1.

Foundations of Professional Responsibility

1.1. Introduction to the Theory of Legal Ethics
Introduction
Good lawyers must engage in sincere and critical reflection upon the justification and demands of their
professional role T Dare.
There are three principles which constitute the standard conception of the lawyers role: (1) partisanship, (2)
neutrality and (3) non-accountability.
1. Partisanship.
This is the most problematic principle constituting the standard conception of the lawyers role.
This principle calls upon lawyers to aggressively and single-mindedly pursue the clients interests all
the way up to the limits of the law.
Is subject to mischaracterisation i.e. that it requires lawyers to be more zealous than in fact it does
require them to be.
However once the principle of partisanship is characterised in a more moderate form, its derivation
from the appeal to pluralism is reasonable straightforward.
2. Neutrality.
According to the principle of neutrality, the lawyer must not allow his or her own view of the moral
merits of the clients objectives or character to affect the diligence or zealousness with which they
pursue the clients lawful objectives.
Lawyers who calibrate their professional efforts according to their own view of the good not only
privilege the view they favour and disenfranchise the view of the client, they undercut the strategy by
which we secure community between people profoundly divided by reasonable but incompatible views
of the good.
In short, the principle of neutrality recognises that it is not up to lawyers to determine what we will do as
a community, what rights we will allocate and to whom.
The legal expertise of lawyers means they are better placed than any other group of citizens to work in,
and with, our legal and political institutions. The principle of neutrality recognises this power and its
potential for abuse. It guards against the possibility that someone might be denied rights allocated by a
legal system because its lawyers find those rights or their allocation to that person morally
objectionable.
The principle of neutrality is therefore an important and deeply moral obligation.
3. Non-accountability.
Lawyers are not to be judged by the moral status of their clients projects, even though the lawyers
assistance was necessary to the pursuit of their projects.
Due to the mediating role of legal procedures, we cannot assume that the lawyers identify or
sympathise with particular rights or with their allocation to particular clients. The fact that a lawyer may
represent a murderer, for example, does not make them accountable for the wrongdoing of the
murderer.
Furthermore, this appeal to pluralism gives us reason to hope that lawyers will not allocate their
expertise in a way which will function as a de facto barrier to unpopular but protected views of the good.
The principle of non-accountability removes one reason lawyers may have for refusing to act for clients
whose moral views and legal goals do not accord with their own. In this guise, the rule is a defence for
those who do take on unpopular cases.
Therefore, this rile removes a barrier to such clients obtaining representation necessary to avail
themselves of legal rights.
These three principles relate to the notion of detachment lawyers should be objective and detached while ably
representing the client:
o For example when dealing with the criminal law you act for people whom you would not engage with
socially. You are solely there to address the legal problem which has arisen for them they are your client.
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As a lawyer you should recognise there may be a point where you cannot act for a person (i.e. conflict of
interest, affecting you personally or emotionally). The role of a lawyer is to give detached advice.
o A lawyer must act within the boundaries of the law i.e. they may only act within what the law allows.
Client autonomy vs. autonomy of the lawyer a lawyer is expected to represent their client if they are able to do
so (i.e. there is no conflict of interest), however what if the lawyer is capable of representing their client but the
client in question disgusts them personally? To what extent would a lawyer in this case be able to turn down the
client? To be discussed.
o

The Case of Renshaw and Edwards

Occurred in 1992 this was the biggest fraud committed in NZ by a law firm
Both lawyers who were partners in the law firm and committing criminal acts by misappropriating money from
clients. Neither were aware of the others wrongdoing.
Fallout from this had a terrible impact on the New Zealand legal profession. When they were caught out, around
$30 million had been stolen in total from clients. It had been gambled with the TAB so most of it was
irrecoverable.
Back then (1992) there was a Solicitors Fidelity Guarantee Fund (now Lawyers Fidelity Fund). If a defaulting
practitioner could not make good a clients loss, the fund would pay to cover the loss of the client. All
practitioners with a practicing certificate as a barrister and solicitor were required to make compulsory
payments to the fund, and would be levied if there was a shortfall.
Following the discovery of Renshaw and Edwards wrongdoing, there was an enormous shortfall of more than
$60 million, and a net loss of around $30 million remained even after money was recovered from Renshaw and
Edwards. There were around 500 claimants seeking misappropriated money.
Each barrister and solicitor in NZ was required to pay a $10,000 levy to cover the shortfall huge amount
having a devastating effect on the profession. Lead to legislative amendment following changes included
removal from the funds cover for clients lending and investment, as well as a cap of $5,000 on levies in any
one year, and educational requirements for lawyers.
As a direct consequence of the Renshaw and Edwards scenario, the NZLS was concerned about the level of
professional ethics amongst its members. A report was commissioned, the thesis of which was that the legal
profession faced a crisis of confidence. Law schools, IPLS and the NZLS jointly created and recommended an
integrated, coordinated curriculum in legal ethics. There would be three stages to this curriculum: (1) the legal
ethics course undertaken at university, (2) further education in legal ethics during completion of professional
legal studies, and (3) ongoing education in legal ethics in the form of Compulsory Professional Development
(CPD).
These recommendations were adopted. Legal Ethics university course is not compulsory for LLB completion,
but it is for admission as a barrister and solicitor. This has been the case since 1998.
There has been a lack of coordination with implementation of these recommendations and CPD has only been
made compulsory as of last year.
Problems may arise in practice which do not immediately bring to the lawyer concerneds attention that they
raise ethical issues. Most lawyers who are struck off are not bad people, and instead have found themselves
caught up in situations without realising that they are bad until it is too late. One of the aims of the Legal Ethics
course to make new lawyers aware of the red flags often missed when these situations arise.
You cannot, at the end of the day, teach someone to be ethical. But the value of the course is in getting across
what the legal profession requires, and what happens when requirements are not complied with.

Legal Ethics

Principle of conduct that members of the legal profession are expected to observe in the practice of law.
What do we mean by profession?
o 1930s sociological definition various writers defined profession by reference to their distinctive
characteristics or trades.
o The characteristics of the legal profession are considered to be:
1. An expectation of high educational attainment and lengthy training.
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2. Use of specialised knowledge on behalf of clients.

3. Self-regulation through a professional association (NZLS).
4. Commitment of lawyers to public service (including the formal code of ethics).
Difficulty with this approach is that it is entirely descriptive, and relies on what the profession says about itself.
Question of taking at face value the claims that the particular profession makes itself.

Legal Profession
Characteristics include:
a) Education and training.
b) Specialised knowledge.
c) Self-regulation.
d) Public service.

Theories of Professionalism

Functionalist/structural-functional theory:
o Requirement of identifying the basis on which we can define the group we are looking at as a distinctive
group.
o Having identified a group, the next thing to do is ask questions about it e.g. what purpose does this group
perform in society? How does this group fit with the other parts of the society it operates in?
o Talcott Parsons (leading writer in this area) saw lawyers as an important social group contributing
significantly to operations of social control and consensus building. In his view, legal work had potential to
redefine political authority and transform citizens relationships with political society.
o This approach was challenged in the 60s and later by the other two theories, which considered
functionalist/structural-functional theory to be too narrow and rigid.
Interactionist theory:
o Complete opposite of the functionalist/structural-functional theory.
o This approach focuses on individual relationships and activities it then looks at what lawyers actually do
rather than looking on the profession itself as a social institution. It is in its nature that it focuses on the
effect of legal practice on every day relations. It functions on the relationships between the lawyers
themselves, and the relationships lawyers have with their clients.
o Proponents of this theory explore how legal training and work relationships socialise. They construct
professionalism as an expression of individual and group identity.
o This theory provides insights into distance between reality of daily practice and ideology of the profession
by examining closely what actually happens, it shows what goes on, and proceeds to highlight any
inconsistencies between the ideology of the theory and what actually occurs in professional work.
o The theory stresses diversity, complexity and conflict in professional work.
Market control theory:
o Theory came to the fore in the 1980s, however it followed the ideas of Max Vaber which was during the
60s.
o Came into prominence in the 1980s. In its practical application, this is a product of right-wing libertarian
thinking i.e. that the market should govern. Matched the political environment at the time (political leaders
during this time included Reagan, Thatcher and Douglas).
o This theory is the most significant of the three.
o Focuses on the power of the profession and its relationship with the development of the market economy
and the modern state.
o It shows how many of the characteristics of the profession (i.e. lengthy training, self-regulation, monopoly
over certain areas of work) also serve to hand control over their markets to the profession.
o Vaber himself a lot of his ideas are around the notion that lawyers are only human and are only motivated
by selfish purposes like becoming wealthy. However market control theory proves the reality that people are
motivated to become lawyers for a wide variety of reasons. What Market Control Theory states is
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o
o

undeniably true whatever the motivations of the individuals, the profession retains control over a
significant proportion of the market.
This is not necessarily a bad thing you want to have people who are qualified acting as lawyers so they
know what they are doing. This theory suggests that even if this is not the intent of the profession,
professionalism operates as a set of strategies for restricting the supply of services, for dampening the
competition between providers for the service, and for restricting the accessibility to the market for these
services.
These are natural consequences of having a profession. Proponents of this theory was that this was a bad
thing capture of an area of the market and gave too much power to lawyers. However this is not
necessarily true.
This theory challenges the public interest argument of professionalism advanced by the profession itself.
This theory does have some critics opponents responded that there would be a decline in
professionalism as it is traditionally understood if the MCT theorists got their way. The critics of the theory
argue that the MCT does not pay enough attention to the normative and ideological dimensions of
professionalism.
It is important that throughout the course to bear in mind and be aware of how the criticisms of
professionalism as set out in the MCT are addressed in the Lawyers and Conveyancers Act, as it is a
response to some of these criticisms.

Pierre Bordieu Capital

In more recent years, attempts have been made at a more sophisticated understanding of how power and
status both shape and reflect the nature of the profession, putting together aspects of all three of the theories.
Pierre Bordieu developed an idea of Capital not really concerned with the legal profession, but with
professions generally.
According to Bordieu, Capital takes many forms it is the value attached to a variety of social aspects. For
example, social capital of a lawyer comprises family, other personal and professional support networks etc.
Another example cultural capital the ability to function as a lawyer and practice law comes from
knowledge and skills, the status attached to a lawyers education, shared tastes and values with other lawyers
and clients, and the extent of the persons tacit understanding of how to relate to clients.
Bordieus point is that status and power in the legal field will reflect the way in which Capital in all its forms will
be distributed throughout the profession.
The value of his theory for us is that it considers how actors and institutions together function to produce
economic and social practices. It is not focused on individual actions, or the market. It really brings all of these
elements together into one theory.
Really need to think about the Market Control Theory it is important to understand it and come to grips with
what is being done through the Lawyers and Conveyancers Act to combat the negative aspects of
professionalism flowing from it.

1.2. Introduction, Regulation and Legal Practice in New Zealand

Part 3 of the Lawyers and Conveyancers Act 2006 Admission and Enrolment

Important to be familiar with this section of the Act.

Barristers and Solicitors

Section 48 Admission and Enrolment of Barristers and Solicitors:
(1) Every person admitted by the High Court under this Act must be admitted as a barrister and solicitor; and no
person may be admitted as a barrister or solicitor only.
(2) Subject to this Act and to any order made under it, and to the express provisions of any other enactment,
every person admitted as a barrister or solicitor is entitled, while his or her qualification continues, to practice in
or before any court or tribunal.
5

This has been the law in NZ since 1983. There is a single rule for law practitioners in New Zealand.
In the UK and Wales, as well as many other commonwealth countries, the profession of barristers is separate
to that of solicitors, with separate rules and governing bodies.
In NZ, a common term is fused profession this is misleading. In the US, the legal profession is genuinely
fused there is one body of lawyers. However in NZ the terms barrister and solicitor still have independent
meaning, and in NZ it is open to practitioners to take out a practicing certificate as a barrister sole.
Chapter 14 of the Lawyers: Conduct and Client Care Rules 2008 rules applying solely to barristers sole.
Barristers sole are relieved of many obligations applicable to solicitors.
The correct term for the operation of barristers and solicitors in New Zealand is that they have the right of dual
practice.

Barristers
Section 6 Lawyers and Conveyancers Act barrister means a person enrolled as a barrister and solicitor of
the High Court under or by virtue of this Act and practicing as a barrister, whether or not he or she also
practices as a solicitor; and, in relation to any country outside New Zealand, includes, for the purposes of
sections 49(3((a) and 53, any person authorised to exercise in that country functions similar to those exercised
y barristers in New Zealand.
A barrister is a law practitioner whose career is dedicated to advocacy. Appear in courts.
In the UK and Wales, traditionally, barristers have sole rights of audience before the higher courts. This is no
longer the case today.
A solicitor instructs a barrister. The purpose of this is that the barrister will represent the solicitors client in
Court. The solicitor is then responsible for paying the fee of the barrister (which they in turn receive from the
client). The relationship is not directly between barrister and the client seeking legal services.
The profession of barristers is ancient regarded as the senior branch of the profession and the term has been
in use since the 15th century.
In NZ, if you take out a certificate as a barrister sole, you are prohibited from working in partnership with
anyone else barristers must be independent and have their skills available to any law practitioner in the
country who wishes to instruct them.

Solicitors

Section 6 Lawyers and Conveyancers Act - solicitor means a person enrolled as a barrister and solicitor of the
High Court under, or by virtue of, this Act and practicing as a solicitor, whether or not he or she also practices
as a barrister; and, in relation to any country outside New Zealand, includes, for the purposes of section 49(3)
(a) and 53, any person authorised to exercise in that country functions similar to those exercised by solicitors in
New Zealand.
Solicitors are not principally advocates, but are concerned with transactional work (conveyancing, drawing wills,
administering estates, forming companies, etc.).
Origins of the profession UK and Wales pre 1873, there were a number of types of legal profession outside
the barristers. Solicitors were then agents working in the Courts of Chancery.
Old Judicature Acts ended up combining the duties of solicitors, attorneys and proctors into one profession
under the title of solicitors. This term has persisted ever since.

Queens Counsel

Senior grade of barrister.

Rank created in England in the 16th century.
Originally consisted of a group of counsel who were retained by the Crown, ranking next after Sarjeants.
Acted as assistants to the Attorney-General.
Today, the appointment of Queens Counsel is a form of recognition of the professional eminence of the
Counsel upon whom that honour is conferred.
6

Queens Counsel is formerly characterised as Her Majestys Counsel learned in the Court, Silks, and
Members of the Inner Bar.
From 1 August 2008, the title Queens Counsel became Senior Counsel, however this was changed back
due to the change of Government from Labour to National.

The Bar

Right of audience before the High Court.

Progression of practitioners in NZ lawyers who begin as barrister and solicitors but specialise in litigation will
eventually drop the solicitor part. If they are really distinguished, they will eventually be appointed Queens
Counsel.

