“Incompetent” employment law advocates causing concern

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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 said 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 said 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.”
  • Steve Evans on 16/10/2014 12:39:39 p.m.

    At least the more credible advocates stick to their subject matter of Employment Law, where they build up the expertise & experience to advocate for their clients. Compared to jack of all trades lawyers who dabble in divorce, property purchase & a whole host of other legal matters & are rusty, superficial or both when it comes to occasional employment law cases, which they won't turn down. Several employment advocates in this region wipe the floor with the weak lawyer generalists who purport to be the professional option.

  • Bruce on 16/09/2014 3:09:00 p.m.

    Indeed, Greg. Should those found utterly unsuitable for legal practice be restricted from any sort of 'professional" advocacy?
    I suppose the problematic and critical dividing line comes between the confident workmate or friend advocating and supporting and the person charging for services. The price to pay is ultimately a 2 tier access to justice where you take your chances depending on your resources: advocate or lawyer. I have read an ERA report where an struck-off lawyer was roundly criticised by the Member. People's livelihoods and businesses are at stake...

  • Greg on 16/09/2014 9:28:16 a.m.

    Even more amusing when dis-barred lawyers are allowed to "practice" in this space. Making wide sweeping promises and offering services on a commision basis. Perhaps the btter process here would be to cap fees and register or licence advocates.

  • Bruce on 9/09/2014 9:46:01 a.m.

    Yes, it's a fine balance between opening the door wider to facilitate access to advocacy, and tolerating incompetence and exploitation. i think there is a good case for PROFESSIONAL advocates to be regulated. It does smack of protecting one's patch, but we make an investment in our business and want to protect it.

  • Anon on 9/09/2014 9:28:01 a.m.

    From a HR perspective I fully agree with these comments. I regularly see employee's who are poorly represented and badly advised by such consultants. I do acknowledge they're not all bad though and the good ones can provide an affordable alternative to legal representation... some kind of registration system to manage 'rogues' in a similar vein to immigration consultants is definately in order.

  • Bruce on 8/09/2014 1:53:42 p.m.

    I agree broadly, but some of us have chosen to forego or relinquish the "lawyer" label to enhance access to advocacy. I suspect the notion of making very large incomes is rooted in something like the public idea of the wealthy lawyer. I wish...The obligation is to act according to the Rules of Conduct, not ethically, at least not in a deontological sense. I think there out to be a middle road. Some advocates are cause for concern, and client protection is limited I suppose, to civil proceedings. The criteria for advocates to qualify for legal aid provider status aren't exactly rigorous either. I am an advocate now.

  • Paul Craggs on 8/09/2014 12:55:37 p.m.

    This smacks of lawyers trying to protect their patch. Whilst I agree that the employment court should only be open to lawyers and barristers there is nothing wrong with being represented by an advocate who knows what he or she is doing. I have read a number of reports recently of lawyers who have ripped off their clients for huge sums of money so to suggest that lawyers and barristers are the only legal reps with a good set of ethics is absolute rubbish. Shysters will always be around no matter what the profession

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