Disciplinary bodies work their way through record caseloads

Figures obtained by Law News show a large spike in the number of new cases filed in the Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) in the 12 months to June 2014.

The Tribunal, whose annual report is due out soon, says a record 51 new cases were filed in that period, up from 39 last year and 19 in 2011 – a 168 per cent increase in just three years.

And the Legal Complaints Review Officer (LCRO), who provides independent oversight and review of decisions made by the Standards Committee of the New Zealand Law Society and the New Zealand Society of Conveyancers, currently has a backlog of more than 500 cases to consider.

So, on the evidence to hand, it seems that the LCRO and the Tribunal are under significant pressure, begging the questions: Why are so many lawyers and conveyancers appearing before both bodies and should the legal profession be concerned?

To be fair, not all of the 51 new files before the Tribunal are cases where charges have been laid, but the sharply increasing volume is, on the face of it, somewhat bewildering given the strict code of conduct lawyers must observe with regard to the care of their clients.

The Rules of Conduct and Client Care are designed to ensure lawyers comply with four fundamental obligations, as set out in section 4 of the Lawyers and Conveyancers Act 2006, namely:

  • to uphold the rule of law and to facilitate the administration of justice in New Zealand;
  • to be independent in providing regulated services to their clients;
  • to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients; and
  • to protect, subject to their overriding duties as an officer of the High Court and to their duties under any enactment, the interests of their clients.

Given such responsibilities, the public might be expected to hold its legal representatives in high esteem and have complete faith and trust in them. However, public opinion polls and surveys unfailingly judge lawyers to be among the most untrustworthy members of society.

Only one lawyer was included in the list of the 100 most trusted New Zealanders compiled by the Reader's Digest this year. Chief Justice Dame Sian Elias came in at 33rd on the list, well behind such luminaries as Judy Bailey, Colin Meads and Dave Dobbyn. And when it came to the list of most trusted professions lawyers fared even worse, coming in at 37th, with firefighters, hairdressers and plumbers well ahead of them.

In fairness to the legal profession it should be pointed out that journalists, of whom this writer is one, were placed 43rd on the list, just ahead of real estate agents, car salespeople and sex workers.

Unscientific as the Reader's Digest poll may be, the way in which lawyers are viewed is not confined to this part of the world. A 2013 US Gallup poll which asked Americans to rate the honesty and ethical standards of people in 22 professions also saw lawyers trailing the field, this time in 16th position.

Such jaundiced views of lawyers may be explained in part by ongoing negative publicity in the news media, which is not slow to highlight the transgressions of wayward practitioners. A cursory look at recent headlines in New Zealand bears this out:

  • “Struck Off Lawyer’s $2.8m Ponzi Scheme”;
  • “Lawyer Facing Drug Charges loses name suppression”;
  • “Lax Lawyer Keeps Name Secret”;
  • “Three Lawyers Found Guilty Of Misconduct”; and
  • “Senior Lawyer To Face Disciplinary Tribunal”.

In fact, barely a week goes by without headlines like these, giving the perception that misconduct is rife throughout the legal profession in New Zealand.

Cases filed with the Tribunal in the 12 months to June 2013 resulted in 114 penalty orders being made, with most decisions receiving more than one order. The Tribunal ordered 11 lawyers to be censured, seven to be struck off, seven to pay compensation and six to be suspended.

Other penalties ordered included fines, restrictions on employment, refunds, apologies and practice inspections. During the same period, seven appeals and one judicial review application were filed in the High Court.

Against such a backdrop the public’s distrust of lawyers may be easy to understand, but is it warranted? The Tribunal’s chairperson, Judge Dale Clarkson, thinks not.

Judge Clarkson told Law News the Tribunal’s increased workload is largely due to greater public awareness of its rights and the New Zealand Law Society’s own efforts in identifying issues of concern.

“The focus of the Tribunal now will be to ensure that it operates as efficiently as possible, both judicially in its public protection role, and as an independent statutory tribunal.

