New Zealand Law Society - Independent Review
The Law Society is working within the current legislative framework for the regulation of lawyers, but, as we pointed out in the Independent Review, the legislation is overly prescriptive and inefficient – especially in the way in which the Lawyers Complaints Service is required to manage complaints about lawyers.
However, the Law Society is committed to ongoing improvements to the modernise the regulation of lawyers. We are exploring other options with the Ministry of Justice such as making some targeted amendments to the Lawyers and Conveyancers Act 2005. In particular, we are continuing to advocate for legislative change to enable the Law Society to administratively triage certain types of complaints where no further action is required rather than all complaints needing to be referred to a Standards Committee.
We consulted with the profession on this change in early 2022 and the proposed amendment received strong support. This would enable complaints that don’t merit referral to a Standard Committee to be resolved more quickly, which improve timeliness for the consideration of complaints and improve confidence in the complaints process.
We have also commenced a work programme considering changes that can be made to the regulatory system within the Law Society’s control such as registration processes, improvements to the complaints model and governance.
The New Zealand Law Society Te Kāhui Ture o Aotearoa released its response to the recommendations made in the Independent Review Report in August 2023. After consultation with its Council members and the profession, the Law Society accepted in principle most of the recommendations, including recommendations to establish a new independent regulator and an overhaul of the system for handling complaints about lawyers. The Law Society has provided its response to the Minister of Justice, so that it can be considered for the Government’s legislative agenda.
Accept in principle
Accept in principle
a. establishing an independent statutory body, which is not a Crown Entity and not subject to direction from Ministers
Further consideration required
b. a board of eight members, with an equal split between lawyer and public members, chaired by a public member, and at least two members with strong te ao Māori insights
Further consideration required
c. appointment of board members by the Minister of Justice, following advice from a nominations panel comprising a mix of consumer representatives, governance experts and members of the legal profession.
Accept in principle
a. including a Tiriti o Waitangi section, requiring those exercising powers and performing functions and duties to give effect to the principles of Te Tiriti o Waitangi
Accept in principle
b. setting out regulatory objectives, with an overarching objective to protect and promote the public interest
Accept in principle
c. updating the fundamental obligations of lawyers, requiring lawyers to promote as well as protect their clients’ interests and adding a new obligation on lawyers to maintain their competence and fitness to practise.
Accept
a. maintaining the current focus of the regulatory framework on lawyers and conveyancers, rather than extending it to cover other unregulated legal service providers
Further consideration required
b. introducing a new ‘freelance’ practising model that allows lawyers to provide services to the public in non-reserved areas, without requiring prior approval from the regulator
Accept in principle
c. permitting employed lawyers to provide pro bono services to the public in nonreserved areas
Further consideration required
d. permitting new business structures, to allow non-lawyers to have an ownership interest in law firms and lawyers to enter into legal partnerships with non-lawyers
Accept in principle
e. directly regulating law firms, with new firm-level obligations.
Accept in principle
a. giving the regulator new tools, including powers to suspend practising certificates, require practitioners to undergo a health or competence review, undertake practice reviews and impose bespoke conditions on a practising certificate
Accept in principle
b. reviewing CPD requirements, including the current 10-hour CPD requirement, and specifying key mandatory components of CPD to be undertaken every three to five years.
Further consideration required
a. complaints will be assessed and determined by in-house specialist staff, rather than by volunteers on Standards Committees
Accept in principle
b. formal investigative and disciplinary processes will be reserved for those matters that require a disciplinary response from the regulator. Complaints about ‘consumer matters’ (eg, fees, delay, poor communication) will instead go through a dispute resolution process
Accept in principle
c. the identity of a lawyer who engages in ‘unsatisfactory conduct’ will not be publicly disclosed other than in exceptional circumstances, with naming reserved for cases where the Lawyers and Conveyancers Disciplinary Tribunal finds the lawyer guilty of ‘misconduct’
Further consideration required
d. the independent Legal Complaints Review Officer will be replaced by a small review committee convened by the regulator and staffed by external members or an external adjudicator
Accept in principle
e. lawyers will be subject to a new duty to ensure complaints are dealt with promptly, fairly, and free of charge.
Accept in principle
a. creating a regulator with a specific objective of “encouraging an independent, strong, diverse and effective legal profession” and a competence-based board that reflects diversity
Accept in principle
b. removing regulatory barriers that are having a discriminatory effect
Accept in principle
c. giving the regulator new powers to collect diversity data from law firms and publish aggregate data on trends within the profession.
Further consideration required
The Independent Review Panel’s report is now available.
The Independent Review Report has recommended legislative and structural change, the establishment of a new independent regulator and an overhaul of the system for handling complaints about lawyers.
The report was commissioned by the Law Society in 2021 because it had been clear that the complaints process was no longer fit-for-purpose and was not serving the public or the profession well. This had been highlighted in 2018 with reports of sexual harassment within the legal profession.
The Law Society also wanted to take the opportunity to shift to a more modern regulatory environment given the changes that have taken place in New Zealand and internationally since the Lawyers and Conveyancers Act was introduced in 2006.
The Law Society needed to ensure that the legal profession has a strong representative voice that is responsive to the needs of the profession and the public.
On 28 March and 3 April the Independent Review Panel held livestream sessions to give the profession a chance to hear the main recommendations and ask questions about the report.
A recording of the 3 April session is available to watch: https://youtu.be/jIAIjXhgero