Opinion and commentary
Who should be able to practice on their own account
A few weeks ago I was contacted by a journalist who asked if I would like to contribute to an article about changes being proposed to the provision of regulated legal services in New Zealand and changes to the complaints system against lawyers. I asked why anyone would care what I think, plus she rung me before 10am - that is a no no. I like to get my morning walk, coffee, and visit to the flower market in before I provide reasoned responses. The young journalist said they had been rebuffed by the publication's preferred commenter, a KC, and the KC suggested to her a comment from "prominent young barrister Jessica Matheson might be more relevant". In my irritated morning voice I said, "A story about rules, regulations, and complaints sounds too mainstream for my image, I'm trying to be more street". The journalist laughed loudly.
In all seriousness, the journo's article was going to reference a few young practitioners who had encountered serious issues with the approval process of late and the KC had informed the journo that I may be someone who could "legitimately" reflect on the plight of young practitioners seeking early approval and on the proposed changes to the approval process found in the report of the Independent Review Panel led by the fantastic Ron Patterson. Sorry Ron for not finishing my hons dissertation in 2017/2018, I was working full time and I had a grieving 12 year old. I also had to start work at 8.30am in the morning. Anyway, given I have a familiarity with one of the proposed human subjects in the journo's proposed story, I declined to participate.
Some brief thoughts
Speaking generally only, and from my own direct experience, I do feel the measures and criteria by which we currently approve a practitioner to practice on one's own account are not appropriately weighted - look if you want context as to what the current measures and criteria are you are going to need to review the NZLS website and the Lawyers and Conveyancers Act 2006 and relevant regulations promulgated thereunder. Competence is necessary but it is not sufficient to practice on one's own account. Equally, references about a practitioner in an employee context are nice but they are not determinative of a practitioner's personality, work ethic, and ability as a sole practitioner, and especially as a barrister sole. In my view, practitioners who go on to be approved to practice on their own account should be ambassadors of the profession. They should be individuals who the profession picks up and says 'go out there and represent and reflect the diversity of those which we serve'.
Make believe conditions on approval
Ensuring legal consumer confidence and safety is first priority, but what is crucial, in my opinion, is the practitioner's business plan and evidence of a demand for their proposed legal services. Impressing the profession with articles on "Quantum meruit: a fireside discussion" and webinars on "Working with lawyer for child: an exercise in tolerance" is one thing, but founding a business, attracting and maintaining clients is another.
If I was in charge of approvals (just imagine for a second), noting I am equally 'brutal' and indifferent (it depends on the day), I can almost guarantee nobody would be approved before 7PQE who could not produce the following during my approval process:
1) Evidence of a reasonable competency in chosen practice areas - I don't need references from senior counsel and/or firm partners, I want to see results and judgments. If the practitioner has not run or led a case of their own yet in a court, tribunal, or authority, I would ask the practitioner to provide me with 3 referees from the legal profession who could comment on the practitioner's contribution to management/strategy on matters.
2) Evidence of knowledge of the conduct and client care rules. This would be done by way of interview. From my experience, practitioners can rote learn these rules and get away with it in tests etc, but it is quite another thing to test someone's knowledge in a seemingly informal and relaxed environment. I think you get a better sense of whether they are client focused. Being client focused and alive to harm is attitudinal. It should be evident by the practitioner's demeanour and approach to litigation. It will also be reflected in a practitioner's ability to recognise error or mistake and ask for help or self-signal a need for further learnings.
3) A comprehensive business plan, including evidence that demonstrates a demand for the legal services the practitioner proposes to provide to the public. I would prefer market research and perhaps focus groups; if that is prohibitive as a result of cost/time for a candidate, then I would ask them to provide other evidence they feel demonstrates a demand for their services, or a projected demand for their services. I also feel making a candidate perform this step helps them to sharpen their expectations and to allocate their own resources more effectively. This is better for consumers and the profession.
4) Client testimonials. I would want feedback from clients who experienced success with the practitioner, and clients who lost their cases with the practitioner. The real reason for this step would be to glean relevant information from the client about the practitioner's attitude and also their client communication style. Attitude is linked to client care in my opinion.