“There could perhaps be better recognition by the news media that it operates as a separate judicial body outside the regulatory organisations it oversees. That separation enhances public confidence in the disciplinary regime applicable to lawyers and conveyancers.”

Her Honour also noted that the increase in the number of cases filed in the Tribunal since 2011 can be partly attributed to the fact that this was a totally new jurisdiction at that time, and there was delay while cases worked their way through the lower levels before reaching the Tribunal.

Asked whether she was concerned about the negative image of lawyers in New Zealand and around the world, and whether it was deserved, Judge Clarkson said:

“As to the reputation of the profession, you will be aware that it is one of the objectives of the Lawyers and Conveyancers Act to enhance public confidence in the legal profession. I would like to think that the Tribunal process itself contributes towards a better image.”

All hearings take place in public, usually close to where the complaint arose, or to where the lawyer practises. Judge Clarkson said many people were probably unaware that lawyer members of the Tribunal gave up a substantial amount of their time every year to hear complex cases free of charge.

“They do so as a contribution to their profession and the upholding of professional standards. I should also add that the Tribunal is fortunate to have a panel of very competent and diligent lay members, who bring a wide range of skills to the process, and that the working relationship between them and lawyer members is very successful.”

Judge Clarkson believes enough is being done to protect the public against disreputable and fraudulent lawyers.

“As far as I can gauge, from my position in the process, yes. There is a robust complaints system, strict compliance provisions for the handling of client money, audits, and mandatory reporting by other lawyers.”

But are errant lawyers dealt with in a timely and expeditious manner? It is a question that exercises Judge Clarkson’s mind.

“From the point where it reaches us, I can say that we do our very best to manage files firmly and get them to hearing as soon as we possibly can within the parameters of ensuring natural justice.

“But there is a huge backlog in the Legal Complaints Review Office – that can mean we are hamstrung until the review there is completed. If a lawyer seeks a review of whether the charges are properly laid, this can take many months.

“I certainly do not blame that office which has been overworked almost from the outset. I don’t think anything like the number of cases they have was ever contemplated or they would have been set up differently.”

Judge Clarkson’s comments about the LCRO, which was established in 2008, were echoed by outgoing LCRO Hanneke Bouchier in her annual report last year.

Her Honour noted, “The increasing backlog of work continues to be the major concern and there is an urgent need to address these current difficulties.”

Judge Clarkson says another problem facing the tribunal is that lawyers “are good at delay.”

“Some will take every preliminary point we rule on to the High Court on appeal, or apply for judicial review of these or other decisions, including the decision to prosecute to us. Some practitioners have gone as far as the Supreme Court and you can imagine how long that takes!

“However, over the last year or so very helpful decisions have been given by High Court judges to the effect that the disciplinary process at Tribunal level ought to be able to get on and be completed before these sorts of reviews occur.

“Hopefully this will mean we can now just hear cases in a straightforward way, which will still enable the lawyer or Law Society to appeal later if dissatisfied.”

Judge Clarkson says she and her deputy, retired judge Bernard Kendall, are committed to resolving cases in an expeditious manner.

“The complainants and lawyers deserve this, but I should add that because most lawyers engage very senior lawyers to represent them, who in turn are heavily committed with fixtures, and we have to assemble a panel of five members at times when the lawyers are available, allocating hearings is a mission.”

So does Judge Clarkson see any room for improvement in the way in which the Tribunal functions or a need to have more powers?

“I would like the quasi-inquisitorial role, which is inherent in the public protection role, to be reinforced by specific power to call our own evidence. This could include the ability to call medical or psychological evidence where required. Most practitioners are helpful in providing this, but not all.

“I also think the ability to adopt a more flexible approach to situations where impairment or incompetence rather than bad intent is the concern, would be helpful. I understand this is the model in medical disciplinary matters.”

The annual reports of the tribunal and the LCRO for the year ending 30 June 2014 are expected to be released soon.

For legal practitioners and the public alike they should make for interesting reading.

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