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Better information and increased choice is, of course, only part of the equation. Consumers also need the protection of an effective and independent complaints system to which they can turn if there is a dispute over a lawyer’s fees or conduct in handling a case. (Attorney-General’s Department Justice Statement, 51)
762 THIS CHAPTER DISCUSSES the need for a transparent and effective means
of ensuring lawyers’ accountability to their clients. The particular concern is that inadequate information about lawyers’ fees and the management of clients’ cases results in women being ill equipped to participate in the justice system in an informed manner. The introduction of a Code of Client Service is recommended as an appropriate means by which lawyers can be accountable for the quality of legal services they deliver to all clients.
763 Throughout the consultation programme women were united in their view that the fundamental purpose of lawyers’ services is to enable clients to make informed choices about the management of their legal matters. Lawyers would surely agree with this view. The women also believed it was critical to the achievement of that purpose that they be informed about:
• the options available, within and outside the justice system, to manage the problems which they bring to lawyers;
• the processes involved in utilising the justice system to manage their problems; and
• the conditions upon which their lawyers’ services will be provided.
Accordingly, lawyers’ provision of information about these matters was regarded as a vital ingredient of competent service.
764 The complexity of the justice system, and its unfamiliarity to many New Zealanders who become involved with it, means that there is no single measure which lawyers, individually or collectively, can rely on to meet clients’ needs to participate in the justice system in an informed manner. That end can be attained only by a strategy which has several component parts, including the use of legal information and public education services outside the private lawyers’ market. The role of the legal profession in the larger strategy is vitally important, however, because lawyers often occupy, in fact or in effect, the privileged position of gatekeepers of the justice system’s processes.
765 There is a variety of ways by which the legal profession can help ensure that all lawyers will provide services of a quality which enables clients to make informed choices about their involvement with the justice system. Among the most obvious is through the education of lawyers, during all three stages of their formal education, about their duties to, and effective communication with, clients. In earlier chapters, a number of matters relevant to the effectiveness of educational initiatives of these types have been discussed. The discussion in the following chapter is also relevant.
766 One relevant educational initiative that is soon to be implemented is the result of the New Zealand legal profession’s attention in recent years to its responsibilities and its acknowledgement of some deficiencies in lawyers’ understanding and performance of their professional duties. (See, for example, Forbes, 1996 New Zealand Law Society Triennial Conference; the 1996 Cotter and Roper report; and the E-DEC final report on the structure and functions of law societies) The major outcome is that, from midway through the year 2000, each of the three stages of lawyers’ education and training in New Zealand will have an increased focus on professional responsibility. All law students who intend to practise law will be required to pass a university course (of a minimum of 24 hours’ instruction) in professional responsibility and ethics. The 13-week course which law graduates must complete before being admitted to practice will contain a much expanded professional conduct “module”. And the New Zealand Law Society’s continuing education programme will give increased attention to issues of professional responsibility.
767 Another way in which the legal profession might help ensure that lawyers meet clients’ needs to be informed participants in the justice system is through the accreditation of lawyers who have met, and who maintain, certain standards of training and experience in particular fields of law. Through publicity of what is involved in gaining accreditation, and of how to find accredited lawyers, prospective clients will gain the advantage of their proven skills and experience. As has been mentioned (see chapter 8, para 624), tentative steps in this direction are now being considered by the Family Law Section of the New Zealand Law Society and by the Auckland District Law Society.
768 Educational and accreditation measures by the profession are undoubtedly valuable components in a larger strategy. But, by themselves, such measures do not demonstrate an unequivocal commitment to achieving the goal of ensuring clients’ informed participation in the justice system. Nor do they provide a transparent and accessible process by which individual lawyers can be held accountable for the provision of services that are of sub-standard quality in this regard.
