working for her so difficult that they all quit on the same day<\/a>.<\/p>\nThe tribunal also heard that some of the lawyers had been in touch with the Law Society\u2019s National Friends Panel \u2013 lawyers who can be contacted on a confidential basis with questions or concerns relating to practice issues.<\/p>\n
The prosecution\u2019s 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.<\/p>\n
It was suggested that she would delegate supervision and management to junior lawyers, who had less than a year\u2019s post-qualification experience, and the juniors all relied on each other, despite most being inexperienced.<\/p>\n
The practitioner\u2019s lawyer, Karen Feint, KC, said this was a \u201cnovel charge\u201d, and there was little as to what the \u201clegal yardstick\u201d was for supervision.<\/p>\n
She disputed that supervision was delegated to other juniors \u2013 rather, she said, it was a peer-review or support system.<\/p>\n
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.<\/p>\n
She said many of the issues traversed in the evidence were \u201cinward\u201d issues that would be more appropriately dealt with by the Employment Relations Authority and the Employment Court.<\/p>\n
She said the focus had to be on \u201cwhether 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\u201d.<\/p>\n
She said issues to do with an unhealthy work culture were fundamentally \u201cissues covered by the employment contracts\u201d, including issues like hours worked and requirements to work weekends.<\/p>\n
\u201cIt\u2019s not the Law Society\u2019s role to lift the lid on firms and investigate their standard practices in terms of their employees.\u201d<\/p>\n
She noted that having a billable hours target was not out of step with the wider industry, and the law firm\u2019s target of 7.5 billable hours a day \u201cwasn\u2019t as onerous as it might first appear\u201d, as in practice it had included some \u201cnon-billable and CPD work\u201d.<\/p>\n
She said it would have been helpful for the prosecution to provide evidence as to \u201cwhat was normal\u201d 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.<\/p>\n
\u201cWe say that the junior lawyers learn to practise law by practising law, and there\u2019s nothing unusual about that. That\u2019s what juniors do in every firm,\u201d Feint said, acknowledging it was a \u201csteep learning curve\u201d.<\/p>\n
\u201cIt\u2019s not uncommon for them to feel stressed or out of their depth because it\u2019s all so new and they\u2019re learning so much. So it seems to me there may have been stress felt by the junior lawyers, but it\u2019s not necessarily [the senior lawyer\u2019s] fault.\u201d<\/p>\n
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 \u201csimply knock on the door and have a discussion rather than three or four iterations of the document going backwards and forwards\u201d.<\/p>\n
![\"The]()
The senior lawyer is before the Lawyers and Conveyancers Disciplinary Tribunal. Photo \/ 123RF<\/p>\n
Feint agreed that \u201cperhaps\u201d that might be the case, but noted there was \u201ca wide variation in the way that people do things\u201d, including using technology.<\/p>\n
Tribunal chair Dale Clarkson noted at one point during closing submissions that the prosecution witnesses had \u201cdemonstrated very short-term stays at the firm\u201d.<\/p>\n
\u201cThere was hardly anyone who\u2019d been there more than a year, and many well under. That would seem out of the ordinary,\u201d she said.<\/p>\n
Feint said there was evidence that \u201cgenerally amongst young lawyers there\u2019s quite a high attrition rate of people leaving the profession altogether\u201d.<\/p>\n
Bain said, ultimately, the tribunal had to decide objectively whether the law firm had supervision that was compliant with the rules, \u201crather than to determine whether, relatively speaking, it\u2019s as good as some of the other law firms that are out there. That obviously encourages a race to the bottom\u201d.<\/p>\n
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 \u201cthings were going wrong\u201d at the law firm.<\/p>\n
\u201cAnd the ways that things were going wrong were consistent with the problems in supervision that made it more likely for things to go wrong.\u201d<\/p>\n
The examples of this included missed deadlines, work being hurriedly prepared, and staff being sent to appearances with \u201cvery little briefing\u201d.<\/p>\n
He cited an example heard in evidence of a junior staff member being told she needed to appear in court with only 20 minutes\u2019 notice, while she was out on her lunch break.<\/p>\n
There had also been concerns raised by a High Court judge about a junior lawyer having been inadequately briefed.<\/p>\n
Bain questioned Feint\u2019s distinction between \u201coutward\u201d and \u201cinward\u201d facing issues, as he said it was clear the two affected each other.<\/p>\n
He said it had always been a part of the rules and a part of a lawyer\u2019s professional obligations to treat people well, and that included colleagues.<\/p>\n
\u201cThe 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.\u201d<\/p>\n
He said that when staff were mistreated, they left \u2013 as had happened in this law firm.<\/p>\n
\u201cWhen they leave, there is churn. When there is churn, things fall through the cracks. Clients\u2019 priorities aren\u2019t able to be progressed. Information gets lost because it\u2019s not clearly recorded in handover notes,\u201d he said.<\/p>\n
This directly linked, in Bain\u2019s submission, to the third charge the practitioner faced \u2013 misconduct related to a Family Court matter.<\/p>\n
Family court clients needed senior lawyer to \u2018have the difficult conversation\u2019, prosecution says<\/p>\n
Charge three related to allegations that the senior lawyer had junior lawyers take instructions from a client, and her client\u2019s partner, related to a Family Court proceeding dealing with access and custody of a child.<\/p>\n