(A senior colleague suggested that some "text book competent" candidates in the larger firms would not have alot of client contact by the 3 year mark. I did not spend enough time in a large firm to know whether that is correct, but I will say this: I would be cautious of approving someone in a public facing position who has not had relevant client contact with consumers at the date of applying for approval. If practicing on one's own account is desired, then the practitioner would need to take the initiative to put themselves in roles or firms where they can get good client-contact experience.)
5) Nomination of a professional supervisor for your practice if you are being approved before 7PQE. I can feel groaning from a few colleagues reading this (sorry!) and I imagine some people would be shocked that I would make this a condition (that's more onerous than the current rules! Sorry!). Look hear me out. I don't mean a micro-management relationship where they are controlling strategy of your cases or a 'you've been naughty now you get supervised' kind of supervision, I am talking about a friendly and collegial relationship where you can go to someone you trust and are familiar with. The nominee would need to consent and they would have no obligations relating to your clients and litigation. You would seek their advice and guidance as and when you judged you needed to or something like this... still deciding.
The only condition that would be removed after 7PQE would be the need for the nomination of a professional supervisor. This would be optional for those 7PQE plus.
Do my make-believe conditions make things easier or harder for practitioners to get approved to practice on their own account?
At the end of the day, my make believe conditions are formulated from a real-world and modern view of what it is like to practice on your own account early. They are also framed in a way that makes the process truly consumer focused and in harmony with facilitating access to justice. The current process and conditions, in my humble opinion, are framed from an outdated and internal-lateral looking view. The current process is a "creature of its generation" and it needs to retire.
A close senior colleague of mine, who is well familiar with the approval process, said my conditions were "interesting" and "I can think of some junior barristers in good chambers who would have trouble meeting your conditions". Why? I asked. He paused and looked down at his view of the Auckland Harbour Bridge. "Well, I guess the current conditions are testing how good an employee they were, but your conditions are testing for a kind of entrepreneurship." I smiled. I asked him which was better. "I guess a combination of both".
I thought I would end with a practical hypothetical example - no resemblance to reality is intended. Let's imagine that some 'great employees' get approved early (before 3PQE) and their approval is as smooth as a hot knife through butter. Let's say that a fair few of those 'great employees' cannot and do not attract their own self-sustaining client base (either from direct instructions or from instructing solicitors) for many years, or sometimes, never. Empirically, out of necessity, let's say some need to seek their livelihood back in a firm environment again or go in-house. I'd imagine the choice will come sharply into focus when the practitioner nears marriage or begins to contemplate a family. It could be these were people who were approved early for reasons that had little to do with their ability to have their own practice and to attract their own clients - there may have been no real business plan provided. As a result, they become seemingly reliant on seniors in the chambers for their work. It might then follow that their work schedules, holidays, and the cases they work on, and their level of responsibility, are almost always determined by senior barristers in their chambers: just like when they were 'great employees' at their old firms. But, we might say they were always employees. They were never going to be founders. They might not be put out to market as anything much different than their masters. If this happened, then we might say that as far as increasing diversity in the market, the impact and benefit from this kind of approval is minimal. It produces and perpetuates 'same old same old'.
We need to change the way we look at sole practice and how we determine who can do so. I think Ron Patterson and his team at the Independent Review Panel get it. I hope the powers that be put clients and the future of the profession first and implement the changes the panel have recommended.
Question: But do we have some examples of people who were approved early and went on to have practices where they have clients throughout New Zealand (not legal aid clients, private clients who seek them out specifically), where they have led or acted on some high profile cases - like in the Oranga Tamariki jurisdiction and Criminal Proceeds jurisdiction, or like where they rain-make for other barristers in established chambers and that chambers' juniors, and like, attract a diverse amount of the population to their website and social media and stuff?
Answer: Yes *cough cough* we do.
