There is a growing problem with unethical non-solicitor and barrister advocates in the employment law space who are legally able to represent clients without being subject to sanctions, according to a number of lawyers.
Employment lawyer Garry Pollack told NZ Lawyer
that in the past few years this allowance has led to an influx of individuals who are seeing the open door as a business opportunity and are making very large incomes without being beholden to act ethically because they’re not on the roll of barristers and solicitors
“The problem that we all have is firstly there’s a long history to this in that our employment institutions allow a special place for lay advocates including union officials to appear, and traditionally there have been no problems with that,” he says, emphasising that the majority of these union officials are highly experienced and capable.
But the significant drop in union membership in recent years has meant that when people are in trouble, they are now looking to other kinds of consultants without appreciating that “employment law specialist” does not necessarily mean a lawyer.
“Many are people who just have no experience or real ability, but see it as a business opportunity, and there is an issue at the moment about how they advertise,” Pollack says.
“If you’re Joe Bloggs and you see ‘employment law specialist’, you assume you’re going to a lawyer. Some of these people even charge more than a lawyer. They often charge a percentage, and if you’re charging a percentage of an outcome, the risk is that you can distort the outcome.”
And while there are quick and clear sanctions for any lawyer who makes a mistake or acts inappropriately, there are no such repercussions for non-solicitors and barristers.
New Zealand is distinct from the UK in this sense, says Pollack. There, lay advocates generally have to be registered, very much like immigration consultants.
In New Zealand he’s been witness to widespread incompetence among those cashing in on employment law, some of whom “do the most terrible job for their clients” with “nothing” the public can really do about it.
Personally, Pollack would like to see a registration system introduced here for the protection of the public. It could potentially have some exceptions for people like union officials, he says.
“It is a very big issue in practice
in the employment area and it really needs to be dealt with by a proper registration system and dealt with by legislation. It’s just a mirror image of what happened with immigration.”
Another employment lawyer, who wishes to remain anonymous, agrees with Pollack’s concerns.
They told NZ Lawyer
that in the area of advocacy, non-solicitors and barristers are not subject to the regulation or supervision of the Law Society.
This means they’re not beholden to key ethical codes including conflict of interest and the duty to ensure they don’t mislead the court.
“From a client perspective, a client who is dissatisfied with their barrister or solicitor has full access to the Law Society complaints regime, whereas for this there is absolutely no comeback…there is no disciplinary body or regulator,” the lawyer says.
Like Pollack, they made it clear that these concerns don’t apply to every non-barrister and solicitor, many of whom are genuinely experts and highly ethical.
But it’s a question of the risk that there are those who are in “the business” to win and clip the ticket.
“In our court system, barristers and solicitors are the only people, with a few minor exceptions, who can appear before the judge – you can’t have a lay person,” the lawyer says. But in the employment arena, this is not the case.
The lawyer believes that including advocates up to mediation level makes sense, but says once the judicial process is started and decisions are being made that could have serious or financial implications, it’s vital to be satisfied that the process has some disciplines in it.
“In terms of ensuring the process has integrity, it’s safer that only a regulated person is able to represent clients in the authority of the court.”