Tēnā koutou katoa. Ko Tony Herring taku ingoa. Ko ahau te Perehitene o ADLS. Nga mihi nui ki a koutou katoa.
For my inaugural message to members, I’d like to focus on what in my opinion is the most significant issue facing lawyers: the recommendations of the independent panel tasked with reviewing the legal profession. New Zealand’s 16,000 lawyers, including ADLS members, and members of the public have until next Wednesday (31 May) to submit to NZLS their response to the panel’s recommendations. NZLS says it will process and collate this feedback and then present its response to Justice Minister Kiri Allan. New legislation will be required to effect some of the panel’s more radical recommendations.
The panel has produced a mammoth 190-page report but I’d urge you not to be daunted by this. My message is twofold: do your best to read the executive summary and, if you haven’t done so already, have your say. This might be as simple as sending an email and I would suggest you send it direct to NZLS rather than a local branch committee.
You need to inform yourself about these issues because the panel’s recommendations have the potential to make massive and fundamental changes to the way the legal profession is regulated. And that will have a trickle-down effect. If you want to be a member of a profession such as ours, I think it’s important for you to become involved.
There’s a danger that the sheer volume of emails landing in your inbox means important messages about these proposed changes may have been deleted or ignored, particularly when times are a bit tough and work might be a bit hard to come by. That has to be your focus.
But the issues raised in the independent panel’s report are so important that if people don’t respond, then the minister or whoever is ultimately making the decisions for our profession could reasonably assume that people are happy with the panel’s recommendations. Just do it. Even if you submit on only one issue or pick an issue that you’re passionate about or one where you have a very strong view. The more people who comment, the more engaged we become and the more likely we are to end up with an outcome that’s acceptable. But if we’re all too busy or apathetic, then we’re leaving it up to external decision-makers to make big calls that might not work out to be in our best interests.
I personally struggle to understand how the panel can claim that an independent regulator would be significantly cheaper than the cost of the current system which runs on volunteers, apart from a couple of laypeople on the standards committees. How on earth can it be cheaper? It doesn’t make sense to me.
I also have concerns about the mixed messages coming from both the panel’s initial consultation document and the survey provided recently through which lawyers could give feedback on the proposed changes. It seems to me that the way the questions were framed in both documents predetermined a certain type of answer. So, it’s important to understand that you are not limited by the NZLS survey – you can send feedback in any form you choose.
I was on a NZLS standards committee for nine years. And before the legislation changed I was on a complaints committee. My personal view is that the complaints system is working pretty well and I think there’s a huge risk that having an independent regulator will take away all of the institutional knowledge that exists within the profession, along with the empathy.
“Empathy” is a big word for me around the complaints system. I was on a fantastic standards committee in Canterbury Westland and we had a range of wonderful people on the committee who were empathetic and understood the pressures lawyers face in our day-to-day practice. So if something goes wrong, these committee members would understand the context of, for example, what happens on a Friday afternoon in a busy conveyancing practice. They can bring to bear all that skill, all that experience and all that empathy when they reach their decisions.
Having said that, there are a couple of things with the complaints system that are not ideal: chiefly the time it takes to get a decision out. And there has also been a lot of talk about a lack of ability to triage complaints. So, even the most trivial complaint has to be entered into the system and referred to a standards committee.
In my view, if they put more resource into complaints and had an effective triage system so gripes about clearly inconsequential issues didn’t make it to the standards committee, then nothing else is actually wrong. I think the quality of the decisions is fantastic. There could be more consistency between the various standards committees but that’s not a huge issue. Other than that, if it ain’t broke, why fix it? But there does seem to be quite a determination on the part of the independent review panel that independent regulation is the only way to go.
Opportunities for ADLS
As a representative organisation, ADLS is watching all this unfold, thinking about the opportunities that might emerge. For example, if NZLS is no longer the regulator and is forced to reinvent itself as solely a representative organisation, presumably membership of NZLS will no longer be compulsory.
So, a lot of those members may then be looking around for other options. I’m really proud of ADLS. We’ve recently refreshed our strategic plan and our purpose is to be the best member organisation for the legal profession. That’s our goal, regardless of the outcome of the review.
In my opinion, it is possible that NZLS may well cease to exist as a result of a review that it instigated itself. And for what purpose? I acknowledge bad things were happening in isolated pockets of the profession but in my view they were being dealt with by the disciplinary process already in place. The practitioners found guilty have been called to account and have been suspended from practice for lengthy periods of time or publicly named. Changes have been made to the way the profession is regulated to directly address the issues that have occurred.
Conflict of interest
So, why do we need an entirely new regulatory system? What is so broken that an entirely fresh start is needed with people who are appointed by a minister?
That is another good point. The minister appoints the members of this “independent” regulatory board and the minister has to take advice, but she doesn’t have to accept this advice. She will get some recommendations from a panel. But if she doesn’t accept those recommendations and she decides to appoint certain people who hold certain views, that’s a huge conflict of interest.
I don’t buy the argument that lawyers should be regulated independently, like doctors or plumbers and drainlayers or physios because we are in a very different position. We have fundamental obligations to uphold the rule of law. If there are independent regulators who don’t understand how we do that or what the nature of our role is, then they could make very poor decisions.
I have a reasonable grasp of te reo Māori, having studied it at high school in Rotorua, and can still get a pass mark if I’m meeting with an iwi. But why elevate compliance with the principles of the Treaty of Waitangi to an absolutely fundamental obligation when it will have no impact, I would think, on 75% of what lawyers do on a day-to-day basis?
I can see how that might relate to some areas of practice, but if I look at my desk and the various tasks I will be doing today, none of them has any connection whatsoever with the treaty. How do I demonstrate compliance with a fundamental obligation under my governing legislation when it’s simply not relevant to the work I do? It doesn’t touch on a renewal of a lease for premises in a commercial building, for example, nor a request to review a construction contract for an office building fitout.
At ADLS we do some great work in terms of our forms, our CPD, our collegiality functions and our committee structures. At a high level, I want to continue this great work and make some improvements. One example will be developing a closer relationship between the committees and the ADLS council.
The council has a strategic plan with a vision about who we want to be as an organisation and we need to bring all of the committees along with us. There are 17 committees full of amazing practitioners who are all engaged in the profession and in what they do. But I think we could make that relationship a bit closer. And I’d like to get around the country, talking to members and telling them that we exist to help them achieve excellence and asking what they need from us on a day-to-day basis.
I want to hear from our members about what they think we could do differently or what we could do better. And then I would be committed to doing something about it. So that’s the first thread. The second thread is about looking at things that might impact on professionals that we don’t yet fully understand. An example might be AI. I don’t know much about it, I’ve never looked at ChatGPT, although it’s on my list of things to do. It’s all about getting ahead of the curve.
On another note, there are signs that the profession might be starting to shake off the post-covid malaise. We are refreshing the ADLS Friends panel and have had about 80 applications within a couple of days. It was so popular, we had to close applications early.
I am very proud to be President of the great organisation that ADLS is. I want to help foster a greater sense of connection and collegiality within the profession and I want to help shape the future of the profession. I am always keen to chat to our members about what we do, what more we can offer and how we can help you achieve excellence every day. Please feel free to contact me at email@example.com if you want to talk.
You should also have received an email from TRA on 22 May, with a survey link. We are very keen to receive as much feedback as possible from our members about what you need. Please do take the time to complete the survey. This will enable us to direct our resources in the best way to meet your needs. We are here to help you and your feedback will enable us to best do that.
Ngā manaakitanga ■