The 2021 changes to the Conduct and Client Care Rules mean that the designated lawyer for each law practice needs to complete an annual compliance certification by 1 July 2022. Designated lawyers are required to complete the certification as part of the annual practising certificate renewals process.
Under the rules a law practice includes individual lawyers practising on their own account or an entity that provides regulated services to the public (such as a law firm operated by a partnership of lawyers or an incorporated law firm). Sole practitioners and barristers sole are automatically the designated lawyer for their law practice. Those in incorporated law firms and partnerships should have already notified the Law Society’s registry team who their designated lawyer will be.
The steps taken to prepare for certification will vary depending on whether you are a sole barrister, a partner in a small law firm, or the partner of a large, multiple office location, firm. This article contains the issues you will be asked about for the annual certification process and some suggested steps you may wish to take as the designated lawyer to ensure reasonable grounds to certify compliance, as required by rule 2.5.
A law practice’s mandatory reporting obligations concern the law practice’s designated lawyer reporting obligations under rule 11.4 and 11.4.1. As the designated lawyer, you are certifying that you, and the other lawyers in your practice have completed the required reports.
2. My law practice has policies and systems in place as set out in rule 11.2 and is complying with its obligations under the Health and Safety at Work Act 2015
Rule 11.2 requires a law practice to have effective policies and systems in place to prevent and protect all persons from the effects of unacceptable conduct such as bullying, discrimination, harassment and violence. Guidance on how to create a policy is available in this article: Designing anti-bullying and harassment policies for law firms.
Law practices are a PCBU (person conducting a business or undertaking) and have obligations under the Health and Safety at Work Act 2015. Key duties include looking after the health and safety of their workers and notifying WorkSafe of any notifiable events. Consideration should also be given to a law practice’s responsibility regarding the physical workplace if it manages or controls fixtures, fittings or plant in the building it operates out of, and its responsibility to any tenants that share any building the practice may own. If you wish to know more about your law practice’s health and safety obligations, there is a wealth of further guidance on WorkSafe and Employment New Zealand websites.
3.As the designated lawyer, I have complied with rule 11.4 and made reports to the Law Society, within 14 days of the following occurring:
Unacceptable conduct includes bullying, discrimination, harassment, racial harassment, sexual harassment, theft and violence (which are further defined in rule 1.2).
Once you have completed your certification this year, we encourage you to think about what systems and procedures you can put in place to make the compliance process for annual certification easier next year.
My law practice has not complied with its obligations, can I certify “no”?
Yes. If there has been non-compliance, for whatever reason, you must certify no, as to do otherwise would be a breach of rule 2.5.
Reasons for non-compliance may vary. For example, if you were required to make a designated lawyer report and did so within 30 days as opposed to the required 14 days, this is unlikely to pose a professional conduct issue. There may be valid reasons why it took longer to report, including the collation of supporting material or the fact that the employee left just before Christmas and the practice’s shut down period.
If you certify no, you should provide an explanation as to the reason for non-compliance as well as provide any documents or make any report that should previously been made (or arrange for the lawyer who should previously have reported to do so).
What will happen if I certify “no”?
The Law Society appreciates that the designated lawyer obligations are new, and that it may take time to set up appropriate processes in your law practice.
Where there is non-compliance our initial focus will be on education and ensuring compliance going forward, rather than punishing any lapses in reporting.
However, this will depend on the circumstances. A failure to report a serious breach of the rules is a breach of the rules itself. This means that the designated lawyer, or other lawyer, who has not met their mandatory reporting obligations may be referred to a standards committee and potentially face a disciplinary response.
What should I do if I was only appointed the designated lawyer halfway through the year?
This depends on whether there were any issues that should have been reported prior to your appointment. The suggested steps above should help you establish if a report should have been made prior to your appointment.
If a designated lawyer report should have been made in November 2021, and you were only appointed in January 2022, then you could answer the first question “no” but certify “yes” to question three, as long as you reported any matters arising from January 2022.
You should then ensure you provide the Law Society with the details of the report that should have been made before your appointment.
I’m not sure if a situation should have been reported or not, what should I do?
The following resources may help: