For those not involved in the employment law industry, the issue of unregulated employment advocates causing mayhem in this specialised jurisdiction may be met with a confused “huh?”
The problem is that at present, anyone in New Zealand, regardless of education, qualifications or experience, can set themselves up as an ‘employment law specialist’ and go on to offer the same services as a qualified employment lawyer. In many cases, their clients do not even realise the advocate is not a lawyer. This is analogous to someone with no training in dentistry, setting themselves up as a ‘dental specialist’ and being able to offer the same services to the unsuspecting public, as a dentist.
Let me be very clear from the outset; there are some very good employment law advocates out there, and this article is not about them. Rather, it is about the very bad employment law advocates, who have no idea what they are doing, engage in unethical (at times, bordering on illegal) conduct, often represent the most vulnerable and yet, are unregulated and therefore, not answerable, to anyone.
Although this problem has been around for a couple of decades, anecdotally, the number of these bad employment advocates appears to be on the rise. Either that, or their
hitherto, unbridled brazen conduct has escalated.
During my 13 years as a specialist employment lawyer, the conduct I personally have had to deal with from these advocates includes failing to show up for their clients for a scheduled hearing/mediation; the advocate had simply decided that the matter didn’t look like it would pay much so it was not worth their while continuing, much to the shock of their client who had not been informed they were no longer represented.
Other reprehensible conduct involves altering documents to try and strengthen their client’s weak case and then filing the forged documents in legal proceedings, refusing to comply with timetabling orders wasting the time of all involved, including the Employment Relations Authority and the Employment Court, and a favourite amongst a few of them; trying to extort settlements and/or other benefits for their client by threatening a lawyer with a complaint to the New Zealand Law Society (‘NZLS’) if the lawyer does not advise their client to give in to the advocate’s demands.
Many of these advocates posit that the concerns employment lawyers are raising about their conduct, is nothing more than employment lawyers trying to “protect their patch’”. That is not the case, and the judiciary have also been raising these concerns. I know of no employment lawyer who does not willingly engage with the ethical, experienced advocates. Indeed, even the latter have been crying out for regulation in the industry, not least of all, because the bad advocates are tarnishing the reputation of those that are good.
One such advocate demanding regulation is Kelly Coley, president of the Employment Law Institute of New Zealand (‘ELINZ’). In a recent interview, Ms Coley stated that ELINZ receives at least half a dozen complaints about advocates per year, but adds that most are multiple complaints about the same handful of advocates. Although ELINZ members are expected to comply with the ELINZ Code of Conduct and Rules, membership is voluntary, and any member whose conduct does breach the code, can continue with their business, even if they are expelled from ELINZ or simply choose to resign.
In an NBR article published on 25 July 2022 entitled ‘Unregulated Advocates Impede Justice, Say Industry Players’ the article focused on one notorious advocate in particular, with whom I have had a number of dealings. In one case, I received a frantic phone call from two of his clients who had not been able to contact him for two weeks. Due to multiple timetable breaches, the authority had contacted the two clients earlier in the day, stating that if their witness briefs were not filed by the end of the day, they would be facing authority-ordered penalties. I filed the witness briefs they had drafted themselves, with no opportunity to read them, given the urgency of the matter, and filed a memorandum interceding on their behalf and explaining the issues with the advocate. This advocate’s conduct is well-known by the authority, and he has had penalties awarded against him personally numerous times by the authority, for his unacceptable conduct. He is not the only one.
The clients in the above example, had paid the advocate a sizeable amount of money up front, after which he simply went ‘comms dark’ leaving them without representation, in trouble for breaches of a process they knew little about, and with no recourse to get their money back.
And therein lies the large difference between an advocate and a registered lawyer; the latter is answerable to a stringent disciplinary regime that could see negligent, unethical or incompetent conduct met with fee reductions/reversals, penalties and even suspension or strike off. In the case of an unregulated advocate, they are free to simply move onto their next unsuspecting victim.
NZLS is currently in the middle of the most significant review of the legal industry in a generation, and an independent panel will be considering and making recommendations on what legal services should be regulated, hopefully by early 2023. MBIE is likewise reviewing its dispute resolution processes, which includes the provision of employment mediation services.
In the meantime, both employers and employees are urged to thoroughly research who they are engaging to represent them, and what, if any, protection they have if things go wrong. For clarity, holding a law degree does not make someone a lawyer. To be a registered lawyer, the person must hold a current practising certificate, and prospective clients can check current registration at www.lawsociety.org.nz/registry-lookup/
