New Zealand Law Society - Your obligations as a lawyer
Lawyers in Aotearoa New Zealand must comply with a number of professional obligations. The fundamental obligations of all lawyers are set out in section 4 of the Lawyers and Conveyancers Act 2006. Specific conduct rules are set out in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) and are subject to other overriding obligations, including to the courts and the justice system.
Professional obligations apply to all lawyers regardless of your length of time in practice. For this reason, it’s important that you are familiar with the Rules and your obligations. If in doubt, reach out to other more experienced lawyers for guidance.
The Rules are not an exhaustive statement of the conduct expected of lawyers. However, they set the minimum standards of behaviour for lawyers and are a reference point for professional discipline. The Rules remind lawyers that preservation of the integrity and reputation of the legal profession is the responsibility of every lawyer, and practising within the boundaries set by the Rules plays a vital part in this.
A summary of lawyers' obligations to clients when providing legal services can be found in the preface to the Rules. The Rules cover the obligations of all lawyers, including in relation to:
The Rules also reflect the special position lawyers hold as Officers of the Court and set out obligations relevant to this.
There are also specific sections in the Rules relating to practising as a barrister or an in-house lawyer and the provision of real estate services.
Reporting unacceptable behaviour
Lawyers have certain reporting obligations as part of their professional obligations. “Reporting requirements are a way of maintaining confidence in the legal profession. All lawyers have an interest in ensuring other lawyers meet the expectations held of them. Reporting obligations also provide a mechanism for lawyers to use their privileged position to protect others from those who do not live up to the common values held by the legal profession.”
All lawyers are required to report misconduct (as defined in s 7 of the Lawyers and Conveyancers Act 2006) to the Law Society. Under rules 2.8 and 2.9 of the Rules:
Misconduct relates to conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable and can also include conduct that means a lawyer is not fit to practise.
These reporting obligations are triggered when you have reasonable grounds to suspect that another lawyer may have engaged in conduct that amounts to misconduct. The reporting lawyer is not required to make a decision on guilt. Reasonable grounds to suspect means there is information that you can provide in support of the report which provides evidence of misconduct. Therefore, while you do not need to have witnessed the conduct, mere speculation or rumour is not enough.
The Law Society has produced guidance to help lawyers to understand their obligations. The guidance is also intended to support and empower people who are affected by prohibited behaviour.
The Rules include certain exceptions to the reporting obligations. Under rule 2.8.4 mandatory reporting does not apply to:
(a) a lawyer who has received information in the course of providing confidential advice, guidance, or support to another lawyer, including a member of a panel under a "friend" system, unless disclosure of the information is necessary to -
(b) a lawyer who is a victim of the suspected misconduct; or
(c) circumstances where a lawyer reasonably believes the disclosure would pose a serious risk to the health (including mental health) or safety of a victim.
In relation to 2.8.4(c), the possibility that a victim (or affected person) may find the process challenging does not alone amount to a serious risk to health or safety.
The reporting requirements mean you should take comfort in knowing that reporting misconduct is part of your professional obligations. A failure to report suspected misconduct may be a complaints and disciplinary matter. If in doubt about your reporting obligations reach out to a trusted senior lawyer for confidential guidance, or one of the Law Society’s support services listed in this guide.
The Rules include rules targeted at addressing bullying, harassment, discrimination and violence within the legal profession and clarify the standards of behaviour expected of lawyers when engaging with clients, colleagues and others. The Rules include definitions of bullying, discrimination, harassment (including racial and sexual harassment) and violence.
Each law practice must also have effective policies and systems to prevent and protect employees and other people it engages with from bullying, discrimination, harassment or violence. Warnings, dismissals and other matters relating to this type of conduct must now be reported, by a designated lawyer within a law practice, to the Law Society within a specified time.
The designated lawyer is required under rule 11.4 to notify the Law Society on behalf of the law practice, within 14 days, if:
The designated lawyer is also required to certify annually that they have complied with the rule 11.4 reporting obligations, and that the law practice has policies and systems in place to prevent and protect persons employed or engaged by the law practice from prohibited behaviour and to comply with its obligations under the Health and Safety at Work Act 2015.
Further information on your obligations and the rules can be found on the Law Society website.