Page 1

Legal Ethics
Lawyers and conveyancers act
Law society's website - good materials
back of LawTalk - cases at back about recently disciplined lawyers
looking at what you got out of it - refer to cases, the analogies etc. statute and etc.
Renshaw and Edwards - origins of Legal Ethics
- The solicitors guarantee fund
- Upperhutt solicitors in partnership
- engaged in stealing clients money - each unbeknown to the other
- discovered in 1992
- amounted to 30M (20 years ago)
- under the solicitors guarantee fund, a solicitor could not make good a clients loss,
the fund would make sure the clients losses were covered.
- All Baristers and solicitors had to make compulsory contributions to the fund, and
they could be levied for further money if there was a shortfall relative to the claim or
claims
- The claim came to more than 60M - After reccovery, there was then a net loss of 30M - at the time the funds stood at
about 3M - and more than 3 thousand claiming against it
- so the memebrs levied more than ... 10M??
- lead to amending legislation - affect of which was to remove from the fund investing
and lending solicitors, and a cap of 5K for levies in any one yr
- Range of consequences - one wwas that th NZ law socity commissioned a report
into the implications the course had for legal implication in this jurisdiction
- 'Education and training in legal ethics and responsibility' - Cotter and Roper
- thesis of report as a crisis of confidence in the profession
- Law Schools with legal studies, and the NZ law society witht eh district law
societies, should create an integrated and co-ordinated legal ethics curriculum - an
intergrated and coordinated legal ethics curriculum
- Academic, professional training and continuing ... - reflects legal education in NZ 1) Academic stage 2) Practical use of knowledge 3) Practicing - keeping up to
date
The body that governs legal education in NZ - Council of Legal education - what your qualifications are if you trained in this
country
- Reality = Council controls legal education
- all 6 law schools offer a qualifying level

Page 2

- Council adopted this report and made legal education compulsory 1998 - from
which time it was compulsory
Since Renshaw aand Edwards Cotter Ropper report - well intentioned, but cannot teach people to be ethical
Whether you are is reflected by your upbringing - also true that there can be a
difference in opinion
What it means to be a member of the profession
What is meant by legal ethics?
Principles of conduct which members of the profession are expected to observe in
the practice of law
Key word: profession - what do we mean by the word profession?
Sociologists - goes back to 1930 - 50's - this work focused on defining
professions, and professionalism, by reference to their distinctive characteristics
Legal Profession:
a) High Educational attainment and lengthy training
b) Specialised knowledge on behalf of cclients
c) self-regulation through a professional association
d) commitment to public service
- this theory is descriptive - this is problematic, as it means taking the professions
claims about itself at face value
3 approaches to theory of professionalism:
1) functionalist or structural- functional theory
2) Interactionist theory
3) Market control theory
1) Functionalist theory
- reuqirres identification of the basis on which we can define the group as a
distinctive group
- What purpose does this group perform in society?
- How does this group fit with other parts of society?
- Founder - Torcott Parsons (1979) - saw lawyers as an important social group,
contributing significantly to operations of social control and cconsensus building

Page 3

to parsons, legal work had to potential to redefine political authority

- transform citizenss relations with political society
- legal profession - powerful in society
- held sway till late 1960's
- then challenged by the later two theories
- the control over society was thought narrow and rigid a definition of the profession
b) Interactionist theory (opposite of functionalist)
- focuses on individual relationships and activities - looks at what lawyers DO rather
than at the profession as a social institution
- It focuses on the minutiae of legal practice - everyday relations among and between
lawyers and their clients
- They explore the ways in which legal training and work relationships socialize
lawyers and construct professionalism as individual and group identity
- provides insights into the reality of daily practice and the ideology of the profession
- this theory gives us a different image of the profession and professional work - it
stresses diversity, complexity and conflict in professional work
c) 1980s Market control theory
- IMPORTANT
- this theory focuses ont he POWWER OF THE PROFESSION and it's relationship with
the development of the market economy and the modern state
- Shows us how many of the professional characteristics - self regualtion, monopolies
over areas of work - although high minded and protective, they also hand control of
the markets involved to the professional
- suggests that even if it's not the deliberate intent of the profession, professionalism
operates as a set of strategies for restructuring the supply of lawyers, for dampening
competition between lawyers, and strapping non-lawyers to the market for ...
- this notion of the market control theories targets the control theories to the
profession itself - KEY to profession is consumer protection.
Problematic - lawyers get large control over sectors of society, and are the only
people who ccan carrry out these functions - having qualifications leads to a
monopoly, control over the market and then the cost and expense to the public is
high.
Critics of market control theory say, if it's responded to and act in accordance with it,
will result in a decline of professionalism - argue the market control theory doesn't
may enough attention to teh normative and ideological professions of professionals

Page 4

To what extent is the lawyers and conveyancers act ... - is not informed by the market
control theory, but it is informed by the discussion surrounding the theory - what you find is a very genuine attempt to achieve balance in society
- on one hand, professional ideals (training, regulation, expectations of practicing
lawyers)
- but balancing that you have consumer protection issues - the real complexity with any profession is striking a balance - they represent consumer protection - but it then needs to be balanced by consumer
input
- is the lawyers and conveyancers act informed by the market theory?
In recent years - attempts have been made to develop a moe sophisticated
understand of how power and status both shape and reflect the nature of the
profession - this approach brings together aspects of the theories Pierre Bourdieu - "capital"
- French sociologist - based on a theory of capital
- Bourdieu was not particularly concerned with the profession
- to Bourdieu, capital takes many forms - it is the value attached to a variety of social
assests
- A lawyers social capital comprises family, other personal support networks andd
professional support networks
- Cultural capital, the ability to function as a lawyer and practice, this comes from
knowledge and skills. It comes from the status attached to the lawyers education. It
coms from shared tastes and values with other lawyers and with clients and the
extent of their tasset understanding to relate to clients and ...
- status and power in the legal field will relfect the way capital, in all its forms will be
distributed throughout the profession - and it will be distributed unevenly
- the value of Bordieu's theory is that actors and institutions together function to
produce social and economic practices
- It's not focused on individual actors or the market, but brings together all the other
aspects of all these theories
It will give insight as to what professionalism is all about when you analyse it.
What barrister and solicitor actually mean ?
How the act and theories work together
RESOURCE: Webb - Ethics, professional responsbility and the lawyer - Chapter 1
(theories and professionalism)