You're welcome,
Jessica
26 March 2023 Edit: A colleague messaged on Instagram and asked, if lawyers could act as contractors as a default position, would we even need an early approval process? Not as much I suspect. Certainly, if the option had been there for me to work as a contractor without needing to get approved to practice on my own account, I would have seriously considered that option. For me, I always wanted to be able to control my work hours and have flexibility from day to day - unfortunately, under the current system, unless you are practicing on your own account, you are beholden to the work hours of your employer.
In all seriousness, the journo's article was going to reference a few young practitioners who had encountered serious issues with the approval process of late and the KC had informed the journo that I may be someone who could "legitimately" reflect on the plight of young practitioners seeking early approval and on the proposed changes to the approval process found in the report of the Independent Review Panel led by the fantastic Ron Patterson. Sorry Ron for not finishing my hons dissertation in 2017/2018, I was working full time and I had a grieving 12 year old. I also had to start work at 8.30am in the morning. Anyway, given I have a familiarity with one of the proposed human subjects in the journo's proposed story, I declined to participate.
Some brief thoughts
Speaking generally only, and from my own direct experience, I do feel the measures and criteria by which we currently approve a practitioner to practice on one's own account are not appropriately weighted - look if you want context as to what the current measures and criteria are you are going to need to review the NZLS website and the Lawyers and Conveyancers Act 2006 and relevant regulations promulgated thereunder. Competence is necessary but it is not sufficient to practice on one's own account. Equally, references about a practitioner in an employee context are nice but they are not determinative of a practitioner's personality, work ethic, and ability as a sole practitioner, and especially as a barrister sole. In my view, practitioners who go on to be approved to practice on their own account should be ambassadors of the profession. They should be individuals who the profession picks up and says 'go out there and represent and reflect the diversity of those which we serve'.
Make believe conditions on approval
Ensuring legal consumer confidence and safety is first priority, but what is crucial, in my opinion, is the practitioner's business plan and evidence of a demand for their proposed legal services. Impressing the profession with articles on "Quantum meruit: a fireside discussion" and webinars on "Working with lawyer for child: an exercise in tolerance" is one thing, but founding a business, attracting and maintaining clients is another.
If I was in charge of approvals (just imagine for a second), noting I am equally 'brutal' and indifferent (it depends on the day), I can almost guarantee nobody would be approved before 7PQE who could not produce the following during my approval process:
1) Evidence of a reasonable competency in chosen practice areas - I don't need references from senior counsel and/or firm partners, I want to see results and judgments. If the practitioner has not run or led a case of their own yet in a court, tribunal, or authority, I would ask the practitioner to provide me with 3 referees from the legal profession who could comment on the practitioner's contribution to management/strategy on matters.
2) Evidence of knowledge of the conduct and client care rules. This would be done by way of interview. From my experience, practitioners can rote learn these rules and get away with it in tests etc, but it is quite another thing to test someone's knowledge in a seemingly informal and relaxed environment. I think you get a better sense of whether they are client focused. Being client focused and alive to harm is attitudinal. It should be evident by the practitioner's demeanour and approach to litigation. It will also be reflected in a practitioner's ability to recognise error or mistake and ask for help or self-signal a need for further learnings.
3) A comprehensive business plan, including evidence that demonstrates a demand for the legal services the practitioner proposes to provide to the public. I would prefer market research and perhaps focus groups; if that is prohibitive as a result of cost/time for a candidate, then I would ask them to provide other evidence they feel demonstrates a demand for their services, or a projected demand for their services. I also feel making a candidate perform this step helps them to sharpen their expectations and to allocate their own resources more effectively. This is better for consumers and the profession.
4) Client testimonials. I would want feedback from clients who experienced success with the practitioner, and clients who lost their cases with the practitioner. The real reason for this step would be to glean relevant information from the client about the practitioner's attitude and also their client communication style. Attitude is linked to client care in my opinion.
(A senior colleague suggested that some "text book competent" candidates in the larger firms would not have alot of client contact by the 3 year mark. I did not spend enough time in a large firm to know whether that is correct, but I will say this: I would be cautious of approving someone in a public facing position who has not had relevant client contact with consumers at the date of applying for approval. If practicing on one's own account is desired, then the practitioner would need to take the initiative to put themselves in roles or firms where they can get good client-contact experience.)
