In its response to the Independent Review, the Law Society has accepted in principle most of the recommendations, including recommendations to establish a new independent regulator and an overhaul of the system for handling complaints about lawyers. The Law Society’s response was developed after consultation with its Council members and the profession. Some recommendations – for example developing a new freelance practising model or permitting new business structures – were earmarked for further consideration. No recommendations were rejected.

The response has been provided to the Minister of Justice, so that it can be considered for the Government’s legislative agenda.

Dual role an international outlier

Published in March 2023, the Review said that the Law Society’s current structure encompassing both regulator and membership body was an outlier in comparison with other legal regulatory systems internationally. “Many believe this current dual role doesn’t serve the interests of the public or the profession well”, Law Society President Frazer Barton said.

Some lawyers hesitant to access health and wellbeing services

The Review acknowledged that having the representative body and the regulator in one organisation could potentially deter lawyers from discussing concerns or seeking assistance from the Law Society. The Law Society is aware that its regulatory functions can act as a deterrent to lawyers accessing its representative services.

“There can be particular difficulties in responding to health and wellbeing concerns raised by practitioners”, Chief Executive Katie Rusbatch said. “As New Zealand’s population ages, an increasing cohort of lawyers are facing health issues which have varying degrees of impact on their law practices. Many of these practitioners require support.”

Independence from government

Mr Barton said that if a regulator is established, it should not be a Crown entity. “The new regulator would be established as an independent statutory body. It would not be subject to directive powers or statements of policy from government.”

Te Tiriti o Waitangi

Other recommendations accepted in principle include that a Te Tiriti clause should apply to those exercising regulatory functions under that legislation. Further work is required to determine the appropriate language for that clause and how it would operate in practice.

This particular recommendation from the Independent Review Panel generated some commentary earlier in the year. It’s important to note that the proposed recommendation applies to a new regulator, and not to lawyers or the duties they have.

Freelancing proposal requires further consideration

A recommendation to introduce a new ‘freelance’ practising model needed further consideration, the Law Society noted in its response. The freelance model would allow lawyers to provide services to the public in non-reserved areas without requiring prior regulatory approval.

Currently lawyers who wish to practise on own account need at least three years of legal experience, and to satisfy the Law Society of their suitability. These requirements provide an important quality assurance safeguard for lawyers who are offering unsupervised services to consumers.

“Practitioners who are approved to practise on own account are overrepresented in complaints statistics compared with their proportion of the practising population”, Ms Rusbatch said. In the year to 30 June 2022, 72% of closed complaints handled by the Law Society were about directors, partners, sole practitioners, or barristers, but those individuals make up approximately 35% of the population of the legal profession.

The Review recommendation was based on the model adopted in England and Wales. The Law Society advised that care should be taken before relying on this experience, as the reserved areas in England and Wales are broader than in New Zealand.

“If the freelance model were adopted here, it would be available to a wider range of practitioners than in England and Wales”, Ms Rusbatch said.

The impact of a split

If the Law Society was effectively split into two, Mr Barton noted that the representative arm remains best placed to act as the national body representing lawyers. “We have established systems and services that support the profession by way of regular bulletins, regular engagement, mentoring and counselling services, to name just a few.”

The Law Society is also the only representative body providing extensive geographical support through 13 branches across the motu, from Tāmaki Makaurau right down to Southland.

“As our recent advocacy supporting lawyer wellbeing and duty lawyer remuneration shows, the Law Society is a strong voice that other organisations reach out to, listen to, and collaborate with.

“It’s important for the Law Society to retain a strong representative function and act as an advocate for principles such as access to justice”, he said. Separation of the representative function from the regulatory function will likely enable the representative body to have a stronger voice in support of lawyers.

Currently, there is no timeframe for any proposed split, as legislative change is required. The Law Society is looking to government to indicate whether reform will be a legislative priority, so that further work can be undertaken to progress the required changes.

Taking account of a range of views

During all stages of the Independent Review there was considerable opportunity for the profession to engage, and a range of views expressed. To ensure the response was transparent, the Law Society published the Council responses for each recommendation, and also the indicative support from the profession.

However, if new draft legislation eventuates, there will be further opportunities for the Law Society and individual lawyers to comment on the Bill through standard policy and legislative development processes.

“Whether you agree or not with the Independent Review recommendations, it has started the conversation on the long-term future of the Law Society, how the profession is regulated, and what it means to be practising lawyer today”, Mr Barton said.

“We’ve invested a lot of time and resources into consultation on both the Review and the Law Society’s response – and at this point we have to come to a decision and make recommendations to government to allow us to move forward.”

Read the Table of Recommendations

More information on the Independent Review response