At the second part of the recent hearing, the tribunal was told matters came to a head after a junior questioned the lawyer’s expectations they have a staff roster for weekend work.
The junior questioned how they would juggle looking after themselves, and their respective whānau, in light of this expectation.
The senior lawyer replied with a blunt email expressing her disappointment and inviting her junior lawyers to resign if they were unhappy.
They did, en masse, and without notice.
But the lawyer claimed that up until then, she had no reason to believe they were unhappy.
‘There are smiley face emojis …’ says lawyer
One of the charges faced by the lawyer is that of failing to supervise staff at the law firm, and it’s alleged this constituted misconduct, or in the alternative, unsatisfactory conduct.
The prosecution’s case is that the lawyer spent much of her time overseas, and had not set up “alternative avenues for employees to access support, mentoring, or supervision while she was away …”
It’s alleged she required them to perform work outside of their experience and beyond their skill level, and she communicated with them mostly by Skype or audio messaging, or sometimes handwritten notes.
The prosecution said she would delegate supervision and management to junior lawyers, who had less than a year’s post-qualification experience, and the juniors all relied on each other, despite most being inexperienced.
However, the lawyer has defended her use of messaging, saying it was an efficient way of communicating, still enabled her to give guidance and instruction, and was typical in modern working environments.
The lawyer said messaging over apps like Skype was indicative of modern working environments, and was more efficient.
There was a lengthy discussion about a Family Court matter, where a junior lawyer was sent into an administrative hearing on her own.
She had only been admitted for a matter of months, and she’d found it difficult when the judge questioned her about information supplied to the court, making it clear he strongly disagreed with her position and submissions, and adjourning until the next day.
The tribunal panel questioned the senior lawyer about whether she considered stepping in to assist, given things had gone “badly”.
She had another commitment, however, but said she’d messaged the junior, “directing her what to do next”.
She was asked how she was able to give direction to a junior lawyer while a hearing was underway, if she wasn’t there.
The lawyer said sometimes she would get short messages while the hearing was in progress, but ultimately, as long as she was available before and after, that was sufficient supervision.
She said the junior lawyer appeared to have taken comments from the judge “personally”, but most of what happened had been “run of the mill” litigation issues.
Nothing that unfolded in the hearing had ended up being “fatal” for the client, and she disagreed with the junior’s view that the judge had been accusing her of “lying”.
As to the junior’s wellbeing after the stressful hearing, the lawyer said she hadn’t seen anything in messaging to suggest she had been as upset as she had apparently been.
Standards Committee prosecutor Tim Bain asked whether it might have been easier for her to gauge the junior’s feelings if she’d seen her in person.
She said she did see her in person, though not on the day of the hearing, but noted the junior continued to attend family court judicial conferences and “appeared happy to do so”, and it hadn’t stopped her continuing in litigation.
However, the prosecution noted the junior lawyer had resigned three weeks later.
The prosecution also pointed to another instance, in a different court jurisdiction, where a judge had criticised the lawyer for sending a junior to a hearing without sufficient briefing.
But the lawyer disagreed with the judge’s assessment, maintaining she had briefed the junior.
On the topic of supervision, the lawyer told the tribunal her job was to ensure they could “stand on their own two feet”.
She felt her juniors were confident and enjoyed the work.
“You could see they’re enjoying it, it’s not something they’re scared of … There are smiley face emojis in messages.”
Bain asked how she could be sure they were actually doing a good job, and not just thinking they were.
“That’s why I would go over it. Often I would say to them, ‘just imagine I’ve died, is this what you’ve filed with the court?’”
‘Bulk resignations’ over weekend work expectations
The hearing included questions about the lawyer’s expectations that her juniors do weekend work and late nights.
She claimed this only happened occasionally, but did explain a proposed arrangement that staff would work one weekend in every five, if needed, and then take days off in lieu during the week.
When the juniors began to push back on that expectation, the lawyer became annoyed.
One had emailed concerns about how they could “look after themselves and their whānau” when required to work weekends.
The lawyer had replied with an email that began, “I am very, very disappointed to receive this email”.
It concluded: “Should you now decide you no longer wish to abide by the terms of your contract, you are of course not obliged to remain with [the law firm], you are free to find employment elsewhere …”
She told them if they couldn’t organise a roster between themselves, one would be done for them.
Following that, all her juniors resigned, which Bain suggested “couldn’t have come as a surprise”.
But she had been surprised at the way they resigned.
“I didn’t mean walk out the door and throw your computers in the hallway … I meant, you can give your notice,” she said.
She said normally there would be a handover period and a “farewell function”.
However, in a later email to another employee, the lawyer said she was “very happy” and said it was a “relief” that some staff had resigned – she told the tribunal the quality of their work had been slipping in the week leading up to the “bulk resignations”.
She told the tribunal she didn’t think it was right to accept a position where “it’s very clear that you will be required to work weekends sometimes, and after hours sometimes”, but then, despite being given time in lieu, claim that “you’re working below minimum wage”.
Bain also questioned whether the staff had been required to check in every Sunday, after a junior was reprimanded for not responding to a message sent on a Sunday, asking her to work for a few hours that afternoon.
The junior replied the next morning, explaining she had been busy with family commitments.
The lawyer had replied, “As per my email last week, if you have something due and it’s your file, you need to check in Sunday to see if assistance is required”.
She told the tribunal this was only if there was “a major piece of work due”, and the work hadn’t been done during the week.
As well as a charge of failing to supervise staff, the lawyer is charged with practising on her own account without a practising certificate that allowed her to do so.
She also faces a charge of failing to provide professional service to a client, which the prosecution claims amounts to misconduct, or in the alternative, to negligence or unsatisfactory conduct.
This related to a family court matter in which the prosecution alleges the lawyer’s letter of engagement did not correlate with the client’s reasons for engaging her services.
It’s alleged she then got junior lawyers to take further instructions, delegating tasks to others, but when some of these juniors who had been managing the file resigned, the clients weren’t told who their new point of contact would be.
She failed to advance the clients’ instructions – the lawyer told the tribunal this was because she knew the applications they wished to make would fail, and she didn’t want to waste the court’s time.
However, she allegedly kept them on a retainer anyway, and it wasn’t until about 18 months after they first engaged her that she told them she didn’t have capacity to act for them.
The hearing will resume in July.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.