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Independent review panel: here’s what lawyering could look like if practitioners stay silent

4 Aug 2022

| Author: Nick Kearney

With 12 August rapidly approaching, I fear the “once-in-a-generation” opportunity to submit on the discussion document that proposes fundamental changes to the profession is being missed or overlooked by those at the coalface. And it is those at the coalface, and those who will be at the coalface for the immediate future, who have the most to lose by staying silent and doing nothing. I applaud the work of the panel that has allowed for many opportunities to be involved. But I worry about the timeframe and whether it is too condensed.

Over the past few weeks, as I became interested in the issues, I have discussed the consultation document with a decent number of lawyer colleagues. None had read it, nor knew what it said. I had one say, “oh that thing they want me to submit on”. This is a review commissioned by the board of the New Zealand Law Society (NZLS) and based on these comments I think the board should give serious consideration to allowing more time for members to give feedback.

For myself, I have taken part in a survey, attended a Zoom webinar with the independent panel, attended an in-person event with a panel member and am in the process of completing my individual submission. The in-person event concerned me. I could practically count on one hand the number of people there and that’s in Auckland, our biggest city.

So I have to question what lawyers are doing and how enlightened they are on the proposals. Moreover, will you be one of those in a few years’ time who will be writing to this publication, complaining about how your role as a lawyer has fundamentally changed and how difficult the job has become, while asking “how the hell did we get here?” There is said to be a quote about liberty, that “the price of liberty is eternal vigilance”. I am not sure how accurate that is, but what I do know is that if the profession does not submit in large numbers by 12 August, the tyranny of the minority may well prevail.

How we got here 

It’s prudent to revisit history.

The Independent Review Panel that issued the discussion paper came about after a report from Dame Margaret Bazley into the disclosures in 2018 of reports of sexual harassment of young lawyers and summer clerks at Russell McVeagh.

In March 2020, a steering group decided the terms of reference for the panel to investigate whether the entire profession needed a shake-up. As is often the case, while the Bazley report focused on the culture and behaviour inside one law firm, the seven-member steering group developed terms of reference that were much wider in scope.

As panel chair Ron Paterson said at the time, “the panel has been given a wide-ranging brief to examine whether the current model for regulating lawyers is fit for purpose”. So from one report involving incidents at one law firm, there is now a wide-ranging brief to examine whether the current model for the entire profession is fit for purpose. To fix a problem, first you must identify the cause rather than attack the symptoms. But further, one must always ask whether there is something actually broken that needs fixing.

The brief 

The discussion document has six areas where reform is suggested or proposed. These are:

  • The current state of legal regulation and representation;
  • The focus and scope of regulation, including how the statutory framework might appropriately reflect the role of Te Tiriti o Waitangi;
  • The role of the regulatory framework in promoting a positive and diverse legal profession;
  • Whether the current model for regulating conduct and handling complaints is fit for purpose;
  • Whether there should be a regulator of the legal profession that is independent of the professional membership organisation; and
  • Suitability of the NZLS governance structure and the optimal institutional arrangements for a modern regulator and/or representative body

Of these six areas, and after taking part in the some of the consultation, three concern me and it’s clear they are inter-related.

  • How the statutory framework might appropriately reflect the role of Te Tiriti o Waitangi;
  • The role of the regulatory framework in promoting a positive and diverse legal profession; and
  • Whether the regulator should be independent of the professional membership organisation.

The discussion document says the panel is applying “a Te Tiriti and tikanga Māori ‘lens’ across all the issues in the terms of reference”

In the feedback sessions I have been involved in, the panel members have been at pains to point out that they want submissions on whether Te Tiriti should be included in ss 3 or 4 of the current Act.

Section 3 is the purpose section. The current purposes are to maintain public confidence in the provision of legal services; to protect consumers (our clients); and to recognise the status of the legal profession and provide for the fundamental obligations of lawyers and conveyancing practitioners. Nobody would argue with these. It is plausible that these purposes could be extended to include honouring te Tiriti and/or its principles. Section 4 outlines what the fundamental obligations of lawyers are. The current fundamental obligations reflect exactly what I understood the role of lawyers to be in any jurisdiction and the important role they play in upholding the rule of law.

Indeed, the first fundamental obligation is just that: To uphold the rule of law and to facilitate justice. Following that, lawyers’ fundamental obligations focus on independence and to act in accordance with fiduciary obligations and other legal duties but most importantly to uphold their duty to the court. These are powerful and serious duties. Nobody would question them. If one looks back into history, it is lawyers who have consistently challenged the power of the State. It is lawyers who have protected minorities and those subjected to brutality and oppression. And it has been lawyers who have challenged things which, as a gut instinct, “haven’t been quite right”. The current fundamental obligations of lawyers in s 4 essentially support all of these actions taken by lawyers over the course of history, including in Aotearoa New Zealand.

Relevance of the treaty?

I’m proud of our country and the way consecutive governments have met head-on the incorporation of the principles of Te Tiriti into treaty settlements and in some instances through the interactions we have with Crown agencies.

However, Te Tiriti is a document that involves the Crown’s relationship with Māori and at a legal level it is a public law document. Considering that, our public law system needs to involve it. But I have to admit that I struggle with seeing how, in my role as a lawyer giving advice and assisting clients with their everyday business in private practice, advising on private law issues, it should be a fundamental obligation of mine when giving such advice, to also take into account Te Tiriti and/or its principles.

