A once-in-a-generation opportunity to shape how lawyers and legal services are regulated in Aotearoa New Zealand is under way.
It has the potential to directly impact the work of all providers of legal services – so we’re keen to hear from all quarters.
We – Ron Paterson, Jane Meares and Jacinta Ruru – were appointed earlier this year to undertake an independent review of whether the current arrangements for the regulation and representation of lawyers and legal services are fit for purpose. We published our Discussion Document recently. It seeks views on topics that go to the heart of how lawyers practise and are regulated.
“The Lawyers and Conveyancers Act 2006 was a major reform, but a lot has happened since the Act was implemented,” Panel Chair Ron Paterson says.
“We’ve been given a wide-ranging brief to examine whether the current model is fit-for-purpose in 2022. Key to the success of the review is the widest possible engagement of the legal profession.”
The dual mandate
One of the major issues examined in the paper is whether it is appropriate for the New Zealand Law Society | Te Kāhui Ture o Aotearoa to continue with both regulatory and representative functions.
”As a regulator the Law Society has a duty to the public, but as a membership body it has a duty to promote the interests of its members,” Panel member Jane Meares says.
“The conflict of interest inherent in a dual model is unusual in other regulated professions. A number of overseas jurisdictions have created an independent regulator.”
Options put forward for consultation include maintaining the status quo, improving the separation of functions within the Law Society, and establishing a new independent regulator.
Revisiting the scope of regulation
The discussion document asks whether the current scope of regulation under the Lawyers and Conveyancers Act 2006 (the Act) continues to be appropriate. A key focus is whether the current ‘one size fits all’ approach to regulating lawyers continues to be justified.
For example, the vast majority of legal services provided by lawyers can also be provided by non-lawyers, but non-lawyers are not subject to any regulatory oversight or complaints mechanism, leaving consumers poorly protected. Trends overseas indicate that we can expect the use of technology (particularly websites and AI) to continue to grow the market for unregulated legal services.
The question whether regulation should better reflect the risks associated with an activity is also highlighted by the example of in-house lawyers – who comprise nearly 30 per cent of the profession but generate only 4 per cent of complaints.
Key questions that the discussion document raises on the scope of regulation include:
- Which legal services should be regulated?
- Is there a need to revisit some core provisions of the Act, including the purpose statement, how Te Tiriti o Waitangi should be incorporated into the Act, and whether legislation should specify the objectives of the regulator?
- Should law practices be directly regulated?
- Should current restrictions on corporate form be removed to allow for multidisciplinary practices and ownership interests by non-lawyers in law firms?
Promoting a positive and diverse culture
The discussion document also seeks feedback on how to further promote an inclusive and welcoming legal profession that reflects the diversity of the community it serves, while encouraging good conduct and supporting the mental health and wellbeing of lawyers.
“We believe there is much more the legal profession can do to address the significant barriers to admission, progression and retention within the legal profession for many groups – most notably women, Māori, Pacific peoples and Asian lawyers,” Panel member Jacinta Ruru says.
The discussion document seeks views on whether the regulator needs additional tools to help improve diversity and a culture of inclusion, including potential reporting requirements. We’re also seeking views on the role of Continuing Professional Development (including whether there is a need for cultural competency training) and options to further encourage pro bono services.
Developing an appropriate complaints model
The current complaints system is also a focus of the Review. Ron Paterson comments,
“The current model for investigating complaints about lawyers does not appear to be working well, with both consumers and lawyers reporting frustration with a slow, adversarial process.”
At present complaints about lawyers are allocated to 22 Standards Committees around the country, with volunteer lawyers (and a minority of lay members) considering the validity of the complaint. This model is open to criticism that it is not resolving complaints in a timely manner, does not generate consistent outcomes, is not sufficiently independent, and does not encourage restorative approaches, which can appeal to many parties, including Māori and Pacific peoples.
The discussion document seeks feedback on some structural options for change, including the possibility of establishing an independent complaints body. It highlights opportunities to incorporate tikanga principles of dispute resolution through better use of conciliation and mediation.
How to engage with the discussion document
The discussion document is open for consultation until 12 August 2022, with the Panel required to report to the Board of the Law Society by the end of the year. We encourage members of the profession to make a submission and engage with the Panel directly through your sections, branches and interest groups to give feedback.
Have your say:
The Discussion Document is open for consultation until 12 August 2022, with the Panel required to report to the Board of the Law Society by the end of the year.
Members of the profession and community groups are encouraged to make a submission.
The Discussion Document is available at www.legalframeworkreview.org.nz/consultation. There are two ways to make a submission:
- Complete a survey at www.surveymonkey.com/r/nzlawreview
- Email your comments or a submission to firstname.lastname@example.org
There will also be opportunities to engage with the Panel directly in a series of in-person and virtual engagement events to be scheduled in July and August 2022.
Key complaints statistics
- Complaints are taking, on average, 259 days to resolve
- 88% of complaints that go to a Standards Committee are dismissed
- The dismissal rate varies between 73% and 90% depending on where a complaint is heard
- Of the 1,751 findings of ‘unsatisfactory conduct’ against a lawyer over the past 10 years, the name of the lawyer was disclosed in 62 instances.
- Of the cases with a finding of ‘unsatisfactory conduct’ the lawyer involved was required to make an apology in 7% of cases and undertake further training in 9% of cases.