Layers and Conveyancers Act 2006

Sole statute which governs all three areas of the legal profession Barristers, Solicitors and Queens Counsel.
Came into force 1 August 2008 replaced the Law Practitioners Act 1982.
Created a whole new profession of conveyancers people who are not qualified as lawyers, but are trained in
how to convey real estate.

Part 4 of the Lawyers and Conveyancers Act The New Zealand Law Society
Section 64 Membership The New Zealand Law Society has members in accordance with its constitution
and this Act, but membership is voluntary and does not of itself
(a) Impose on the members any liability in respect of any contract, debt, or other obligation made or incurred by
the New Zealand Law Society.
(b) Confer on the members any right, title, or interest in the property of the New Zealand Law Society.
Section 70 Constitution of the New Zealand Law Society
1. The New Zealand Law Society must have a constitution that provides for
a. (A Council of the New Zealand Law Society and the powers of the Council; and
b. The ways in which persons become members of the New Zealand Law Society; and
c. The ways in which persons cease to be members of the New Zealand Law Society; and
d. The summoning and holding of general meetings of the New Zealand Law Society, and the method of
voting at those meetings; and
e. A president and 1 or more vice-presidents of the Council; and
f. An Executive Board of the New Zealand Law Society; and
g. The appointment by the Council of an executive director of the New Zealand Law Society, who may be
a member of the Council; and
h. The amendment and replacement of the constitution.
2. In addition to the provisions required by subsection (1), the constitution may contain any other provisions
that are not inconsistent with this Act or any other Act or any rule of law.
Constitution for lawyers in NZ society which is incorporated into this Act Lawyers and Conveyancers Act
(Lawyers) Constitution 2008.
Act gave New Zealand a whole new organisational model for the NZLS. The NZLS operates with its head office
in Wellington, but with 13 branches around the country. When you look at the constitution, you will see that the
NZLS is governed by its Council, and an Executive Officer. The constitution also sets out how the President and
other officers are elected, as well as how voting is to be conducted and the mechanism for amending the
constitution.
The Council comprises up to 25 members includes President, four Vice Presidents, a representative from
each of the 13 branches, and a representative from what are known as the sections of the New Zealand Law
Society (criminal law section, family law section, etc.).
Note another body is the New Zealand Bar Association comprised by barristers sole. This is not a statutory
body and membership is voluntary, however there is a representative from this body sitting on the NZLS
Council as well.
Also a group on the Council representing the large law firms.
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Board on the other hand comprises solely the President and four Vice Presidents. It is this body which
regulates the day to day running of the affairs of the NZLS.
All lawyers in NZ are regulated by the NZLS. Membership is technically voluntary.
NZLS has two distinct functions:
1. Regulatory function control and regulate all lawyers in New Zealand. All lawyers who wish to practice law
in NZ must take out an annual practicing certificate, and pay for this to the NZLS. Also opposes those they
consider not fit to apply for admission, deals with rule making, and conflicts with members of the public.
2. Representative function if you as a practitioner want to be represented by the NZLS, you need to actually
join it. The regulatory function does not involve joining, but if you want to take advantage of the NZLS
representative function you need to join it. See ss66-68 of the Act deals with the representative capacity
of the NZLS.
Structure of the NZLS under the LCA is very different to what it was under the former Law Practitioners Act.
Under the old legislation, District Law Societies (of which there were 14) were the powerful bodies in the
country. The NZLS itself was made up of various people, principally the presidents of the District Law Societies,
and all of the NZLS power was vested in the District Law Societies. Under the LCA, the balance of power was
shifted to the NZLS, which then operated through branches.
It is still possible to have District Law Societies the Auckland District Law Society remains separate to the
NZLS as a representative body. Did not want to surrender their assets to the NZLS.

Part 8 Lawyers and Conveyancers Act The New Zealand Council of Legal Education

This is a distinct body which is separate from the Law Society.

Composition has representatives of the Judiciary, the Legal Profession, the 6 Deans of Law from the Law
Schools, and law student representation. Body representing each segment of the law as we know it in this
country.
The New Zealand Council of Legal Education sets the requirements for candidates for admission as Barristers
and Solicitors, and arranges moderation and assessment of the core courses of the LLB, which are prescribed
by the Council. At Auckland University, these are Laws 121 and 131, Public, Criminal, Tort, Contract, Land,
Equity and Ethics.
o For example, the exam for this paper will be sent to a Council-appointed moderator.
The Council also has the function of providing for professional legal training (IPLS or College of Law).
It provides for the recognition of foreign qualifications for admissions in New Zealand.

The Lawyers and Conveyancers Act 2006

This is the principal statute we cover for the purposes of this course.
Section 3 Purposes:
1. The purposes of this Act are
a. To maintain public confidence in the provision of legal services and conveyancing services;
b. To protect the consumers of legal services and conveyancing services;
c. To recognise the status of the legal profession and to establish the new profession of conveyancing
practitioner.
2. To achieve those purposes, this Act, among other things, a. Reforms the law relating to lawyers;
b. Provides for a more responsive regulatory regime in relation to lawyers and conveyancers;
c. Enables conveyancing to be carried out both
i.
By lawyers; and
ii.
By conveyancing practitioners.
d. States the fundamental obligations with which, in the public interest, all lawyers and all conveyancing
practitioners must comply with in providing regulated services.
e. Repeals the Law Practitioners Act 1982.
o The Lawyers and Conveyancers Act is an exercise in consumer protection.
o Market Control Theory professions, whether they intend or not, gather a monopoly over activities in
society.
8

Consumer protection in response to this theory is significant Act attempts to overcome the criticisms of
that Market Control Theory directs at professions like the legal profession, and makes the point that
consumers need to be protected.
Duncan Webb: The Lawyers and Conveyancers Act: Catching up with Consumerism [2007]:
o Through the enactment of the Lawyers and Conveyancers Act, New Zealand has followed England and
many Australian States in reshaping the framework of professional regulation by shifting it towards
consumerism (and arguably away from professionalism). This Act represents a massive shift from the
pervious framework under the Law Practitioners Act 1982.
o There are numerous fundamental changes to professional regulation in the Lawyers and Conveyancers
Act, including ministerial supervision of rule making, a compulsory client care code, the introduction of an
independent review authority in the form of the Legal Complaints Review Officer, and the introduction of the
new ground of discipline of unsatisfactory conduct. The threshold of unsatisfactory conduct is articulated
in significantly lower terms than that of the traditional ground of misconduct.
o The function of the regulatory body under the traditional framework focused on the need to maintain the
reputation of the legal profession (Bolton v Law Society [1994]). Authorities held that discipline was
necessary to protect the public from unscrupulous practitioners rather than to punish the practitioners or
compensate wronged clients. Under such a framework, the grounds upon which the professional body
could take steps against a practitioner are centred on the concept of misconduct which remains focused on
the discharge of uniquely professional duties to clients. I.e., it needed to be shown that something has
been established showing either that his conduct in the management of the professional business
entrusted to him has been fraudulent, or that he has neglected some positive duty to his clients, or the
conduct complained of be something outside the scope of his professional behaviour.
o Additionally, the traditional disciplinary procedures in New Zealand had been entirely lawyer-focussed the
procedure was conducted primarily by lawyers for lawyers. This gave an appearance of bias or cronyism to
at least some non-lawyer complainants.
o The rationale for the traditional position was based on the assumption that the profession stands apart from
the society in which it operates, and is wholly autonomous. However this premised is no longer tenable,
due to the argument that in matters of professional conduct the client ought to be able to seek redress
through an easily accessible forum focused on the clients rights as well as the conduct of members of the
legal profession. For those on the outside of the disciplinary process it appeared (arguably accurately) that
their interests were secondary to the interests of the profession in the proceeding. From this perspective a
fair result may seem unlikely to the wronged client.
o Probably the most important change for the legal profession brought about by the Lawyers and
Conveyancers Act is the introduction of the new professional standard of unsatisfactory conduct in section
7. The largest change is that unsatisfactory conduct will exist where the lawyer is guilty of: conduct that
falls short of the standard of competence and diligence that a member of the public is entitled to expect of a
reasonably competent lawyer. Unsatisfactory conduct will exist (and remedies under the Lawyers and
Conveyancers Act will follow) where the lawyer fails to live up to the expectations not of fellow practitioners
(the tort test) but the expectations of a reasonable member of the public. Such a formulation is drawn
directly from consumer legislation e.g. s7 of the Consumer Guarantees Act 1993. It accepts that what is a
reasonable standard for a lawyer will be different from that which a client would consider reasonable, and
that there is no notional objective intermediate position.
o Importantly, this may mean that what is professionally required of lawyers may be more than is required
under the ordinary law of contract and tort. This is of course a reversal of the earlier situation under which a
breach of private law obligations (such as negligence) did not result of itself in any professional wrong
being committed.
o A further important aspect is that the definition of unsatisfactory conduct in s12 provides that it will be found
where there has been a contravention of the Lawyers and Conveyancers Act, or of any of the rules made
under the Act other than a wilful or reckless breach (which will be misconduct). This provision gives the
rules considerably more force than has been the case to date. A breach of any rule, no matter how minor,
will amount to at least unsatisfactory conduct.
o

The Act introduces the concept of client care, a concept of professional regulation. Sections 94 and 95 of
the Act require the Law Society to have rules that include or provide for a code of professional conduct and
client care.
o S94(1) provides that the Law Society must provide rules requiring practitioners to provide clients in advance
with information on the principal aspects of client service, including the basis on which fees will be charged,
indemnity insurance arrangements or other arrangements in respect of professional indemnity, the
coverage provided by any fidelity fund, and complaints mechanisms. The concept of client care goes well
beyond the concept of negligence and encompasses the idea of best practice. Under the Acts framework,
a failure to adhere to the principles of client care needs to be recognised as a professional wrong.
o The Act introduced a new complaints system whereby the Standards Committee could only decline to
consider complaints on the narrow grounds set out in s138 of the Act, which includes the fact that the
complaint is trivial or vexatious or is not made in good faith. S137(1)(b) makes it clear that any breach of
standards by the lawyer may be complained about, including the standard of service provided.
o The Act conceptually differentiates complaints and discipline. While the disciplinary procedure may have its
genesis in a complaint, the Act clearly distinguishes between the complaint resolution function and the
discipline function. S120 outlines the framework in relation to complaints as: one within which complaints
[against lawyers and their employees] may be processed and resolved expeditiously and, in appropriate
cases, by negotiation, conciliation, or mediation. In respect of discipline, the same section states that the
purpose in respect of discipline is to have a system in which charges may be heard and determined
expeditiously.
o Through the addition of ministerial discretion, the Lawyers and Conveyancers Act reflects a final rejection of
wholesale autonomy of the legal profession in NZ. This is the creation of the Legal Complaints Review
Officer, who will have the power to revisit the decisions of standards committees under s211. The Officer
also has the wider function under s192 of providing advice to the New Zealand Law Society and the
Minister of Justice on any issue that the Legal Complaints Review Officer identifies in the course of carrying
out reviews.
o The Act also provides for direct government supervision of the self-regulatory processes. While rules will
still be made by the profession, they are subject to approval of, and possible revision by, the Minister who
under s104 may amend any rule considered deficient in any respect. Along with the function of the LCRO,
this is a radical shift from the wholly self-regulated profession which existed prior to the Acts conception.
Through the Lawyers and Conveyancers Act, Parliament is trying to reflect changes in public views of the
function and structure of the Legal Profession.
Section 4 Fundamental obligations of lawyers:
1. Every lawyer who provides regulated services must, in the course of his or her practice, comply with the
following fundamental obligations:
a. The obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand;
b. The obligation to be independent in providing regulated services to his or her clients;
c. The obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their
clients;
d. The obligation to protect, subject to his or her overriding duties as an officer of the High Court and to
his or her duties under any enactment, the interests of his or her clients.
o Highlights need to provide detached advice and act within the bounds of the law.
Act concerned very much with consumer protection and lawyer competence.
o

Consumer Protection Lawyers and Conveyancers Act Rules 2008

The Lawyers and Conveyancers Act refers to the concept of client care.
o Rules of Conduct and Client Care 2008 lawyers are to have a copy and abide by these, and will be
subject to the disciplinary process if they do not.
Predecessor to the Lawyers and Conveyancers Act (the Law Practitioners Act 1982) formerly had the rules
of professional conduct of Barristers and Solicitors. No mention in these rules and former statute of the notion
of client care. Caring for a client has always been of fundamental importance to any lawyer, however society
has moved in such a way that parliament has deemed it necessary to spell it out in the statute which now
10

governs the profession again this reflects the values of a consumer society and the direction society has gone
in (read: Market Control Theory).
Chapters 1 3 LCA Lawyers: Conduct and Client Care Rules 2008 every lawyer must comply with the rules
of conduct and client care for lawyers set out in the Schedule.
o Client care and service information Whatever legal services your lawyer is providing, he or she must:
Act competently, in a timely way, and in accordance with instructions received and arrangements made.
Protect and promote your interests and act for you free from compromising influences or loyalties.
Discuss with you your objectives and how they should best be achieved.
Provide you with information about the work to be done, who will do it, and the way the services will be
provided.
Charge you a fee that is fair and reasonable and let you know how and when you will be billed.
Give you clear information and advice.
Protect your privacy and ensure appropriate confidentiality.
Treat you fairly, respectfully, and without discrimination.
Keep you informed about the work being done and advise you when it is completed.
Let you know hot to make a complaint and deal with any complaint fairly.
o Summary of what is expected of todays law practitioner.
o This part also sets out the following:
The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for
Lawyers (the rules). Those obligations are subject to other overriding duties, including duties to the
courts and to the justice system.
That the Rules are based on the fundamental obligations of lawyers set out in section 4 of the Act (see
above).
The rules are not an exhaustive statement of the conduct expected of lawyers rather, they are the
minimum standards that must be observed by lawyers and are a reference point for discipline. Charges
of misconduct or unsatisfactory conduct may be brought and a conviction may be obtained despite the
charge not being based on a breach of any specific rule, nor on a breach of some other rule or
regulation made under the Act.
Within the bounds of the Rules, every lawyer needs to be guided by their own sense of professional
responsibility. The preservation of the integrity and reputation of the profession is the responsibility of
every lawyer.
Cannot teach anyone ethics however the way to deal with unethical behaviour is to set out machinery of
discipline for those who are unethical. This is what the Conduct and Client Care Rules purport to do.

1.2. Competence, Complaints and Discipline

Introduction

Significance of pairing between competence and discipline. Competence is fundamental.

o The structure of legal education in this jurisdiction is important to understand what is meant by
competence.
o 3.0. Lawyers: Conduct and Client Case Rules In providing regulated services to a client, a lawyer must
always act competently and in a timely manner consistent with the terms of the retainer and the duty to take
reasonable case.
There are requirements for lawyers to undergo continuing education and training beyond the academic stage
and professional legal training received to qualify as a barrister and solicitor, in order to ensure lawyers in New
Zealand remain competent.
The New Zealand Law Society has only recently put together a structured form of compulsory continuing
education prior to this, it was very haphazard. This is known as CPD (Continuing Professional Development).

