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“Incompetent” non-solicitor and barrister advocates causing concern

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NZ Lawyer | 03 Sep 2014, 09:38 a.m. Agree 0
Non-solicitor and barrister advocates who insinuate they are lawyers and are permitted to appear in the Employment Court are of great concern and must be reined in, say several lawyers
  • John Shingleton | 03 Sep 2014, 12:08 p.m. Agree 0
    This is a valid issue. I have encountered "no win no fee" advocates who have made a mockery of the Mediation process by quasi extorting a settlement from employers. Regulation of this cottage industry including registration, a disciplinary body and evidence of minimum legal knowledge would be sensible. Perhaps something along the lines of what is required to be a private investigator, with CPD obligations.
  • Peter Sara | 03 Sep 2014, 12:16 p.m. Agree 0
    I observe much the same practice in the ACC arena and so the registration idea should probably extend to other areas where non lawyer advocates are operating. There is a kind of "told you so" feel about this development.The government reacted against the lawyers closed shop by allowing unregulated advocacy. Outlaws can't be disciplined
  • Bill Herbison | 03 Sep 2014, 12:35 p.m. Agree 0
    We have the same issue in Christchurch post earthquakes with ex insurance brokers and former EQC employees openly advocating don't go to your lawyer come and see us and we will negotiate on your behalf with EQC and your insurance company to get you a better result.Clients in a distressed state have been taken in by these representations and many are totally disenchanted with the service they have received.I have one client who I am trying to extricate from the contractual arrangement who has paid $20,000.00 with no tangible result.Again these are people who have seen a business opportunity and are answerable to no-one.
  • Chris Patterson | 03 Sep 2014, 12:56 p.m. Agree 0
    I wonder what the unspecified "quick and clear sanctions for any lawyer who makes a mistake or acts inappropriately" are exactly? An introduction of scale costs that represents approximately 60 percent of actual reasonable cost would be one step towards weeding out incompetent and unethical behaviour by both advocates and lawyers alike.
  • Anjela Sharma | 03 Sep 2014, 01:23 p.m. Agree 0
    I agree with Mr Pollack's comments on the ethical issues arising in relation to lay advocates. In my observation the lack of ethical responsibility demonstrated by some of these individuals has a direct impact in unnecessarily increasing costs between the parties. Many lay advocates, lack the experience and professionalism that we as lawyers are bound by in representing clients and taking their cases forward. It brings to mind one lay advocate in my locality who advertises her business as specialising in providing employment law and human resource advice for employers despite there being numerous instances where a complete lack of appreciation for the word ‘process’ has had a significantly damaging impact on a number of individuals and their livelihoods, with no accountability whatsoever. In the interests of integrity, lay advocates need to be regulated in some way, and to be held to account for the major fallout that can often arise after they have run their course in the employment arena.
  • Erin Burke | 03 Sep 2014, 02:08 p.m. Agree 0
    I completely agree with this article and in my experience, the problem is increasing. Many of the lay advocates have little or no qualifications or practical experience and provide legal advice that completely conflicts with employment law and/or legal principles. I had one mediation where the advocate did not show. He had made a decision that there was unlikely to be a pay-out but unfortunately he didn't bother to inform his client. It was only after we had all waited for an hour or so that the mediator got hold of him and found that he was no longer representing the employee. Another advocate showed up in the Authority with all the hallmarks of someone who had been drinking (a lot) just prior to attending and brought absolutely nothing with witness briefs, copy of the Statement of Problem...nothing whatsoever. The Authority member had to go and photocopy witness statements for his own witnesses! Yet another advocate falsified and amended a resignation letter (we had provided them with a copy of the signed original) and filed it with their Statement of Problem..and on it goes!
  • Simon Schofield | 03 Sep 2014, 03:16 p.m. Agree 0
    As an employment advocate, I agree that there should be some sort of regulation of advocates although I disagree that lawyers are necessarily the answer. I have a forthcoming article in the ELB entitled “The Ethics of an Employment Advocate” which explains my personal view on the subject. As a starting point, access to the judicial institutions is inhibited by the unrealistic income expectations of lawyers. Of course, there are indeed advocates who are involved in unscrupulous behaviour. However, there are many lawyers who engage in such behaviour without repercussion due to the difficulties of enforcement. There are many non-barrister and solicitors which are genuinely highly ethical and any regulation should be done in such a way as to encourage competitive rather than monopolistic behaviour.
