Under the rules a law practice includes individual lawyers practising on their own account or a law firm operated by a partnership of lawyers or an incorporated law firm or an incorporated barristers practice. Sole practitioners and barristers sole are automatically the designated lawyer for their law practice and will need to make the certification. Those in incorporated law firms and partnerships should have already notified the Law Society’s registry team who their designated lawyer will be.

The steps taken to prepare for certification will vary depending on whether you are a sole practitioner or barrister sole, a partner in a small law firm, or the partner of a large, multiple office location, firm. This article refers to the questions you will be asked for the purposes of the annual certification process. Under rule 2.5 "A lawyer must not certify the truth of any matter to any person unless he or she believes on reasonable grounds that the matter certified is true after having taken appropriate steps to ensure the accuracy of the certification”. This guidance includes some suggested steps you may wish to take as the designated lawyer to ensure reasonable grounds to certify compliance, as required by rule 2.5.

1. My law practice has complied with mandatory reporting obligations imposed under the Lawyers and Conveyancers Act 2006

A law practice’s mandatory reporting obligations concern the designated lawyer reporting obligations under rule 11.4 and 11.4.1. As the designated lawyer, you are certifying on behalf of the law practice, that the required reports have been completed.

Steps:

• Review and investigate the law practices’ human resource and personnel records to identify any and all situations falling within the scope of rules 11.4 and 11.4.1 (noting the exception in 11.4.2). See 3 below for more information about making inquiries;

• Confirm that all situations falling within rules 11.4 and 11.4.1 have been reported on behalf of the practice to the Law Society. If you have taken over the role of Designated Lawyer during the reporting period, you will need satisfy yourself that the previous Designated Lawyer made any required reports.

2. My law practice has policies and systems in place as set out in rule 11.2 and is complying with its obligations under the Health and Safety at Work Act 2015

Rule 11.2 requires a law practice to have effective policies and systems in place to prevent and protect all persons engaged or employed by the law practice from the effects of unacceptable conduct such as bullying, discrimination, harassment and violence. Guidance on how to create a policy is available in this article: Designing anti-bullying and harassment policies for law firms.

Law practices are a PCBU (person conducting a business or undertaking) and have obligations under the Health and Safety at Work Act 2015. Key duties include looking after the health and safety of their workers and notifying WorkSafe of any notifiable events. Consideration should also be given to a law practice’s responsibility regarding the physical workplace if it manages or controls fixtures, fittings or plant in the building it operates out of, and its responsibility to any tenants that share any building the practice may own. If you wish to know more about your law practice’s health and safety obligations, there is a wealth of further guidance on WorkSafe and Employment New Zealand websites.

Steps:

• Locate your law practice’s bullying and harassment prevention and protection policy. You may wish to seek expert input to ensure that the policies and systems are adequate and fit for purpose, for example if the policies have not been reviewed for some time. 
• Review whether you have or need new or additional preventative measures or systems in place to manage the health and safety of the practice’s workers.
• Consider what health and safety issues have arisen over the past year and whether the practice complied with its Health and Safety at Work Act 2015 obligations in respect of them.

3. As the designated lawyer, I have complied with rule 11.4 and made reports to the Law Society, within 14 days of the following occurring:

• A person within the law practice (this could be a lawyer or non-lawyer) being issued with a written warning or dismissal due to conduct that amounts to unacceptable conduct (rule 11.4); and/or
• A person leaving the practice, who was told, within 12 months before they left, that the practice was dissatisfied with, or intended to investigate, any of the types of unacceptable conduct (rule 11.4.1).

Unacceptable conduct includes bullying, discrimination, harassment, racial harassment, sexual harassment, theft and violence (which are further defined in rule 1.2).

Steps:

• Review, or arrange for the review, of any written warnings or letters of dismissal issued by the practice to establish whether anyone in your practice been given a written warning or dismissed for bullying, discrimination, harassment, theft or violence.
• Establish who left the firm within the past year and review whether they had been told, in the 12 months before leaving, that the practice was dissatisfied with or intended to investigate any bullying, discrimination, harassment, theft or violence?

Once you have completed your certification this year, we encourage you to review the systems and procedures you have in place to assess whether you can make the compliance process for annual certification easier next year. 

Frequently Asked Questions

My law practice has not complied with its obligations, can I certify “no”?

Yes. If there has been non-compliance, for whatever reason, you must certify no, as to do otherwise would be a breach of rule 2.5.

Reasons for non-compliance may vary. For example, if you were required to make a designated lawyer report and did so within 30 days, not the required 14 days. There may be valid reasons why it took longer to report, including the collation of supporting material or the fact that the employee left just before Christmas and the practice’s shut down period.

If you certify no, you should provide an explanation as to the reason for non-compliance as well as provide any documents or make any report that should previously been made. This information will be taken into account when considering whether non-compliance poses a professional conduct issue. 

What will happen if I certify “no”?

The regulatory response to a failure to comply will depend on the individual circumstances. A failure to report a serious breach of the rules is a breach of the rules itself. Similarly, a law practice that does not have proper processes and systems in place for reporting, and/ or addressing unacceptable conduct in the workplace will not be meeting its professional and statutory obligations. These are matters that may be referred to the Lawyers Complaints Service as complaints and disciplinary issues. 

What should I do if I was only appointed the designated lawyer halfway through the year?

If there were any issues that should have been reported prior to your appointment, the person previously in the designated lawyer role for your practice should have reported these and you should be able to answer question 3 “Yes”, assuming you have also met your obligations since your appointment.

However, you will need to satisfy yourself that you can make that certification and take whatever steps you believe are necessary for that (for example, by checking with your firm's Human Resources records). See also the guidance above if the obligations have not been met.

I’m not sure if a situation should have been reported or not, what should I do?

The following resources may help:

• Final guidance on professional standards and reporting obligations
• Mandatory reporting obligations factsheet
• The Law Society webpage on the responsibilities of the designated lawyer has a number of resources that may assist you
• Calling someone from the list of the National Friends Panel to confidentially discuss a particular scenario.