New Zealand Law Society - Consultation feedback

Consultation feedback

The New Zealand Law Society | Te Kāhui Ture o Aotearoa sought feedback on potential changes to the Lawyers and Conveyancers Act 2006 (the Act), designed to improve the transparency and efficiency of the lawyers complaint process, and to resolve the long-standing issue of undertakings by a conveyancing practitioner.  

The potential changes relate to four key amendments to the Act, which would:  

  1. Maintain public confidence in the complaints process – Allow for some flexibility to the disclosure of information about our complaints process, particularly in relation to parties who are personally affected, and in cases of high public interest, where we need to provide assurances that complaints have been received and are being dealt with appropriately.   
  2. Free up resources to focus on the right complaints – Enable the Law Society to administratively triage certain types of complaints where no further action is required.   
  3. Ensure that technical complaints with no merit do not impact resources – Remove the ability to lodge frivolous technical complaints about the employees and officers of the Lawyers Complaints Service, and Standards Committee members, when they are carrying out duties relating to the Lawyers Complaints Service.   
  4. Ensure that conveyancer undertakings are enforceable – Provide that an undertaking given by a conveyancing practitioner (or incorporated conveyancing firm) can be enforced summarily by a Court in the same manner as an undertaking given by a lawyer. 

Overview 

The Council of the Law Society were consulted on the amendments prior to the consultation with the profession and fed into the development of the consultation paper.  The Council includes representatives of the NZ Bar Association, Large Firm Corporation, Pacific Lawyers Association, and Te Hunga Rōia Māori o Aotearoa.    

Public consultation on the proposed changes then ran from 28 January 2022 to 13 February 2022. A consultation document was published, and feedback was sought via anonymous completion of an online survey. The survey included a ‘free text’ field for each potential change, to enable to the gathering of qualitative feedback. Participants were able to ‘skip’ questions they did not wish to answer. The survey concluded with a further ‘free text’ field, to enable submitters to provide any additional feedback not otherwise covered by the survey questions.  

The Law Society received 740 survey responses, and a further 9 written submissions. While the survey was open to the general public, all but 10 respondents were members of the legal community.  

Overall, there was majority support for each of the potential changes. The results, including a summary of qualitative feedback, are outlined below. 

Results of the consultation 

Proposed changes to section 188 

New subsection confirming that complaints and own motion investigations are confidential, subject to the exceptions set out in section 188 and the remainder of the Act

Seventy percent of submitters agreed or strongly agreed with this proposed change.   

Nine percent neither agreed nor disagreed with the proposed change, while 22 percent disagreed or strongly disagreed.   

Submitters who disagreed with the proposed change largely comprised three groups:  

  • Those who do not agree with the proposed change, as they favour more transparency of the complaints process. That is, they consider there should not be a presumption of confidentiality.  
  • Those who believe that change to the existing wording of section 188 is unnecessary.  
  • Those who disagree with the proposed change, as they are concerned about the extent of any exceptions to confidentiality, and the impact on the natural justice rights, privacy, and reputation of the lawyer, particularly in circumstances where the complaint has not yet been substantiated.  

A new exemption to section 188, allowing the Lawyers Complaints Service, in its discretion and when it is in the public interest to do so, confirm the existence of a complaint or own motion investigation, and disclose procedural information about the stat

Fifty-nine percent of submitters agreed or strongly agreed with this proposed change. Submitters commented that:  

  • Greater transparency will improve trust in the profession and in the complaints process. Some submitters likened this to the justice system, which cannot operate ‘behind closed doors’ and expect to maintain the public’s confidence.  
  • Explaining the complaints process and confirming that the process is underway in respect of a specific complaint will help to minimise public speculation, especially where the complainant has publicised a complaint or it has otherwise become public knowledge.  
  • The ‘public interest’ test sits comfortably with the existing provisions for publication in section 142(2) of the Act, which allows the Standards Committee to direct publication of its decisions.  
  • With appropriate detail, guidance and oversight, the proposed change will be sensible and pragmatic.   