Page 5

Under L&C Act 2006 - 'Barristers and Solicitors' Pt 3 - admission to the profession and enrolment in it
- s48(1) - Every person admitted in this jurisdiction must be admittd as a barrister and
a solicitor, no person maay be admitted as either/or
- there is only ONE ROLL - there is not one for either, but must be both
- The professions or barrister and or solicitor are governed by separate professional
bodies
- the NZ legal profession is referred to as a 'fuse' profession - but this is not accurate
- in US the profession is fused
- In NZ - barrister and solicitor admittance, entitles one to sayy they will only practice
as a solicitor
- so you can just practice as a barrister sole - those terms have meaning - and the extent of the meaning - so rather than a fused
porfession it's in NZ, a right of dual practice
RIGHT OF DUAL PRACTICE
'Barrister' - a law practitioner whose work in theory is devoted to advocacy
- in UK - barristers who have sole rights .. courts
- Traditionally, a barrister is instructed by a solicitor to instruct the solicitors client,
thus the barrister must pay the solicitors fees ??
- There are barristers who never appear in court but have substantial practices - Fundamentally, barristers are litigators The profession of barristers goes back to the Middle Ages
- In NZ - barristers sole, are prohibited from acting in partnership, they may share
sets of chambers with other barristers, but they are to be independent - Any solicitor should be able to approach any barrister to act for their client
- they may approach any barrister but not act with them
- BArrister and solicitor - defined under s6 - cconcerned with the transactional work
of the law (forming trusts, ccomapnies etc.)
- in Eng and Wales before 1973 - there were other professions outside of barristers solicitors worked in courts of chancery
- Admiralty courts - Ecclesiatical courts - heard the relational issues
Judicature accts 1873-5 - combined solcitors, attorneys and proptals under 'solicitor'
Queen's Counsel
- Senior grade of barrister (rank in Eng of 16th C)
- King and Queens council were a group of council retained by the crown - they
rankes next after the sergents - and acted in assistance to attorney gen
- mark of the recognition of emminance of the lawyer concerned
- QC - one of Her majesty's council, learned in the law

Page 6

- silks' - wear silk gowns

- to become Queen's council, you are called to the inner bar - 'bar' is the place where
barristers stand in court to address the judge
- inner bar means you stand in front of all the other barristers - barrier between the
council and the court
1st Aug 2008 - changed to SC but then went back to QC - in the L&C amendment act
2012
- Barristers recognised as the senior bar of the legal profession
- also reflects the right of the audience exclusively
- in NZ there is a ... for practitioners - you can drop the solicitor part of the title, by
becoming a barrister sole - by taking out a practicing certificate
- if you drop the solicitor bit you can become a barrister sole - attractive to
outstanding litigator - avoid contribution of money etc.
All these branches of the profession are governed by .. Aug 6 2008
Under the lawyers and conveyences act - have new conveyences
- we are concerned with the provisions governing lawyers
Parts 4 & 8 of the statute L&C ACT
- S 70 - NZ law society must have a constitution, a president and one or more Vice
Presidents - council, presidents, board, director
Layers and Conveyancers Acct (Lawyers) Constitution 2008
- New organisational model - 13 branches around the country
- the constitution provides that the NZ law society is to be governed by a council and
a board. It sets out how other offices are elected and amended etc.
- the council elects up to ... members
- it also has a rep from each branch around the country - Representative from each branch and from the bar association
- Bar association - a
Constitution:
NZLS governed by:
a) Council
b) Board - president and Vice Presidents
and has an executive officer

Page 7

- Membership is voluntary but you are regulated by it as soon as you become a

lawyer
- NZ law socitety 2 functions 1) Regulatory 2) Representative
- Controlling and regulating lawyers - you must pay money
- issue of practicing certificate - opposing admission, rule making, discipline,
- also has a representative function - the law society can represent its members
- you must become a member of the society - you can elect to pay more money
and become a member and reap representative function
publication etc.
Under Law practitioners act - it was a mere shell
- Council of national body - made up of presidents of district law societies - they gave
you the presidents who sat on the actual body Real power - district law societies
- Lawyers and conveyencers act - useless
- body is the supreme body - and the branches are a local center of ...
- Old law societies are resolved - the assests of the law society S373(1) - possible for a district law society to become an incorporated society, and if
a district law society did that, it retained it's assests - the Auckland Laww society - in
tandum with district laww society braanch - a proponent of reforming the structure of
the law society
- auckland law society
Auckland DC - affects auckland practitioners by local branch
Council of legal education - Statute gives us 2 bodies Council of Legal Education and...
Council of legal education has oversight of legal education, apart from the law
society
- reps of judiciary, the law deans, and students
- balance is one which covers the law in all its firms in the practition
- Functions: sets requriemetns for admission as candidates and barristers. Allows for
moderation and... contract law, torts, land, equity + legal ethics
- Makes provision for professional legal training and foreign qualifications -

Page 8

REGULATION:
- public confidence
- protect public users
- status of legal profession
- establish new practices of ..
Duncan WEbb pg 10
- NZ followed AUS - shift towards consumerism, away from professionalism - Parliament trying to reflect changes in social values in terms of function and
structure
- pg 9 - fundamental obligations of lawyers
- every lawer must comply with fundamental obligations - uphold the rule of
law, administration of law in NZ
- Fiduciary duties - obligation to protect subject to overriding duties of the high court - in interests of
clients
FUNDAMENTAL OBLIGATIONS - what they mean
- NB ref to upholding the rule of law - the obligation to be independent
- ref to duties of care and fiduciary duties
- Act is fundamentally concerned with consumer protection and lawyer confidence

Page 9

Equity Lecture 2
1066 - 1616
Evolution - sequential - strange events
1066 Invasion - William establishes
- Advising William - just take spoils and leave, or for the long haul - or establish his
authority over britain
- institutional frameworks - infrastructure which affirms authority
- Focus on his authority - means by which his authority over the kingdom could be
established - A legal system, which is enforced by high courts
3 courts - common pleas, kings bench, ex cheque
- to sue you bring civil proceedings - serve it - but skip
- You file originating process - in that context you obtained a writ - literracy was not
universal - you would get a writ from the chancellor - The King would levy fees and
the Royal crest of his authority - fountain of justice - Assuming you go to chancery,
Difficulties:
- Creating writs - Friction between Clerks and Judges
- Chancellor was a valuable person who sat in King's council before Parliament
established.
-