769 The Rules of Professional Conduct for Barristers and Solicitors do not fill the gap. They define “the bounds within which a practitioner can practise the profession” of law (Introduction to the Rules), and are directed at discouraging conduct which may warrant disciplinary action rather than conduct which may constitute poor service but not warrant that action. In addition, the means by which the profession upholds the Rules under the Law Practitioners Act 1982 (by formal costs revision procedures and separate formal procedures for other complaints) are not appropriate for many complaints of poor service quality. (See further NZLC MP10, 32, 40)
770 Apart from the profession’s own complaints and disciplinary processes, lawyers’ clients have available to them the protection of the Consumer Guarantees Act 1993. In broad terms, Part IV of that Act guarantees consumers that services will be supplied with reasonable skill and care, be reasonably fit for the purpose for which the consumer requires them, be completed within a reasonable time and be reasonably priced. Dissatisfied clients who wish to challenge the quality of their lawyers’ services in any of these respects can initiate proceedings to that end. The Disputes Tribunals’ jurisdiction (for claims up to $7 500 or, if both parties agree, $12 000) means that many complaints of this kind could be determined in that forum. (s 10(3) and s 13(2) Disputes Tribunal Act 1988)
771 In light of the concerns women raised, it is apparent that many clients who are dissatisfied with their lawyers’ service quality are not well placed, either financially or otherwise, to take legal action to obtain an appropriate response to their complaints. Further, the protection offered by the Consumer Guarantees Act is of a general nature, and not tailored to the specific needs of lawyers’ clients to be informed participants in the processes by which their matters are managed. In other jurisdictions with comparable consumer legislation, it has been recognised by the legal profession that the legislative protection is not a substitute for the profession providing a set of client-care rules, enforced by a user-friendly complaints system, the primary purpose of which is to assure all lawyers’ clients of minimum standards of service quality. The current moves to reorganise the New Zealand legal profession provide a valuable opportunity for its consideration of whether and how it should now introduce measures of that kind.
772 The following sections outline the serious criticisms made to us by New Zealand women of lawyers’ failure to provide clear information about both their fees and their management of clients’ cases. These were among the most frequently mentioned criticisms that were made of lawyers’ services.
Fee information
It is in your interest as well as that of your client to have the whole question of billing sorted out and agreed at the outset of a job. It is not good enough to hope that the job will sort itself out and that the client will be satisfied with the bill. (The Law Society of England and Wales, 1997)
773 Information about fees is integral to the legal advice provided to clients. It is one of the pieces of information which enables them to make informed choices about the benefits and disadvantages of resolving particular disputes according to the available options. Yet a pervasive theme of the meetings with, and submissions from, New Zealand women was that their lawyers had given them inadequate information about fees. It was regularly said, for example, that lawyers had not mentioned their hourly charge-out rates, had not explained how work done was to be charged for, had not offered to provide an estimate of the overall costs of the matter, or had not said when bills for work done were likely to be sent. Some women acknowledged that their lawyers may have told them about these matters at a time when they were too distracted to absorb the information. In the absence of written confirmation, however, or regular updates about progress and cost, that information, if given, was worthless. As a result, the study was provided with evidence of numerous situations in which women did not know about the costs of their legal matters until they had received a bill in the mail, by which time it was too late for them to have made provision to pay it. (See further NZLC MP3, 1–5)
774 Inadequate fee information is an issue of concern to all clients, but especially to those who have little disposable income. As has been seen, women are over-represented among low-income earners in New Zealand, and face particular financial difficulties as a consequence of the breakdown of marital or other domestic relationships (see chapter 4, para 223).
775 Until the early 1980s, the New Zealand Law Society promoted Scales of Professional Charges within New Zealand. Upon their abolition in 1984, the Costing and Conveyancing Practice Manual was issued, containing principles of charging. Lawyers and clients are now able to make their own fee arrangements subject to the principles in the Rules of Professional Conduct for Barristers and Solicitors (reprinted in Conveyancing Practice Guidelines, August 1998, 20–21).