5) Nomination of a professional supervisor for your practice if you are being approved before 7PQE. I can feel groaning from a few colleagues reading this (sorry!) and I imagine some people would be shocked that I would make this a condition (that's more onerous than the current rules! Sorry!). Look hear me out. I don't mean a micro-management relationship where they are controlling strategy of your cases or a 'you've been naughty now you get supervised' kind of supervision, I am talking about a friendly and collegial relationship where you can go to someone you trust and are familiar with. The nominee would need to consent and they would have no obligations relating to your clients and litigation. You would seek their advice and guidance as and when you judged you needed to or something like this... still deciding.
The only condition that would be removed after 7PQE would be the need for the nomination of a professional supervisor. This would be optional for those 7PQE plus.
Do my make-believe conditions make things easier or harder for practitioners to get approved to practice on their own account?
At the end of the day, my make believe conditions are formulated from a real-world and modern view of what it is like to practice on your own account early. They are also framed in a way that makes the process truly consumer focused and in harmony with facilitating access to justice. The current process and conditions, in my humble opinion, are framed from an outdated and internal-lateral looking view. The current process is a "creature of its generation" and it needs to retire.
A close senior colleague of mine, who is well familiar with the approval process, said my conditions were "interesting" and "I can think of some junior barristers in good chambers who would have trouble meeting your conditions". Why? I asked. He paused and looked down at his view of the Auckland Harbour Bridge. "Well, I guess the current conditions are testing how good an employee they were, but your conditions are testing for a kind of entrepreneurship." I smiled. I asked him which was better. "I guess a combination of both".
I thought I would end with a practical hypothetical example - no resemblance to reality is intended. Let's imagine that some 'great employees' get approved early (before 3PQE) and their approval is as smooth as a hot knife through butter. Let's say that a fair few of those 'great employees' cannot and do not attract their own self-sustaining client base (either from direct instructions or from instructing solicitors) for many years, or sometimes, never. Empirically, out of necessity, let's say some need to seek their livelihood back in a firm environment again or go in-house. I'd imagine the choice will come sharply into focus when the practitioner nears marriage or begins to contemplate a family. It could be these were people who were approved early for reasons that had little to do with their ability to have their own practice and to attract their own clients - there may have been no real business plan provided. As a result, they become seemingly reliant on seniors in the chambers for their work. It might then follow that their work schedules, holidays, and the cases they work on, and their level of responsibility, are almost always determined by senior barristers in their chambers: just like when they were 'great employees' at their old firms. But, we might say they were always employees. They were never going to be founders. They might not be put out to market as anything much different than their masters. If this happened, then we might say that as far as increasing diversity in the market, the impact and benefit from this kind of approval is minimal. It produces and perpetuates 'same old same old'.
We need to change the way we look at sole practice and how we determine who can do so. I think Ron Patterson and his team at the Independent Review Panel get it. I hope the powers that be put clients and the future of the profession first and implement the changes the panel have recommended.
Question: But do we have some examples of people who were approved early and went on to have practices where they have clients throughout New Zealand (not legal aid clients, private clients who seek them out specifically), where they have led or acted on some high profile cases - like in the Oranga Tamariki jurisdiction and Criminal Proceeds jurisdiction, or like where they rain-make for other barristers in established chambers and that chambers' juniors, and like, attract a diverse amount of the population to their website and social media and stuff?
Answer: Yes *cough cough* we do.
You're welcome,
Jessica
26 March 2023 Edit: A colleague messaged on Instagram and asked, if lawyers could act as contractors as a default position, would we even need an early approval process? Not as much I suspect. Certainly, if the option had been there for me to work as a contractor without needing to get approved to practice on my own account, I would have seriously considered that option. For me, I always wanted to be able to control my work hours and have flexibility from day to day - unfortunately, under the current system, unless you are practicing on your own account, you are beholden to the work hours of your employer.
