A young woman who is neurodiverse has gone to the high court challenging the New Zealand Law Society’s (NZLS) decision to disallow her special consideration to practice law on her own account.

This comes after she said she faced adversity that negatively impacted her mental health when she was employed and did not complete a requirement to practise law on her own – which was a minimum of three years of legal experience.

Ashleigh Fechney, an employment advocate who holds a master of laws, represented herself in the high court on Aug 2 before Justice Robert Osborne at Christchurch. 

Ashleigh the Advocate

Fechney – who has attention deficit hyperactivity disorder (ADHD) and autism – runs her own business, Ashleigh the Advocate. 

Her claim to fame was when she represented those who were impacted by refusing to get the covid-19 vaccination.

Fechney believes she has met the standards to be able to practise law on her own.

However, the law society does not agree. 

The NZLS's Dale Owens said there is a balance to consider about the practitioner's well-being and consumer protection as lawyers play a vital role in Aotearoa.

“The practice of law can be stressful, which is why we will consider what support a practitioner might need to be able to successfully and safely practice," Owens said.

“It is unlikely that an application to practice on own account would be declined solely for physical or mental health reasons.”

As it stands, a law graduate must have gained three years of legal experience at a law firm, as well as be admitted to the roll of barristers and solicitors of the high court, complete two study courses and then apply to the NZLS to practice on their own account. 

“Many people don't know, but to be a self-employed lawyer, there is quite a process,” Fechney said.

She applied to the NZSL under special circumstances to run her business as a law firm, as it currently is only an advocacy service.

Fechney said she wasn’t given much information about her application. The society declined it, which means she cannot hold the title of lawyer.

The response from the NZLS said: "The committee considered your application, particularly your relevant legal experience and your proposed business plan for The Advocate. From the material provided, the committee considers you do not have a true appreciation of what it is to practise as a lawyer subject to a specific code of conduct given your limited time in practice in a law firm." 

'Not feasible'

Owens said it's important to understand special circumstances exception only applies to the required minimum amount of recent legal experience in NZ.

“What amounts to special circumstances is not defined in legislation, but the law society must consider the purposes of the act.”

Fechney said it doesn’t consider her experience in self-employment as legal experience, which means that the only way for her to be a lawyer is to go back into employment with a law firm. 

“That’s just not feasible for me,” she said.

Owens said non-standard applications, including where a health issue has been disclosed, are considered by the law society’s practice approval committees. 

He said the committees had senior lawyers, and each group had one layperson that brought different skills to the committee – including health expertise.

“If an application to practise on own account is declined, the applicant may seek leave from the high court.”

Fechney told BusinessDesk she wanted to challenge the decision of the NZLS because she thought it was important to speak up for young lawyers who cannot achieve this target.

“We know that 50% of all lawyers experience bullying, and we also know that a far-reaching consequence of poor behaviour is that young lawyers leave the profession entirely.”

Fechney said that she could continue to work because, in employment law, she doesn’t need to be a lawyer to represent clients.

“However, so many of my peers haven't been able to transition into self-employment because so many areas of law require you to be a lawyer.

“I challenged the decision because I want to challenge what it means to be a lawyer. I want to provide alternative pathways for young lawyers who, for one reason or the other, aren't "law firm material." 

Legal experience

In the court, Fechney argued her experience as a legal aid provider within her own company was sufficient.

She said she highlighted that she had a total of five years of experience split between Phil Butler Employment Law, Morrison Kent Lawyers, and as a legal aid provider at Ashleigh the Advocate.

In the Lawyers and Conveyancers Act Regulations 2008, the legal experience can include legal work as an employee of a company or other body (whether incorporated or unincorporated).

Fechney said she never wanted to go into self-employment, that it only happened because of her poor experience at a law firm.

“After that experience, I was concerned about the likelihood of facing the same treatment at another firm.

"I was faced with two hard decisions: do I go to work in another law firm and potentially subject myself to the same treatment, or do I go into self-employment?”

She started Ashleigh the Advocate in February 2020, a month before the country plunged into lockdown.

At that time, Fechney said she wasn't focused on being a lawyer, still doing the 'bread and butter' work of representing clients at the Employment Relations Authority and in the employment court.

The 'penny drop' moment when the traffic light system came into law. All those hours poured over legislation, and she couldn’t advise on it.

Fechney said she loved working in law, and although she enjoyed employment law, one day, she’d like to work in related areas of law.

“I originally wanted to work in international law; however, after completing my master’s degree in international law and politics, I realised that I didn't need to achieve large-scale change.

“I could provide meaningful change on a small scale, many times, by representing employees with their personal grievances.”

The law has the power to inspire and meaningfully change people’s lives, she said.

“We have the ability to allow people's voices to be heard. We can assist them in accessing justice."

The end of her career?

Fechney said if she is unsuccessful at the high court, it would mark the end of her career in law.

But she’s not going without a fight – she said the system needs to change.

“There is a judicial crisis. The chief high court judge has addressed the issue in a letter penned to all judges, detailing their worries over workload, stress and mental health.”

She doesn’t believe young lawyers should have to be part of that.

“If we aren't prepared to meaningfully address those statistics, then we should create pathways for young lawyers to go into self-employment, where they can manage their own workload, their own stress levels, their own physical health, and their own income.”

She hopes she can start a law firm. She wants to provide wraparound services for employees and employers, extending to ACC, human rights, health and safety, privacy and others.

“I want to be the change required in the legal profession.

“My firm will have a charitable purpose of promoting health and disability rights and will seek to provide opportunities to young lawyers who are disabled or who otherwise face barriers in finding employment in traditional law firms.

“I will continue to be an activist and advocate for the profession.”

The decision was reserved.