776 Information about Lawyers’ Fees (NZLC MP3) was the first consultation paper to be released during the course of this study. It presented, within the context of the rules relating to lawyers’ fee disclosure in New Zealand, the concerns women had raised about the inadequate information they had been given. The paper also presented the fee disclosure rules in force in several Australian states and in the Australian Family Court, and some proposals for fee disclosure rules for other federal courts. Those rules and proposals are generally more prescriptive than the rules in force in New Zealand, and also differ in respect of the detail required to be provided to clients and the penalties for non-disclosure. (See further NZLC MP3, 18–26)
777 The paper received a positive response from New Zealand women and community groups, who expressed strong support for the introduction of fee information rules. The response from lawyers was more circumspect, although their submissions did indicate widespread agreement with the view that the provision of fee information, where possible, is good practice.
778 It is evident that many lawyers provide some fee information to their clients and that some are assiduous in this respect. However, it is equally evident that there are substantial variations in the kind of information disclosed, and in how and when it is disclosed. (See further NZLC MP3, 5–9) For example, among the 203 lawyers who responded to the study’s questionnaire, which included questions about fee disclosure practices, there was little mention made of written confirmation being given to clients who had been given fee information orally.
779 Results from the Poll of Law Firms are relevant too, for they show that only 20 percent of firms have a formal (written) policy about recording lawyers’ terms of engagement at the outset, and that a further 55 percent have an informal (unwritten) policy. Although the larger firms (of 6 to 10 partners, and more than 11 partners) were much more likely to have a formal policy, the majority still had either an informal policy or none at all. Among smaller firms, fewer than one in five had a formal policy on recording terms of engagement at the outset. (Poll of Law Firms, 16–17)
780 There are a number of inter-related reasons for the variations in lawyers’ practices in disclosing fee information. First, the rules governing fee information do not specify in any detail what, when or how fee information should be provided. In fact, the sole reference in the Rules of Professional Conduct for Barristers and Solicitors to the fee information that must be provided by lawyers to clients relates to information about the costs revision process. (Rule 3.01, Commentary (3)) Otherwise, the guidance provided is directed at a “willing practitioner” responding to a request for fee information from the client.
781 The lawyers who responded to the questionnaire made it clear that the manual’s guidance is often strictly interpreted. For example:
“[I give an estimate of the cost of services] if required. If not requested I don’t tend to do this as it is ‘down time’, making less time in the day to achieve my budget of chargeable time for the day.” – Submission 141
“I only explain [billing] if the client asks.” – Submission 292
“If asked [I provide an estimate or quote], otherwise not invariably. [I] find it difficult to discuss.” – Submission 297
“Disclosing the hourly rate is plainly embarrassing, as people who have never run a business cannot conceive of the necessity to charge so much.” – Submission 16 on NZLC MP3
782 It is also apparent from the questionnaires, discussions with lawyers and from lawyers’ written submissions that many believe it is too difficult, especially in litigation, to provide clients with estimates of the costs involved.
“[I]t is notoriously difficult to estimate legal costs . . . There are so many variables.” – Submission 13 on NZLC MP3
“It can be extremely difficult to give an accurate estimate because there are
so many contingencies, especially in the litigation area.” – Submission 20 on NZLC MP3
783 Some lawyers who were critical of those who do not disclose fee information believed that it must be junior members of the profession who are not providing that information. The questionnaire responses show that it is not only junior lawyers who do not volunteer fee information, but that junior lawyers may well be less likely to provide it than their more senior colleagues. If this is so, the obvious question to be asked is whether the supervision and training which lawyers receive in their early years of practice is adequate. In this regard, we note that there has been little effort made by the profession as a whole to assist new practitioners. The last New Zealand Law Society seminar on “Costing” was held in mid 1989. In July 1998, the Auckland District Law Society ran a late afternoon seminar entitled “Billing the Client – Best Practices”. Also relevant is the New Zealand Law Society series of workshops on “Effective Supervision Skills”, held in four main centres in May 1999.
