Since rule amendments came into effect in July 2021, all sole practitioners, barristers, and law firms in New Zealand must have a designated lawyer who reports to the Law Society about certain types of unacceptable conduct by lawyers or employees in a law practice.

The designated lawyer requirements enable the Law Society, in its role as regulator, to better address unacceptable conduct including bullying, harassment, sexual harassment, racism, violence and theft, in New Zealand law practices (“Unacceptable Conduct”).

Their introduction followed the Law Society’s Independent Working Group Report which made recommendations on regulatory reform to address unacceptable workplace behaviour within the legal profession.

The requirements, which are in addition to lawyers’ individual reporting requirements, are just one part of a larger picture focused on improving the wellbeing and culture of the legal profession and making the legal community a safe and healthy place for everyone.

What is a designated lawyer and what do they need to do?

A designated lawyer is the lawyer within a practice responsible for reporting a lawyer or non-lawyer employee’s Unacceptable Conduct to the Law Society. The designated lawyer must fulfil the law practice’s annual reporting obligations by 30 June each year.

A designated lawyer must be approved to practise on their own account and all firms must nominate one to the Law Society. Sole practitioners and barristers sole automatically become the designated lawyer for their law practice.

Under rules 11.4 and 11.4.1 of the Conduct and Client Care Rules (Rules), the designated lawyer must report to the Law Society within 14 days if:

• someone is issued with a written warning or dismissed for any of the listed types of Unacceptable Conduct (bullying, discrimination, racial, sexual, or general harassment, theft or violence)
• a person leaves their practice within 12 months of being advised by the practice that it was “dissatisfied with, or intended to investigate, their [alleged unacceptable] conduct”

The designated lawyer must also annually certify to the Law Society that:

• the law practice has complied with its mandatory reporting obligations under the Lawyers and Conveyancers Act, and
• the law practice has policies and systems in place as required by the Rules and is complying with its obligations under the Health and Safety at Work Act, and
• the designated lawyer has complied with the reporting obligations set out above.

As both lawyers and non-lawyers can be the subject of a designated lawyer report, the Law Society encourages practices to make it clear to all their staff that the Law Society has jurisdiction to consider all employees’ conduct when required.

It is important to note that, while the obligation is on the designated lawyer to certify annually that the law practice has in place policies and systems as required by the Rules, the obligation to have these policies and systems in place falls on all lawyers practising on own account within the law practice (Rule 11.2).

Why have designated lawyers?

Law Society General Manager Professional Standards (Regulatory), Gareth Smith, says the role of designated lawyers was established to ensure that workplace issues like bullying, discrimination and harassment are bought to the Law Society’s attention.

“It gives us a clear picture of the extent and nature of certain types of behaviour in law practices and allows us to take action if required,” he says.

Barrister Michael Hodge, who worked with the Law Society on the amendment of the rules, says they also help to keep track of lawyers who might have had issues raised about their conduct but leave a firm before any action is taken, only to secure a job at another firm.

“Before the role of designated lawyer was introduced, this was a gap as the conduct was often not reported to the Law Society,” he says.

Mr Hodge says the rules now provide absolute clarity about who has the responsibility to report on unacceptable conduct.

“No one should have any doubt about the need to comply with the obligations,” he says.

Mr Hodge says that the rules do not replace the role of the Employment Relations Authority.

“The reporting is concerned with serious and specific conduct and has a very specific scope,” he says.

The reporting is not onerous, he says, but it is important and mandatory.

“The role of designated lawyer means that these issues receive the attention they deserve,” he says.

Annual certification

The annual designated lawyer certification is due by 30 June each year and is made by the designated lawyer through their personal registry portal. Designated lawyers are encouraged to complete their certification at the same time as they complete their fit and proper person declaration when renewing their practising certificates.

If the law practice has appropriate policies and systems in place and the designated lawyer has met any other reporting obligations that arise during the year, completing the annual certification should only take a couple of minutes.

As the certification is linked to the nominated designated lawyer for the law practice, it is important that firms notify the Law Society promptly if their nominated designated lawyer changes, for instance because the designated lawyer leaves the practice or goes on extended leave.

What reports should contain

No two designated reports are the same; however, designated lawyer reports are often made during or after an employment process within a firm. The circumstances that trigger the obligation to report are specifically set out in rules 11.4 and 11.4.1 (written warning or dismissal or a staff departure preceded by an issue being raised as set out in rule 11.4.1)

Over the past year designated lawyer reports have been received on a range of matters including allegations of sexual harassment, racism, and bullying. The Law Society has received reports with varying amounts of information; some reports have occurred after a lawyer has resigned, others have been received following an internal investigation by the firm, or after a full independent investigation by an external party.

The more information the designated lawyer can provide in their reports about any processes that have been undertaken by the firm as well as who has been impacted by the conduct, the better.

Prior to making a report, general guidance can be sought from Stephanie Mann ((03) 659 0854), a Senior Professional Standards Officer in the Lawyers Complaints Service, or from the Lawyers Complaints Service Frontline Team (0800 261 801).

Ms Mann can be contacted initially on an anonymous or named basis and can provide guidance on:

• the process that reports go through
• what information may be required
• practicalities of confidentiality and any requested anonymity, and
• how to manage communications with parties, including any vulnerable individuals or affected parties.

Ms Mann says ideally lawyers wouldn’t have to make a report; however, it’s important that there is a way to do so and that the Law Society has the information they need to consider next steps.

What action is taken on the reports?

A report is not a complaint and, as such, is treated differently by the Law Society. Not all designated lawyer reports will go to a Standards Committee.

With designated lawyer reports it is uncommon for the designated lawyer to also be the person affected by the alleged unacceptable conduct.

Ms Mann says that the Law Society takes the time when the report is first received to establish whether the people who are affected are willing to be involved in a process and to make sure people have the support they need.

“A considered process is especially important when dealing with sensitive issues that can have a huge impact on people’s personal and professional lives, both those impacted by unacceptable conduct and those accused of it.”

When sufficient information has been received, reports go to a Screening Panel which considers the most appropriate way to resolve a matter. This may involve the allocation of a matter to a Standards Committee for consideration of an own motion investigation under s 130(c) of the Lawyers and Conveyancers Act. Where appropriate, the Panel will also consider educative approaches to resolving matters.

Every situation will need to be considered on its individual circumstances, including the nature of the conduct and the evidence available. If a report raises matters that may constitute Unacceptable Conduct, the witnesses are willing to be a part of a Law Society process and there is a reasonable basis for a Standards Committee to open an own motion investigation, then allocation to a Committee is likely.

Whatever the outcome of a report, supporting those affected or who have witnessed alleged unacceptable conduct is a priority and there are resources available to assist practices with this.

Over the first two reporting years a total of 13 designated lawyer reports were received and processed by the Law Society.

What if I don’t report when I should?

All law practices are expected to certify annually that they have met their obligations under the Rules.

Mr Smith says that, to date, the Law Society has taken an educative approach to designated lawyers who do not make this certification. Law practices that have not certified have been reminded to do so.

However, not providing the annual certification (or reporting on matters as they arise) is a breach of the Rules which may itself be considered by a Standards Committee.

Find out more

Visit the Law Society’s website at lawsociety.org.nz/professional-practice/rules-and-maintaining-professional-standards/responsibilities-of-the-designated-lawyer