Page 10

Page 11

Ethics Lecture 2
Theories of professionalism
- theoretical basis on which the profession operates
- structure of the NZ law society - legal definitions of barrister etc. + vast body of
rules
- that statute is essentially concerned ith concumer protection and lawyer confidence
- Consumer protection
- Client care + rules of conduct for lawyers
- Client care is not a term in the la practitioners act 1982 nor in the professional
conduct - that's the precediing body of rules
- 'client care' introduced in lawyers and conveyencers act
- important in legal practice but as a lawyer the fact that you would pracctice client
care -- parliament hass found it necessary to spell this out in the current act - reflects
the values of a consumer society
- Lawyers cnveyancers act
- he or she must act competently in a timely way in instructions received and
arrangmeentts madde
- protect and promote interests free from compromise
- objectives - achieving them
- the work - how to do it
- reasonable fee
- how and wheen you will be billed
- infor and advice
- confidentiality
- frair undiscriminatory treatment - complaints + deal with them promptly
These need to be dealt with
- Based on fundamental obligations lawyers owe to clietns
- You can't teach someone to care for a client
- set in place machinery Complaints and discipline
- Question of competence to practice
- what is it to b competent to be a law practitioner
Competence is partnered with complaints and discipline
- a lack of competence leads to complaints and disciplined

Page 12

Legal education
Continuing education and training

Professional legal training

Academic stage
Short period of professional training - CPD - continuing professional development
- can be no complaint about the LLB
- issues with the other stages - aggravated by the academic stage
- before mid 1960's - after one or 2 years of full time study, the llb student wwould
take a profession in a law office - facilitated on the job learning
- properly regulated system of clerkship - auto qualified as solicitor
- mid 1960's - establishment of fulltime degree in NZ - followed by one year in a
law office, during which professional subjects were studied and on completion, then
qualified as barrister and solicitor
- failed because periods where there were not enough jobs available, whilse
working in law office - full time without experience
- where students were employed employers often found they weren't good
enouhg - expectations - that once the student finished degree they could undertake
legal work
+ other law schools had different ways of undertaking professional training
- situation where law firms wanted new law clerks to be better equipt - wanted
them to act promptly on joining the firm
NEED: consistent course of structure, that would equip them with a level of
confidence that would make them useful to their firms
1986 - the NZ Law Society invited Neil Gold to look into the question of legal
education in this jurisdiction
- Gold recommended that NZ adopt a full time block course 13 wks in length addressed to botht eh law society aand educationers

Page 13

- the study
- Reviewed number of times since then - set the pattern for legal training inNZ
- Gives us a skills based course - different from academic stage
- About interviewing, advising, interviewing and drafting - you don't learn them in the
abstract 13 - 19 weeks - not long
- Porfessional legal training in NZ should involve more - you have a 2 year period
overseas, including in an office/chambers
Here the law firms have commonly opposed extention - they argued they themselves
offered excellent training - and offered training to the newly qualified,
Council of Legal Ed's website - Tipping has just set out legal reccomendations
- LLB is just prereq academic stage - it's different than the professional legal training
stage - unlikely to see changes in consequence of report - but read it!
PLT - emphasis on LLB
- dramatically different system from Eng and Wales - fewer students are doing LLB they take their degree then can take teh CPE - cramming LLb into a year and at the
end can then take the professional training exams offered by the bar - so not many
have LLB's - they have other degrees - Indicates you don't need an LLB to practice
law, provided you have a solid course following it
Once admitted as solicitor - and if of good character, if you can satisfy those
requirements you can be admitted, and then engaged in contrinuing education
NB - under lawyers practice rules, Rule 12 - before you can practice on your own
account, not as employee but as principle, you must have had 3 yrs experience
before you can practice under your own name, in the immediately preceding 8 years
- this req of 3 years applies to Barrister-sole (those relieved of soliciting obligations)
Because Barristers Sole - changed - in 3 yr rule, it applies to everybody, and
practiciing certificate you are actually holding
- really looking at 3 yr period in a law office - professional legal training stage
- 3 yrs before you ccan become a principle of a firm - that is intended to ensure
competence
- no programme prescribed for 3 years though
- you might go into a firm who gives you good training, over those 3 yrs, but other

Page 14

and others wont - so not well regulated

CPD (continuing professional development) - takes effect from moment you are
admitted
- we can't say the law society has come up with something it requires of solicitors
- that scheme is not yet fully in effect
- takes effect on 1st April
- pg 16 - Lawyers ongoing legal education - Continuing professional development
rules 2013 - a set of guidelines to the rules: - began 1st oct last yr - first CPD year
will commence next month
- rules require:
- apply to lawyers providing regulated services, and if you are providing
that you must complete a minimum of 10 hourrs activity in each CPD year (1-4; 31-3)
- legal servicces = carrying out legal work for another person
- conveyencing services - sales and purchases of land
- services a lawyer provides undertaking work of a real estate agent
- if you should complete more than 10 hrs then you can carry forward up to
5 hrs
CPD Activity?
- learning which is planned and structured with a purpose and outcomes
- it provides for interaction and feedback
- it must be related to identified learning needs
- it must NOT be part of day to day work - must be beyond the practical work you
are doing
- rules require that every law maintain a CPD plan and record - you are required
to reflect on and verify your CPD activities
- examples of CPD activity 1) participating in courses, seminars, training progs, one to one coaching, and
study groups - one to one mentoring or training must be structured and planned - must not be file specific - it's not a question of sorting out how best to sort
out a difficult file, it must be beyond that
- distance learning progs are a part of this - verifiable and provide for
interaction
- study towards relevant degrees, diplomas, and certificates - lecturing, teaching instructing at tertiary level
- writing law related books and articles, - significant because if you are the
leading lawyer in a certain area, the criticism was what they do - you teach about it,
you pass your knowledge on, that can be fulfillment of CPD
- preparing and presenting certain types of admissions
-

Page 15

- What are the sorts of topics you can undertake?