784 If lawyers are reluctant, for whatever reason, to volunteer fee information to their clients, the onus is put on their clients to ask for it. Yet women who had engaged lawyers often said that they had been unable to ask for that information. This was particularly common among women who were first time clients, or who had engaged a lawyer at a very stressful time, or who were intimidated by the social or cultural gulf which they perceived to exist between them and their lawyers.
“F can’t get any more legal aid and has a charge on the house and will have to refinance. Her lawyer is still acting for her. F said it was unclear whether he is charging her and what sort of bills will emerge.” – Submission 178 (telephoned)
“I’d be too shy first thing to ask how much it cost.” – Meeting with refugee and migrant women in Christchurch
“C called the Commission and talked about receiving a very large bill from her second lawyer. C said that she had not known what to do about it and said ‘I just left it for a certain period of time.’ C said that she has now asked for a detailed breakdown of the account. C said that she wished that she had known more when she first went to the lawyer.” – Submission 142 (telephoned)
785 These issues are not specific to New Zealand. In response to criticisms of lawyers’ skill and competence, legal professions in a number of jurisdictions have taken steps to focus more closely on the quality of service provided to the public. Client care codes or guides are an increasingly common result: for example, the manual issued by the Queensland Law Society in 1993, Client Care: A Guide for Solicitors, to assist lawyers and law firms to improve the relationship between lawyers and clients, and the client guide, Keeping Clients: A Client Care Guide for Solicitors, launched in July 1997 by the Law Society of England and Wales. These initiatives have been well received by the public.
786 In many of the Australian states there are rules requiring lawyers to disclose fee information to their clients, and sanctions for non-compliance with the rules (see NZLC MP3, 18–20). Client dissatisfaction in those jurisdictions has decreased since the rules’ introduction. For example, the 1997 Annual Report of the Professional Standards Division of the New South Wales Law Society notes that the number of complaints relating to overcharging fell from 304 to 180 as a result of new rules. Further, lawyers have commented that the new rules provide not only the incentive to discuss with clients the matters of fees and the management of their cases but also the framework within which to do that. (Professional Standards, 1997, 4)
787 Apart from the difficulty of estimating fees in certain areas of legal work, the main reasons lawyers gave for resisting fee information rules were:
• their opposition to compulsion as a general point of principle;
• their belief that current practice was adequate; and
• their belief that fee disclosure would require more administrative work which would not necessarily be recompensed.
788 The first reason does not sit easily with the fact that lawyers are already compelled by the Law Practitioners Act, and the rules made under it, to behave in particular ways. Compelling fee disclosure would be an additional requirement rather than a new type of imposition on practice. The second reason (that current practice is adequate) is one that is refuted by the information gathered in this study. The third reason (more administration) does not raise any point of principle but is an objection to the temporary inconvenience of adapting to new practices.
Information about how the case is being handled
789 It is not only inadequate information about lawyers’ fees which prevents women from making informed choices about their use of the justice system. Women’s other major concern was that they received insufficient information about the processes involved in managing their legal matters. In the project’s consultation papers, these concerns were presented in the context of family law disputes, for that was the context in which women most often voiced them. (See NZLC MP10, 8–12) In many instances, it was apparent that the women had not been given basic information about:
• the sequence, and purpose, of the steps to be taken towards resolving their matters;
• the causes of delays; or
• law firms’ practices with regard to dealing with clients’ matters.
790 More specifically, women often said that their attempts to obtain information on the progress of their matters were evaded or ignored by lawyers. For example, telephone calls were not returned, or their questions about procedures, delays or outcomes were not answered directly. Women also complained about being passed around a law firm and having their matters dealt with by another, often very junior lawyer without prior explanation or warning.