11

1.2.1. Competence
Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regs 2008 Rule 12

Once someone qualifies as a barrister and solicitor, all this does is bring them on the roll. They cannot
immediately begin providing services to the general public. LLB and professional training undertaken so far is
insufficient at this stage. Section 30 Lawyers and Conveyancers Act Practice by lawyer on his or her own
account:
1. No lawyer may commence practice on his or her own account, whether in partnership or otherwise, unless

a. He or she
i.
Meets the requirements with regard to both practical legal experience and suitability that are
imposed by rules made under this Act; and
ii.
Meets any other criteria that are prescribed by rules made under this Act; or
b. He or she is granted by the High Court on grounds set out in rules made under this Act, leave to
practice on his or her own account.
.....
Rule 12 (Lawyers: Practice Rules) Regs 2008 Criteria to practice on own account:
1. For the purposes of section 30(1)(a) of the Act, subclauses (3) to (6) set out the requirements and other
criteria that must be met before a lawyer who applies to do so on or after 1 October 2012 may commence
practice on her or her own account.
2. Those requirements and other criteria apply, without limitations, to a lawyer who before 1 October 2012
commenced practice on his or her own account as a barrister sole, and who on, or after 1 October 2012
applies to practice on his or her own account as a barrister and solicitor.
3. The lawyer must have had at least the required minimum amount of recent legal experience in New
Zealand****.
4. During the two years immediately before the date of commencing practice on his or her own
account, the lawyer must have completed, and passed all mandatory assessments in, a course that,
when the lawyer began it, was approved by the Law Society as providing adequate instruction and
assessment on the required subjects (which may be or include all or any of business management,
professional conduct and client care, and trust account management and the lawyers or, as the case may
require, incorporated forms, obligations in relation t trust accounts).
5. The lawyer must have satisfied the Law Society that he or she is a suitable person to practice on his or her
own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all
relevant considerations, including, without limitation
a. The nature and extent of his or her experience practicing in law, whether in or outside New Zealand;
and
b. If he or she intends to practice as a barrister and solicitor, how (whether in sole practice, as a partner in
a firm, or otherwise) he or she intends to practice on his or her own account; and
c. If he or she intends to practice as a barrister, how (whether with or without other barristers, employees,
or both, or otherwise) he or she intends to practice on his or her own account; and
d. The areas of law in which he or she intends to practice.
.....
****Need to have had 3 years legal experience in New Zealand during the immediately preceding eight years.
This applies to both Barristers/Solicitors and Barrister Sole.

Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education Continuing

Professional Development) Rules 2013

Continuing legal education occurs from the moment of admission so it is important for lawyers to come to
grips with the CPD scheme.

12

Most recent period began at the beginning of 1 April 2014 and will finish on 31 March 2015 (lasts a full year).
Lawyer must put in a minimum of 10 hours of CPD within this yearlong timeframe. Where more than 10 hours is
completed, up to 5 hours may be carried over and credited to the next year.
This is mandatory must be undertaken.
CPD activities are defined in the rules as learning which:
o Is planned and structured with a purpose of outcomes it is not haphazard.
o Provides for interaction and feedback.
o Is related to identified learning needs.
o Cannot be a part of the lawyers day-to-day work.
Individual lawyers must devise a written CPD plan and record where CPD activities are recorded. Firms
generally have a clear idea of what they want from new lawyers and will do a lot of this for them.
o The purpose is to record, document, reflect on and verify CPD activities.
o Referred to as CPDPR.
Examples include:
o Participating in courses, seminars, conferences, training programmes, one to one training and study
groups. Latter must be properly structured and planned the activity must not be file-specific. It is not
about practicing law; it is about learning how to practice law. It must be an activity which progresses the
layer individually as a lawyer and not be a work activity
o Can be a verifiable distance-learning programme, which provides opportunities for interaction and
feedback.
o May be completion of or study of relevant degrees, diplomas or certificate.
o Can include lecturing or teaching.
o Writing law related books and articles.
Activities which count:
1. Preparing or presenting certain types of submission.
2. Can be something to develop advocacy, writing, drafting skills.
3. Personal management skills. Law profession has a higher rate of mental illness, particularly depression,
than any other profession.
4. Practice management.
5. Ethics, professionalism and client care.
Flexibility is the key to all of this, however the topics need to relate to your individual learning needs as a lawyer.
Annually, need to submit a declaration of compliance to the Law Society. Completing CPD requirements is a
declaration of continued competence as a barrister and solicitor.
Point that these rules are learner-centred rather than prescriptive. However the sanction for non-compliance is
withholding practicing certificate (not yet in the rules).
o It is intended that the rules will be amended to allow for this however the amendment is yet to come
through, and is not stated on the New Zealand Law Society website. However we can expect that the rules
will be amended for this sanction.
Lecturer opinion: NZ is lacking, given the short period of professional profession, that in the three years under
Rule 12 there ought to be some proper programme with milestones that need to be reached and completed
satisfactorily.
Also see Rule 3.9 of the Lawyers: Conduct and Client Care Rules A lawyer must undertake the continuing
education and professional development necessary to ensure an adequate level of knowledge and competence
in his or her fields of practice.

Loss of Competence and Section 163 of the Lawyers and Conveyancers Act

A further issue of competence relates to practitioners losing their competency through mental/degenerative
disease or brain injury. The New Zealand Law Society is largely dependant on other practitioners telling them
about this, or if it becomes apparent from complaints from the public.
Standards Committee, a committee convened by the New Zealand Law Society, has the ability to exercise
powers under sections 164 and 169 if satisfied (in respect of any practitioner and formal practitioner):
c. The practitioner is, because of his or her mental or physical condition, unable to properly administer any trust
account that the practitioner is required to administer as a regulated trust account; or
13

d. The practitioner is, because of his or her mental or physical condition, unable to properly conduct his or her
own practice.
There may also be intervention where the practitioner has been found guilty of theft (a), died (e), been
adjudicated bankrupt (f), struck off the roll (i), suspended from practice (j), or ordered by the Disciplinary
Tribunal not to practice as a solicitor on his or her own account (k).
LCA Complaints Service and Standards Committees Regulations 2008 deals with Standards Committees.

1.2.2. Complaints and Discipline

Introduction to Complaints and Discipline Part 7 Lawyers and Conveyancers Act 2006

A lack of competence generally brings about complaints, which lead to discipline. The procedure for complaints
and discipline is set out in Part 7 of the Lawyers and Conveyancers Act.
Section 121 of the Act imposes an obligation on the NZLS to establish a complaints service. The function of
this service is to receive complaints about lawyers and former lawyers, incorporated law firms (under the LCA, it
is possible for a practice to incorporate itself under the Companies Act), and employees of these categories:
1. The New Zealand Law Society must establish a complaints services to receive complaints about
a. Lawyers and former lawyers; and
b. Incorporated law firms and former incorporated law firms; and
c. Employees and former employees of lawyers and incorporated law firms.
Rules of Conduct and Client Care right from the outset of the lawyer/client relationship, it needs to be made
clear to clients what the procedures for complaint actually are. The lawyer/client relationship is one of
confidence therefore there is a requirement to tell them about procedures for complaint right from the outset.

Rules of Conduct and Client Care for Lawyers - Rule 3.4

3.4. Provision of information: a lawyer must, in advance, provide a client with information in writing on the
principal aspects of client service including the following:
a. The basis on which the fees will be charged, when payment of fees is to be made, and whether the fee may
be deducted from the funds held in trust on behalf of the client (subject to any requirement of regulation 9
or 10 of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008).
b. The professional indemnity arrangements of the lawyers practice. This obligation is met if it is disclosed
that the practice holds indemnity insurance that meets or exceeds any minimum standards from time to
time specified by the Law Society. If a lawyer or a practice is not indemnified, this must be disclosed in
writing to the client.
c. The coverage provided by the Lawyers Fidelity Fund and if the clients funds are to be held or utilised for
purposes not covered by the Lawyers Fidelity Fund, the fact that this is the case.
d. The procedures in the lawyers practice for the handling of complaints by clients, and advice on the
existence and availability of the Law Societys complaints service and how the Law Society may be
contacted in order to make a complaint.
I.e., clients must be informed of:
o The procedure in the practice for handling written complaints.
o Existence of the NZLS Complaints Service.
o How to contact NZLS to complain.

14

Procedure for Complaints

When a complaint is made to the service, a qualified person in dispute resolution assists the client and their
lawyer to deal with the problem. Process is explained and attempts to negotiate a settlement may occur.
Above diagram
1. A complaint is received and acknowledged, and checked to confirm that all required information has been
included and that the complaint is valid. The complaint may be referred to Early Resolution Service by the
Law Society if it is assessed as appropriate for this procedure (see below) if this is not appropriate, the
NZLS must satisfy itself that the complaint is genuine before engaging the process and sending the
complaint to the Standards Committee. Some complaints may be vexatious, and will be filtered out at this
stage.
2. Standards Committee can deal with the complaint and may proceed it to the Lawyers and Conveyancers
Disciplinary Tribunal. Where a complaint reaches the Standards Committee, a copy will be sent to the
lawyer being complained about, and he or she will have the right to make a written submission to the
Standards Committee.
3. The Standards Committee has three options:
i.
It may inquire into the complaint; or
ii.
It may ask the person who has made the complaint and the lawyer being complained about to consider
resolving matters by negotiation, conciliation or mediation;
iii.
It may decide to take no action.
4. If a Standards Committee decides to inquire into a complaint, it can determine that:
i.
No further action is warranted; or
ii.
There has been unsatisfactory conduct on the part of the lawyer; or
iii.
The complaint is so serious that it should be referred to the New Zealand Lawyers and Conveyancers
Disciplinary Tribunal.
Whatever determination a Standards Committee makes, the complainant will be informed of the decision and
the reasons for it.
5. If the Standards Committee decides that the lawyers conduct was unsatisfactory:
15

i.

It may make an order formally confirming the terms of an agreed settlement resulting from negotiation,
conciliation or mediation.
ii.
It may censure or reprimand the lawyer.
iii.
It may order the lawyer to:
Apologise to the complainant.
Pay the complainant compensation (up to a maximum of $25,000) for actual loss.
Reduce, cancel or refund some or all of the fees they charged the complainant.
Rectify any offence or omissions at his or her own expense.
Pay a fine of up to $15,000.
Pay the complainant for expenses incurred in making the complaint.
The Standards Committee may make one or more of these orders in respect of any one finding. It can also
make other orders aimed at improving the lawyers standard of practice.
6. Decisions of the Standards Committee may be appealed to the Legal Complaints Review Officer by either
the complainant or the lawyer where they are the subject of a complaint and disagree with the Standards
Committee decision. The LCRO has the same powers as the Standards Committee and may make any
order the Standards Committee can make, including confirming or changing the Standards Committees
decision. The LCRO may also refer a matter to the New Zealand Lawyers and Conveyancers Disciplinary
Tribunal (who can in turn refer a matter back to the LCRO), or back to the Standards Committee.
7. Beyond this, there is the right of appeal to the High Court and Court of Appeal. In the statute, the Court of
Appeal is the final appellate body for disputes in this area, however as these bodies are subject to judicial
review (administrative action), a complaint may potentially make its way to the Supreme Court.
Grounds for complaint set out in s132 Complaints about Practitioners, Incorporated Firms, and their
Employees:
1. Any person may complain to the appropriate complaint service about
a. The conduct
i.
Of a practitioner or former practitioner; or
ii.
Of an incorporated firm or former incorporated firm; or
iii.
Of a person who is not a practitioner but who is an employee or former employee of a practitioner
or an incorporated firm; or
b. The standard of the services provided, in relation to the delivery of regulated services
i.
By a practitioner or former practitioner; or
ii.
By an incorporated firm or former incorporated firm; or
iii.
By a person who is not a practitioner but who is an employee or former employee of a practitioner
or an incorporated firm; or
c. The alleged failure of a practitioner or former practitioner or an incorporated firm or former incorporated
firm, or an employee or former employee of a practitioner or an incorporated firm, to comply, within a
specified time or a reasonable time, with any order or final determination made under this Act by a
Standards Committee or the Legal Complaints Review Officer.
2. Any person who is chargeable with a bill of costs, whether it has been paid or not, may complain to the
appropriate complaints service about the amount of any bill of costs rendered by a practitioner or former
practitioner or an incorporated form or former incorporated firm (being a bill of costs that meets the criteria
specified in the rules governing the operation of the Standards Committee that has the function of dealing
with the complaint).
NZLS introduced in 2014 introduced a concerns form can be filled in by a client, which enables the NZLS to
contact the lawyer and inform them about a concern. May lead to a formal complaint if the situation is not
adequately dealt with.

