For context - following the panel’s review, consultation kicked off, which garnered 64 written submissions. A survey was also distributed to the profession. Of the 15,000-odd practising lawyers, 965 opened the survey, with an average number of 712 responses for each question.
The Law Society’s stance, in a nutshell
On behalf of the membership, the Society accepted most of the recommendations, including establishing a new independent regulator and overhauling the complaints system.
The support was conditional in that it asked for more clarification around the structure and governance of the new regulator, how it might relate the Law Society, the functions each would carry out, and how the society as a refurbished representative body might be funded.
The only hard “yes” was the panel’s recommendation to maintain the current focus of regulation of on conveyancers, rather than to include unregulated service providers such as advocates.
Members of public on board
In its report, the Law Society was aware that its regulatory functions could deter lawyers from accessing its representative services. Its representative functions could also restrict its provision of regulatory services aimed at consumers.
As the issue of conflicts of interest becomes more high-profile with certain politicians failing to declare certain connections , it’s great to see the Law Society is catching up to address its optics issue. It’s always struck me as strange that few people have questioned the dual regulatory/representative function from a publicity perspective. But I digress.
In the report, the Law Society was keen on ensuring the independence of a new regulator and one that wasn’t a Crown Entity or subject to direction from ministers. It did, however, have qualms about establishing a board of eight members with an equal split of lawyer and public members, with a public member as its head.
Reservations included fears that the 10-year tenure was too long - what a great gig that would be - and concerns about the skill and experience that public members would require.
Similar reservations were made for having the Ministry of Justice appoint those members. The Law Society highlighted the risk - actual or perceived - of political bias.
There was a risk of limiting appointments to popular individuals and having the same pool of people considered for the nominations and the board, the report read.
The scope of regulation
In principle, the Law Society accepted allowing employed lawyers to provide pro bono services to the public more generally, and to properly regulate law firms, which would include new firm-level obligations.
Freelancing or having legal side hustles was a maybe.
So, too, was allowing non-lawyers to have ownership interests in law firms, and vice versa. You’ve got to protect your patch, right?
Amazingly, the Law Society was keen on the new regulator having more powers around quality assurance and care.
These would include powers to suspend practising certificates, requiring practitioners to undergo health and competence and practice reviews, and the ability to impose bespoke conditions on practising certificates.
In the context of health conditions, for example, the onus is currently on lawyers to declare said conditions when applying to renew their practising certificates. It’s problematic because it relies on the lawyer’s recognition of said condition impacting their practice and their willingness to declare it. There’s also the issue of each declaration being 365 days apart.
In all of the above situations a standards committee can intervene in theory, but as we saw in the million-year Russell McVeagh case, said standards committees have had their own challenges around efficiency, timing and lack of financial incentives - namely the volunteer model of meeting once a month.
Suppose the Law Society were to be stripped of its regulatory function. It’s unsurprising it wasn’t the greatest fan of changing its structure to include a single governance layer, with a board comprising eight to 10, including public, members.
It makes sense given its reduced scope and reflecting the members it would represent. And with the future of practising fees and paying for the regulatory body now hanging in the balance, it would only be fair for the new membership body to organise itself.
In short, the Law Society is all for having an independent regulator, provided the Law Society is funded and that said regulatory body is not so independent that public riff-raff have too much of a say or politicians can dig their talons in.
Wellington-based freelancer Sasha Borissenko did a law degree at Otago University followed by a Masters (Hons) in Journalism at Massey.
