Ch-ch-changes! More emphasis on tackling bullying and harassment in rules governing lawyers’ behaviour

New rules governing lawyers’ behaviour are due to come into force on 1 July 2021 following recommendations by the New Zealand Law Society’s Independent Working Group. 

The focus is on the behaviour highlighted in the Workplace Environment report of April 2018 which revealed that nearly a third of female lawyers have been sexually harassed during their working life, and more than half of all lawyers have been subjected to bullying at some point in their working life.

The new rules clarify the standards of behaviour expected of lawyers when engaging with clients and colleagues.  In particular, there will now be clearer definitions of bullying, discrimination, harassment (including racial and sexual harassment), and other unacceptable conduct.  The conduct will be assessed objectively but if the lawyer has knowledge about a person’s particular vulnerability then the standard will be adjusted to allow for this additional knowledge.

The new rules also amend the reporting requirements for such conduct to be notified to the Law Society.  Currently, a lawyer is required to report to the Law Society where the lawyer has reasonable grounds to suspect that another lawyer has been guilty of misconduct.  This reporting threshold has now been lowered.  From 1 July 2021, lawyers will be required to report to the Law Society when they have reasonable grounds to suspect that another lawyer may have engaged in misconduct.  

Further, law practices must have effective policies and systems in place to protect staff and clients from unacceptable conduct and to have appropriate procedures to investigate complaints by clients.  This includes having a designated lawyer in each law practice reporting to the Law Society annually on its compliance with its obligation to report any unacceptable conduct, and any investigations undertaken in that law practice.  These changes therefore increase the reporting obligations – in addition to individual lawyers’ existing obligations to report any suspicions of misconduct by another lawyer, law practices will also have mandatory reporting obligations. 

The focus of the rule changes is on conduct rather than harm.  As a result, the rules are concerned with whether the behaviour is likely to have an impact on another person or lead to harm, not whether it did in fact cause harm.  Law practices will need to review their policies and systems to ensure that their staff are fully aware of their obligations in order to prevent unacceptable conduct from occurring. 

Comment (Virginia Wethey)

The Lawyers Complaints Service is already clogged with thousands of claims being made a year against lawyers.  With greater clarity around lawyers’ obligations including mandatory reporting of suspected misconduct, we anticipate that there will be more complaints and investigations against lawyers to come.   

Virginia Wethey is a Partner at Fee Langstone