Early Resolution Service (ERS)

In its first full year of operation, the ERS was able to conclude more than one third of the complaints the
Lawyers Complaints Service received (approximately 35.2%). Further recent figures include:
o NZLS complaints service received 1742 complaints in 2013/2014. 785 of those were taken into the ERS. Of
those, 105 were referred back to the standard track process.
16

During a Pilot Scheme beginning Nov 2011, the average time to conclude an ERS complaint was 30 days.
This is significantly faster than the ordinary complaint resolution process, and the comment by the service
on the whole situation was that protection of the public is the key factor. Again, great emphasis on
consumer protection.
The ERS was established with the aim of resolving complaints which were not serious, and were suitable for
resolution in a timely and more flexible manner. It was instated nationally following a trial period, which found it
allowed for improved resolution rates and higher satisfaction levels. As the ERS is set up to deal with more
minor complaints rapidly and efficiently, from the point of view of the New Zealand Law Society, this should lead
to a better use of the time of the Standards Committee
Complaints referred to the ERS took an average of 35 days to be resolved, compared with 188 days for
complaints that followed the standard track, due to the statutory processes that need to be followed through the
latter process.
At first triage, complaints are channelled either to the standard track, or accepted for submission to the
second triage. At this latter stage, there are two specialist early resolution committees who will deal with the
complaint. The ERS process is voluntary, and if either party declines it, the ordinary process will be engaged.
ERS proceedings are confidential, and will not be available to the Standards Committee if the process fails and
the normal process is engaged.
Three important benefits from the ERS are as follows:
1. Less stress for lawyers facing a complaint when it is accepted into the ERS.
2. The opportunity for client-lawyer relationships to be repaired.
3. More timely resolution.
Only complaints about certain matters are deemed appropriate for the ERS process. Complaints which involve
any form of dishonesty or a significant breach of any trust account rules are not considered to be suitable for
ERS.
o

Ordinary/Statutory Complaints Process

If complaint is identified as a legitimate complaint, it will be sent to the Standards Committee to deal with (see
process outlined above).
Lawyers Standards Committees are established under s126 of the LCA. Are made up of senior law
practitioners and lay people (people of good standing in the community).
Section 126 Lawyers Standards Committees
1. The New Zealand Law Society must, by practice rules, establish one or more Lawyers Standards
Committees as part of its complaints service.
2. The members of each Lawyers Standards Committee are to be appointed by the New Zealand Law
Society.
Committee must have a minimum of two lawyers and one lay person, but may have up to 7 and 2 of each
respectively.
Initially there were 24 of these in NZ NZLS then established a National Standards Committee to deal with
extremely serious matters.
When a complaint is sent to a standards committee, a copy is sent to the lawyer who is being complained
about. They may make a written submission regarding what has been said about him/her.
The Lawyers Standards Committee has certain options about what they may do:
o Inquire about the complaint.
o Ask both parties (complainant and lawyer) to go to ERS.
o Take no action at all.
If the Committee enquires into the matter, it can do certain things by way of decision it can determine that:
o No further action is warranted.
o There is a finding of unsatisfactory conduct on part of the lawyer. This is a term of art unsatisfactory
conduct is a technical term.
o The Committee can also decide the complaint is so serious that it needs to be referred to the Disciplinary
Tribunal.
17

Whatever the Committee decides, the complainant is informed of the decision and the reasons for it. This has
given rise to the following decision:

Deliu v Lawyers Complaints Service of NZLS [2012] NZHC 2582

Office holders involved in administering the complaints process men and women who were actually engaged
in working for the NZLS complaints service.
When they received the complaints, Deliu complained about the very people who were trying to take steps to
have him disciplined. What happened when the complaint was received was that these various lawyers on the
committee dismissed it. Deliu argued that the lawyers involved as office holders of the complaints service had
no power to this his complaints were genuine and should be referred to a Standards Committee.
What happened here was the High Court found that any complaint against a lawyer which is a genuine
complaint must be referred to a Standards Committee by a complaints service. This step must always be taken
the complaints service may not make a judgment on a genuine complaint.
Court found in favour of Deliu declaration he was seeking was upheld, and a complaint received under s132
must be referred to a standards committee under s135(1), and must be determined by the Standards
Committee under s137.
o Section 135(1) If the complaint relates to a lawyer or former lawyer or an incorporated law firm or former
incorporated law firm, or an employee or former employee of a lawyer or incorporated law firm, the
appropriate complaints services, for the purposes of sections 132 and 134, is the complaints service
established under section 121(1) by the New Zealand Law Society and the complaint must be referred by
that service to a Lawyers Standards Committee.
o Section 137 (Action on receipt of a complaint) (1) A Standards Committee, on receiving a complaint,
may (a) inquire into the complaint; or (b) give a direction under section 143; or (c) decide, in accordance
with section 138, to take no action on the complaint. (2) A Standards Committee that receives a complaint
must, as soon as practicable, advise the complainant and the person to whom the complaint relates of the
procedure that the Standards Committee proposes to adopt under subsection (1).
Provided it is something which on the face of it is a complaint, the complaint service may not reject it it must
follow the normal procedure.

Section 156 of the Lawyers and Conveyancers Act Powers of the Standards Committee
to Make Orders
1. If a Standards Committee makes a determination under section 152(2)(b), that Standards Committee may
a. Order that all or some of the terms of an agreed settlement between the person to whom a complaint
relates and the complainant are to have effect, by consent, as all or part of a final determination of the
complaint:
b. Make an order censuring or reprimanding the person to whom a complaint relates:
c. Order the person to whom a complaint relates to apologise to the complainant:
d. Where it appears to the Standards Committee that any person has suffered loss by reason of any act or
omission of a practitioner or former practitioner or an incorporated firm or former incorporated firm or an
employee or former employee of a practitioner or an incorporated firm, order the practitioner or former
practitioner or incorporated firm or former incorporated firm, or employee or former employee of a
practitioner or an incorporated firm, to pay to that person such sum by way of compensation as is
specified in the order, being a sum not exceeding, as the case may require, the amount that is from time to
time prescribed for the purposes of this paragraph by rules made under this Act by the New Zealand Law
Society or the New Zealand Society of Conveyancers:
e. Order the practitioner or former practitioner or incorporated firm or former incorporated firm to reduce his,
her, or its fees for any work (being work which has been done by the practitioner or former practitioner or
incorporated firm and which is the subject of the proceedings before the Standards Committee) by such
amount as is specified in the order:
f. Order the practitioner or former practitioner or incorporated firm or former incorporated firm to cancel his,
her, or its fees for any work (being work which has been done by the practitioner or former practitioner or
18

2.
3.
4.

5.

incorporated firm or former incorporated firm and which is the subject of the proceedings before the
Standards Committee):
g. For the purpose of giving effect to any order made under paragraph (e) or paragraph (f), order the
practitioner or former practitioner or incorporated firm or former incorporated firm to refund any specified
sum already paid to the practitioner or former practitioner or incorporated firm or former incorporated
firm:
h. Order the practitioner or former practitioner or incorporated firm or former incorporated firm or employee or
former employee of a practitioner or an incorporated firm
i.
To rectify, at his or her or its own expense, any error or omission; or
ii.
Where it is not practicable to rectify the error or omission, to take steps to provide, at his or her or its
own expense, relief, in whole or in part, from the consequences of the error or omission:
i. Order the practitioner or former practitioner or incorporated firm or former incorporated firm, or employee or
former employee of a practitioner or an incorporated firm, to pay to the New Zealand Law Society or the
New Zealand Society of Conveyancers, as the case may require, a fine not exceeding $15,000:
j. Order the practitioner, or any related person or entity, or both to make the practitioner's practice
available for inspection at such times and by such persons as are specified in the order:
k. Order the incorporated firm to make its practice available for inspection at such times and by such persons
as are specified in the order:
l. Order the practitioner or incorporated firm to take advice in relation to the management of his, her, or its
practice from such persons as are specified in the order:
m. Order that the practitioner or any director or shareholder of the incorporated firm undergo practical
training or education:
n. Order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director
or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of
the practitioner or incorporated firm, to pay to the New Zealand Law Society or the New Zealand Society of
Conveyancers such sum as the Standards Committee thinks fit in respect of the costs and expenses
of and incidental to the inquiry or investigation made, and any hearing conducted, by the Standards
Committee:
o. Order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director
or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of
the practitioner or incorporated firm, to pay to the complainant any costs or expenses incurred by the
complainant in respect of the inquiry, investigation, or hearing by the Standards Committee.
In paragraphs (j) to (l) of subsection (1), specified, in relation to any person, means specified either by name or
as the holder for the time being of any particular office or appointment.
An order under this section may be made on and subject to such terms and conditions as the Standards
Committee thinks fit.
The making of an order under this section for the payment of compensation to any person does not affect the
right (if any) of that person to recover damages in respect of the same loss, but any sum ordered to be paid
under this section, and the effect of any order made under this section for the reduction, cancellation, or refund
of fees, must be taken into account in assessing any such damages.
Where an order made under any of the provisions of paragraphs (d) to (g) of subsection (1) is binding on any
practitioner, that practitioner and any person who is, in relation to that practitioner, a related person or entity are
jointly and severally liable to pay any amount that is payable under the order.
Standards Committee may make one or more of these orders, as well as other orders aimed at improving the
lawyers standard of practice.
Both complainant and lawyer may ask the LCRO to review the decision of the standards committee.

Law Complaints Review Officer

May make order that a standards committee can make.

Can confirm the Standards Committee decision, or change it.
May refer the matter to the Disciplinary Tribunal, which can also refer back to the LCRO.

19

Orlov v New Zealand Law Society [2013] NZCA 230 (High Court: [2013] 1 NZLR 390)

Was initially struck off, but later reinstated.

Barrister subject to a number of complaints, which essentially related to his competence to Act. Not a NZ
qualified lawyer got into NZ under the trans-Tasman mutual recognition legislation was accepted in
Australia, then could move to practice in NZ.
Various complaints against him lead to court cases came to a climax in this NZCA decision.
Court of Appeal decision application by Orlov and cross-appeal against the decision of Heath J in the High
Court.
In the High Court, Heath J found there was a threshold test for referring a matter to the Disciplinary Tribunal
under s152(2)(a). The Tribunal has a power to strike off a practitioner Standards Committees may not do this.
There was a threshold test in the previous act (Law Practitioners Act 1982), but it is not explicitly in the Lawyers
and Conveyancers Act. Heath J found the test ought to be similar to the past Act: is there a real risk the
practitioner might be suspended or struck off? If this threshold is then met, the case is a suitable one to go
from the Standards Committee to the Disciplinary Tribunal.
Orlovs argument was that the likely outcomes of consideration of charge against the practitioner would act as
a disincentive to anyone on a Standards Committee motivated by animosity or ill-will towards a practitioner.
Orlov himself did not endorse the formulation of the test that Heath J made, but submitted a higher threshold
should be made encompassing the severity of the charge and evidence before a matter should be sent to the
Disputes Tribunal to protect the practitioner from arbitrary action.
NZCA decision Stated there is no threshold test to be met before a complaint may be referred to the
Disciplinary Tribunal under section 152(2)(a) of the Lawyers and Conveyancers Act, thereby overturning Heath
Js ruling on this matter in the High Court. The Court of Appeal took the view that the correct outcome had been
reached by the High Court in a different case Hart v Auckland Standards Committee 1 of the New Zealand
Law Society [2013] NZHC 83, which also did not agree that such a threshold exists. The Standards Committee
can refer a complaint or matter on to the Disciplinary Tribunal whenever it deems it appropriate to do so.
Reasons for this finding included:
o The imposition of a threshold has the potential to undermine the role of the tribunal to maintain national
standards.
o To fragment the disciplinary process in cases involving multiple complaints of varying degrees of
seriousness against the same lawyer, the Court said, would be unfortunate.
Having regard to the legislative purposes of consumer protection and the maintenance of public confidence in
the provision of legal services, it is in our view important that the Tribunal be able to determine some complaints
even though the likely sanction will not involve striking off or suspension. The complaints may, for example,
involve complex issues of law or fact or be likely to result in a significant precedent.
There are other instances of threshold tests expressly stated in the Lawyers and Conveyancers Act. If
parliament intended there to be a threshold test in section 152(2), they would have expressly provided for one.
Furthermore, there is a threshold that the Disciplinary Tribunal has to meet if it is to strike someone off this is
expressly stated in section 244(1) of the Act. Parliament clearly intentionally discarded the threshold test which
was under the previous Act in this situation as it not desirable to retain it.
Other reasons for not applying a threshold test for complaints to go to the Disciplinary Tribunal included:
o There is no requirement in the Lawyers and Conveyancers Act for the Standards Committee to give any
reasons for referring its decisions to the Disciplinary Tribunal.
o The Disciplinary Tribunal has all the powers of the Standards Committee, as well as additional powers of
suspension and striking off.
o Consumer Protection concerns, and maintenance of public confidence in the profession, makes it important
that the Disciplinary Tribunal is able to determine complaints even if they are unlikely to result in a striking
off or suspension.
Other findings of the Court included:
o Lawyers are under an ethical duty to cooperate with the investigative phase of the process [108];
o If a Standards Committee decides to inquire into a complaint it must do so as soon as practicable and give
notice to the lawyer against whom the complaint is made [15];

20

Standards Committees need to give proper notice of the allegations so the lawyer is able to respond to the
substance of the complaint in an informed manner [64];
o Standards Committees have the power to regulate their own procedure in such manner as they think fit.
Where a matter has been initiated as a complaint under s132, a Standards Committee can commence an
own motion investigation and inquire into the same matter [89] [91];
o For cases referred to the Disciplinary Tribunal, good process requirements include an inquiry, a hearing, a
determination and compliance with the rules of natural justice [161];
o The rules of natural justice need to be tailored to meet the objective of dealing with complaints promptly
[50]
o There is no threshold test for a referral to the Tribunal pursuant to s152(2)(a) [53];
o The Standards Committee can refer not only a complaint or matter to the Tribunal, but also any issue
involved in the complaint or matter [54];
o It is important that the Tribunal is able to determine some complaints even though the likely sanction will not
involve striking off or suspension [54];
o Section 158 does not require a Standards Committee to give reasons for a decision under s152(2)(a) to
refer a mater to the Tribunal [101];
o There is only very limited scope to review a referral to the Tribunal. For example, where there has been
non-compliance with the statutory prerequisites to the making of the determination, such as failing to
conduct a hearing as required by s152(1) or where there has been bad faith [50].
The 14 charges against Mr Orlov were deemed by Heath J in the High Court to be sufficiently serious to be
referred to the Disciplinary Tribunal this was upheld by the Court of Appeal.
As noted at [166], the disciplinary regime exists primarily for the benefit of the consumers of legal services, but
also for the benefit of all lawyers.
Further points to note about the Standards Committee:
o As well as referral of a complaint to the Disciplinary Tribunal, the Standards Committee may find itself that
there has been unsatisfactory conduct, or that no further action is warranted.
o A decision of the Standards Committee to refer a complaint to the Disciplinary Tribunal is amendable to
Judicial Review.
o Standards Committees are not required to obtain corroborating evidence of complaints that are made,
although the committees can consider evidence in related complaints. This is very relevant for Orlov, as
there were a whole series of complaints made against him.
o Importantly, the Standards Committee may convert a complaint by a member of the public into an
investigation of its own motion. NB: this has been asked in previous exam questions.
o

M v Wellington Standards Committee (No 2) [2013] NZHC 1037

This case was decided 9 May 2013.

Orlov High Court decision not followed by Pankhurst J, however he is vindicated through the NZCAs
overturning of Heath Js decision.

Legal Complaints Review Officer

Section 190 The Legal Complaints Review Officer:

1. A person who is not a lawyer or a conveyancing practitioner is to be appointed to be the Legal Complaints
Review Officer.
2. The Legal Complaints Review Officer is to be appointed by the Minister, after consultation with the New
Zealand Law Society and the New Zealand Society of Conveyancers.
There is a right of review to the Legal Complaints Review Officer. They (like the Standards Committee) can
refer matters/complaints across to the Disciplinary Tribunal rather than dealing with them his or herself.
Appointed by Minister of Justice, and their office is administered by the Ministry of Justice. They are therefore
very independent from the Law Society.
The Legal Complaints Review Officer must not be a practicing lawyer this is set out in s190(1) of the Act
(section 6 defines a lawyer a person who holds a current practicing certificate as a barrister or as a barrister
21

and solicitor). The holders of this office may be qualified lawyers, but they must not hold a practicing certificate.
The essence of this is independence once you have a practicing certificate, you are under the jurisdiction of
the NZLS.
The separation of this Office from the New Zealand Law Society is a further example of the Acts attempts to
protect consumers of legal services from the negative side-effects of professionalism.
Section 206 Proceedings of Legal Complaints Review Officer:
1. Every review conducted by the Legal Complaints Review Officer under this Act must be conducted in
private.
2. If
a. It appears to the LCRO that a review can be adequately determined in the absence of the parties, their
representatives, and witnesses; and
b. The parties consent to the review being determined in the absence of the parties, their representatives,
and witnesses, The LCRO may conduct the review on the basis of such information, reports, or documents as are available
to the LCRO.
3. Subject to subsection (2), the LCRO must perform his or her functions and exercise his or her powers in a
way that is consistent with the rules of natural justice.
4. The LCRO may, subject to subsection (3), direct such publication of his or her decisions as he or she
considers necessary or desirable in the public interest.
5. Subject to this Act and to any rules made under this Act, the LCRO may regulate his or her procedure in
such manner as he or she thinks fit.
So reviews are conducted in private, and may be conducted entirely on the papers.
The review process must be carried out with as little formality and technicality and as much expedition as is
permitted by the requirements of the Lawyers and Conveyancers Act, in order that there be a proper
consideration of the review and that the rules of natural justice be observed.