When I review a shareholders agreement for a client or a lease or when I am preparing a simple will for a lovely old lady who has come to see me because she does not have one, considering the principles of Te Tiriti are not what I’m looking for in the legal issues. Simply put, they’re just not relevant. I think we need to be very careful with saying that the principles of Te Tiriti is fundamental to all lawyers’ actions across the board and across the country.

Another aspect of the discussion document that concerns me, and it is related to the prospective inclusion of Te Tiriti into s 4, is the potential to have Te Tiriti and te Reo included in our CPD requirements. Currently, CPD is required only for lawyers delivering “regulated services”, as that term is defined in the legislation. Regulated services are those legal services that only lawyers can perform. They are the “monopoly” that others complain we have.

I have mentioned to laypersons the potential expanded scope of CPD to include te Tiriti and te Reo learnings. The unanimous response is that they would rather their lawyer developed his or her skills on legislative changes, case law and the like. The important aspect about this, and there are a few important aspects to be fair, is the abbreviation “C” in CPD. For the uninitiated, that is Compulsory. Yes, one of the possibilities is it will be compulsory in your job as a lawyer delivering a regulated service to learn te Reo and/or to have yearly compulsory training in Te Tiriti and its principles.

I can hear you asking “but so what? Shouldn’t lawyers have an understanding of these things?” Potentially, everyone should but I do not think it should be compulsory. The question is rather: “Should it be compulsory in our role as a lawyer in private practice?” Another answer to this is found in Rule 3.9. It says, “A lawyer must undertake the continuing education and professional development necessary to ensure an adequate level of knowledge and competence in his or her fields of practice (emphasis added).

This confirms my general understanding, and that of the laypersons I have spoken to, relating to what a lawyer’s fundamental role is. Lawyers protect clients’ interests. They always have. They need to be able to continue to do this by undertaking training, upskilling and development in the areas of law in which they operate. Surely this is the only thing CPD should be focused on. It makes sense and I would argue, backed up by the laypersons I have spoken with, that it is the only thing lawyers should be required to focus on.

Regulatory reform

My final two comments relate to the proposed regulatory reforms and the focus on diversity.

It seems obvious to most people, including me, that the representative role should be separated from the regulatory role. It’s also entirely plausible that lawyers could lose their self-regulation and may end up facing the wrath of an independent regulator. As a side issue to this, one aspect up for discussion is whether the regulator, whoever that may be, has the power to sanction firms directly, not just lawyers. One of the panel members made the point at a meeting I attended that an apparent frustration arising from the Russell McVeagh debacle was that the regulator was powerless to do anything about the firm’s role in such behaviour.

It’s not illogical to conclude that if the s 4 amendments are included, and following from that our CPD requirements then include training in te Reo and te Tiriti, and firms don’t have adequate policies and programs to address these, the regulator can be involved and initiate an inquiry against the firm for such breaches and potentially fine the firm for breaches of the Act. Perhaps the regulator should have the power to sanction firms directly. I don’t really have a firm view on that yet. But I am firmly against the regulator being able to intervene in a firm and sanction it because the firm, a private business, has failed to organise te Reo classes for its employees or hasn’t sufficiently taught the principles of Te Tiriti.

Keep it relevant

My view is that any sanctions of a firm should relate only to the legal advice given, the service clients are getting and the way the firm performs the essential functions lawyers are trained for.

The way I see it, these changes are not only unnecessary but also have the ability to make our already difficult job much harder and we run the risk as a profession of taking our eye of the ball. We have recently seen this with the AML laws. I don’t think there is much doubt that lawyers, particularly property lawyers, are now essentially a private investigator and evidence-gatherer for the government in relation to purported criminal enterprises.

Property lawyers also collect tax data for Inland Revenue, and in some instances withholding tax, to allow Inland Revenue to do its job. I clearly recall the difficulties and work involved in this when tax statements were introduced. In a recent webinar, a tax practitioner labelled the bright-line rules as possibly the most complicated piece of legislation in the country.

My concern is that the fundamental and essential core roles we have are slowly being undermined and we face “distractions”. It’s probably prudent to consider an analogy with what has happened to the Reserve Bank recently and the criticism it has faced by taking its focus off its core task of controlling inflation.

Compulsory quotas

Finally, encouraging firms to be more diverse in a multi-cultural country that is modern Aotearoa New Zealand is extremely positive and well-meaning. But well-meaning enterprises can unravel if not based on solid principles. There has been talk of firms being required to publish data on how “diverse” they really are and it isn’t a stretch to conclude that this may well be a requirement the outside regulator can enforce.

Some firms already voluntarily do this, which is excellent to see. Again, the question focuses on compulsion. I fear if we allow this to creep in, the logical next step is for firms to have minimum numbers of certain ethnicities and gender – quotas, if you like. It’s possibly a question of “be careful what you wish for”. At the firm where I work, there are 35 staff, with just three being male. If males were included in the quotas, our female staff numbers would potentially have to reduce.

Signing off, I just want to say there are more than 16,000 lawyers in Aotearoa New Zealand. It might well be that a majority submit and argue that these changes should be made. My concern is that a significantly large number of practitioners are unaware of these matters as they battle away at the coalface, trying to complete their timesheets, AML, manage their clients’ and staff’s expectations and concerns and give outstanding legal advice in this ever-changing legislative world. I simply ask everyone to pay attention and submit to the Independent Review Panel by 12 August. ■

Nick Kearney is a special counsel at Davenports Law. These views are his own and don’t necessarily reflect the opinions of his firm ■

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