Following on from a series of insider views of the committees of the Law Society, this issue takes LawTalk readers behind the scenes of the Practice Approval Committees’. Volunteers on the front line share the forward-looking mission of the Practice Approval Committees’ and the application of a non-punitive approach to their work.
Consisting of senior and experienced lawyer volunteers and lay members, the Law Society’s two Practice Approval Committees consider ‘non-standard’ regulatory applications which can’t be approved administratively. These applications can include practising certificate and renewal applications from lawyers who have declared a serious issue such as a criminal conviction, insolvency, or disciplinary issues; certificate of character applicants who may have a criminal conviction or have committed academic misconduct; or lawyers who want to practise on their own account but may not yet have the experience required or meet the suitability requirement.
In the 2022/23 year, the Committees considered 39 applications. To find out more about the process behind those critical decisions, LawTalk speaks to the Committees convenors, Anne Stevens KC and Truman Wee, and lay member Steve Osborne.
The Practice Approval Committees’ process involves reviewing information provided by the applicant, any objections received to an application, and any additional information requested by the Practice Approval Committee which may include a request to interview the applicant.
“Suitability to practise is only a question when concerns have surfaced in an application,” says Dunedin criminal lawyer Anne Stevens.
“The Practice Approval Committees take these applications very seriously as the applicants’ livelihood and mental wellbeing are often at stake. We are looking for information in an application that helps us determine whether it’s safe for the individual to practise in the public arena without bringing disrepute to the profession’s reputation.”
Anne emphasises the importance of understanding that the assessment is future-focussed. “The committees are forward-looking in their approach. Our focus is whether the person is safe to practise in the future beginning from the day the decision is made.”
“Each case is looked at on a case-by-case basis applying the established tests as to whether an individual is a fit and proper person to practise if that is the issue.
“We regularly seek further information before reaching a decision, such as an up-to-date psychologist’s report or a report from the Official Assignee. Ultimately, the question of whether the applicant can uphold the standards of the profession, and its fundamental obligations can only be answered by the material in front of us.”
Hamilton commercial lawyer Truman Wee couldn’t agree more. “It’s a judgement that we can only make based on the information presented.”
“The evaluation is a protective exercise to fulfil the need for public protection and maintain the public confidence in the profession. The committees must make a predictive evaluation from the information before them of whether the applicant is a fit and proper person and can be safely accredited to the public.
“We expect honesty and full disclosure from the applicants as we examine each case carefully. A quick once-over is never how the committees operate as we understand the weight of our decisions.
“Therefore, we may also interview the applicant to get to the bottom of the issue when the paper application doesn’t tell us enough about it. Interviews can be quite revealing, giving us a better picture before we make the decision.”
The Courts in New Zealand have set out the approach to the test for ‘fit and proper’ in New Zealand Law Society v Stanley [2020] NZSC 83 that states the fit and proper person test is a forward-looking exercise and requires an evaluation of the individual at the time they apply, and this approach must be applied to the individual circumstances of each case.
Another crucial aspect of the Practice Approval Committees’ assessment is its non-punitive approach and the factors they look at in response to the issues presented in an application.
Anne stresses that punishment for previous wrongdoing or professional misconduct is not within the committees’ remit. “Punishment is a function of disciplinary bodies, and we are not a disciplinary body.”
“If the issue is whether an applicant has sufficient experience to practise on their own account, we look at the quality and quantity of their experience, their competence and their disciplinary history if there is one. If the issue relates to a period of difficulty arising from any number of issues, such as alcoholism or mental health problems, then we usually seek professional opinions as to the practitioner’s current state, safety mechanisms in place and commitment to treatment or rehabilitation. Mentoring is a protection that arises frequently as do undertakings to practise in a particular way. These protections can only be by voluntary agreement.”
Truman also recognises the non-punitive facet of the approach. “Our approach is not punitive. The direction of our examination will be guided by the issues presented in an application.”
“Depending on the circumstances, a Practice Approval Committee’s approval may be conditional upon the applicant agreeing to provide a voluntary undertaking to the Law Society in respect of the nature of the applicant’s suitability or areas of practice.
“It can include an applicant agreeing to restrict their areas of practice or entering into a supervision and mentoring arrangement with an approved senior practitioner. Applicants are reminded of the importance the legal profession places on a lawyer’s undertaking and that non-compliance may result in the matter being referred to the Lawyers Complaints Service.”