Q v Legal Complaints Review Officer [2013] NZCA 570 and [2014] NZAR 134

Q filed proceedings in the High Court, seeking judicial review of the LCRO who had upheld a complaint of
unsatisfactory conduct made against him. The complaint had been previously dismissed by a Law Society
Standards Committee. On judicial review, Dobson J held the findings of the LCRO were reasonably open to
here and there were no grounds to interfere with the decision.
Q argued both the LCRO and Dobson J erred in their approaches to their respective jurisdictions, and that the
decision of the Standards Committee should be reinstated.
The basis of the complaint was an allegation by a doctor that Q had referred to him as a crook when arguing
that his medical opinion should not have been sought in an ACC case as he had a conflict of interest, and that
this was part of a concerted campaign by Q to discredit the complainant and prevent him from carrying out any
ACC assessments. Solicitors for the complainant argued a breach of rules 2.3 (Proper Purpose), 10
(Professional Dealings), and 13.8 (Reputation of other parties) of the Lawyers and Conveyancers Act (Lawyers:
Conduct and Client Care) Rules 2008.
Standards Committee had declined to uphold the complaint, finding that Q had not referred to the complainant
as a crook and had merely questioned the impartiality of the complainant and suggested the possibility of a
conflict of interest, which was done in a robust manner. It is a normal part of testing the credibility of an expert
witness to probe issues of competence, knowledge, and impartiality. Doing so is not, of itself, a breach of either
Rules 10 or 13.8 Dissatisfied, the complainant sought a review of the Standards Committees decision by the
LCRO under section 193.
LCRO found there were two errors by the Standards Committee (1) erred in treating communications and
allegations other than the crook statement as being part of the complaint, and (2) dealing with the statement
as being in the course of cross-examination as opposed to in submissions. LCRO found that there was an
intention by Q to discredit the complainant in the eyes of ACC. The statements were therefore made for an
improper purpose and breached rule 2.3. There was also a breach of rule 13.8, as the LCRO viewed the
comments as amounting to an attack on the reputation of the complainant, and as being unnecessary for the
conduct of the review hearing.
22

Dobson J of the High Court, on judicial review of the LCROs finding, upheld her findings that they were
neither unlawful or unreasonable. It was open to her to attribute an improper motive to Q.
On Appeal, the Court of Appeal held that there were a number of unsatisfactory aspects about the complaint
against Q and the way it was treated by the LCRO:
o The account of what Q had said at the review hearing was inaccurate.
o The Standards Committee was correct in identifying that the complaint was not limited to the comments
made at the ACC review hearing, therefore the LCRO was wrong to find the Committee had erred.
o LCRO was also wrong in finding that the Standards Committee had dealt with the complaint on a mistaken
basis. The LCRO had seized on the Committees reference to expert witnesses in its determination without
considering whether the reference was simply provided by way of supporting statement. Dobson J also
overlooked the partial transcript from which the Committee quoted expressly stated that it was an exchange
by Q and the reviewer.
o LCRO also erred in her analysis of comments made at the review hearing, the thrust of which were that he
was actually not making those allegations. Both LCRO and High Court failed to consider Qs plausible
explanation for his comments, namely that he was simply attempting to explain to a lay person (the ACC
reviewer) the difference between actual bias and perceived bias.
The policy of the Lawyers and Conveyancers Act is for complaints to be dealt with as expeditiously as possibly
and it would be wrong to prolong the matter any further.
LCRO and High Court decisions quashed Standards Committee reinstated.

Zhao v Legal Complaints Review Officer [2012] NZHC 3247

Z was undertaking functions as both barrister and solicitor even though he only had a practicing certificate as a
barrister sole. As a barrister sole, you are not supposed to handle money from clients (unlike a solicitor where
this is part of the job). Therefore he was acting in breach of the rules.
Standards Committee dealt with this matter at first instance, and declined to uphold the complaint. The
complainant applied to the LCRO for a review of the Standards Committees decision.
Central to this case was a posting in Chinese on a website called Sky Kiwi put there by Zhao, setting out
details of the services that he offered. The complainant had translated the entry on the website, and went on to
have a professional translation made of the entry.
However the date on this translation was the 26th November 2010 this was the date after the Standards
Committee had disposed of the complaint. The LCRO at the time became confused about this, because in the
decision he made it was stated that the Standards Committee should have considered the professional
translation obviously this was impossible.
Complaint therefore dismissed by the High Court decision of the LCRO overturned.

New Zealand Lawyers and Conveyancers Disciplinary Tribunal

The establishment of the Disciplinary Tribunal is provided for in section 226 of the Lawyers and Conveyancers
Act. Independent of the law society.
It is administered by the Tribunal' division of the Ministry of Justice.
The function of the Disciplinary Tribunal is to hear and determine charges against members of the legal
profession.
Composition - Chair, Deputy Chair and 12 lay members - 14 lawyer members 3 conveyancing members
o Deputy chair and lay members are appointed by the Governor General on the recommendation of the
Ministry of Justice.
o Lawyers on the Disciplinary Tribunal are appointed by the NZLS.
o Conveyancers are appointed by the NZ Society of Conveyancers.
Matters before the Tribunal half must be lay members, and half must be lawyers where it is a lawyers
complaint or Conveyancers where the proceeding is against a conveyance.
Section 227 Functions of Disciplinary Tribunal:
1. The functions of the Disciplinary Tribunal are

23

a. To hear and determine any application made by a Standards Committee or the Legal Complaints
Review Officer for the suspension of a practitioner pending the determination of a charge that the
Standards Committee or the Legal Complaints Review Officer has laid against that practitioner.
b. To hear and determine any charge against a practitioner or former practitioner or an incorporated firm
or former incorporated firm or an employee or former employee of a practitioner or an incorporated form
that is made to it by a Standards Committee or the Legal Complaints Review Officer.
c. To hear and determine any application made by a person under section 246 for the restoration of his or
her name to the roll or to the register of conveyancers,
d. To hear and determine any application made by a person under section 247 for the revocation of an
order made under section 242(1)(h).
e. To hear and determine any appeal under section 42.
f. To hear and determine any application made by a practitioner or an incorporated firm under section
248 for the consent of the Disciplinary Tribunal to the employment by the practitioner or incorporated
firm of a person who
i.
Is under suspension from practice as a barrister and solicitor or as a conveyancing practitioner; or
ii.
Has had his or her name struck off the roll otherwise than at his or her own request; or
iii.
Has had his or her registration as a conveyancing practitioner cancelled by an order made under
this Act; or
iv.
Is disqualified, by an order made under section 242(1)(h), from employment in connection with a
practitioners or incorporated firms practice.
g. To make rules, not inconsistent with this Act, in respect of the making, hearing, and determination of
applications, inquiries, appeals, and other proceedings before the Disciplinary Tribunal.
h. To perform such other functions as are conferred on it by this Act or any other enactment.
Note that reinstatement to the roll, or where you seek to employ someone who has been struck off as a lawyer,
is also dealt with by the Disciplinary Tribunal under this section.
Under section 238(1), every hearing of the Disciplinary Tribunal must be held in public. Parties are entitled to
appear and be heard, and they can be represented by counsel. However there is a discretion for the
Disciplinary Tribunal to hold a hearing either partially or entirely in private under section 238(2).
The Disciplinary Tribunal can place restrictions on publicity, including names of the person before the
Disciplinary Tribunal, under section 240 Restrictions on Publication.
In terms of charges that can be brought before the Tribunal, these are listed in section 241:
If the Disciplinary Tribunal, after hearing any charge against a person who is a practitioner or former practitioner or
an employee or former employee of a practitioner or incorporated firm, is satisfied that it has been proved on the
balance of probabilities that the person
a. Has been guilty of misconduct; or
b. Has been guilty of unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct; or
c. Has been guilty of negligence or incompetence in his or her professional capacity, and that the negligence or
incompetence has been of such a degree or so frequent as to reflect on his or her fitness to practice or as to
bring his or her profession into disrepute; or
d. Has been convicted of an offence punishable by imprisonment and the conviction reflects on his or her fitness
to practice, or tends to bring his or her profession into disrepute.
It may, if it thinks fit, make any 1 or more of the orders authorised by section 242.
This area does not cover matters for civil claim, unless the negligence or incompetence is so serious that it has
a significant impact on the lawyers practice. The Disciplinary Tribunal has jurisdiction to deal with practitioners
convicted of an offence punishable by imprisonment.
Under section 241, the standard of proof is on the balance of probabilities.
Section 242 Orders that may be made where charge proved:
1. In any case to which section 241 applies, the Disciplinary Tribunal may make
a. Any order that a Standards Committee has power to make under section 156 on the final
determination of a complaint:
b. An order declaring that, in the opinion of the Disciplinary Tribunal, any of the circumstances specified in
section 163 exist in respect of the practitioner or former practitioner and directing a Standards
Committee to exercise any power under section 164 or section 169:
24

c. If the person is a lawyer or former lawyer, an order that the person's name be struck off the roll:
d. If the person is a conveyancing practitioner or former conveyancing practitioner, an order that the
person's registration as a conveyancer be cancelled:
e. If the person is a lawyer or former lawyer, an order that the person be suspended from practice as
a barrister or as a solicitor, or as both, for such period, not exceeding 36 months, as the
Disciplinary Tribunal thinks fit:
f. If the person is a conveyancing practitioner or former conveyancing practitioner, an order that the
person be suspended from practice as a conveyancing practitioner for such period, not exceeding
36 months, as the Disciplinary Tribunal thinks fit:
g. If the person is a practitioner or former practitioner, an order prohibiting the person from practising
on his or her own account, whether in partnership or otherwise, until authorised by the
Disciplinary Tribunal to do so:
h. If the person is an employee or a former employee of a practitioner or an incorporated firm,
i.
An order that any present employment of that person by any practitioner or incorporated firm
be terminated:
ii.
An order that no practitioner or incorporated firm employ that person in connection with the
practitioner's or incorporated firm's practice so long as the order remains in force:
iii.
An order that no practitioner or incorporated firm employ that person in connection with the
practitioner's or incorporated firm's practice, otherwise than with the written consent of the
Disciplinary Tribunal and subject to such conditions as may be imposed by the Disciplinary
Tribunal, so long as the order remains in force:
i. If the person is a lawyer or former lawyer or an employee or former employee of a lawyer or an
incorporated firm, an order that the person pay to the New Zealand Law Society in respect of any
charge against him or her such sum by way of penalty, not exceeding $30,000, as the Disciplinary
Tribunal thinks fit:
j. If the person is a conveyancing practitioner or former conveyancing practitioner or an employee or
former employee of a conveyancing practitioner or an incorporated conveyancing firm, an order that the
person pay to the New Zealand Society of Conveyancers in respect of any charge against him or her
such sum by way of penalty, not exceeding $30,000, as the Disciplinary Tribunal thinks fit.
This section sets out that the Disciplinary Tribunal can make any order a Standards Committee can make,
but can also strike off a practitioner or suspend them for up to 36 months (this is the max period of
suspension).
o It can also prohibit a practitioner from practicing on their own account, and prohibit their employment by a
law firm, and impose a penalty of up to $30K.
Under section 244 (which sets out the making of order for striking off roll, cancellation of registration, or
suspension of practice), the Disciplinary Tribunal cannot order striking off of a practitioner unless the conduct of
that person indicates that they are no longer a fit and proper person to be a practitioner.
o To make an order striking off or suspending a practitioner, 5 members of the DT must vote in favour of the
penalty, and these 5 must amount to a majority (section 244(2)).
Section 253 Appeal against order or decision of Disciplinary Tribunal:
1. Any of the persons specified in subsection (2) may appeal to the High Court against any order or decision
made under this Part by the Disciplinary Tribunal.
2. The persons who may appeal under subsection (1) are
a. The practitioner or person to whom the order or decision relates.
b. A Standards Committee, if the proceedings before the Disciplinary Tribunal were brought by that
Committee.
c. The Legal Complaints Review Officer, if the proceedings before the Disciplinary Tribunal were brought
by that officer.
d. In relation to the decision made on application under section 248(1)
i.
The applicant.
ii.
The person to whom the application relates.
iii.
The New Zealand Law Society, if the applicant is a lawyer or an incorporated law firm.
o

25

iv.

The New Zealand Society of Conveyancers, if the applicant is a conveyancing practitioner or an

incorporated conveyancing firm.
3. Every appeal under subsection (1)
a. Must be by way of a rehearing; and
b. Must be made within such time and in such form as may be prescribed by rules of court; and
c. Must be heard in such manner as may be prescribed by rules of court.
4. On hearing an appeal under subsection (1), the High Court may confirm, reverse, or modify the order or
decision appealed against.
o Allows for appeal against an order or decision of the Disciplinary Tribunal to the High Court. There is the
possibility to appeal against any order or decision of the Tribunal to the High Court, and the appeal can be
made by a practitioner or any other person to whom the order or decision relates. The Standards
Committee can also appeal if the proceedings have been brought before the Disciplinary Tribunal by the
Standards Committee, and also the Legal Complaints Review Officer can appeal if proceedings were taken
by that officer.
o Appeals are by way of re-hearing, and the High Court may confirm, reverse or modify the order or decision
appealed against.
There is a further right of appeal to the Court of Appeal under section 254, this tells us that any party to an
appeal under section 253(1) who is dissatisfied with any determination of the High Court as erroneous in law
may, with the leave of the High Court, or Court of Appeal (where the High Court refuses leave), appeal to the
Court of Appeal.
Section 242(2) states that the Court of Appeal must have regard to the general or public importance, or any
other reason, ought to be submitted to the Court of Appeal for decision. Appeal is final and there is no further
appeal to the Supreme Court.
o However Judicial Review is available and can take a plaintiff to the Supreme Court.