- Knowledge - can be of law itself or other relevant disciplines
- concepts of social work, psychology/psychiatry
- legal skills - advocacy, negotiations etc.
- personal management skills - time, communication
- practice management - strategic - marketing
- strategy, client care, professionalism
Flexibility is the key factor - key within that is that the topics you are engaged in relate
to your individual learning needs
Under the rules - you must each year make a declaration of compliance - which can
be audited by the law society
- it is possible to arrange self audit - Rules are learner centered rather than prescriptive What if you don't comply with rules?
- sanction is a proposal to amend the lawyers practice rules so as to make
coompliance a requirement for practicing - your livelihood may be suspended
- Under the scheme of continuing professional development - you see the law
society taking seriously, client care - it wants to ensure competence
- this is the rest of your practicing life
Competence - goes beyond these essentially educational factors
- concerns mental state of practitioners - a practitioner from time to time looses
their mental capacity
- demensure - cases of this where practitioners have head injuries and don't
realise they are competent, but unaware of it - law society relies on other practitioners
tellling them
- also arises through complaints
- can't legislate easily for this
S163 Act
- Standards committee can intervene in a practice,
- para C& D - NZ law society can take charge of the practice - the law society can
intervene - and take over the running of that persons practice
s163 F - Bankruptcy practitioner
- if practitioner becomes bankrupt, the standards committee can intervene
- competence is fundamental
Q of Compliants and discipline
- competence in the broader sense is at the heart of legal practice - it's fundamen

Page 16

- competence is fundamental
- practitioners who take the effort to keep uptodate don't need it and the ones who
don't bother are the ones who aren't up to date
Q of complaints and discipline - a situation where a lack of client care can lead to
comlaints and complaints may then lead to your being disciplined - requires
barristers and solicitors and barristers sole
- deals with complaints and disciplines
Result from lack of confidence Complaints and Discipline:
Pt 7 Lawyers and Conveyencers Act 2006
- To receive complaints concerning lawyers and former lawyers - also incoporated
law firms and former firms, and employees of both lawyers and former lawyers and
coporate lawyers and firms
- under lawyers and conveyencers act, it's possible for a firm to become a company
under the act 1983
S6 - lawyers and conveyencers act
- from the outset, the lawyer client relationship - procedures for complaint must eb
known to the client from the outset
Rule 3.4 of the conduct and client care rules you find
- a lawyer in advance must provide a client with info in writing on the principle
aspects of client service - including (d) the procedure in the lawyers practice made
by clients - must have a procedure in the firm for handling things
- requires advice on the service andd how the society may be contacted to make a
complaint
- must tell them about the complaints service
- 3.4 madde pursuant to s94(j) of the act
- requirement to give info in writing in advance was introduced by the
conveyencers act
- client engagement letters - standard form letter about the contract given
engagement of the client - concerning how to make complaints - a relationship of
confidence both ways - indicative of modern concept of 'profession'
- marketing control theory - consumerism as result to consequences of this theory

Page 17

- Structure for complaints Procedure in firm -> NZ law socity comlaints service must decide whether proper complaint - if so then dealt so as cformal complaint with
complaints service referring it to a standards committee
- the standards committee can refer it to disciplinary tribunal
- that decision can be reviewed by officer - then right of appeal to HC - then HC to
CA - the final CA for these matters - it is infact possible for it to get to SC - concept of
judicial review of administrative action - possible to havee this reveeiw of lower down
decisions
- a complex structure - complex not for sake of ebign compelx but to deal with
complaints in an effective way - consumer demands
Grounds for complaint?
- s 132 a) conduct
b) standard of service (uunreasonable delays, wrong or incomplete response, not
keeping client inform, failing to communicte/respond)
c) failure to comply with order of Standards committee or legal complaints review
officer (order or termination under the act - made by a standards committee or
the legal complaints review office)
d) fees charged - normally fee to ground a complaint must involve a fee of 2k +
excluding gst
- note that the legal complaints service, the lawyers complaints service doesn't
giv legal advice or second opinions - it simply deals with complaints - it deals only
with complaints
- procedures required under the act
1) Internal procedure - if this doesn't lead to resolution, then the client can go to
complaints service - the society has established an early resolution service - effective
3rd Feb 2013 - the early res service is focused on certain types of complaints using
ADR processes (alternative dispute - mediation conciliation negotiation) = if in this
situation something is referred to the early resolution service, someone referred to in
these processes assists these parties to deal with these problems - a member of the
service will neg these processes
- doesn't deal with all complaints - those which involve serious misconduct, and trust
account issues, or where ordinary process is more appropriate then its treated in the
ordinary way 1) ERS - will process the matter and will determine whether its a matter suitable to
go through the service 2) second level of triage - the complaint then goes to one of societies standards
committees and they determine whether its a complaint ot go through early resolution
service - ERS is voluntary and if either party (lawyers or client) decline then normal
procedure applies

Page 18

-any serrvice given if confidential and if it goes onto formal dealings, its not disclosed
to standards committee
- the ERRS was developed by lw society because the formal complaints service was
unsuitable for minor consumer complaints - so developed this special service
- the manner of dealing with complaints was taking too long - deals more rapidly
and effectively
- leaving these committees only to deal with complaints requiring investigation
and determination
- 30 June 2012 - in those 12 mnths the legal complaints service received 1125
complaints
- a need to dela with minor complaints swiftly 30 days to deal with complaints- quicker than ordinary process
- Law society says that protection of the public is the key factor - a consumer
protection measure
- procedures in the law office - if its a minor matter can go to ERS
126 - Lawyers Stadnards commitee Once a complaint is received by the complaints
service it is then received by a lawyers standards committee - lay people + senior lawyers
- must have 2 laywrs and 1 lay person and can have up to 7 lawyers and 2 lay
people
- National standards commitee as well as others around country
- a copy is sent to lawyer complained about and they can make a written
submission to the standards commitee - then have 3 options
1) inquire into complaint
2) ask klawyer and ccomplainant to go to ERs
3) no action
- if the LSC inquires into complaint, it can determine as follows:
1) no further action warranted
2) unsatisfactory conduct on part of the lawyer (technical term)
3) complaint is so serious it should be referred to disciplinary tribunal
- whatever it decides the complainant is informed of the decision and reasons
for it
Deliu v Lawyers Conplaints Service of NZLRS
- D lodged series of complaints against a number of lawyers, all of which were
office holders int eh complaints service
- when servvice received these each complaint was just rejected out of hand
- D then claimed that the complaints service had no power to dismiss complaints
before referring them to a standards commitee
- the complaints service just functions to determine them
- HC - held that any complaint against a lawyer MUst be referred by teh committe