One of the first considerations of the Practice Approval Committees’ assessment is an applicant’s ability to recognise the extent of their past conduct and whether they’ve taken responsibility for this.
On a few occasions, Truman has come across applicants who decided to take a defensive position. “Acting defensively does not help the situation. We won’t judge them for that, but they’ll be judged by the information they provide. Examples include whether they’ve developed insights into their conduct and are able to identify the triggers for their behaviour.”
When assessing the effect of prior convictions in relation to a regulatory application, the committees will consider three relevant aspects – nature of the offence, the time that has elapsed since the offending, and the applicant’s age when the offence was committed.
In some cases, failing to take ownership of your conduct alone can lead to unfavourable outcomes regardless of the scale of the offence. Anne explains, “if a person can’t accept the full onus is on them to reform and regain trust, you’ll often see a repetitive pattern of the same behaviour. An example of this problem is where there are multiple drink driving convictions or instances of plagiarism at university.”
Anne continues, “a strong rehabilitative effort is essential in determining the applicant’s potential to practise safely. This can be active participation in counselling or relevant programmes to manage violence or addiction, or other restorative actions for the harm they did in the past.”
In 2019, lay members were introduced to the Practice Approval Committees to ensure there was a public perspective to their considerations. A former clinical psychologist for over two decades, Steve Osborne was one of the first lay members on the committees. Currently working in the Ministry of Health and the Ministry of Social Development, Steve was the Chief Executive and Registrar of the New Zealand Psychologists Board for almost thirteen years. Thanks to his career trajectory, Steve is no stranger to the regulatory function.
“The work of the Practice Approval Committees is not just about training and qualifications. Don’t forget that this is a human being who also has a family. It’s about the person behind the application and what it means to them. You can’t divorce yourself from that reality.
“However, we can’t let that overwhelm the requirements of the process. Our discussions are robust as we are conscious of the impact that our decisions can have on the applicant and the public.
“For instance, consider a lawyer who works almost exclusively with vulnerable populations, such as the elderly or disabled. The risk in such a case is increased as a vulnerable person may not have the same capacity to take action to protect themselves, or even realise that they are being harmed. We have to be extra cautious,” Steve underlines the consumer protection driver behind decision-making.
Although Steve is no longer a practising psychologist, his experience has enabled him to weigh in from a different perspective.
“Non-standard applications are often accompanied by various mental health aspects. Sometimes there can be a pattern of behaviour that may require further mental health assessment. There can also be some indications of characterological issues that cannot be resolved by simply attending anger management sessions, for example.
“It’s imperative to engage in meaningful rehabilitation. Simply taking time off and getting antidepressants from a GP doesn’t give us evidence that you have fully recovered and have developed the resilience required to make sure you’re better equipped to handle the stressors that can accompany practice.
“The entire purpose of regulation is the safety of the public. It’s always in the forefront of everybody’s mind on the committees,” Steve affirms.
The Practice Approval Committees’ decision-making process is run on a consensus basis. There has never been a decision that had to be concluded by vote.
As convenors of the two committees, both Anne and Truman are responsible for leading the discussions and ensuring ‘all voices are heard’.
“The discussion isn’t over until everybody has spoken and given their viewpoint,” Anne says.
“There can be different positions at the beginning of a discussion, but no one comes with a ‘fixed’ position. Everyone is open-minded and tends to reach the same conclusion eventually. This is probably not surprising given our common driver is to do the best for the profession and the public.”
Truman also shares the same observation. “We are persuaded by logic and argument. Our collaboration involves discussions and a quality check afterwards to ensure the correspondence is consistent with our discussions and reflects the decisions accurately.”
Steve attributes the consensus approach to the calibre and commitment of his fellow committee members.
“If you’ve got good people with good heads and good motivations, it’s not hard to collaborate and come to shared decisions. We discuss a matter for as long as it takes.”
“It really shows how much people care about it though. We all genuinely want the most reasonable and fair result, especially when they are not going to be in favour of the applicant. We also consider avenues that can give them a pathway back to practice where possible, even if we can’t approve the application at the time.”
When asked what makes a good lawyer, Anne, Truman and Steve share their personal views.