Jurisdictions of the High Court and Court of Appeal Sections 266 270

The Courts retain an inherent jurisdiction to discipline practitioners. Before 1935, sanctions for serious
breaches of professional standards by law practitioners were controlled exclusively by the Courts. Under the
then Law Practitioners Act, the Law Society had power to set up a Disciplinary Committee which was given
power to impose sanctions for serious matters. In doing that the judges retained their inherent jurisdiction.
This inherent jurisdiction is expressly preserved within the Lawyers and Conveyancers Act. Section 266
provides that a barristers and solicitors name may be struck off the roll for reasonable cause by the High Court
where an application to this effect has been made.
o Under this section, where an application for striking off has been made, the High Court may dismiss the
application, or if it is doubtful it must reserve the case for the Court of Appeal.
Section 267 High Court may dismiss application, or reserve case for Court of Appeal:
1. When an application is made to the High Court for an order that the name of a person enrolled as a
barrister and solicitor of the High Court under or by virtue of this Act be struck off the roll
a. The High Court may, if it thinks fit, dismiss the application; or
b. If the High Court is of the opinion that the application ought to be granted, or that it is doubtful whether
the application ought to be dismissed or granted, the High Court must reserve the case for the
consideration of the Court of Appeal.
2. The High Court, if it reserves the case under subsection (1)(b), a. Must cause the application and all affidavits made in support of the application, and all other
proceedings, to be sent forthwith to the Registrar of the Court of Appeal; and
b. May order that the person enrolled by suspended from practice as a barrister or as a solicitor or as both
until the decision of the Court of Appeal on the application is given.
3. If a case is reserved for the consideration of the Court of Appeal, that Court
a. Must, as soon as practicable, consider the application and grant or dismiss it; and
b. May make such other order in respect of the application as it thinks fit.
Section 268 Inherent Jurisdiction of the High Court:
26

1. Nothing in this Act (other than sections 266 and 267) affects the inherent jurisdiction and powers of the
High Court over a person enrolled under or by virtue of this Act as a barrister and solicitor of the High Court
(whether or not the person is practicing as a barrister and solicitor, or as a barrister but not also as a
solicitor).
2. Despite section 145, the High Court has, in the exercise of its summary jurisdiction, full power, on
reasonable cause being shown, to suspend from practice a person enrolled under or by virtue of this Act as
a barrister and solicitor of the High Court (whether or not the person is practicing as a barrister and solicitor,
or as a barrister but not also as a solicitor).
Section 270 affirms that nothing in this Part limits the jurisdiction of the High Court.

NZ Law Society v Burton [2014] NZCA 621

Where the High Court is of the opinion that an application to strike off ought to be granted, the case must be
reserved for the Court of Appeal in terms of section 267(1)(b) of the Act.
[8] We have considered the application and the supporting affidavit. We agree that the Judge, for the reasons
he gave, that it is appropriate to make an order striking off the respondents name from the roll of barristers and
solicitors. We order accordingly.
Once the High Court has made the decision that the practitioner should be struck off, it refers the papers to the
Court of Appeal. The reasons are set out as to why the person is struck off; the Court of Appeal will look over
this and determine whether this is a case where the person should be struck off.
Nothing in the Lawyers and Conveyancers Act (other than ss266 and 267) affects that jurisdiction. Under
section 270, except as provided in this part, nothing in this part limits the jurisdiction of the High Court.
What this means is that although this elaborate system for review of complaints exists, there is a parallel
system under which, if the Law Society is proceeding against a practitioner, it can go straight to the High
Court the High Court decision (if they decide to strike off the lawyer) must then be affirmed by the Court of
Appeal.
How do these two systems really work together? Not easy.

New Zealand law Society v Deliu [2014] NZHC 2467

Proceedings filed in the HC to have Deliu struck off in this case the New Zealand Law Society sidestepped
the usual procedure of bringing a prosecution in accordance with the statute. Example where the parallel
system has been utilised and the initial action begins in the High Court.
Deliu opposed this action and sought a summary judgment in his favour including striking out of the New
Zealand Law Society claim. His argument was that the Court did not have the jurisdiction to hear the NZLSs
application to strike him off or suspend him. In the alternative, he submitted that the NZLS should have utilised
the detailed disciplinary procedures set out in the Lawyers and Conveyancers Act 2006.
Four claims against Deliu by the New Zealand Law Society:
1. Regularly alleged fraud, bad faith, corruption, misconduct, bias, sought recusal of judicial officers or
otherwise made scandalous accusations against Judges or other professionals in proceedings without
good cause.
2. Regularly made unnecessary or misconceived applications or arguments in the conduct of litigation.
3. Regularly engaged in intemperate and/or unprofessional communications with other professionals.
4. Conducted himself in an intemperate and unprofessional manner in communicating, dealing with and
litigating against the New Zealand Law Society and persons connected with them.
Issue in this case, therefore, was whether the presence of another alternative jurisdiction that could be more
appropriate has the result that this proceeding should be dismissed and heard in that jurisdiction. I.e., whether
the Disciplinary Tribunal procedure is in the circumstances the correct procedure to pursue.
Through his judgment, Asher J gives full consideration of the parallel jurisdiction for striking off:
o Two parallel jurisdiction available to consider the complaints against D disciplinary processes set out in
Part 7 of the Act, and proceedings under sections 266 - 268 involving the jurisdiction of the High Court and
Court of Appeal. Asher J acknowledges what While the power to strike off a lawyer has been reserved for
the Court of Appeal under section 267 of the Lawyers and Conveyancers Act, sections 268 and 270 state
27

o
o

o
o

that subject to section 267, the High Court continues to have the inherent jurisdiction to regulate the
lawyers that appear before it, including by striking off or suspending the lawyers.
The High Court therefore retains its jurisdiction to suspend, which it can exercise without reference to the
Court of Appeal. It also may strike off, but its power to exercise that jurisdiction is limited by the procedure
set out in section 267, which provides for the High Court to reserve the case to the Court of Appeal.
The framework of Part 7 is one in which disciplinary charges may be heard and determined
expeditiously.... Therefore, despite the provision of a detailed procedure and specialist bodies for
disciplinary matters, the High Courts supervisory jurisdiction is explicitly continued. This raises the
question of how both jurisdictions are intended to operate.
The situation is, therefore, that two bodies have the power to strike off barristers and solicitors, being the
Disciplinary Tribunal and the Court of Appeal.
There is no doubt that under section 267 of the LCA, the High Court has jurisdiction to hear complaints of
this type against Mr Deliu, and if appropriate reserve them to the Court of Appeal. Similarly, the High Court
has the jurisdiction under section 268 to suspend Mr Deliu if reasonable cause is shown.
[67] I conclude that the High Court, when considering an application under sections 266 (involving the
section 267 process) and 268 should when objection is made decide whether the ss 267 or 268 jurisdiction
is appropriate or whether the complaints are better dealt with in the Disciplinary Tribunal.
[68a] Parliament contemplated that the Disciplinary Tribunal procedure would be the primary procedure
given the existence of a specialist tribunal comprised of lay members and appointees who have the
necessary experience and expertise.
[68b] It is not appropriate to use the High Court/Court of Appeal jurisdiction under s267 to strike off and the
High Courts jurisdiction under s268 to suspend where there are disputed matters of fact or issues calling
for extensive inquiry.
[68c] The High Court/Court of Appeals jurisdiction under s267 and the High Courts jurisdiction under s268
are available for rare and exceptional cases where for one reason or another, the professions disciplinary
procedure is inappropriate or unsuitable.
[69] If there are disputed matters of fact or issues calling for extensive inquiry the Disciplinary Tribunal is
the process that should be followed.
The Court must consider whether to exercise its jurisdiction or whether the complaints are best heard in the
parallel jurisdiction of the NZLS. If the Court takes the view that the complaints are best heard under the
Part 7 procedure, the Court will then dismiss the application.
A court may in a summary judgment hearing dismiss a claim if it considers its certain that in a substantive
hearing the judge will dismiss the proceedings on the basis that the parallel jurisdiction of the Disciplinary
Tribunal is the appropriate jurisdiction.
The Court in this case was satisfied that at a substantive hearing, a judge would dismiss this claim on this
basis that the complaints should proceed before the Disciplinary Tribunal, due to the complexity of the
issues at hand.
Points made as to why it is not appropriate for the High Court to deal with this matter in terms of the
inherent jurisdiction as modified by the Lawyers and Conveyancers Act, and should instead be dealt with by
the standard procedure:
1. High Court: only rare and exceptional cases should be heard using the High Court procedures.
2. High Court: must be unsuited to NZLS processes. This case was not unsuited to being heard by the
NZLS processes.
3. If a lengthy hearing in the Court of Appeal, it is not a suitable case. Hearing of the proceeding will result
in an extensive inquiry into the issues and application to strike off Deliu. This procedure is not well
suited to this case lengthy matters are not intended to be before the High Court and Court of Appeal.
4. Proceedings are unlikely to be heard more quickly in the High Court/Court of Appeal and they were not
particularly urgent (there must be urgency).
5. Overlap with other proceedings before the NZLS. Undesirable for parallel proceedings involving similar
and overlapping allegations to take place in the High Court utilising its inherent jurisdiction better to
have them all heard in one forum.
6. Greater range of penalties in the Disciplinary Tribunal procedure.
28

This was not one of the rare and exceptional cases to be heard in the High Court complaints
should go through the statutory processes in the Lawyers and Conveyancers Act. Summary
judgment was entered for Deliu against the NZLS.
This case is a clear statement of when you should proceed through one system or the other.
Note [102] In contrast, under the procedure adopted by the NZLS in these proceedings, the substantive
determination whether to strike off Mr Deliu under s267 would be by the Court of Appeal. From that
determination, the parties would only have one right of appeal to the Supreme Court by leave. There is no
general right of appeal by way of re-hearing. Given that these appeal structures have been devised by
parliament as suitable for Disciplinary Tribunal procedures, the more limited appeal right for the High Court
and Court of Appeal processes is another reason why it is only in exceptional cases that they should be
adopted.
The parallel system not bound by the provisions in the Lawyers and Conveyancers Act so there is, in this
system, a right to make application for leave to appeal to the Supreme Court. So two systems one giving
opportunity to go to the Supreme Court (inherent jurisdiction), and the other which doesnt (the statutory
procedure). Lecturer thinks this is unsatisfactory and something which needs tidying up.
o

Orlov v The National Standards Committee 1 [2014] NZSC 133

Tried to debar Deliu from appearing for Orlov. Deliu was facing similar charges.
Judge upheld the NZLS application to bar D from representing O. O appealed unsuccessfully to Court of
Appeal.
Tried to seek leave to appeal to Supreme Court, as well as judicial review.
Supreme Court: [5] a possible difficulty with this analysis is that Os proceedings did not involve simply an
appeal against the Tribunals decision but also an application for judicial review. It is unlikely that the latter
would be caught by s254(1).
The Supreme Court also declined Os application, however very complex issues that arise here.
[6] In any event, on the assumption that there is jurisdiction, we are not satisfied that it is necessary in the
interests of justice that we hear and determine this appeal. Supreme Court troubled about the situation where
someone is in the standard disciplinary situation, they cannot go all the way to the Supreme Court (except for
Judicial Review). However can go to the Supreme Court under the parallel jurisdiction despite the same facts.

Conduct

Moral philosophy is about philosophical inquiry about norms and values, about ideas of right and wrong, good
and bad, what should and what should not be done.
In this course, we break it down into:
a. Unsatisfactory conduct.
b. Misconduct.

Ethics

Practical decision-making.
The nature of ultimate value.
Framework to live by.
Standards by which human actions can be judged right or wrong.
Ethics is concerned with determining the nature of normative theories and applying these sets of principles of
practical moral problems.
In legal ethics, we are concerned very much with applied ethics questions of right and wrong action. To come
to grips with these, we need to look at the theories of moral philosophy. Major problem is coming up with a
rational defensible theory of right or wrong action to come up with a framework with which we will never go
wrong if we follow it.

Moral Philosophy

Moral philosophy is about philosophical inquiry about norms or values, about ideas of right and wrong, good
and bad, what should and what should not be done.
29

Utilitarianism.
o Jeremy Bentham concern which what the law should be.
o Best-known Teleological Theory. Teleological Theory is the doctrine of final causes the consequences or
results of a particular action dictate its rightness and should therefore govern the outcome of any ethical
dilemma.
o The ends justify the means. Judge the rightness or wrongness of an action by its consequences, not by
the action itself.
o Approach to morality that treats pleasure or desire satisfaction as the sole element in human good.
Regards the morality of actions on the consequences or results for human wellbeing.
o That action which engenders the greatest amount of favourable consequences and maximises utility should
govern the outcome of any ethical dilemma.
o Right action must be understood in terms of human good or wellbeing. Involves the greatest happiness of
the greatest number.
o Gives rise to thinking in hedonistic terms pleasure seeking. However human good does not need to be
thought of in this way. Raises the question of what is good principal difficulty with this is it judges actions
which might be objectively unethical by the favourable consequence of the action.
o Utilitarianism can be divided into categories:
1. Act Utilitarianism choose behaviour which leads to the greatest good for the greatest number.
2. Decision Utilitarianism unique to lawyers and sub category of Act. Where you have this type of
Utilitarianism, you have the court deciding the question of how the public welfare will be affected for the
good over and above what is best for the parties in the case.
o Buck v Bell 274 US 200 (1927) involved a young woman who was 18 years old. In the judgment,
Holmes J described her as the daughter of a feeble minded mother, and the mother of a feeble
minded child in other words, she was mentally deficient and this was hereditary. The state of Virginia
had a statute enabling the state to have women like this sterilised so that they would not go on
producing mentally retarded children case tried to call on the validity of this statute. Holmes J upheld
the constitutional validity of this statute meaning the woman would be sterilised. View was that the
patients health and societys welfare might best be protected by the sterilisation of mental defectives
under careful safeguard. Public welfare may call upon the best citizens for their lives. It would be
strange if it (the State) could not call upon those who had already sat the strength of the state by these
lessor sacrifices to prevent the state being swept with incompetence. Worse if these offspring were
later put to death for committing crimes, or starve to death because of inability to feed self. Overall aim
was betterment of society.
Katianism.
Intuitionism (common sensism) there can be no unified or unifying account of our moral obligations
because they are plural.
Virtue ethics right and wrong cannot be captured by independently or basically valid moral rules or
principles situational sensitivity.
o Moral deliberation and justification cannot proceed deductively through the application of general
principles to particular cases. Aristotle supposes that the phenomena with which ethical inquiry is
concerned are marked by mutability, indeterminacy and particularity, such that can never be
unproblematically subsumed under general principles of right action Tim Dare.
o A virtue theory... is one which holds that judgments about the character of persons, independently of
assessments of the rightness or the value of the consequences of their actions, are what is most
fundamental in moral evaluation Tim Dare.

Rule 3 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

The rules of conduct and client care for lawyers are mandatory.