“You have to be pushy in asking questions to be told when things are happening or when something is going to happen. The court procedure was very hard because at a time when you are feeling most vulnerable you have to be very pushy to get what’s needed.” – Submission 280
“The first account was not itemised at all and was for the sum of $712.00. I rang their accounts department and was told that I had received [an itemised account] and it took some arguing to convince them that I had not and that I insisted on getting one. When I received this itemised account I saw I was being charged for [a lawyer’s] time, even though I had not seen her and she had done nothing for me.” – Submission 63 on NZLC MP3
791 The New Zealand Law Society poll results relating to law firms’ practices in recording terms of engagement (see para 779) are indicative of attitudes within the profession to the level of care that is needed to explain to, and record for, clients the range of matters about which many are uncertain. The absence of information about the management and progress of their legal matters was a cause of very real distress to many women. Some women who attended consultation meetings said they had abandoned the pursuit of their legal rights as a result. Many others had persisted despite their fears of the unknown time and costs that would be involved.
792 The report prepared for the New Zealand Law Society by E-DEC Ltd proposes the introduction of “a set of client entitlements” in the form of a Code of Client Service, which would apply to all lawyers. With regard to fee and case-handling information, the report suggests that a code could require lawyers to act in the following manner:
Engagement
(1) The lawyer must agree with the client, at the commencement of an engagement, the objective and the intended output of the engagement (ie the service to be provided).
(2) The lawyer will discuss with the client what is involved in an engagement of this kind, the events likely to occur, the processes to be gone through, and the actions to be taken. The lawyer will give the client the lawyer’s best estimate of the likely outcome of the engagement.
(3) The lawyer will define for the client, at the commencement of the engagement, the basis for charging and the procedures which will be followed in charging for the engagement. If requested by the client, the lawyer will provide the client with an estimate of the likely cost of the engagement although such an estimate will not be binding unless agreed to by both the lawyer and the client. The lawyer will inform the client of the client’s entitlement to this cost estimate.
(4) The lawyer will provide the client, at the commencement of the engagement, with an estimate of the time required to carry out the engagement and an estimate of the probable time schedule for the main components within the engagement.
Performance
(1) The lawyer will inform the client when the main components of the transaction are completed and if major changes occur. The lawyer will respond in a timely manner to all client questions. The lawyer will inform the client if the engagement develops so that the likely achievements, time or costs start to diverge significantly from the estimates initially provided.
(2) The lawyer will provide a reasonable quality of legal service to the client. Charges to the client will not be unreasonably high.
(E-DEC Final Report, 20–21)
793 A Code of Client Service will, of course, be of greatest benefit to clients if it is upheld by a transparent and accessible complaints process. At the consultation meetings, few women knew of the current formal complaints processes available to lawyers’ clients. A number of other concerns about current processes were identified:
• there was a perception that the legal profession “looks after its own” in its disciplinary and cost revisions processes;
• the separate processes for costs revisions and “other” client complaints were thought to be confusing; and
• the processes were generally regarded as being cumbersome, daunting and time consuming.
794 The 1996 Poll of the Public found that only one-third of New Zealanders were aware that the district law societies handle complaints about lawyers. Men were nearly twice as likely as women to be aware of the societies’ complaints role. (98–99)
795 It is widely accepted that the current rules and processes governing the legal profession’s handling of complaints and cost revisions are not user-friendly to clients. Recent efforts to improve their accessibility (including the New Zealand Law Society’s establishment of an 0800 number for information about the complaints process in relation to solicitors’ misuse of clients’ money and some cost reviewers’ use of mediation) do not overcome the mismatch between the disciplinary focus of the present regulatory system and the client-service focus that women believe is essential to assure lawyers’ clients of competent service. The New Zealand Law Society noted in its submission on the consultation paper Lawyers’ Costs in Family Law Disputes (NZLC MP10) that:
“The Society is the first to acknowledge that the current complaints and disciplinary system is not perfect. Indeed it is confidently expected that the system will be restructured following the current review of law societies’ functions and structures.