  • Peter Sara | 03 Sep 2014, 03:30 p.m. Agree 0
    Lawyers are subject the costs revision regime which applies discipline.I don't know what difficulties of enforcement there are.Under the LCRO, lawyers don't even have the right of appeal
  • Russell Eades | 03 Sep 2014, 05:54 p.m. Agree 0
    This is happening in the Accounting profession also where there are unqualified individuals freeloading off the professional qualifications of professionals who have completed the necessary academic and other membership requirements, allowing them to, in some circumstances to appear to the general public as Accountants when the services are provided as part of a member firm. The NZICA are aware of this issue and instead of applying their rules to stamp out this problem, they changed them to "legitimise" the status of unqualified members.
    The Law Society and the NZICA should both act together to ensure that all people offering accounting or legal services have an appropriate level of professional qualifications AND are subject to the professions respective Code of Conduct.
    Whilst it may be seen a acceptable to allow unqualified members to act in certain circumstances, there are just not capable of offering a competent level of service as they lack the professional training that full members have. These professional bodies need to act to represent their members.
  • Steve Punter | 03 Sep 2014, 06:05 p.m. Agree 0
    I am an employment relations specialist. I have been in this profession for over 20 years. I do not call myself a lawyer, neither do I 'insinuate' that I am one, nor would I wish to be one. My areas of work and interest encompass a far wider range in the employment, HR and business scene than most lawyers. I do not present at the Employment Court, I retain a Barrister for that when I need one. 90% of my cases are settled at mediation, where the skills of negotiation, conflict resolution a healthy dose of common-sense and the willingness to compromise are my tools - not spouting case law at every opportunity and resorting to adversarial tactics from the get-go. I am disappointed if a case has to go to the Authority, let alone the Court. Most of my clients are employers and I usually have a wider involvement with them as an external HR resource. The employment law sector was deliberately made accessible to anyone in order to ensure that access to the system was not restricted only to those with deep pockets. I have been astonished at the costs I have seen charged, and cases unnecessarily drawn out by some who only have the legal aspect in mind and play the competitive adversarial game, the unsuspecting customer being the loser. Regulation may be the answer - but to what? I suspect a healthy dose of 'patch protection' is part of the driver behind this. I'm not a fan of the '0800 sacked' brigade, but they can only exist if the demand is there. Perhaps it would be better to answer the question ‘why is the market there’, than to sit in a glass house and throw stones…
  • Ashley Balls | 04 Sep 2014, 12:14 p.m. Agree 0
    How hard can it be to require all persons appearing before Tribunals and Courts on employment matters to go through a registration process and be required to meet and uphold a set of ethical standards? The cat has been out the bag for some time - so whose fault is it that nothing has been done? This is yet another example of what happens when de-regulation occurs. When any Tom Dick or Harriet can appear before an adjudicator with no controls, chaos is inevitable. This should have been dealt with in 2006 by the Lawyers and Conveyancers Act. Who dropped the ball?
  • Joe Tonner | 05 Sep 2014, 11:49 a.m. Agree 0
    I agree there needs to be a method for establishing competence of advocates but that is surely up to the client and where appropriate the authority member, mediators can and do where necessary speak directly to the client without their advocate. There are also incompetent lawyers, by the way. BEWARE OF CRAFT PROTECTION, it did not work for the boilermakers.
  • Tony Stone | 05 Sep 2014, 11:58 a.m. Agree 0
    Over a number of years in HR I have dealt with a number of what I call lay advocates who were absolute idiots, but I have also seen union organisors, (the paid officials as opposed to elected delegates), and lawyers who haven't done their clients any favours either. I have however also seen the opposite with very good pragmatic legal advice being given, including on occasion pro bono, excellent organisors and good down to earth advice from lay advocates.

    I suspect that the issue is partly one of cost. Lets be honest lawyers don't come cheap, and if you have just lost your job money is an issue. There is also the advertising factor. I don't see many links on Stuff to law firms, whereas I do see them for lay advocates.

    My hopefully balanced two cents worth based on quite a few years experience
  • Peter Sara | 05 Sep 2014, 12:00 p.m. Agree 0
    Incompetent lawyers get struck off or suspended.Professionalism requires competence and accountability. Immigration consultants were outlaws until they were regulated
  • Tony Stone | 05 Sep 2014, 12:23 p.m. Agree 0
    I agree re the immigration consultants having had issues here when recruiting from overseas but I think they now have to sit some form of competency test & undertake ongoing development ? Is this is what is needed for any non lawyer in the employment space ?
