Sasha Borissenko: A rough time for legal industry’s public image

OPINION:

The legal industry has been having a rough time as of late.

On the issue of naming and shaming – we have to feel slightly sorry for Wanaka couple William Willis – son of District Court Judge Mary-Beth Sharp – and barrister Hannah Rawnsley as a result of the online abuse they received after breaching lockdown to travel to Wanaka.

They were charged in the end for failing to comply with the health order (Covid-19), which carries a maximum punishment of six months’ jail and a $4000 fine. The couple are somewhat lucky as last week Jacinda Ardern announced breaching Covid-19 restrictions will now mean an increased infringement fee of up to $12,000 for individuals. The changes will take effect from November 2021.

Contrary to popular belief, rich people can’t get name suppression willy nilly. It’s a complex framework, as expressed in this opinion piece penned this month. But while the Criminal Procedure Act aims to level the playing field, what wasn’t mentioned was access to justice in a financial sense. The better the lawyer, the more likely you’ll have a better case – or so the theory goes.

RNZ revealed that Pākehā are granted name suppression three times as often as Māori, even though Māori are charged and convicted with more crimes. A 2018 study on income disparities found at every age Māori received a much lower average income than the general population. Meaning: less income to pay for legal fees. Anusha Bradley’s series Is This Justice takes on the judiciary, and while I’m quivering in my boots, I’m here for it.

In other news last week I reported on new developments relating to Russell McVeagh; a partner resigned after the firm’s board concluded the partner’s conduct didn’t meet expectations – despite an independent investigation that had exonerated the partner.

The investigator found that the partner’s conduct hadn’t breached any of the firm’s policies, but the board formed a view that “the partner had not conducted themselves in line with its expectations of a Russell McVeagh partner and the partner decided to resign”.

The partner in question said they were “exonerated but felt disheartened and disillusioned that the board formed a view at odds with the findings of their own independent process”.

What happened exactly – the public will perhaps never know. Issues around transparency – or lack thereof – appear time and time again with the legal industry. Former Aotearoa Legal Workers’ Union co-president Indiana Shewan said the profession tended to be quite insular and secretive, “whether that’s because lawyers are generally risk averse or because of fear as it’s such a small industry, I don’t know”.

“We know that it’s through secrecy where abuses happen, and it’s hard to approach and support people when you don’t know what’s going on,” she said in the article.

In my view, the issue stems from the Lawyers and Conveyancers Act 2006. The purposes of the Act are to maintain public confidence in the provision of legal and conveyancing services, to protect consumers of those services.

But, the Law Society et al are prohibited from confirming or denying whether complaints are made, and whether investigations are underway. Essentially the Law Society can’t legally comment on any individual matters relating to its regulated services.

The lack of transparency is somewhat at odds with the Law Society’s new Client and Care Rules obligations, which kicked off this year and aimed to address the fact that the regulatory framework for lawyers was ineffective in addressing sexual harassment and other unacceptable conduct.

It’s all very wonderful that things are changing, but the Rules are not retrospective, they don’t address past abuses that may come to light, and transparency and thus public accountability falls short. But one could also argue whether information around lawyers is in the public’s interest, or simply of public interest.

Given my journalistic disposition I’m inclined to say the former, and that lawyers ought to be held to a higher standard by virtue of their duties to the court, the public, and the terms and conditions on their practising certificates.

There’s hope, yet. Last week the Law Society issued the Final Terms of Reference for the Independent Review of the statutory framework for legal services in Aotearoa.

The main changes to the Terms are as follows: consideration of Te Ao Māori frameworks and inclusion and diversity; Government regulation in terms of consideration of an independent entity with regulatory functions such as a legal ombudsman; and the examination of the role of the Law Society in promoting positive workplace cultures. The Independent Steering Group now has the task to appoint a reviewer to conduct the review by the end of 2021.

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