One difficulty with the current system is that, under the relevant provisions of the Law Practitioners Act 1982, it is focused upon whether a disciplinary charge should be brought against the practitioner rather than upon the resolution of the complainant’s concerns.”
796 The E-DEC Background Report contains a similar list of lawyers’ concerns about the processes. (77–78) It also states:
A client complaints handling system must be designed with both effectiveness and efficiency in mind. To be effective, it has to focus on ensuring that a minimum reasonable standard of service is provided to clients. This means it has to provide an avenue for clients to complain when they feel they have not received adequate service, and it must also include mechanisms to correct the clients’ problems if the complaints have substance. This is the main priority. (Background Report 172)
797 For all these reasons, the E-DEC report recommends the introduction of a client-focused complaints system to support the code. It envisages each law firm having a documented complaints system within a larger system established by the profession’s governing body. The report suggests the following statements as being suitable for inclusion in the Code of Client Service:
Complaints
(1) Each law firm must have a documented complaints receipt and handling system and must use this system to handle all complaints. This documentation must be made available to the client on request and in the event of the client expressing a complaint. The current documentation also must be provided to the New Zealand Law Council.[29]
(2) Each lawyer and law practice is subject to the oversight of the New Zealand Law Council in matters concerning client service. This oversight will take place within the framework defined by this Code of Client Service. This oversight will include also investigative and resolution procedures as adopted and as executed by the New Zealand Law Council.
(E-DEC Final Report, 21)
798 In order to achieve the primary goal of resolving complainants’ concerns about the client service matters specified in the code, the E-DEC report recommends that those complaints be approached and managed differently, and separately, from matters of lawyers’ discipline. This study confirms the wisdom of separate approaches to the two types of complaint as well as the report’s general approach to the handling of client service complaints made under the proposed code. The report suggests the creation of an Office of Client Service, funded by a levy on all lawyers providing legal service to clients, to manage those complaints. It concludes that most complaints would be made by telephone and received by a trained complaints handler who, if unable to resolve the matter then and there, would refer the complainant to the complaint handling process within the law firm. If that process failed, the Office would investigate the complaint and attempt to resolve it, either informally or by mediation. Only if that failed would the matter come before a panel (of two lawyers and one non-lawyer) empowered to make a binding decision on the basis of written material placed before it by the client, the lawyer and the Office of Client Service. If the panel was satisfied that a breach of the code was established, it would have a range of remedies available, from requiring an apology or corrective action to imposing a financial settlement. (E-DEC Final Report, 23)
799 The more formal disciplinary processes envisaged by the E-DEC report to deal with alleged breaches of the Rules of Professional Conduct would be administered by a new Office of Lawyer Conduct, which would be empowered to prosecute lawyers before a new decisionmaking body, the Lawyer Disciplinary Tribunal. (E-DEC Final Report, 24)
800 It is clear that the E-DEC proposals relating to client complaint and lawyer disciplinary processes have been made in the light of the “best practice” principles developed by the New South Wales Law Reform Commission to govern the operation of that state’s professional regulatory system. The principles have been largely implemented in the Legal Profession Reform Act 1993 (NSW), and in 1994 the Australian Access to Justice Advisory Committee, appointed by the Commonwealth Attorney-General to recommend reforms to the legal system, urged the Commonwealth actively to engage all states to examine their disciplinary systems against that Act’s model and enact legislation as necessary to incorporate the best practice principles:
801 The committee summarised the best practice principles in these terms:
• independence and impartiality, including supervision of the process by a body independent of the professional organisations, empowered to take over the investigation of particular complaints;
• identification and recognition of multiple aims (consumer redress, lawyer discipline and maintenance of legal professional standards);
• accessibility;
• efficiency and effectiveness;
• procedural fairness;
• openness and accountability, including the participation of non-lawyers in all stages of the disciplinary process;
• external scrutiny and review;
• enhancement of professional standards, including extending the system not only to serious professional misconduct but to unacceptable breaches of professional standards of competence;
• proper funding and resources; and
• appropriate redress to complainants through procedures to enable compensation to be awarded to clients who sustain losses by reason of breaches of professional standards (whether or not attracting disciplinary sanctions) and to provide for speedy resolution of solicitor-client disputes. (Access to Justice Advisory Committee 1994, 210)
802 It is not clear what the New Zealand Law Society’s response will be to the client-service recommendations made in the E-DEC report. A letter written late in 1998 to all members of the society from its president makes plain the view of the society’s council that all practitioners will remain subject to a regulatory scheme in the future even if, as the council proposes, membership of the society becomes voluntary. The nature of the regulatory scheme envisaged by the council is unknown at this stage. The president’s letter suggests that the profession’s costs revision process may not be necessary in future, presumably because of clients’ access to alternative fora. Whether the alternatives will include a new client-oriented forum, established to support a larger set of client entitlements, remains to be seen.
