New Zealand Law Society - Maintaining professional standards

Maintaining professional standards

New rules governing the behaviour of lawyers, with an emphasis on tackling bullying and harassment, will come into force from 1 July. The changes are amendments to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC).

The short version: a ninety-second summary

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 and to certify that they have complied with their obligation to report within 14 days if any person engaged or employed by the law practice is given a written warning or is dismissed by the law practice for conduct that amounts to bullying, discrimination, harassment, racial harassment, sexual harassment, theft or violence.
  • Victimising a person who makes a report in good faith is expressly prohibited.

The Rules can be read in full on legislation.govt.nz.

Draft guidance

The Law Society has produced guidance to help lawyers to understand the new obligations. The guidance is also intended to support and empower people who are affected by prohibited behaviour. Consultation on the guidance is now open.

Webinar

On 3 May 2021 the Law Society’s General Manager Professional Standards, Katie Rusbatch, and Michael Hodge from Meredith Connell presented an online session on the Rules.

New Conduct & Client Care Rules webinar, recorded 3 May 2021

Resources accompanying this online session are also available to download:

Frequently asked questions

If the conduct includes after-hours events, why is it the law firms' responsibility to police an individual's behaviour?

The disciplinary regime has always differentiated between professional conduct and personal conduct.  Whether conduct outside of work hours is professional or personal will be fact specific. Matters that will be relevant to whether the conduct was personal or professional include the purpose for which the event was held and the capacity in which the individual attended the event.

Will this prompt an increase in unjustified complaints from disgruntled clients?

It’s possible, but unlikely. Law practices are already required to have a process to investigate complaints from clients. These should help to address minor matters before they become more problematic or are escalated to the Law Society.

In relation to the new reporting obligations, the Law Society Lawyers Complaints Service evaluates all reports that they receive prior to referral to a standards committee. Not all reports will proceed to a standards committee.

If I am the designated lawyer in a firm, am I personally liable for the firm's non-compliance, which might be out of my control?

As a designated lawyer you are individually responsible for the reporting obligations under rules 11.4 and 11.5.

Every partner of the firm, being a lawyer practising on their own account, is individually responsible for in the obligations under rule 11.2, including the obligation to ensure that the firm has effective policies and systems in place to prevent and protect all persons engaged or employed by the law practice from the effects of unacceptable conduct.

What if the designated lawyer is the person whose behaviour is causing the problem?

Rule 10.3 expressly prohibits a lawyer from engaging in the types of conduct listed.

The reporting obligations under rules 11.4 and 11.5 only apply when a written warning is issued to a lawyer (or non-lawyer employee), or when a lawyer (or non-lawyer employee) leaves the law firm (whether dismissed or otherwise). If a designated lawyer is issued with a written warning, the reporting obligations apply. If a lawyer leaves the firm, the firm has to appoint a new designated lawyer, that lawyer will have to report the conduct to the Law Society.

What is a law practice?

An individual lawyer practising on that lawyer’s own account; or an entity that provides regulated service to the public.

Do the new rules apply to sole practitioners and barristers sole?

Yes. A sole practitioner or barrister sole will need to complete the annual reporting requirement as the designated lawyer for their law practice. Sole practitioners and barristers sole will also need to have policies and systems to prevent and protect all clients, colleagues and all people that it engages with from bullying, discrimination, harassment or violence.

What are the consequences of failing to report?

Failure to make the required report under rules 2.8, 2.9, 11.4 and 11.4.1 will be treated as a breach of the rules. This means that a lawyer may be referred to a standards committee and potentially face a disciplinary response.

Where do I find the new rules?

Will you be reprinting the red book?

No. The rules are all readily available on the legislation.govt.nz website. Accessing the online version will ensure that you are checking the most up to date version of the rules.

How will these changes bring about workplace culture change?

Clearer conduct obligations, clearer reporting obligations for law practices and closer regulation of legal workplaces will help to bring about the healthy, safe, respectful and inclusive workplaces that we all want to see. We consulted widely on the rules changes, and many legal workplaces have been doing their own work in this area already. It takes everyone to change a culture, and we know that there is wide support for the changes.

What are the new reporting requirements?

There are a number of new reporting requirements. One of the biggest changes is the introduction of a new obligation that law practices will be required to notify the Law Society within 14 days if a lawyer is issued a written warning or dismissed for bullying, discrimination or harassment. A law practice will also have to report if a lawyer leaves before an investigation is completed. Law practices will also need to nominate a designated lawyer who will be required to report annually to the Law Society that the law practice has complied with all of its reporting obligations as well as its obligations under the Health and Safety at Work Act.

When will the rules be released?

The rules were gazetted by the Parliamentary Counsel Office on Thursday 1 April 2021. They can be viewed on the legislation.govt.nz website. Draft guidance on meeting the obligations of the rule changes was released for consultation in mid May 2021.

Why has it taken so long to introduce these Rules?

We initially wanted changes to the Lawyers and Conveyancers Act 2006 to tackle bullying and harassment. We worked closely with the Government to explore options to change the regulatory framework. However, we were told this was not possible at the time.

We then had to change tack – to investigate what we could do to strengthen our powers within the existing framework. We looked at the one area where we could make change without legislative amendment, and the rules and regulations that applied to lawyers both in New Zealand and overseas. We sought advice from regulatory and ethics experts.

The changes that we consulted on in 2020 were informed by this advice, as well as the work and recommendations of the Law Society’s Independent Regulatory Working Group, chaired by Dame Silvia Cartwright, the 2018 Workplace Environment Survey, and the concerns and experiences of many within the legal community. While all this has taken time, the changes that come into force from 1 July 2021 are as robust as we could make them within the existing regulatory framework.

Do the new rules and definitions apply to in-house lawyers?

Yes, they do apply to in-house lawyers. However, in-house lawyers are not required to have a “designated lawyer” as this only applies to law practices.

Are the Rules Changes connected to the Independent Review that the Law Society is also carrying out?

The Independent Review has a broader scope than the Rules amendments and includes areas where legislative change may be required. The Independent Review will cover:

  • how unacceptable conduct is prevented and addressed
  • whether the Law Society’s representative functions should be separated from all or some of regulatory functions
  • how complaints are made and responded to, including issues relating to transparency
  • which legal services are regulated and by whom

The Review will also consider optimal organisational and governance arrangements for supporting the delivery of regulatory and representative functions.

The Review will potentially recommend changes to the New Zealand Law Society constitution, the Lawyers and Conveyancers Act 2006, and associated rules and regulations, as appropriate.

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