In 2018 the Law Society working group chaired by Dame Silvia Cartwright looked into harassment and unacceptable conduct in legal workplaces. Six years on, LawTalk looks at where we are now, and the impact of the most substantial regulatory changes targeted at the profession ever undertaken by the Law Society.
The report of the Law Society working group chaired by Dame Silvia Cartwright in 2018 (Cartwright Report) was the result of a critical examination of the processes for reporting and taking action on harassment and other unacceptable conduct in legal workplaces. Since then, the Law Society has embarked on a transformation journey. LawTalk looks at the regulatory changes the Law Society has implemented in recent years and how it’s preparing for the road ahead following the 2022 Independent Review Report into the regulation of lawyers.
The 2018 Cartwright Report painted a stark reality of how the legislation, as well as the systems and processes that were in place at the time, was inadequate in dealing with issues around harassment and other unacceptable conduct in legal workplaces. The Cartwright Report recommendations drew attention to the need for systemic change. Law Society Chief Executive Katie Rusbatch highlights the recommendation in the Cartwright Report discussing the need for clearer conduct standards.
“It was apparent that changes needed to be made to the Conduct and Client Care Rules to address reporting issues around bullying, discrimination, harassment, and other unacceptable conduct. The result was the most substantial regulatory changes targeted at behaviour in the profession ever undertaken by the Law Society. Without amending primary legislation, it was also the most significant regulatory step available to the Law Society to tackle these issues.”
The amended rules include clearer definitions of different types of unacceptable conduct and implement new designated lawyer obligations that require mandatory reporting to the Law Society. Each law practice also needs to have a bullying and harassment policy and a process for investigating allegations of unacceptable conduct. Designated lawyers are required to certify annually to the Law Society that their law practice has complied with the relevant obligations under the Conduct and Client Care Rules. Guidance was released to help lawyers understand their obligations, and to support and empower people who are affected by unacceptable conduct.
“Although undoubtedly there is still work to do, it is reassuring to see improvement in the workplace experiences of lawyers (in terms of sexual harassment and bullying) in last year’s Workplace Environment Survey following these changes.”
“The result was the most substantial regulatory changes targeted at behaviour in the profession ever undertaken by the Law Society. Without amending primary legislation, it was also the most significant regulatory step available to the Law Society to tackle these issues”
As the data in our Annual Reports demonstrates, since 2020, 453 complaints have been made about sexual harassment, harassment, discrimination and bullying. The Law Society has also seen an increase in reports being made to it. The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has issued decisions clearly articulating that unacceptable conduct which broadly falls under the umbrella of sexual harassment can amount to misconduct. The Tribunal has made findings of misconduct in relation to non-consensual intimate touching in National Standards Committee 1 v Gardner-Hopkins [2021] NZLCDT 21 but has also made findings of misconduct for conduct which does not involve physical contact (such as taking junior staff to a sex shop National Standards Committee 1 v Palmer [2023] NZLCDT 13). In doing so, the Tribunal confirmed that conduct at work social functions is caught by the concept of regulated services for the purpose of the definition of misconduct under the Lawyers and Conveyancers Act 2006 (the Act).
Further specific changes have also been made to respond to the Cartwright Report recommendations. The Law Society established a specialist team and Standards Committee in the Lawyers Complaints Service that handles sensitive complaints matters. Lawyers can contact the Law Society using a dedicated phone number to confidentially discuss their matters with a specialist advisor. An in-house investigation unit has also been set up to improve timeliness and consistency of the investigation process.
“The Cartwright Report outlined some clear shortcomings with the regulatory framework and supported the Law Society to invest in making changes to the way that we did things,” Katie adds.
As well as the Cartwright Report, other programmes of work, including the 2019 Cultural Change Taskforce, were initiated by the Law Society or the profession. It became clear that a comprehensive review of the regulatory system needed to be undertaken to consider whether more fundamental changes needed to be made to the legislative framework. As a result, the Law Society decided in 2019 to commission a wide-ranging independent review of the entire regulatory system for lawyers.
As the Law Society looked more closely at the findings in the Cartwright Report, it was apparent that a review was required of the entire approach to the regulation of lawyers under the Act.
The Independent Review, released in March 2023, ultimately recommended the establishment of a new independent regulator, which the Law Society has accepted in principle. It suggested that the objectives of the new regulator include promoting ethical conduct which, as the Independent Review Panel indicated, is directed at the prevention of harassment, bullying and sexual harassment in legal workplaces.
To fully implement many of the Independent Review’s recommendations, wholesale reform of the Act is required. The Minister of Justice has signalled that this is unlikely to be a priority in the first term of the current Government so the Law Society has commenced work to identify what could be achieved within the current prescriptive regulatory environment.
Katie stresses the importance of looking for opportunities. “While substantive legislative reform would need to be initiated by the Government, we are pleased the Government is progressing amendments to allow administrative triaging in the lawyers’ complaints process. The proposed amendment will allow the Lawyers Complaints Service to assess and decide whether in certain cases complaints should not be referred to a standards committee.”
The change would bring the legal profession in line with the way other regulatory and disciplinary bodies already operate, and is an important step for modernisation and timely complaints handling.
“We are also looking to identify changes that can be made to the rules and regulations we operate under or to our systems and processes that could positively enhance our regulatory environment.”