Anne says that a good lawyer is someone who absolutely treasures the rule of law. “That’s my daily nourishment. The rule of law makes for a harmonious and ultimately safer society, one that people can have confidence in.”
“Lawyers can be the butt of jokes, but they are there when someone is in trouble. For example, we are needed to ensure the house you bought is your house, your contract is sound, and you get a fair trial. What a wonderful job!”
Truman highlights the role of values. “We all need a value system to help build our character and guide us, especially when making difficult decisions. If you have your compass pointing at the right direction in the way you conduct yourself, you will not go astray no matter how far you travel.”
Steve acknowledges the excellent legal help he has received over the years, particularly during his tenure on the New Zealand Psychologists Board. He also encourages lawyers to find your niche that brings out the best in you as a practitioner. “It’s hard to be good at what you do unless you’ve got a passion for it. Finding the area of law that brings out the best in you can help shift you from the mechanical act of being a lawyer into a passion that will sustain you.”
Looking at how others got to where they are now can help connect you with the people and communities you serve. Anne, Truman and Steve give insights into the dos and don’ts in developing a long-lasting legal career.
Anne’s top tip is keeping a habit of exercise. “Being fit helps me withstand the onslaught of other people’s misery, particularly as a criminal lawyer.”
Truman draws attention to the importance of being mindful of your limit. “Be aware at all times that you don’t overly push the boundaries beyond what your ability, experience and knowledge can take.”
“Don’t get all consumed by work either and learn to find balance in your life. If you go too deep in your work, you might lose focus on things that really matter. It’s hard but it can be solved by knowing when to say no.
“If you do find yourself getting too close to the edge, ask for help. The Law Society’s National Friends Panel is made up of lawyers who can be contacted on a confidential basis with questions or concerns about practice issues,” Truman adds.
“We take a lot of care, responsibility and pride in what we achieve together as a committee. We are here because we want to be here. We know our decisions have an impact on a person’s livelihood, our colleagues in the wider profession and the public”
Echoing Truman’s message, Steve underscores the danger of isolation and how we can sink without noticing it.
“Through research, we know that the most frequent flyers in complaints against professionals are those who are later in their career and have become isolated from the profession. This is a common observation amongst different professions.
“The earlier you can identify any indications that you’re starting to slip, the quicker and easier it is to fix it and make sure it doesn’t become a big problem that blows up. Isolation can be a hinderance when you don’t have an external lens to feed back to you.
“Too many people self-sacrifice and forget about themselves to look after somebody else, and they just go down that path. It’s a gradual process that you may not notice but people around you do.
“Have a support network who can honestly tell you when you’re stressing out and be part of that network for other colleagues.”
The Law Society’s Practising Well initiatives offer resources through counselling, mentoring and other support networks to help lawyers to take positive steps to actively care for their mental health and wellbeing.
The lawyer members of the Practice Approval Committees are volunteers with a wide and diverse range of legal experience. “Before each monthly meeting, we need to digest hundreds of pages of material to see the wood from the trees to form our viewpoints. Despite the workload, we take a lot of care, responsibility and pride in what we achieve together as a committee. We are here because we want to be here,” says Truman.
Anne also expresses a mutual sense of purpose. “We know our decisions have an impact on a person’s livelihood, our colleagues in the wider profession and the public. We enjoy the work and want to do it well.”
Representing the voice of the public on the committee, Steve has great respect for his fellow lawyer members. “I have a lot of respect for the work of the committees. The information disclosed publicly is often a fraction of the actual material reviewed by the committees. I hope lawyers and the public can have faith that they’re being well served by these people.”
Outside of their regular meetings, the Practice Approval Committees meet annually to share their observations and hear from experts, such as drug and alcohol counsellors or an insolvency expert, on topics that can present as problems for practitioners, or counsel, in relation to case law developments.
Along with over 340 regulatory volunteers at the Law Society, the Practice Approval Committees are instrumental in maintaining a strong and trusted legal profession that the public can benefit from.
In the next edition of LawTalk, we will analyse the Supreme Court case New Zealand Law Society v John Llewellyn Stanley [2020] NZSC 83 and how the Courts in New Zealand have set out the approach to the test for ‘fit and proper’. A media release of the decision is available on the Courts of New Zealand’s website.