Page 19

service to the standards committee

- the standards committee is the body to deal with this matter - no jurisdiction for an
officer of the service to deal with them
- there is no power just to reject complaints - under 132, the complaint must be
referred to the committee 135 (1) - and determined by the committee under s 137
Under 136 - may make an order confirming terms of an agreed settlement resulting
from neegotiation, conciliation or mediation - what the party has settled between
themselves
- may censure or reprimand the lawyrs
- orrder lawyer to pologise, pay the complanant compensation up to 25K for actual
loss, reduce, cancel or refund some or all of the fees that were charged to the
complainant - rectify any errors or omissions at the lawyers expense
- order the lawyer to ay a fine of up to 15K
- pay the complainant fro expenses incurred in making the complaint
- the standards commitee may make one or more of those orders, or other orders
improving the lawwyers standards of pracctice (far reaching)
Standards Commitee:
It can confirm or change teh committees decision, it can refer it to the disciplinary
tribunal or refer it back to the standards committee to hear it again
Orlov c NZ Law Society [2013] NZCA 230 HC: 2013 1 NZLR 390 READ
- CA decision of Stevens and French JJ
- subject to detailed considerations of this case
- O was practicing lawyers
- subject to several complaints related to ccompetence as a lawyer
- these cases climaxed in CA decision
- case itself involved application by O and cross application against society by O
- In HC, justice Heath found there was a threshold test for referrring a matter to a
lawyers and conveyencers tribunal under s152 2(a) - under preceding act 1982 - there was under that act a threshold test, but not
repeated under s152(2)(a) - French said there should be a similar test as contained
in the 1982 Act - 'is there a real risk the practitioner might be suspended or struck
off?
- if that threshold is met its' sufficient to go to the tribunal
- s101 (2) - of old act - 'if in the opinion of the district council or commitee the case
was of sufficient gravity to warrant the making of a charge' - Justice Heath said a test such as the old one, would focus the minds of the
commitee on the likely otucomes of consdiering a charge and would act as a
disincentive to anyone on the committee motivated by ill will towards a practitioner he did not enforce the ... - did contend a high trheshold encompassing seriousness
of the charge and sufficiency of evidence - to protect practitioner from arbitrary actio

Page 20

- Para 54 - CA adresses the issue of a threshold test and reverses the HC Heath's
test
- said no threshold
1) section in the acct does not have an express threshold test referred to
2) there are express threshold tests - in s 138 - s244(1), th striking off by tribunal,
there is an express threshold test - other provisions do, so parliament didn't seem to
intend one
3) Parliament deliberately disregarded the threshold test by disregarding the
roiginal one in teh new act
4) the fact that any coomplaint can be referred, told against a threshold test
4) absence of requirement under the act to give reasons to refer the matter to a
tribunal (telling against threshold)
5) has all the powers of a standards commitee
6) the pupose of consumer protection, maintenance in public education, made it
imporatnt that the tribunal have ability to determine complaints, even if not striking
off...??
- Heath J's decision dismissed
- This case also tells us more about the provisions governing standards commitees
s158(2) - when a complaint is referres to Standards commitee, may do other thigns
- says 'may' means 'must' - makes the point that the abiliyt of the standards commitee to refer to disciplinary
commitee is subject to judicial review
- it tells us also that the standards commitee is not required to obtain coroborating
evidence of a complaint, and ccan consider evidence in related complaints
- also that the standards commitee may revert a complaint into an investigation
motivated by it's own motion
- Interestingly - on 9th May 2013 - and the Orlov was June 2013 - Justice Panhusrt
in case of M v Wellington Standards Committee 2, disagreed with Heath's ddecision
in Orlov
- Justice Pankhurst didn't follow Heath J
- had a different view
- Orlov was struck off 2013 In subsequent case - Orlov v National Standards Committee No 1 -- O is appealing against striking off, wanted to have Deliu represent him as
council
- National Standards Commitee 1 brought action that Deliu be debarred from
appearing as O's council, on grounds that D faces similar charges and may as a
result be struck off himself - READ - para 19, 20, 21 - Justice Foggherty in HC debarred Deliu from appearing for O as council interesting because it talks of everyone's right to council and question of what it
means

Page 21

Legal Complaints review officer

- This office was an inovation under the Act
- the review officer is appointed by Justice
- they are a lawyer but not someone in practice and their function is to provide an
independant review of decisions
- s200 - review officer must conduct the review with as little formality and
technicality and as much expedition as permitted by the act and proper
consdieration of the review and natural justice
- can postpone review and prompt parties to negotiate
- reviews are conducted in private and sometimes simply on papers
www.justice.govt.nz/tribunals/legal-complaints-review-officer/decisions-1
- case of Zhao v Legal Complaints Review officer - illustrates the workings of the legal
complaints review officer
- solicitor N launched complaint against Z
- holding certificate as barrister-sole - said although only holding barrister-sole cert, was acting as solciitor
- N was not satisfied and applied to review officer for review
- there as a posting in the skykiwi website put their by Z setting out his services
offered, and they extended to conveyencing (solicitors work)
- in terms of that posting, N translated that herself and had a professional
translation made - dates 26th Nov 2010, and that date was after teh Standards
Commitee consdiered compliant
- reviw officer saidd the commitee shouldn've considerd that translation but that
was a mistake of fact - in this case the matter was referred back to the standards commitee and Z
made an application for judicial review of that decision
- prima facie, Z had been mucked around
- N was
illustrates workings of office