Autonomy and the Lawyer

Personal rule of the self that is free from both controlling interferences by others and from personal limitations
that prevent meaningful choice.
30

Autonomous individuals act intentionally, with understanding and without controlling influences.
A lawyers function is advisory it is the client who makes the decisions, in response to the lawyers advice.

Informed Consent

Consent to an act after being given full or adequate disclosure.

Rule 1.2: Informed consent means consent given by the client after the matter in respect of which the consent
is sought and the material risks of and alternatives to the proposed course of action have been explained to the
client and the lawyer believes, on reasonable grounds, that the client understands the risks involved.

The Lawyer-Control Model

Fried Without the assistance of an expert advisor, an ordinary layman cannot exercise that autonomy which
the system must allow him.

Misconduct and Unsatisfactory Conduct

I.e., an examination of the types of conduct that gives rise to the lawyer being made subject to disciplinary
procedures.
In terms of conduct, section 7 of the Lawyers and Conveyancers Act gives us a concept of misconduct, whilst
section 12 gives us unsatisfactory conduct:
Misconduct is the more serious form of offending.
Note that under the previous regime in the Law Practitioners Act, the terminology was different:
o Misconduct was governed by this Act, but there was also the charge of Conduct Unbecoming of a barrister
and solicitor. This included conduct in their private lives that would reflect on their appropriateness to
practice law it was concerned with scandalous behaviour.
o This exists under the Lawyers and Conveyancers Act but has a different meaning so be aware of cases
which were decided under the old regime.

Misconduct
Section 7 Misconduct Defined in relation to Lawyer and Incorporated Law Firm
1. In this Act, misconduct, in relation to a lawyer or an incorporated law firm,
a. Means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is
providing regulated services and is conduct
i.
That would reasonably be regarded by lawyers of good standing as disgraceful or
dishonourable; or
ii.
That consists of a wilful or reckless contravention of any provision of this Act or of any regulations or
practice rules made under this Act that apply to the lawyer or incorporated law firm or of any other Act
relating to the provision of regulated services; or
iii.
That consists of a wilful or reckless failure on the part of the lawyer, or, in the case of an
incorporated law firm, on the part of a lawyer who is actively involved in the provision by the
incorporated law firm of regulated services, to comply with a condition or restriction to which a
practising certificate held by the lawyer, or the lawyer so actively involved, is subject; or
iv.
That consists of the charging of grossly excessive costs for legal work carried out by the lawyer or
incorporated law firm; and
b. Includes
i.
Conduct of the lawyer or incorporated law firm that is misconduct under subsection (2) or subsection
(3); and
ii.
Conduct of the lawyer or incorporated law firm which is unconnected with the provision of regulated
services by the lawyer or incorporated law firm but which would justify a finding that the lawyer or
incorporated law firm is not a fit and proper person or is otherwise unsuited to engage in
practice as a lawyer or an incorporated law firm.
2. A lawyer or an incorporated law firm is guilty of misconduct if, at a time when he or she or it is providing
regulated services, and without the consent of the High Court or of the Disciplinary Tribunal, the lawyer or
31

incorporated law firm knowingly employs, or permits to act as a clerk or otherwise, in relation to the
provision of regulated services, any person who, to the knowledge of the lawyer or incorporated law firm,
a. Is under suspension from practice as a barrister or as a solicitor or as a conveyancing practitioner; or
b. Has had his or her name struck off the roll of barristers and solicitors of the High Court; or
c. Has had his or her registration as a conveyancing practitioner cancelled by an order made under this Act;
or
d. Is disqualified, by an order made under section 242(1)(h), from employment in connection with a
practitioner's or incorporated firm's practice.
3. A person is guilty of misconduct if that person, being a lawyer or an incorporated law firm, shares, with any
person other than another lawyer or incorporated law firm, the income from any business involving the provision
of regulated services to the public.
4. Despite subsection (3), a lawyer or an incorporated law firm is not guilty of misconduct under that subsection by
reason only of sharing with a patent attorney (in the circumstances, and in accordance with any conditions,
prescribed by the practice rules) the income from any business involving the provision of regulated services to
the public.
5. Despite subsection (3), neither an incorporated law firm nor a lawyer who is actively involved in the provision by
an incorporated law firm of regulated services is guilty of misconduct under that subsection by reason only of
the incorporated law firm making a distribution to shareholders of that firm.
Market Control Theory concerns that lawyers have control due to the test being reasonable lawyers of good
standing. However misconduct is dealt with by the Disciplinary Tribunal, which has (as we have covered)
compulsory lay membership.
(3) Is directed at the notion that you cannot have people who are not lawyers owning law firms, because they
will not be subject to discipline under the Lawyers and Conveyancers Act. It also ensures that only
professionals who are subject to these measures are able to practice.
Misconduct is a concept from the Common Law which was adopted by the Lawyers and Conveyancers Act.
o Re A Solicitor [1956] 3 All ER 516. Per Lord Goddard CJ at [517] Obviously the members of the
Disciplinary Committee are the best possible people for weighing up the seriousness of professional
misconduct.
o This quote remains fitting, particularly bearing in mind the fact that the Disciplinary Tribunal is made up of
laypeople as well as lawyers.
It can be concluded that misconduct is a broad term which should be defined relative to the circumstances that
arise in the individual case:
o It reflects on the character of the practitioner, and that practitioners ability to adhere to proper standards.
o If the practitioner is not trustworthy, this is misconduct.
o Failure to conduct a lawyers practice, records and accounts proper may also amount to misconduct (even
where there is no dishonesty).

Myers v Elman [1940] AC 282

Lord Wright at [319]: The matter complained of need not be criminal. It need not involve peculation
(embezzlement) or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross
neglect or inaccuracy in a matter which it is a solicitors duty to ascertain with accuracy is sufficient... it is
impossible to enumerate the various contingencies which may amount to misconduct.
Highlights that the conduct does not need to be criminal to amount to misconduct.
Furthermore, a practitioner can be guilty of misconduct without dishonesty.

Dentice v Valuers Registration Board [1992] 1 NZLR 720

Concept of professional misconduct is reviewed generally across all professions by Eichelbaum CJ at [724
725]:
o Provisions for unprofessional or incompetent conduct attracting disciplinary charges exist to enforce a high
standard of proprietary and professional conduct.
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They ensure that no person unfitted because of his or her conduct should be allowed to practice the
profession in question.
o They protect both the public and the profession itself against persons unfit to practice.
o They enable the profession or calling, as a body, to ensure that the conduct of members conforms to the
standards generally expected of them.
Obviously and distinctly, it is in the public interest that in respect of such professions and callings, high
standards of conduct should be maintained.
Across all professions, the key element is whether the practitioners conduct has shown some degree of
unfitness to practice.
Where the degree of unfitness is so great, as to pose a threat to the public, then that profession is entitled to
remove the practitioner from practice.
o

Auckland District Law Society v Ford [2001] NZAR 598

[5] General definitions of what will amount to misconduct include conduct that is reprehensible, inexcusable,
deplorable, dishonourable.

Cases falling under section 7(1)(b)(ii)

Conduct of the lawyer or incorporated law firm which is unconnected with the provision of regulated services
by the lawyer or incorporated law firm but which would justify a finding that the lawyer or incorporated law
firm is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer or an
incorporated law firm.
Re Shortland (1893):
o Practitioner libel of young woman claimed he seduced her.
o P found guilty of misconduct and struck off.
o Lecturer unsure if this would be held the same way today.
Re Weare (1893):
o P (solicitor) owned house used as brothel.
o Struck off for this.
Prothonotary of the Supreme Court of NSW v Chapman (1992):
o P solicitor reprimanded for being guilty of running a brothel.
o Made a misleading application and used false names in opening and operating a bank account.
o Associate Justice: if all had been established that man ran a brothel > Dismissed summons not amounting
to striking off. Other judges agreed to this judgment.
Re Foster (1950):
o Barrister struck off for consorting with known criminals .
The Law Society of South Australia v Le Poidevin [1998] SASC 7014:
o Law Society sought to have P struck off - for threatening to endanger life; and committed common assault .
o Ct found that "the conduct amounted to a serious departure from a standard of behaviour acceptable from
a member from an honourable profession" .
o But: it did not strike him off because they found he was not guilty of any sort of dishonesty. However
remember earlier: dont need to be guilty of dishonesty to be struck off. This is an odd decision and does
not sit well with the other cases
Law Society of NSW v McKean [1999] NSWADT 55:
o Solicitor struck off for violent behaviour.
o Solicitor convicted of 2 counts of inflicting bodily harm with intent - he had stabbed his wife and her child.
o Solicitor psychiatrically disturbed; 3-year term in jail; clear that he needed long term psychiatric treatment;
was therefore struck off.
Ziems v Prothonotary of the Supreme Court of New South Wales ( 1957) 97 CLR 297 (HCA):
o Unfortunate: barrister had too much to drink; knocked motorcyclist off bike and killed him.
o Imprisoned for 2 years for involuntary manslaughter.
o Struck off by his professional society.
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Case eventually went to HCA.

Here, HCA reinstated Z suspended for whole time he was in prison.
HCA influenced by fact that it was involuntary; no mens rea involved; also, there was evidence Z's
character generally that indicated he was perfectly honourable etc.
Fascinating case that we will come to later is Orlov - complexity there because it is difficult to see if the alleged
conduct was performed in delivery of regulated services or not
o
o
o

Misconduct within Practice

8 categories are helpful when considering misconduct:

1. Dishonesty (can include theft, fraud, failing to account etc.).
2. Breach of fiduciary duty.
3. Charging excessive fees.
4. Inadequate supervision.
5. Failure to cooperate with an investigation by the NZLS.
6. Incompetence.
7. Criminal offences.
8. Misconduct in litigation.
Further examples in the Lawyers Conduct and Client Care Rules:
o 11.1 Lying intentionally to deceive a tribunal or doing so to deceive a practitioner (amounts to dishonesty).
o 13.1 Misleading or deceiving the Court.
o 10.3 Requirement to honour an undertaking.
NB undertaking is a technical term the rules deal with undertakings.
I undertake that I will practitioner is bound to do this. This usually involves payments of money.

Cases involving dishonesty

Re Baillie (a solicitor) (1915) 34 NZLR 705:
o In order to justify the exercise of the Courts disciplinary jurisdiction (nb this was at a time that the courts
always exercised this jurisdiction) over the solicitors, it is not necessary that misconduct should amount to a
crime or professional misconduct. It is sufficient if the conduct of the solicitor is such as to render him unfit
to be an officer of the Court, or that it would justify the refusal to place an applicant on the Roll of
Solicitors.
o This case involved a failure of the solicitor to pay money over for a client embezzlement case.
o Was struck off.
In Re Bruges (1907) 26 NZLR 541:
o Solicitor lost the money of the client there was no actual dishonesty on part of the solicitor.
o However he was still struck off because if he went around losing clients money, he could not be deemed
trustworthy.
o Same result despite different motivations as the solicitor in Baillie.

Breach of Fiduciary Duty

Duty to act in good faith for the benefit of another.

Relationship of trust and confidence.
Statutory obligation outlined in section 4 Lawyers and Conveyancers Act:
Every lawyer who provides regulated services must, in the course of his or her practice, comply with the
following fundamental obligations:
(c) The obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their
clients.
Fiduciary duties arise in any circumstances in which one person has undertaken to act in the interests of
another or where someone has communicated an expectation that another person will act to protect/promote
that person's interest.
34

Remember fiduciary relationship involves reliance, confidence and trust, and often arises out of an imbalance
in strength or vulnerability in relation to the exercise of the rights, powers or use of information affecting the
person's interests.
Examples of breach of fiduciary duty include:
o Breach of fid duty may be dishonest - recall Renshaw v Edwards: that is a clear breach when the solicitors
stole the money from their clients.
o Less serious breaches can also occur involving client money e.g. firm trust account gets large amount of
money; not ready to use that money for next purchase: obligation on you to put that money on deposit
through your trust account and to account to client for the interest you earn for them. Failure to do this is a
breach of fid duty. This could definitely amount to misconduct; particularly if it represented a pattern on
behalf of the lawyer who consistently failed to put money on deposit.
o Another example is a lawyer acting in a conflict of interest situation and gives advice anyway in a situation
where the client doesnt know of the conflict.
o Breach of confidence
o Obtaining personal advantage from knowledge gained from the client
o Practitioner's sexual involvement with client.
Daniels v Complaints Committee 2 of Wellington District Law Society [2011] 3 NZLR 850 (HC): Clear
breach of fid duty by the practitioner. Complainant was a client of the appellant for approx. 4 years; he
knew that she was a vulnerable and impoverished woman from impoverished background; he acted for
her for domestic violence matters, criminal proceedings, custody and access disputes; she placed her
trust and reliance on him. Disciplinary Tribunal found that appellant (lawyer) enticed complainant to a
motel on false pretence of taking instructions - then had sexual intercourse with her. Found there was
an imbalance of power balance between them; gross breach of trust and confidence she had in him
due to the fact he was her lawyer. He received max suspension; 3 years - ordered to pay compensation
$5k - costs of $40k to be paid - name suppression lasted but then lifted
See also rule 5.7 Lawyers Conduct and Client Care Rules: rule expressly dealing with relationships
between practitioners/client. Cannot enter into such relationship where doing so would be inconsistent
with trust and confidence reposed with client
Rule 5.7.1. A lawyer must not enter into an intimate personal relationship with a client when the
lawyer is representing the client in any domestic relations matter
The above shows that there are a wide ranging situations can amount to breach of fiduciary duty.

Charging excessive fees

Misconduct extends to the charging of fees. Examples may include:
o Excessive hours, or charging clients for hours not worked.
o Disbursements not incurred.
o Deducting from client costs which have not yet been billed.
In re C (a solicitor) [1963] NZLR 259 Re McConnell (1890) 8 NZLR 617
o If the bill is so disproportionate to the work done, a finding of misconduct can be made.
Hart v Auckland Standards Committee 1 of NZLS [2013] NZHC 83
o Also [2012] NZLCDT 20 and [2012] NZLCDT 26.
o Found guilty of misconduct on three counts, including charging excessive fees and gross overcharging
under section 7 of the Lawyers and Conveyancers Act.
o Charged client $35k in 3 separate lots.
o Disciplinary Tribunal in examining his charges concluded that a reasonable fee would not have exceeded
$16k.
o Note that the Tribunal did not consider it necessary to consider whether Hart was dishonest in
charging the fees; what it did find was that more time had been spent than was necessary on the file; and
also put an emphasis on the work done and the identity of those who did it - lots of the work was done by
junior lawyers working for Hart, charged out as if it were done by him (higher rate).

