the Law Society. You have a discretion to report unsatisfactory conduct under Rule 2.9.

Support for those affected by prohibited behaviour

If you or someone else has been affected by bullying, discrimination, harassment or other forms of prohibited behaviour, there is support and help available. Law Society options for support include:

• Legal Community Counselling Service: 0508 664 981
• Law Care free phone line: 0800 0800 28
• National Friends Panel members who deal with sensitive matters.

Designated lawyer

Rule 11.3 requires each law practice to have a lawyer who is the “designated lawyer” for that practice. The designated lawyer is required to:

• fulfil the law practice’s annual reporting obligations; and
• notify the Law Society on behalf of the law practice, within 14 days:
• if there is a written warning or dismissal due to conduct such as bullying, discrimination, harassment, theft, or violence; or
• a person leaves the practice within 12 months of them being advised that they were being investigated in relation to this conduct.

This requirement was introduced to ensure that prohibited behaviour by lawyers is reported to the Law Society. The designated lawyer must be in practice on their own account, such as a partner, director or sole practitioner.

If you are not a sole practitioner or barrister sole, you must notify the Registry Team at the Law Society who your designated lawyer is by emailing registry@lawsociety.org.nz This does not apply to in-house lawyers who do not need a designated lawyer.

Checklist of actions before 1 July

All lawyers:

• Read the draft guidance
• Ensure you understand the reporting requirements that apply to you
• Ensure any staff that report to you have read the guidance and understand the requirements that apply to them

Law Practices:

• Notify the Law Society of your designated lawyer – email registry@lawsociety.org.nz
• Sole practitioners and barristers sole will automatically be the designated lawyer for their practice, there is no need to send an email

Law practices, sole-practitioners and barristers sole:

• Must put in place policies and systems to prevent and protect employees and other people you engage with from bullying, discrimination, harassment or violence
• Ensure your designated lawyer understands when they are required to report to the Law Society