Twelve percent neither agreed nor disagreed with the proposed change, while 29 percent disagreed or strongly disagreed.  

Of the submitters who selected ‘disagree’ or ‘strongly disagree’ for this question, some appeared to agree with the disclosure of procedural information, but offered additional feedback around:  

  • Wanting to be sure that natural justice would not be compromised, and that the privacy of parties would be protected.  
  • Suggesting disclosure only where allegations related to serious misconduct.  
  • Suggesting that a Standards Committee could make the decision around whether to disclose information.

In addition, some submitters who disagreed with this proposal appeared to be mistaken around the extent of information that would be permitted to be disclosed and thought this to be more than merely confirming the existence of the complaint. Some also appeared to believe that disclosure would occur in all cases, rather than on the discretionary, ‘public interest’ basis that is proposed.  

Of those submitters who appeared to disagree with this proposal as a whole, the additional feedback indicates that this is based on:  

  • Concern for the impact on natural justice, and the right of the lawyer to be presumed innocent.  
  • Concern that the proposed change would result in confirmation of even vexatious complaints against a lawyer which, even if not ultimately substantiated, could impact their reputation. This risk is increased by the length of time that it can take for complaints or own motion investigations to be completed.  

A new subsection confirming that a Standards Committee may disclose, or may direct or delegate the disclosure of, procedural information about the status of a complaint

Fifty-three percent of submitters agreed or strongly agreed with this proposed change, while 15 percent neither agreed nor disagreed. Thirty-two percent disagreed or strongly disagreed.  

Feedback from submitters was consistent with the feedback provided on the previous question (allowing the LCS to disclose the existence of a complaint). Submitters who disagreed with the proposed change largely focused on natural justice and reputational issues, however some submitters who selected ‘disagree’ agreed with the proposal to allow disclosure of information, so long as the situations in which disclosure could occur were limited and well defined.   

Submitters who agreed with this proposed change emphasised the need to ensure that interested parties could receive information about a complaint, as well as the broader public interest in transparency. Some submitters were of the view that the public interest in transparency increases at the point at which a complaint is referred to a Standards Committee.   

Confirmation that section 188 applies to all officers and employees of the Law Society, and that those subject to it may disclose information for the purpose of carrying out other regulatory functions of the Law Society.

Seventy percent of submitters agreed or strongly agreed with this proposed change. It was described as ‘sensible’ and ‘reasonable.’  

Twenty-one percent neither agreed nor disagreed with the proposed change, while 17 percent disagreed or strongly disagreed. Feedback from some of those who disagreed with the proposal indicated that they interpreted this change as allowing for public disclosure. Otherwise, submitters largely referred to their feedback on previous questions.  

Administrative triage of complaints  

Ninety percent of submitters agreed or strongly agreed with this proposed change.  

Many submitters who provided additional comment described it as ‘practical’ and ‘sensible’ change, necessary to ensure the prioritisation of resources and timely complaints handling. It was also noted that the proposed change is consistent with the processes for many other professions, such as the Medical Council, the Social Workers Registration Board, the Teaching Council, and real estate agents.   

Five percent of submitters neither agreed nor disagreed with the proposed change. Five percent disagreed or strongly disagreed.   

Complaints against Professional Standards Officers and Standards Committee members who hold a practising certificate  

Eighty percent of submitters agreed or strongly agreed with this proposed change.  

Limited qualitative feedback was provided, but those who did choose to provide additional comments generally focused on this being a ‘sensible’, somewhat technical amendment.  

Six percent of submitters disagreed or strongly disagreed with this proposed change.   

Enforceability of conveyancers’ undertakings  

Eighty-nine percent of submitters agreed or strongly agreed with this proposal. Support for this proposal focused on:   

  • The need to simplify and secure the process for consumers and practitioners.  
  • Consistency across all individuals undertaking conveyancing services, and the importance of conveyancers sharing the same privileges and responsibilities.  
  • Surprise that this was not already the case, and agreement that the change was long-awaited.  

Around eight percent of submitters neither agreed nor disagreed with this proposed change, 2 percent of submitters disagreed or strongly disagreed.