Page 22

Lecture 3
Council of legal education - the cause for the compulsory nature of this course
- comprehensive grasp on living life in accordance with rules
- to cover everything required to understand it
1) Theories of professionalism - lawyers and conveyencers Act
2) Law society
3) Competence - a key factor under the lawyers and conveyencers act - and
continuing professional development
- a lack of competence will lead to complaints and discipline
- EXAM - look back at last sems paper - gives a sense of the style of questions
- Format is different now - a real effort to cover the course in a comprehensive way
- a course where the exam paper must be approved by council of legal ed's
moderator
- Don't leave things out! - the requirement is that everybody has a comprehensive
knowledge - need to understand how everything fits together, case names, important
rules,
- EVERY WEEK SIT DOWN AND MAKE SURE I KNOW PROVISIONS OF THE ACT WE
COVERED THAT WEEK!
Contents pg topics - focus on significant pgs - read after the lectures (and before if
you want to)
Orlov Case - Law talk (837??) pg 33
Structure of discipline of various bodies existing relative to the practition
- Must start off with procedure in office
- then law society complaints service + early resolution service
- standards committee via formal complaint
- Right of review by Legaal complaints review officer, but they can refer it to the
disciplinary tribunal
- HC
- CA
- (SC) only by judicial review

Page 23

NB - the tribunal is administered, not by the law society but by the Minstry of Justice,
so it is INDEPENDANT of the Law society
- think of the market control theory and criticism that what lawyers say is self serving and this is trying to combat this view - dealt with separately within minstry of justice
- It's there to assess charges agaisnt the legal profession
- Tribunal - Chair, dept Chair, 12 lay members (significant in terms of consumer
protection), 14 lawyer members, 3 conveyancing members - the chair, dept chair and lay ppl, are appointed by Govt Gen, by ministry of
justice
- Lawyers - NZ law society
- Conveyencers - NZ conveyencers ...
- The chair sits, and there must be not less than 4 others, and those others must
make up an even number, with an uneven number overall - half must be lay
memebers, half lawyers
- Lawyers for lawyers
S 227 of Act - where a lawyer has been struck off they can be reinstatement reinstatment is one of the functions of the committee
S240 - Can place restrictions on publication S241 - IMPORTANT - a practitioner can be charged with
1) misconduct
2) conduct unsatisfactory - not so gross, wilful or reckless as to amount to
misconduct - something less than misconduct
3) A practitioner can be charged with being guilty of negligence or incompetence in
a professional capacity, where it has been of such a degree or so frequent as to
reflect on their fitness to practice, or such as to bring the profession into disrepute
4) Practitioner can be charged where they have been conflicted of an offence
punishable by imprisonment, then if the conviction reflects on that persons fitness to
practice, or tends to bring the profession into disrepute, then that person can be
convicted by the tribunal
-> Charges to be brougth against practitionaers in disciplinary tribunal
s241 the standard of proof - balance of probablilities
S242 - can make any order a standards commitee complaint + can strike off a
practitioner fromteh throle, for up to 6 months, prohibit private practice whether in
partnership or on their own, prohibit employment of a practicitioner by a law firm, 30

Page 24

- 30 K
- It cannot order someone stuck off the role unless it shows that the person is a FIT
AND PROPER PERSON to be a law practitioner - s244
If the tribunal is going to make an order suspending or striking off a practitioner, 5
must vote in favour and 5 must make up a majority
- It is possible for a practitioner to consent to that - but if you are in a hopeless
position and say you will consent at the outset, it may prove helpful, than to endure
the laying out of everything
s245 - an interim suspension is also possible s253 - Right of appeal to HC
s254 - Appeal Court of Appeal
- s253 - any order or decision of DC, and appeal may be made by a practitioner
or person to whom the order or decision relates, if a standards committee has
brought the matter before the tribunal then the standards committee has right of
appeal
- if the review officer brings it, they have a right of appeal as well
- Appeals are by re-hearing, may confirm, reverse or modify the decision
appealed
against
E.g. Hall v Wellington Standards Committee No 2
- Alleged H acted in situation where she had cconflict of interest
- H's response to that charge was that there was no case to answer - H argued on the basis that the evidence DID NOT ESTABLISH A PRIMA FACIE
CASE AGAINST HER, Therefore no case to answer
- Dsicplinary tribunal had to consider argument
- DT held the test to be applied in this situation was the same one that would be
used on an application to strike out a civil proceeding where the grounds alleged
were that the statement of claim did NOT disclose a reasonably arguable cause of
action
- The test to apply is the same test as when someone says an statement of claim
should be struck out, becuase the statement doesn't reveal a reasonably arguable
cuase of action
- DT found against H, and she appealed to HC, on grounds that the DT had
applied the wrong test - the test of striking out a claim on basis of no arguable claim
was wrong
-

Page 25

HC held it had misdirected itself - and that what the DT had considered was whether
the charge was one which was a recognised form of misconduct
- It says the tribunal was considering whether what she did amounted to
recognisable misconduct - which was NOT what H was arguing
- it found the tribunal failed ot weigh up all the evidence to determine whether there
was sufficient evidence to establish the requisite charge
- They jumped to misconduct which was not what she was arguing
- HC set aside the disciplinary tribunal's decision
- REFERRED THE MATTER BACK TO THE TRIBUNAL to apply the right test on
rehearing and that it had to be constituted of DIFFERENT MEMBERS than the first
hearing's panel
further right of appeal to CA - s254 - any party to an appeal under S253(1) disatisfied
with any determination of HC, has erroneous in point of law, may leave of HC, or
appeal to CA with leave 254 (2) - must have regard to whether the quesiton of law, or for any other reason
ought to be submitted to CA for decision - is it by reason of gen public importance or for any other reason go to CA
- decision of CA is final, and no other appeal to SC
- It is possible for disciplinary matters to go to SC
- e.g. Barry Hart case - went to CA on judicial review - that covers the whole
question of the structure of dealing with disciplinary matters formally Jurisdiction of the courts themselves, relevant to disciplinary action
- pre 1935 - sanctions for serious breaches of professional stadnars by
practitioners were controlled by the courts - no structure that we have now
- CA had right to strike a practitioner off the role, or suspend the practitioner
- 1935 - the first committee was constituted under the law practitioners act
- that committee under the act had rights to strike off a practitioner, ... a
practitioner and other sanctions - that NOTWITHSTANDING it was statutory, the
courts maintained jurisdiction to strike off a practitioner
- Rights of appeal to HC and CA from DT - but appart from that, uner the LAwyers
and conveyencers act, there is jurisidcition under that statute, expressly conferring
powers to strike off on superior courts
s266 - tells us a barrister and solicitors name may be struck off the roll for reasonable
cause, by the HC
s267 - when struck off, the HC can Dismiss the application, if the court is in 2 minds
about it, the HC must reserve the case for the CA
268 (2) the Hc retains full power on reasonable cause ebing shown, to suspend any
barrister-sole or barrister/solicitor from practice