803 What is known is that, in 1997, the society established a Professional Standards and Liability Committee which has undertaken a careful study of the New South Wales Professional Standards Act 1994 and schemes approved under it. (A similar legislative scheme is also in force in Western Australia.) The Long Title of the New South Wales Act describes its policy objectives as being:
to provide for the limitation of liability of members of occupational associations in certain circumstances and to facilitate improvement in the standards of services provided by those members.
804 To those ends, the Act establishes a Professional Standards Council to supervise the preparation of limited liability schemes and assist in the improvement of standards and the protection of consumers. The New South Wales Solicitors Limitation of Liability Scheme was gazetted in October 1996. It provides for a statutory cap on the liability of members who opt in, and imposes a number of requirements on them, including evidence of insurance cover, certification of completion of continuing legal education requirements, and the inclusion of a statement on all documentation that their liability is limited by the scheme.
805 It is understood that the New Zealand Law Society’s Professional Standards and Liability Committee intends to explore with other professional associations the question of a joint approach to the government in advocating a similar regime for New Zealand. Enhanced service standards, including client-care measures, seem certain to be among the measures offered by the professions in return for a statutory cap on liability.
806 The introduction of a Code of Client Service in order to promote consistent practices within the legal profession would provide a direct and transparent response to a number of the problems which this study has identified in the delivery of lawyers’ services to women clients. Consistent practices will facilitate the informed participation of women in the justice system, whether as privately paying or legally aided clients of lawyers.
807 It is evident that some, perhaps many, lawyers believe this goal can and should be achieved through other measures which would encourage improvements in the quality of lawyers’ service but not require adherence to a uniform set of standards. Such measures would doubtless have a heavy emphasis on education of lawyers and of the public, and might involve the introduction of accreditation schemes.
808 On the basis of the evidence gathered in this study, it is considered that any alternative strategies are less likely to give practical effect to the principle of informed participation by clients as effectively as would a Code of Client Service. This is not intended to diminish the value of supplementary measures which the legal profession can and should also take to facilitate informed client participation in the justice system. What a Code targets most directly and comprehensively, however, is the imbalance of power that exists between lawyers and many of their clients and potential clients which, as this study has shown, presents a range of impediments to their ability to discuss with their lawyers matters upon which mutual clarity must be obtained. If clients are to be participants, not puppets, in the decisions made about their use of the justice system, that source of difficulty in matters as basic as those discussed in this chapter must be tackled by means that will reach all lawyers and all clients.