When some of these juniors who had been managing the file resigned, the clients weren\u2019t told who their new point of contact would be.<\/p>\n
Then, the senior lawyer failed to advance the clients\u2019 instructions \u2013 she told the tribunal this was because she knew the applications they wished to make would fail, and she didn\u2019t want to waste the court\u2019s time.<\/p>\n
However, she allegedly kept them on a retainer anyway, and it wasn\u2019t until about 18 months after they first engaged her that she told them she didn\u2019t have the capacity to act for them.<\/p>\n
The prosecution said the issue wasn\u2019t that she didn\u2019t provide legal advice; it was that when it became clear the clients didn\u2019t understand what needed to happen, she refused to have phone conversations with them, stating she was too busy.<\/p>\n
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 \u201cget [the client] on the phone\u201d.<\/p>\n
\u201cHave 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\u201d.<\/p>\n
If there were \u201cmixed messages\u201d about whether the clients wanted to follow advice or understood it, then a \u201csufficiently senior and mature lawyer\u201d needed to take the lead and \u201cmake them understand the situation\u201d.<\/p>\n
\u201c[It\u2019s] something which is harder to do if you\u2019re a fresh graduate or someone who\u2019s at the very lower end of legal experience.\u201d<\/p>\n
Question over whether Law Society could \u2018revoke\u2019 practising on own account<\/p>\n
The senior lawyer was charged with practising on her own account when she didn\u2019t have the appropriate practising certificate to do so.<\/p>\n
The Standards Committee\u2019s case is that she had employed a \u201cdirector\u201d, but he didn\u2019t adequately supervise her legal work or management of staff.<\/p>\n
The director, who can\u2019t be named for legal reasons, also faces a charge of misconduct related to inadequate supervision. <\/p>\n
The prosecution said the senior lawyer held herself out as entitled to practise on her own account.<\/p>\n
But the practitioner\u2019s lawyer said she was \u201centitled\u201d to operate this way.<\/p>\n
Feint said she had met the \u201cthreshold experience and suitability requirements\u201d in the mid 2000s, and was given permission to practise on her own account.<\/p>\n
She submitted that, according to the legislation, once granted, the Law Society couldn\u2019t revoke it unless a practitioner was found guilty of a disciplinary offence.<\/p>\n
She said there were only two types of practising certificate \u2013 as a barrister and solicitor, or as a barrister.<\/p>\n
\u201cIn other words, there\u2019s no such thing as practising certificates to practise on one\u2019s own account or as an employed lawyer,\u201d she said.<\/p>\n
She argued that when the Law Society declined the senior lawyer\u2019s bid to practise on her own account, following financial mismanagement at her previous firm, they hadn\u2019t had the jurisdiction to do that.<\/p>\n
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.<\/p>\n
However, she was unable to produce any evidence of this \u2013 she said there had been a computer virus that had wiped records \u2013 but said the Law Society should have its own record of the discussions.<\/p>\n
Bain said there was \u201cno possible way\u201d the senior lawyer could have \u201cwalked away from [an earlier] decision of this tribunal\u201d believing she was entitled to practise on her own account.<\/p>\n
\u201cThere\u2019s no reason why there needed to be any other form of negotiation. One wouldn\u2019t expect there to be any records from the Law Society of a negotiation because there was nothing to negotiate.\u201d<\/p>\n
He said it was clear she was only permitted to practise as an employed lawyer.<\/p>\n
\u201cThe only version of events which would call for those records to exist is [the lawyer\u2019s] version of events.\u201d<\/p>\n
He also said it was \u201centirely reasonable\u201d to read the Lawyers and Conveyancers Act in such a way that \u201creality is allowed for, so that the Law Society can do different practising certificates for different modes of practice\u201d.<\/p>\n
Bain said the distinction between being allowed to practise on one\u2019s own account, rather than as an employed lawyer, was clear, however.<\/p>\n
\u201cYou\u2019re either acting on your own account, or you\u2019re an employed lawyer. You either have the responsibilities under Rule 11 [of the Conduct and Client Care rules], or you don\u2019t. There\u2019s no hybrid possibility.\u201d<\/p>\n
The tribunal has reserved its decision.<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"\u201cAnd then after the filing deadline was missed, [the senior lawyer] commented that she was actually glad to…\n","protected":false},"author":2,"featured_media":520416,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[1975,1647,140246,6097,1138,5762,2514,8307,20053,18557,14771,111,43,139,529,69,1118,54253,312,5843,21416,6211,61],"class_list":["post-520415","post","type-post","status-publish","format-standard","has-post-thumbnail","category-new-zealand","tag-at","tag-breaking","tag-deadlines","tag-down","tag-firm","tag-inadequate","tag-island","tag-law","tag-lawyer","tag-led","tag-missed","tag-new-zealand","tag-news","tag-newzealand","tag-north","tag-nz","tag-of","tag-prosecution","tag-says","tag-senior","tag-supervision","tag-system","tag-to"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/520415","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/comments?post=520415"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/520415\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media\/520416"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media?parent=520415"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/categories?post=520415"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/tags?post=520415"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}