Page 26

This is usually referred to as INHERENT JURISIDITION - the HC retains a power over

barristers and barristers/solicitors - On admission you become an officer of the court - and it's that that gives the
courts that inherent power - if you misbehave yourself, it's being part of that team that
they can impose the penalty
268(1) - no other sections than 266, and 267 affect the juridiction - thsoe provisions
confer power on HC and CA, but the inherent jurisdiction remains apart from these
anyway
- nothing in the act limits the jurisdiction of the HC - so the inherent jurisdiction is
preserved in the statute
- confers powers on HC and CA anyway
What is the sort of conduct that will give rise to discipline?
2 kinds of conduct that the lawyers and conveyencers conduct
a) unsatisfactory conduct
b) misconduct
- need to put these into a context - the context is one of moral philosophy
- Moral Philosophy by DD Raphael
- Ethics in Law 3rd Ed Ysaiah Ross
Ethics and Morality are closely related
- commonly we refer to ehtical judgements or principles , where we may have
referred to moral judgements or principles
- Ethics refers to the field of inquiry that has morality as it's subject matter = moral
philosophy
- About 'how we should live' - what we should aim at - if we choose hapiness, is it our
own hapiness or the happiness that ..
- is it right to be dishonest at a good cause
Fundamental issues of practical decision making
- the nature of ultimate value
- the standard by which human values can be juddged right or wrong
- normative theories and applying these to practical moral problems (normative =
how we ought to behave, and applying those principles to practical moral problems)
Legal ethics - we are concerned with 'applied ethics' - how ethical conduct applies to
the practice of law
- Ethics is concerned with right and wrong action and we need to embark on
looking at various theories of ethics

Page 27

Major problem is coming up with a rrationally defensible theory of right and wrong
action - if you do this, then the theory will present us with theories of how to conduct
ourselves - but there is no one such theory - Moral philosophy is dominated by 4 basic views or theories of right/wrong action
Utilitarianisim
Kantianism
Intuitionism (common sense)
.....
Utilitarianism
Jeremy Bentham 1748- 1832
- concerned with what the law might be
- His body and will is preserved there - he sits in his
- best known teleological theory Teleology is the doctrine of final causes
- tells us that the consequences or resutls of a particular action dictate
it's rightness' and they should therefore govern the outcome of any ethical
dilemma - the ends jjustify the means - Teleology/consequentialism
- what the utilitarians tell us is that thee action that engenders the
greatest amount of favourable consequences (aka that which maximizes utility)
should govern the outcome of any ethical dilemma
- issue - it justifies action which may be unethical, by the consequences that flow
from that action which are themselves positive - This tells us that right action should be understood in terms of human good
and well being - 'the greatest hapiness of the greatest number of people'
- A utilitarianism ... - human good need not be thought of in that way
- good can encompass knowledge, autonomy, honour, virtue - Raises the question of 'what is good?' + issue of ends justifying means
Categories
Act utilitarianism - requirs you to choose the behaviour in a particular situation
that leads to the greatest good for the greatest number
- Sub category which is unique to lawyers - DECISION UTILITARIANISM
- the court of law deciding the quesiton of how the public welfare in a
case will be affect for the good, over and above what is best for the parties to the
case - like public policy rationale
Kantianism - from the thinking of Immanuel Kant
- Central to Autonomy - Kantianism belongs within the thinking of deontology - the science of duty/
moral obligation

Page 28

Moral obligation
- to act morally is to act according to what you accept as truths - without taking into
conssideration the effects produced by the action
- the opposite of utilitarianism, you don't judge the rightness by consequences
Categorical Imperative - if under Deontology, if you accpet a duty of truthfulness, you must always tell
the truth and never lie - writers talking about this use example of a murder who asks about the
location of someone they are going to go and kill - if you have categorical imperative
of always telling the truth, on the face of it, you are ignoring ... a major problem with
absolute truth telling
- there are situations where it can be morally appropriate to tell a lie - accords
with Judaism and Christianity
- Express exception in buddism
- A sense of rightness and ignoring consequences
Central to Kant's thinking was Autonomy = self + law (greek)
- Autonomy understands the moral imperative as the moral agent's
(individual's) own freely and rationally adopted moral policy
- as moral agents, we are all subject to moral law, but on this view, we tthen
repudiate all personal action which does not accord with what we want to do - we
determine our own course of action - where moral law is imposed fromt he outside - heteronomy (the law of another)
With Deontology - right action is then independant from it's consequences, the
emphasis is on individual autonomy
- In legal autonomy => the rights of the individual
Institutionsm - there can be unified or unifying account of our moral obligations
becuase they are plural, the only general moral principles this theory will recognise
are prima facie principles
- e.g. prima facie wrong to harm another, or break a promise
- this view sees a multiplicity of morals working
- Tim Deer - looks at pluralism in the Casebook
Virtue Ethics
- Virtue ethicists - believe that rright and wrong cannot be captured by
inddependantly or basically valid moral rules or principles: situational sensitivity - it is
a matter of situational sensitivity - it is fundamentally good or admirable inner motives
or states

Page 29

- Issue of VE's is proving what is right in a situation/referred to for guidance without

principles
There are problems with all the principles
- all these theories add to our complexity of understanding what is right
- Issue for ethics as philosophical conduct, is the widespread disagreemetn about
ehtical values, spread amongst different societies, and then within the society the
differences as well
- Notwithstanding Ethicists want to uncover the ultimate truth
Ethics pleads to certain metaphysical issues
- e.g. freewill, and the human capacity for morality
- Freewill - if humans lack freewill, it has been traditionally argued that they cannot
be held accountable for their actions
- Human capacity for morality - most moral codes and philosophers require that
people put aside self-interest in the name of honour, fairness, decency, loyalty or the
general good
- It raises the question of how much morality, validly or fairly can demand of
people, how much it can actually demand of people
Utilitarianism
- you do the best that you can for humanity as a whole
- if you are in a position for suffering and hunger of others, then you are morally
obliged to do so - even if it means giving up your life plas
- so the standard for morality is very demanding, almost too demanding in a
sense
Insisting that only moral conscientiousness is a proper moral motive- so if you give to
someone out of friendship, or liking someone, lacks moral worth, becuase it wasn't
done out of a sense of duty In legal practice, it is for you to determine what is the right//wrong decision
Law Society - rules and conduct of client care for lawyers
- rule 3 of lawyers and conveyencers act 2008
- rules of conduct are mandatory
- but it is not merely a question of learning the rules, but interpreting and
applying them in infinite situations that arise
Guidelines assisting in this task - medical profession
Autonomy - "personal rule of the self that is free from both controlling interefere