The Law Society is exploring aspects of its current regulatory parameters and processes. The focus of this work is to consider potential changes that can be made within the parameters of the current statutory position.
Katie acknowledges that the Law Society is also faced with resource constraints. “As expected, any changes we make to our processes may require additional investment and resources. The Law Society’s primary source of regulatory funding is the annual practising certificate fee. While we need to prioritise the work that we are undertaking, we are focused on taking us closer to our vision of all people in Aotearoa New Zealand benefiting from a strong, progressive and trusted legal profession.”
The Law Society recognises feedback specifically received by the Independent Review Panel on the practice on own account process and acknowledges that some barriers can disproportionately affect certain groups more than others. While the objectives and powers of the regulator cannot be amended without legislative reform, the Law Society has established a dedicated programme of work to focus on identifying and addressing discriminatory barriers that may exist in regulatory processes.
“Obviously, the very nature of regulation involves the imposition of barriers to entry. Nevertheless, we are aware that the minimum hours’ requirement for applicants to practise on own account does tend to affect lawyers returning from parental leave and can disproportionately affect women who are more likely to be the primary caregiver for young children,” Katie explains.
The Law Society’s regulatory work programme will look at regulatory barriers that may have a discriminatory effect with a view to identifying whether changes to the Practice Rules should be proposed.
Making changes to the regulations can be a lengthy process which involves multiple steps. These steps include policy development and consultation, the development of a policy paper and regulatory impact statement for consideration by Cabinet, drafting of the regulations by the Parliamentary Counsel Office in conjunction with relevant agencies, approval by the Law Society Council, and then authorisation by the Cabinet Legislation Committee and Cabinet itself.
“In the interim, we will evaluate whether the processes we currently use to assess practice on own account applications (including the section 30 interview process) can be adjusted or updated.
“We have also looked more broadly into the certificate of character and practising certificate application process and made changes to clarify that character references can come from a person who knows the applicant well and can speak to the applicant’s character, rather than necessarily from someone who is in a ‘preferred’ profession. If an applicant is not able to obtain a reference from one of the suggested categories, this will not adversely affect the application.”
Katie underlines the consumer protection focus in the work programme as well. “We are careful in assessing our processes to ensure the proposed changes do not remove or undermine regulatory barriers that are there to protect consumers. It’s a balance that we must maintain with caution.”
Part of the Law Society’s work programme includes considering and progressing the Independent Review panel’s recommendations on the CPD regime. This includes looking at the recommendation that the Law Society exercise its existing powers to make aspects of CPD mandatory and the broader recommendation that the regulator conduct a wholesale review of the CPD regime to determine whether a different model (such as a competency framework) would be more effective. These recommendations were accepted in principle.
“A meaningful and long-lasting systemic change does not happen overnight so it’s important that we do not lose sight of how each step is taking us further in the journey”
“If the Law Society were to consider making aspects of CPD mandatory, some of the issues we would need to consider include what the mandatory requirement would be, how it would be imposed, monitored and enforced, as well as how and whether sufficient capacity exists in the legal education sector to meet the demand.
“Any consideration to making changes to CPD components should look to future-proof the process by considering how the legal profession is changing and what is on the horizon for practitioners,” Katie says.
It is widely known that the Law Society is prohibited by the Act from commenting on whether we have received a complaint, or any details of concerns or complaints raised with the Lawyers Complaints Service. As indicated in the Cartwright Report, the constraints of our legislation contributed to ‘concerns about a lack of transparency and accountability’. A similar observation was made in the Independent Review Report, which called the complaints system “opaque” and said that it was “perceived as unfair”.
In 2022, the Law Society consulted with the profession on changes to the Act to allow for more transparency and disclosure about the status of a complaint or investigation. These proposed changes received considerable support. The Law Society has requested reform in this area from the Ministry of Justice. Pending any legislative reform in this area, work has proceeded to improve the responsiveness and effectiveness of the complaints process.
Katie outlines the progress, “to enhance accountability and confidence in both our processes and the legal profession, we have a regulatory strategy in place that sets out how we will strengthen our ability to be a modern and effective regulator for the benefit of both the profession and consumers of legal services. We have also restructured our Early Resolution Service and added resources to our frontline complaints handling services.
“The majority of the complaints we receive currently go through the Early Resolution Service. It will take time to see the results of this work and get our average processing time down, but we are moving forward to make sure our services are responsive.”
Katie reiterates the Law Society’s ongoing commitment to make sure the legal profession is safe, effective and well-functioning. “While we continue to strive to reach this goal, we need to remind ourselves not to overlook the significance of any progress or changes that may seem small in comparison. A meaningful and long-lasting systemic change does not happen overnight so it’s important that we do not lose sight of how each step is taking us further in the journey. The legal profession and the communities that it serves are the focus of everything we do.”
The Board’s support has also been instrumental. Law Society Board Member David Campbell says, “the legal profession and the wider environment are constantly evolving but our focus and commitment to build a better and safer legal profession will not change.
“The legislative and financial constraints mean that we’ll have to be tactical in our approach to maximise the impact of our work. However, we are proactively seeking and embracing the opportunities ahead of us.
“Together, every lawyer can do their part to help shape the culture of the profession. I’m both hopeful and confident about the progress we have collectively achieved so far and how the Law Society’s current regulatory work programme will continue that momentum.”