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Reform of legal profession ‘in the lap of the gods’ if National-led govt elected in October

27 Apr 2023

| Author: Reweti Kohere

Should voters elect to change governments in October, a “degree of uncertainty” surrounds whether potential reforms to how New Zealand’s lawyers are regulated and represented will get off the ground, says New Zealand Law Society’s president Frazer Barton.

Following the release of the independent review panel’s final report, two webinars were held recently to walk members of the profession through recommendations and answer questions. The recommendations include establishing a new, independent regulator, overhauling the system for handling complaints about lawyers, incorporating Te Tiriti o Waitangi into lawyers’ obligations, permitting new business models and empowering the new watchdog to better protect consumers and support practitioners.

Feedback on these recommendations is due by 31 May. Barton told webinar attendees that this year’s election – and the possibility of a change of government – meant “we are going to be in the lap of the gods”. “We do have to deal with a period of uncertainty perhaps, and if there is a government that’s not of a mind with these recommendations in the short-term, we are going to need interim arrangements,” he said. “That will involve discussion within the council and feedback from council constituents.”

Legislative change

Review panel chair Professor Ron Paterson said several improvements were already being made, but legislative change was necessary to give effect to the full range of recommendations. “That, in turn, will require political will,” Paterson said. “Our job is done now. But as we say in the report, we hand it over trusting that the once-in-a-generation opportunity of this review will be seized.”

The Law Society board was taking soundings from its 25-member council, which is also consulting with constituents. The council comprises the president, four vice-presidents, presidents of all 13 regional branches, and seven “sector” groups representing areas of law (family and property, for instance) and broader interests (such as in-house lawyers, Te Hunga Rōia Māori and Pacific Lawyers Association).

Barton said the board will meet with the council at the end of June to discuss the feedback received, with the aim of sending its final response to the government at the end of July. From there, it’s up to the Justice Minister to decide whether the recommendations would be put on the legislative agenda.

In a subsequent Q&A session moderated by prominent Māori businessman Whaimutu Dewes, Barton confirmed all 13 branches were conducting surveys of their respective members. “Yes, the means of getting feedback is via those council members.” Dewes, who chaired the seven-member steering group that developed the terms of reference for the review panel, said the survey process ran alongside the opportunity for members of the profession to provide feedback.

One attendee asked how the branch surveys were being notified to members and whether practitioners would have enough time to respond. Barton said surveys were being released via email from council members. “[Those] should be with people. If they don’t get it, then get in touch with someone to make sure that happens. “As I say, it is important to get that feedback so it should be with people if not now then shortly.”

Not talking

But while Barton appears happy to speak to lawyers within the structured framework of a webinar, when it comes to answering specific questions from the legal media it’s a different story. LawNews approached the NZLS president directly last week for an interview but was fobbed off onto NZLS PR-man Liam Kernaghan on grounds that Barton was “too busy” to talk to ADLS.

We wanted to ask Barton for comment on what appears to be a high level of suspicion within some areas of the profession that the short timeframe for feedback is a deliberate move to reduce the risk of negative feedback which NZLS would then be duty-bound to pass on to the minister. We also asked for a firm deadline for submissions which did not appear to have been publicised at that point. After confirming the 31 May deadline, Kernaghan said reducing the risk of negative feedback “is not our motivation”.

Rather, he said, “we are mindful that there will be a lot of different views across the profession on the recommendations. We made a commitment to provide the Minister of Justice with a response to the recommendations by the end of the parliamentary term, so the timeframes are set in mind for the Law Society board and council to collate the information and provide a holistic picture to the minister within that timeframe.

“The Independent Review Panel also conducted a comprehensive consultation with the profession and the public last year where a lot of different views were put forward Regulating lawyers- final-report.pdf (” But there is nothing to stop practitioners from bypassing their local branches and sending submissions direct to the NZLS board, copying in the minister.

‘Compelling logic’

The most significant recommendation is to hand a new, independent body the Law Society’s watchdog status. The Law Society would then act solely as a representative body for the profession.

Barton said there was a “compelling logic” to it. “It’s not entirely surprising what the conclusion was. We are being constantly confronted, on a day-to-day basis, with the inherent conflict that sits with being in these two roles. “There’s a logic to most of the other recommendations. I would also suggest there’s probably some that we’ll be looking particularly for feedback from the profession and there may be some tweaking needed,” he said.

“But overall, we welcome the recommendations and particularly the most significant one. As I say, I think it’s pretty hard to argue against.” One attendee asked whether the panel had considered a future where the Law Society dropped its representative function for solely regulating the profession. Paterson confirmed the scenario had been considered, with feedback sought from Canadian commentators on how it’s worked out practically in that jurisdiction. “This is the time for a separation. We see the most valuable future of the Law Society in being the national representative body,” he said.

This will, however, come at a cost to NZLS. In the original consultation document it was revealed that regulation is NZLS’ major source of income. Last year it received $22 million from its regulatory functions (from fees and levies on lawyers) and $8m from its membership services.

Rule of law

One attendee was concerned about how the Law Society might effectively uphold and safeguard the rule of law “if it is reduced to a voluntary membership body”. Panel member Professor Jacinta Ruru said the Law Society was an “incredibly important” entity for upholding the rule of law.

“If there is a separation, where the New Zealand Law Society becomes the representative body, the New Zealand Law Society will be able to continue to speak freely and strongly on the rule of law without being hindered, I suppose, by that regulator role. “We can see some real benefits there.” Paterson added that representative bodies in jurisdictions that have established separate, independent watchdogs have been able to demonstrate they offer additional value to their professions.

“It is certainly the case that lawyers, when it’s voluntary, will look and say ‘who’s going to best serve our interests?’ There will be a challenge for the New Zealand Law Society to say ‘we’re the national body. And yes, [you] can belong to Te Hunga Rōia…but we can bring something special and distinct’.”

Barton said safeguarding the rule of law will continue to be important to the Law Society if it becomes solely a representative organisation. “Yes, with less funding, that is going to be a major challenge. That’s something we’ve got to come to grips with. But at the moment, the Law Society has to ask the minister for sign-off on a number of things.

“I do see an attraction in having a Law Society that doesn’t have to bow, scrape and beg and we can speak up really strongly, independently. But to be able to do that, we’re going to have to have a high level of membership and resolve funding issues.”

Barton said, with the election looming, work has already been started to ensure the Law Society’s representative function was “sustainable and strong going forward”. ■

Additional reporting by Jenni McManus ■

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