809 The E-DEC final report’s statement of the code’s content provides a useful starting point for the New Zealand Law Society. It does not, however, capture, or sufficiently specify, all the matters which would be contained in a code which is focused on the needs of women clients. For example, its statement that clients must be informed when costs “diverge significantly” from estimates is open to very different interpretations by lawyers and clients. The specification of a percentage variation (for example, 10 percent) or of a dollar amount would demonstrate a more informed awareness of clients’ needs. As well, the E-DEC report’s statement would not require the disclosure of several matters which are of particular importance to women clients, namely:
• the name and status within the firm of the person responsible for the day-to-day conduct of the matter, and, if appropriate, the partner responsible for its overall supervision;
• the name of the person in the firm or, if appropriate, a nominated person outside the firm, who should be approached if the client has any complaints about the service provided which cannot be resolved with the person who is responsible for the day-to-day conduct of the matter;
• the steps required to complete the matter, and the time likely to be needed to conclude it; and
• how often the client will be advised about the progress of the matter.
810 On the basis of this study, it is considered that a code should require the prescribed information to be disclosed to a client both orally and in writing at the outset of the engagement, as soon as all the necessary information has been supplied by the client. It is envisaged that a model disclosure document would be issued by the New Zealand Law Society in a standard format (either in printed form or electronically) and in a variety of languages that are in common use in New Zealand. It is implicit that both the oral and written disclosures need to be made in plain language. However, in light of the various difficulties with written information that have been discussed in chapter 9, the production of supplementary means of explaining client entitlements, such as videotapes in different languages, would be a valuable aid for clients who may have particular difficulty understanding the information the code requires lawyers to convey.
811 In other jurisdictions, there are exceptions to the disclosure requirements of a Code of Client Service. Common exceptions relate to the following situations:
• where the client is a long-standing client of the law firm or lawyer;
• where disclosure is reasonably considered to be unnecessary, taking into account the knowledge and experience of the client in instructing and dealing with lawyers;
• where the lawyer reasonably anticipates that the matter will be concluded and billed within 21 days (or such other time as may be specified); and
• where the practitioner reasonably anticipates that the amount of the bill, excluding disbursements, will be less than some specified amount.
812 It is accepted that a very urgent matter may need to be exempted from the requirements: a lawyer may simply not have the time to prepare a full disclosure document. The New Zealand Law Society would need to provide guidance on reasonable compliance in that respect. In other respects, however, and in light of this study’s findings, blanket exemptions to the code’s requirements do not appear to be either necessary or desirable.
813 Finally, it is noted that if an Australian lawyer fails to disclose fee information or does not disclose it in the required way, each of the various rules has mechanisms to protect the client until the matter has been resolved through a complaints processes. Such mechanisms are essential. The Australian Access to Justice Advisory Committee, after reviewing the existing Australian rules, proposed the following:
Where a lawyer fails to make the required disclosure, any costs agreement between the lawyer and client should be unenforceable. Any fees charged by the lawyer should not be recoverable except after an assessment by a costs assessor and then should only be recoverable on the same basis as for that applied in determining costs between the parties to litigation. (Access to Justice Advisory Committee, 148)
814 It is apparent that inadequate information about lawyers’ fees and the management of their cases results in women being unable to make informed choices about the conduct of their legal matters. The barrier this poses to women’s access to legal services responsive to their needs confirms the need for a transparent and effective means of ensuring lawyers’ accountability for the quality of legal services they deliver to all clients. Again, using the principles and process which this study has identified as being essential to guide all efforts to promote the just treatment of women by the justice system, any strategy to address the issues raised must ensure:
• a client-focused approach to the management of legal matters;
• informed participation, by which clients are kept up to date with the legal processes relevant to their circumstances; and
• transparency in the means by which lawyers are accountable for informing clients about the management of their legal matters.
815 Accordingly, it is recommended that:
• the New Zealand Law Society act urgently to introduce a Code of Client Service, the content of which pays particular attention to the information needs and circumstances of women clients;
• the Code be supported by an accessible means of resolving clients’ complaints about service, consistent with the best practice principles identified by the New South Wales Law Reform Commission;
• the code and the complaints process be promoted to the public in the context of a publicity campaign designed to raise public awareness of the services provided by lawyers.
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URL: http://www.nzlii.org/nz/other/nzlc/report/SP1/SP1-10_.html