  • Peter Sara | 05 Sep 2014, 12:31 p.m. Agree 0
    My view is that consumer protection requires minimum standards of competence and ethical conduct for anyone providing paid advocacy work in the employment arena and elswhere
  • Steve Punter | 05 Sep 2014, 12:43 p.m. Agree 0
    Regulation? As long as someone else pays for it, and does all the paperwork (perhaps the ones who started this discussion), bring it on. I'm regulated to hell as it is. Whether I'm a Saint or a Sinner, it ain't because of regulation. The winner of any regulatory requirement will be the bureaucracy set up to administer it. Customers are not masochists. Ye Gods...
  • Richard Rudman | 07 Sep 2014, 10:35 a.m. Agree 0
    Some of us are old enough to remember the halcyon days when barristers and solicitors could only appear in the employment tribunals with the specific consent of the presiding officer and the parties. The emphasis then was on practical problem and dispute resolution, with less concern for the minutiae of the law. It might be unduly provocative in this forum to wonder aloud whether things have necessarily changed for the better.
  • Ken | 09 Sep 2014, 11:51 a.m. Agree 0
    with personal grievances you need to be able to present a compelling plausable story to get traction for an applicant. Anyone can do that. The fastest way to lose your audience in a mediation is to start quoting case law.
  • Greg O'Brien | 09 Sep 2014, 03:06 p.m. Agree 0
    An unregulated climate in which employers find it less expensive to settle a claim often encourages a predatory type to initiate a claim, especially where they can claim a percentage of the settlement. Some form of regulation of properly trained advocates would no doubt assist in weeding out the cowboys! As stated, lawyers are well aware of the clear (though not quick) sanctions that their society can impose on their lives if they overstep the boundaries of behaviour and professionalism.
  • Tony Stone | 10 Sep 2014, 09:48 a.m. Agree 0
    I would be interested to see what some of the MBIE mediators think. After all they see examples of this regularly
  • Jeremy McGuire | 01 Oct 2014, 11:01 a.m. Agree 0
    Some of you may know about an article I wrote in the July 2014 NZLJ where I referred to this issue. I think the status quo is wrong on two fronts. I think all people who get paid to represent somebody else's legal interests should be registered. As has been noted, that is no different to immigration consultants, real estate agents, mortgage brokers and so on. Once people are registered they are then also subject to regulation. That must be right. The other problem is the current arbitrary costs policy in the ERA and the standard and inadequate daily tariff of only $3,500. Costs are one good way of deterring unmerited personal grievances. The liability to pay those costs, and whether they should be awarded in part or fully against the unregistered and unregulated employment advocate if and when appropriate, is the other.
  • Steve Punter | 01 Oct 2014, 11:07 a.m. Agree 0
    Hi Jeremy - just like to edit your last sentence a little - '...and whether they should be awarded in part or fully against the unregistered and unregulated employment advocate or incompetent or unnecessarily adversarial lawyer if and when appropriate, is the other.'
    Happy Day.
  • Joe Tonner | 01 Oct 2014, 11:18 a.m. Agree 0
    There are always going to be cases without merit and not just in the ERA. There is a case reported today in the High Court involving property matters.

    What is important about the ERA is it is dealing with employers and employees, it is about balancing the economic resources and power of the employer and employee. Employers who can and do take out insurance to cover such costs compared with employees who cannot afford the costs of such insurance even if they were made available by insurance companies, which they are not. It is very much different from real estate and immigration, it is about employment relations, which is very different. That is why we have a special legal structure just for employment related matters. That is also why for many decades wise people kept lawyers out of the process, perhaps that is the real solution here.
  • John Shingleton | 01 Oct 2014, 11:29 a.m. Agree 0
    Mind you, with the changes that will be enacted by Parliament, I predict the end of the no win no fee cottage industry as thankfully process will no longer be such a key aspect of 103A. In my experience, that has been the leverage used to extract settlements from other wise fair minded but procedurally challenged employers. The next year or so could be interesting friends...
  • Martin Coogan | 07 Oct 2014, 05:54 a.m. Agree 0
    This all reminds me of another development of insurance industry staff/ professionals appearing in the Disputes Tribunal where of course lawyers are not generally allowed to appear. This results in an unequal contest with the lay litigant up against a professional but non registered litigator.
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