“And then after the filing deadline was missed, [the senior lawyer] commented that she was actually glad to have an extra day because she needed to give the draft documents a review.”
This was a “fairly stark” example of the system breakdown, Bain submitted.
The senior lawyer, based in the North Island, faces four charges of misconduct – she has now admitted one charge, which related to her failure to “refer a client for independent advice”.
Further details of those allegations cannot be reported because of non-publication orders.
The other charges related to her effectively practising on her own account when she didn’t have a practising certificate to do so; failure to provide professional service to a client, and failure to supervise staff.
‘Not the Law Society’s role to lift the lid on firms’, says practitioner’s lawyer
A large portion of the evidence heard during the hearing related to the senior lawyer’s treatment of junior staff and alleged lack of adequate supervision.
The Lawyers and Conveyancers Disciplinary Tribunal heard that a group of juniors found working for her so difficult that they all quit on the same day.
The tribunal also heard that some of the lawyers had been in touch with the Law Society’s National Friends Panel – lawyers who can be contacted on a confidential basis with questions or concerns relating to practice issues.
The prosecution’s case was that the lawyer spent much of her time overseas and required juniors to perform work outside their experience and skill level, communicating with them mostly by Skype or audio messaging, or sometimes handwritten notes.
It was suggested that 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.
The practitioner’s lawyer, Karen Feint, KC, said this was a “novel charge”, and there was little as to what the “legal yardstick” was for supervision.
She disputed that supervision was delegated to other juniors – rather, she said, it was a peer-review or support system.
Feint said the evidence showed all documents were checked and signed off by the senior lawyer, and that sending junior lawyers to do administrative appearances was commonplace.
She said many of the issues traversed in the evidence were “inward” issues that would be more appropriately dealt with by the Employment Relations Authority and the Employment Court.
She said the focus had to be on “whether there are any supervision failures of the junior lawyers that have resulted in breaches of duties to the court and clients or the reputation of the profession”.
She said issues to do with an unhealthy work culture were fundamentally “issues covered by the employment contracts”, including issues like hours worked and requirements to work weekends.
“It’s not the Law Society’s role to lift the lid on firms and investigate their standard practices in terms of their employees.”
She noted that having a billable hours target was not out of step with the wider industry, and the law firm’s target of 7.5 billable hours a day “wasn’t as onerous as it might first appear”, as in practice it had included some “non-billable and CPD work”.
She said it would have been helpful for the prosecution to provide evidence as to “what was normal” in New Zealand law firms in terms of hours and time off in lieu, and also noted that many of the stresses felt by the juniors were common for lawyers starting their careers.
“We say that the junior lawyers learn to practise law by practising law, and there’s nothing unusual about that. That’s what juniors do in every firm,” Feint said, acknowledging it was a “steep learning curve”.
“It’s not uncommon for them to feel stressed or out of their depth because it’s all so new and they’re learning so much. So it seems to me there may have been stress felt by the junior lawyers, but it’s not necessarily [the senior lawyer’s] fault.”
A panel member questioned whether the learning experience would have been easier for the juniors if the lawyer had been in the office next door, rather than being often overseas or in other parts of the country, with juniors able to “simply knock on the door and have a discussion rather than three or four iterations of the document going backwards and forwards”.
The senior lawyer is before the Lawyers and Conveyancers Disciplinary Tribunal. Photo / 123RF
Feint agreed that “perhaps” that might be the case, but noted there was “a wide variation in the way that people do things”, including using technology.
Tribunal chair Dale Clarkson noted at one point during closing submissions that the prosecution witnesses had “demonstrated very short-term stays at the firm”.
“There was hardly anyone who’d been there more than a year, and many well under. That would seem out of the ordinary,” she said.
Feint said there was evidence that “generally amongst young lawyers there’s quite a high attrition rate of people leaving the profession altogether”.
Bain said, ultimately, the tribunal had to decide objectively whether the law firm had supervision that was compliant with the rules, “rather than to determine whether, relatively speaking, it’s as good as some of the other law firms that are out there. That obviously encourages a race to the bottom”.
In terms of the connection between lack of supervision and the impact on clients and the wider reputation of the legal profession, he said it was enough for the tribunal to be satisfied that “things were going wrong” at the law firm.
“And the ways that things were going wrong were consistent with the problems in supervision that made it more likely for things to go wrong.”
The examples of this included missed deadlines, work being hurriedly prepared, and staff being sent to appearances with “very little briefing”.
