Good news everybody
The New Zealand Law Society is setting up a new National Standards Committee (it has one already but the legislation provides for two) (and see pedantic legalism at the end of this post). You may remember the original and current National Standards Committee from when it broke the land speed record for backpedaling.
NZLS is advertising for lawyer members for the new NSC here. The focus of the new NSC is “to deal specifically with complaints about harassment and bullying in the legal profession.”
This is a no-brainer from NZLS’ perspective:
- First, and perhaps most importantly, it is another way in which NZLS can be seen to be Doing Something. In terms of concrete steps it certainly rates more highly than “we made a poster“.
- Second, and I mean this genuinely, this has the potential to be really good. The current NSC deals with serious complaints (as befitting the national body). This is an important symbolic step. But more than that, it will collate these types of complaints into one body. That body, through its membership and the experience it will gain, has the potential to be half decent at dealing with these complaints. It could also lead to better, and more consistent practice in dealing with what will be vulnerable complainants. There will be opportunities to adapt and improve the current administrative practice to make the complaints process more responsive to these types of complaints.
- Third, as with all Committee processes, Committee decisions are independent. NZLS gets the benefit of being seen to be doing something, while gaining the ability to say that any individual decision by the new NSC is not something it has (direct) control over.
If all of this sounds slightly cynical I don’t mean it to be. I don’t know if this has been in the works for a while but there has been publicity about this since mid-February with the Newsroom story. And as has been pointed out articulately by people like Steph Dyhrberg in this article, and someone a lot dumber in this nonsense, lawyers have known about this for a long time. Perhaps NZLS have been considering this for a long time, I’m not sure, but if the Newsroom story pulled the rug out from under NZLS then this new NSC is the equivalent of at least getting around to placing a call to Carpet Court.
Get to the point
So far, so background. The purpose of this short post is to argue why NZLS should consider seriously appointing a lawyer member that is as junior as the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (Regulations) will permit. I think it is an important aspect of representation that will enhance the legitimacy of the new NSC.
Regulation 15(1) requires the lawyer members to have not less than five years experience as a lawyer. Lawyers will be familiar with those types of experience clauses for appointment of judicial officers. In theory, one could become a High Court judge after seven years of practice but that is exceedingly unlikely to happen. The practical reality so far is that persons with a lot more experience than five years are appointed. NZLS itself describes the lawyers appointed to Standards Committees as “senior practitioners“.
For the new NSC, NZLS should read the five year requirement literally. Appoint a lawyer still in their twenties to the NSC. There are a bunch of people that have practiced from age 23 or so.
I understand the traditional thinking on appointing senior persons to Standards Committees. If we are going to ping each other for unsatisfactory conduct or refer each other to the Tribunal for misconduct then we want those decisions to be made by persons with perspective, experience, and who are respected in the profession. But to my mind, a wider account of legitimacy-through-representation is required. A body tasked with dealing with the problem should represent both complainants and respondents. Furthermore, I am not saying the entire new NSC needs to be lawyers fresh from Profs. Indeed, the current Regulations make that impossible. All I am saying is that ensuring an appropriate age-mix will be an important consideration when deciding membership.
It is not tokenism to say that I would be more willing to complain knowing that the NSC wasn’t full of people who were practising when Sir Ronald Davison was Chief Justice. Many complainants will find it difficult enough to complain about these matters as it is. In addition, the new NSC itself will be assisted by membership that can identify more easily with persons who are, statistically, more likely to be affected by this conduct. Finally, younger members of the profession will have greater confidence in the new NSC’s decisions if they know that its decisions were made, in part, by persons who have the same lived experiences in the profession as they do.
NZLS also wants the following qualities for members of the new NSC:
Experience in dealing with unacceptable conduct in the workplace, either directly or through the delivery of support or guidance, is required. Previous experience on a regulatory committee is also an advantage.
There will, I hope, be many young lawyers in positions of mentoring or support programmes within their firms. Official experience should not be the only thing that counts here. The Bazley Report highlighted the story of a young solicitor who went above and beyond to support the summer clerks at the centre of the incidents. No HR training can beat that sort of practical experience gained from being placed in such an invidious situation. As for experience on a regulatory committee, well, let the other members of the Committee bring that experience.
As the results of NZLS’ Harassment Survey made clear, negative workplace behaviour (what a euphemism!) is borne disproportionately by women, by minorities, and by young persons. I am hopeful (confident, even) that the appointment of the NSC will reflect a demographic mix reflecting both the make up of the profession and those persons affected by the conduct the Committee is aimed at addressing. The purpose of this post is not to elevate the concerns for young lawyers above those of anyone else affected by this type of conduct. Rather, it is motivated by the risk that the traditional thinking about appointing “senior practitioners”, combined with the five year experience requirement (which usually means far more than five years) means that the Committee will lack representation for young lawyers.
All members of the profession are needed to address these issues. Young people should not be overlooked because of traditional conceptions that Standards Committees should be senior practitioners. Appoint someone in their goddamn twenties.
Pedantic legalism
Technically, the second National Standards Committee already exists. It was brought into existence under reg 12(1)(t) of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (Regulations). Currently it is not “operational” but can be made so under reg 12(2) of the Regulations. The “operational/not operational” distinction permits states of dormancy meaning NZLS doesn’t have to run more Committees than it needs, while allowing capacity in case the number of complaints increases. A complaint may only be referred to an operational Standards Committee: reg 13(2) of the Regulations.
Strictly obiter 