Page 30

Autonomy - 'and from personal limitations that prevent meaningful choice'

- this tells us that autonomous indivduals act INTENTIONALLY, with understadning
and free from controlling influences - applies as readily in law as it does in medicine Respect for autonomy is a guidline of clinical ethics (med degree)
- not a quesiton of allowing patients to make their own decisions, but physicians
have a right to make the decisions necessary for allowing the patient to make an
autonomous choice
- respect for autonomy includes individuals right for self determination
- They come to drs for guidance in making the choice
- Patients do not themselves have the necessary background for making the right
choice, so the physicians must provide the background,
- they must address the emotions and fears of the patients, they must council
patients when their decisions are disrupted
- extends to confidentiality - seeking consent to treatment - maintaining privacy
- All this is fundamental to Dr's training - In terms of promoting autonomous behviour - they must provide all options, and
explain risks so the patient can understand, and present procedures prior to surgery
Lawyers job is ADVISORY
Need to advise the client of the pros and cons of each action - what is negative
- this all leads to informed consent
Informed consent - consent to an act after being given formal adequate disclosure
- you must make sure that the client is aware of everything - all the pros and cons
likely to be a factor in decision
- potentially problematic based on who you are dealing with
- Autonomy - the approach where the dr or lawyer knows best
- The lawyer control model - where the lawyer gets on with it 'they know beest' NOT GOOD, the client becomees separated from procedures
- Med example - the dr telling the patient the truth abotu their decision may be
detrimental to the patients health in itself - it doesn't assist their autonomy as it will be
info they can use in their decisions, but if in the end, improoving and maintaining
health is given precedence in society then you may have to veto other concerns
- Relativist view - different moral codes which will apply

Page 31

Under lawyers and Conveyencers act, misconduct and unsatisfactory conduct

- under it's predecessor 1982 Lawyers and Conveyencers Act - the terminology
was different
- Misconduct was there as well as 'conduct unbecoming a barrister and solicitor' conduct outside the practice of a lawyer (private situations) - but behaviour which
reflected on the lawyers ability to practice law and the appropriateness to carry on as
a lawyer
Laywers and Conveyencers Act - misconduct and unsatisfactory conduct - S7 - Lawyers and conveyencers Act - miscnduct is conduct wwhen
providing regulated services and conduct first that would reasonably be regarded by
lawyers of good standing as disgraceful or dishonourable or
2) consists of a wwilful or reckless contravention of the LC Act or rules
regulations made undder it, or any other act relating to the provision of regulated
services
3) misconduct is found where you have a wilful or reckless failure to
comply with a condition or restriction of the subject 4) Grossly excessive costs for legal work amounts to misconduct
5) includes conduct unconnected with the provision of regualted services,
but which would jusstify a finding that a lawyer is not a fit and proper prson or
otherwise unsuited to engage as pracctice as a lawyer
6) If you knowingly employ a knowingly struck off practitioner of the law
society, that is misconduct, And
7) Shaaring practice with a non-lawyer = misconduct
- applies to employees - It's misconduct if an employee offers services outside of that firm
- you can't go an practice on your own account
People who are not practitioners but working in law firms can also be guilty of
misconduct
What does this actually mean?
- misconduct is a common la concept, but its a common law concept which has
ben adopted under teh layers and converyencers act - conduct which falls below the
stadnard expected of a practitioner in its mosst serious form
7.1(a)(1) - refers to conduct that would reasonably be regarded by lawyers of
good standing as disgraceful or dishonourable - this relies on the standards of other lawyers of conduct
- lawyers themselves set the standard of conduct in their discipline
One purpose of the act is to affect consumer protection

Page 32

Re a solicitor (1956) disciplinary conduct

Members of a disciplinary committee are the best to assest

- equivalent of conduct unbecoming - Misconduct is a broad term - and it must be defined relative to the circumstances of
the individual case - it's conduct which reflects on the professional character of the
practitioner - that person's adherence to proper standards
- e.g. where a practitioner is not trustworthy
- but failure to conduct proper is misconduct and keeping of accounts addequately
- so it is not limited to dishonesty - but that is integral

Page 33

Ethics Lecture 7
No text book - so need to read everything in the course book
- will say where to read the whole case (e.g. don't need to read the Goddard Case,
just his view on it)
Complaints and Discipline
Ended last week on s7 Laywers and Conveyencers Act - a significant section
becasue it sets out broad categories of misconduct
READ ORLOV NEXT TIME !

Page 34

Ethics Lec 8
- see rory's notes misconduct s7

Page 35

Ethics lec 9
- seize goods Exam:
- divide the paper up to answer 3 questions - aim to cover the whole course
- know enough for alarm bells to go up if a problem situation arises
- Ethicalproblems arise internally,
- Subtle things - Aim of the course is to put everybody in the position for bells to go off - to try and
spread the entire paper across everything we've done
Smith question ! - Richard set it last semester - a compulsory question
4 parts to it - Smith practicing on own account - series of things - 35 marks all up - haven't allotted them to each section
aim to put even marks for coverage a) opportunity to discuss cab rank rule, to Marie Article, theHart Case, directly
impoint with overcharging - s7(1)(a)(iv), in reMcConnell - a bill so disproportionate
amounted to ...
b) opportunity to discuss unsatisfctory conduct - to be contrasted with A - governed
by rule 11.3 - penalties s166(1), Re Bruges
c) misconduct under s7(1)(b)(ii) - unconnected with provision of legal services - law society NSW cases etc.
- s242 - and point that it is up to the law society to act of its own notion
d) there is question of the court - cases:Orlov test situation, Gao case Q2 - 3 distinct matters
- a) market control theory b) Kantian Moral philosophy c)
CLOSED BOOK
Over break - read client care rules -