He cited an example heard in evidence of a junior staff member being told she needed to appear in court with only 20 minutes’ notice, while she was out on her lunch break.
There had also been concerns raised by a High Court judge about a junior lawyer having been inadequately briefed.
Bain questioned Feint’s distinction between “outward” and “inward” facing issues, as he said it was clear the two affected each other.
He said it had always been a part of the rules and a part of a lawyer’s professional obligations to treat people well, and that included colleagues.
“The idea that there is a material difference between conduct which is focused on the mistreatment of employees and conduct which relates solely to clients is not tenable.”
He said that when staff were mistreated, they left – as had happened in this law firm.
“When they leave, there is churn. When there is churn, things fall through the cracks. Clients’ priorities aren’t able to be progressed. Information gets lost because it’s not clearly recorded in handover notes,” he said.
This directly linked, in Bain’s submission, to the third charge the practitioner faced – misconduct related to a Family Court matter.
Family court clients needed senior lawyer to ‘have the difficult conversation’, prosecution says
Charge three related to allegations that the senior lawyer had junior lawyers take instructions from a client, and her client’s partner, related to a Family Court proceeding dealing with access and custody of a child.
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.
Then, the senior lawyer failed to advance the clients’ instructions – she 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 the capacity to act for them.
The prosecution said the issue wasn’t that she didn’t provide legal advice; it was that when it became clear the clients didn’t understand what needed to happen, she refused to have phone conversations with them, stating she was too busy.
Bain said that at the point where the advice had been given and there were still instructions coming from the clients to file applications in circumstances where it was thought they were doomed to fail, the senior lawyer needed to “get [the client] on the phone”.
“Have the difficult conversation, and persuade [the client] that this was not the right thing to do, or … follow the instructions despite them being a bad idea”.
If there were “mixed messages” about whether the clients wanted to follow advice or understood it, then a “sufficiently senior and mature lawyer” needed to take the lead and “make them understand the situation”.
“[It’s] something which is harder to do if you’re a fresh graduate or someone who’s at the very lower end of legal experience.”
Question over whether Law Society could ‘revoke’ practising on own account
The senior lawyer was charged with practising on her own account when she didn’t have the appropriate practising certificate to do so.
The Standards Committee’s case is that she had employed a “director”, but he didn’t adequately supervise her legal work or management of staff.
The director, who can’t be named for legal reasons, also faces a charge of misconduct related to inadequate supervision.
The prosecution said the senior lawyer held herself out as entitled to practise on her own account.
But the practitioner’s lawyer said she was “entitled” to operate this way.
Feint said she had met the “threshold experience and suitability requirements” in the mid 2000s, and was given permission to practise on her own account.
She submitted that, according to the legislation, once granted, the Law Society couldn’t revoke it unless a practitioner was found guilty of a disciplinary offence.
She said there were only two types of practising certificate – as a barrister and solicitor, or as a barrister.
“In other words, there’s no such thing as practising certificates to practise on one’s own account or as an employed lawyer,” she said.
She argued that when the Law Society declined the senior lawyer’s bid to practise on her own account, following financial mismanagement at her previous firm, they hadn’t had the jurisdiction to do that.
The senior lawyer claimed she had reached an agreement with the Law Society that she could manage all the legal work, with a director employed to keep an eye on the finances.
However, she was unable to produce any evidence of this – she said there had been a computer virus that had wiped records – but said the Law Society should have its own record of the discussions.
Bain said there was “no possible way” the senior lawyer could have “walked away from [an earlier] decision of this tribunal” believing she was entitled to practise on her own account.
“There’s no reason why there needed to be any other form of negotiation. One wouldn’t expect there to be any records from the Law Society of a negotiation because there was nothing to negotiate.”
He said it was clear she was only permitted to practise as an employed lawyer.
“The only version of events which would call for those records to exist is [the lawyer’s] version of events.”
He also said it was “entirely reasonable” to read the Lawyers and Conveyancers Act in such a way that “reality is allowed for, so that the Law Society can do different practising certificates for different modes of practice”.
Bain said the distinction between being allowed to practise on one’s own account, rather than as an employed lawyer, was clear, however.
“You’re either acting on your own account, or you’re an employed lawyer. You either have the responsibilities under Rule 11 [of the Conduct and Client Care rules], or you don’t. There’s no hybrid possibility.”
The tribunal has reserved its decision.
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.