35

Disciplinary Tribunal found Hart failed to give his client clear guidance as to likely level of costs; some of the
attendances charged seemed needless; billed client for court appearance that was 6 hours but in fact only
took 3 mins; level of fees charged abusive of lawyer-client relationship .
Note: case involving family of child who was in trouble w the law
They were not used to dealing with the law; they were vulnerable people not knowing process.
Hart took advantage of this family - Disciplinary Tribunal came to this view.
This case will be reviewed in more detail later in the Course.

Inadequate Supervision

In terms of Lawyers Conduct and Client Care Rules, there is a duty to supervise all your staff, including non
legal staff.
o Rule 11.3 Supervision and Management A lawyer in practice on his or her own account must ensure that
the conduct of the practice including separate places of business) and the conduct of employees is at all
times competently supervised and managed by a lawyer who is qualified to practice on his or her own
account.
Myers v Elman [1940] AC 282:
o Practitioner was held responsible and was penalised for failure to adequately supervise a staff member
who was preparing a list of Zdocuments made available by way of discovery for a court case.
o Employer of clerk found liable and guilty of misconduct.
One difficulty: how do you go about supervising your fellow partners in practice? You might have little idea what
they are doing.
Under rule 2.8 Reporting Misconduct, a lawyer who has reasonable grounds to suspect that another lawyer has
been guilty of misconduct must make a confidential report to the Law Society at the earliest possible
opportunity. This includes partners.

Failure to cooperate with investigation by NZLS

Hart v The Standards Committee (No 1) of the New Zealand Law Society [2013] NZHC 1331:
o Winkelmann and Lang JJ at [244]: Striking Mr Hart off the roll of Barristers and Solicitors was a
proportionate response in light of the nature and seriousness of those charges. Mr Harts disciplinary
history, his decision to disengage from the disciplinary proceedings, and the lack of evidence to suggest he
has insight into his conduct.
o Hart was charged with obstructing a New Zealand Law Society inquiry into a costs complaint that went to
2006, although Hart had settled that complaint with the client involved.
o This is indicative of where the NZL on its own motion looks into the conduct of a practitioner, as was
occurring in this case.
o Over some years, the NZLS requested info from H but he did not produce it kept delaying and failed to
respond. The NZLS ultimately issued a formal notice requesting this information from Hart, and it was his
non-compliance with this notice leading to the charge against him.
o Under section 7(1)(a)(ii), this was held to be wilful or reckless contravention amounting to misconduct.
o Furthermore, under section 252, obstruction of the Law Society in an inquiry is an offence.
o Hart was found guilty of misconduct. The Disciplinary Tribunal went on to add that lawyers are required to
take a cooperative approach to disciplinary proceedings.
Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No 2) [2010] NZHC 1721:
o Held by Cooper J that there is a duty to act in a professional, cordial and straightforward way in dealing with
the Law Society and its representatives.

Incompetence

Rule 1.4(c) of the Lawyers Conduct and Client Care Rules (conduct for which a lawyer may be disciplined)
negligence or incompetence in a lawyers professional capacity of such a degree or so frequent as to reflect on
the lawyers fitness to practice, or as to bring the legal profession into disrepute.

Incompetence is about negligence: not normally disciplined for being incompetent; but if you are incompetent all
the time/serious then that affects your capacity to practice law
36

Criminal Offences

Rule 1.4(d) of the Lawyers Conduct and Client Care Rules (conduct for which a lawyer may be disciplined)
conviction of an offence punishable by imprisonment where the conviction reflects on the lawyers fitness to
practice, or tends to bring the legal profession into disrepute.

Misconduct in Litigation

Rule 13.1 Duty of Fidelity to the Court: A lawyer has an absolute duty of honesty to the Court and must not
mislead or deceive the Court.
Gazely v Wellington District Law Society [1976] 1 NZLR 453:
o Malice and negligence allegations made by practitioner against another without foundation.
o This amounted to misleading the Court, which in turn amounted to misconduct.

Hart v The Standards Committee (No 1) of the New Zealand Law Society [2012] NZSC 4

Barry Hart (high profile criminal barrister) was struck off for misconduct and subject to discipline. Proceedings
against him began following his substantial overcharging of a vulnerable client.
His own response to the investigation into his conduct lead to a further complaint against him by the Law
Society itself for obstructing the inquiry.
No question of his being struck off for overcharging (lecturer thinks this is the correct outcome for this
misconduct) but the complexity with obstructing has lead to discussion about what section 262 of the Act
means (provision prohibiting obstruction of a Law Society inquiry).
o S262 Lawyers and Conveyancers Act 2006 Obstruction
(1) Every person commits an offence who wilfully obstructs, hinders, resists or deceives any
Standards Committee, investigator, or other person in the execution of any powers conferred on
that Standards Committee, investigator, or other person by section 147 or section 164 or section
169 or section 170 or section 172 or section 172.
(2) Every person commits an offence who wilfully obstructs, hinders, resists, or deceives the Legal
Complaints Review Officer, or any person to whom the functions and powers of the Legal
Complaints Review Officer have been delegated under this Act, in the performance of any of the
functions, or the exercise of any of the powers, conferred on the Legal Complaints Review Officer
or any such delegate by this Act.
(3) Every person who commits an offence against this section is liable on conviction to a fine not
exceeding $25,000.
Requirement that you cooperate with your own prosecution this is controversial.
Hart was also struck off because of the way in which he handled a dispute over payment of fees for an expert
witness. Lecturer opinion this was harsh, and should not on its own warrant striking off. Harts other offences
(overcharging) did, however.
Hart had applied for name suppression before the Lawyers and Conveyancers Disciplinary Tribunal he was
unsuccessful in doing so. Applied to the High Court, also refused. Went to Court of Appeal, also refused.
Eventually he went to the Supreme Court Hart v The Standards Committee (No1) of the New Zealand Law
Society [2012]. Hart used the procedure of judicial review of administrative action he was able to take the
matter to the Supreme Court despite it being a disciplinary issue (recall from earlier than when the Disciplinary
process has been engaged, the Court of Appeal is the final appellate body unless judicial review is sought.)
Hart argued that an open justice approach did not apply in the cases of professional persons with high public
profiles facing disciplinary charges not involving criminal offending. This argument throws light on the whole
disciplinary process.
The Supreme Court held it had to strike a balance between open justice principles and the interests of the party
seeking suppression. It concluded that it was untenable that professional people of high public profile had a
presumptive entitlement to suppression. Suppression was therefore not granted on this basis.
37

Furthermore, the issue had been given full consideration by High Court and Court of Appeal there was no
arguable error found and the case was declined.
Case received huge publicity.

Hart v Auckland Standards Committee 1 of NZLS [2013]

Applied for leave to the Court of Appeal for his striking off to be reviewed.
Application was declined.
Struck off by the Disciplinary Tribunal and this remains in place not overturned.

National Standards Committee v Orlov [2013] NZLCDT 45 and 52

Further cases regarding misconduct under section 7 as a result of allegations by Orlov that Harrison J
(presiding judge) was against him and that he was treated poorly due to racism.
These various allegations were found to be false, or at least made without sufficient foundation. What it came
down to was that Orlov was alleging bias/prejudice which amounted to judicial misconduct. He was charged
under s7(1)(a)(i), s7(1)(a)(ii), and s7(1)(b)(ii) (refer above).
8 charges were laid against Orlov by the New Zealand Law Society and went through the Standards
Committee.
Judgement at [40] The facts of the present case show that it is not always straightforward to determine
whether the conduct complained of occurs during the provision of regulated services.
o Previously, we have looked at very clear examples of conduct outside the lawyers professional role.
o Orlov was charged with offences which involved him acting in a manner in which it was not clear was
connected or unconnected with the practice of legal services.
o Charge 6 involved claims and allegations made by Orlov against the Judge in a letter he wrote supporting
a claim to the Human Rights Review Tribunal.
o Charge 7 complaint to the Judicial Conduct Commissioner.
o When Orlov made these complaints, they were complaints that he was making about conduct towards
himself they were not complaints he was making on behalf of the client.
o Is this within providing regulated services (s7(1)(a)) or not (i.e. unconnected)? Because in effect he is
being prosecuted before the disciplinary tribunal, and he is therefore entitled to know exactly what it is he is
being prosecuted for what is the precise charge?
Judgement at [42] The line becomes more hazy where the lawyer issues proceedings in his own name or in
the name of others but essentially for his own benefit, or takes other unilateral action such as making a
complaint. Whilst the genesis of these outcomes can be connected back to the provision of regulated services
by the lawyer it is not so obvious to conclude that the conduct occurred at a time when he or she was providing
regulated services.
o No definitive statement is made here about the distinction between what is within and what is outside the
provision of legal services.
o What it does instead is deal with the matter relative to the charges as a question of fact with regard to each
charge.
Charge 7 the Tribunal expressly states that this was not directly connected to the provision of regulated
services Judgement at [136]. We find the statements made by Mr Orlov, and particularised in the charge to be
false or without foundation. We consider that the conduct was not directly connected to the provision of
regulated services, although there is clearly a link, having regard to the reliance by Mr Orlov on the cases in
which he acted. We consider this to be the more appropriate charge than Charge 8. Quite express that that
conduct came within s7(1)(b)(ii).
o Conduct not of a kind a practitioner should indulge in read this in connection with the statement in [37],
i.e. conduct thought to be unsuitable for a law practitioner: Charge 6 alleges misconduct in the making of
claims and allegations against the Judge in similar vein to those made in the preceding charges, in a letter
of claim to the Human Rights Review Tribunal. The matters of complaint relate to the Judges comments
and actions in various proceedings particularised in the letter. Again this charge alleges misconduct
unconnected with regulated services and no charge is laid in the alternative.
38

o This then becomes conduct unconnected with regulated services, bringing it within s7(1)(b)(ii).
Charges were made out, and s7(1)(a) means that the conduct must be dishonourable and disgraceful.
o Shahadat v Westland District Law Society [2009] referred to [31] Dishonourable behaviour may cover a
wide range of disgraceful, unprincipled, wrongful acts or admissions comprising blatant breaches of duties
owing by a professional person.
o Conduct does not need to be dishonest or fraudulent and Orlov had not been either in this case. However
in the view of the tribunal, his conduct came within this definition.

Duncan Webb A Fall From Grace (article about Barry Hart)

Of the three findings of misconduct against Mr Hart, the really striking matter (and one which also flows from
the later decision on penalty) is the manner in which Mr Hart dealt with the NZLS, the Standards Committee,
and the Lawyers and Conveyancers Disciplinary Tribunal.
Mr Hart did not attend the hearing scheduled by the Tribunal, and his counsel attended only to seek an
adjournment. The Tribunal concluded that Mr Hart did not intend to engage in these proceedings. This was his
approach throughout and the effect of this strategy was to ensure that any sympathy the Tribunal may have
had for Mr Hart and his predicament evaporated.
Expert Fees charge:
o The first complaint related to the failure of Mr Hart to pay the fees of an expert he had retained.
o Tribunal found that Mr Hart was cavalier in his professional responsibility to this [expert] complainant, and
in doing so brings the profession into disrepute. Therefore found this was misconduct.
o This is surprising a failure to pay a third party is widely regarded as bad form, but would not usually be
considered to reach the threshold of disgraceful conduct or a wilful and reckless contravention of any
legislative provision, regulation, or practice rule (as set out in section 7 of the LCA) such as to warrant a
finding of misconduct.
o It would appear to answer more to a description of unacceptable, unprofessional, or conduct
unbecoming, and therefore amount to unsatisfactory conduct under section 12 of the LCA.
o This very stern approach by the Tribunal can only be explained in part by the uncooperative approach of Mr
Hart and the conclusion that the same obstructive approach was taken by hum to his dealings with third
parties.
Obstruction of the inquiry:
o Second charge related to a failure by Mr Hart to cooperate in respect of a costs complaint made in 2006.
o The Complaint Committee which had been considering the complaint resolved to continue the inquiry even
though the complainant no longer sought to pursue the complaint as the matter had been settled.
o Delays in the provision of information and excuses by Mr Hart ensued for many months until the
Complaints Committee issued a formal notice to produce the file. Further delays and extensions of time
occurred until the Complaints Committee indicated that the final date for compliance was 13 March 2009.
This did not occur. That non-compliance itself became the subject of an inquiry and ultimately the
proceeding against Mr Hart.
o The finding on this charge of misconduct is unsurprising under section 7 a wilful and reckless) failure to
comply with the Act is explicitly stated to be misconduct. The Tribunal clearly viewed the conduct as not
only wilful but also intentionally obstructive (which is also an offence under section 262 LCA). What is of
particular interest are the comments of the Tribunal that lawyers are required to take a cooperative
approach to disciplinary proceedings.
o It is correct to say that legal practitioners owe a duty to comply with any lawful requirement made under the
Act. However, it may go too far to say (as the Tribunal did) that there is also a duty to act in a professional,
candid and straightforward way in dealing with the Society and its representatives. While a lawyer may not
deceive or obstruct an inquiry, to suggest that there is a positive duty of cooperation appears to go too far.
o The Tribunal also cited Australian authority to the effect that a lawyer whose conduct is being enquired
must inform and assist the inquiry, and must not lie and engage in a battle of tactics. However, those
authorities need to be viewed with caution. The powers of inquiry are comprehensively set out in the LCA
and need not be supplemented by a vague and far-reaching duty on a lawyer to assist in his or her own
demise.
39

While it may be appropriate for the Tribunal to take into account the conduct of the lawyers defence in
considering if any credit should be given when considering penalty, it cannot be a professional wrong of
itself for a lawyer to seek to use the procedural techniques available to advantage themselves.
Grossly excessive costs:
o Third charge (which was proved) gross overcharging, which is expressly stated to amount to misconduct
under section 7.
o The focus here was the fact that, given the work done and the identify of the parties who actually undertook
it (a large part of the work was undertaken by junior lawyers), the bull was objectively excessive and grossly
so.
o It was also central that the fees were at a level which was abusive of the lawyer-client relationship. It is
clear that a lawyer is not free to charge whatever the client will pay. The lawyer, in setting the fee, must
have regard to the interests of both the client and lawyer (Rule 9).
o In this case, the clear conclusion was that the charging by Mr Hart had been opportunistic he had taken
advantage with a nave and vulnerable client. This, in conjunction with the excessive level of charging,
meant that the threshold of misconduct had been reached.
The decision to strike off Barry Hart is a lesson in how not to deal with the Tribunal. Ultimately, Mr Hart may
have avoided the worst consequences of his actions if had quite a different approach been taken to these
complaints.
o

NZLS Article by Paul Collins Lawyers Duty to Cooperate

The duty of a lawyer to cooperate with the complaints, investigative and disciplinary procedures established
under the LCA do not mean that a lawyer cannot defend him or herself in relation to a complaint. The complaint
may well have little or no foundation in fact, for example, and warrant a well considered, robust defence.
When a complaint about a lawyer is made, however, that lawyer has a duty to cooperate.
Section 262 of the LCA makes it an offence to obstruct a Standards Committee or the LCRO:
1. Every person commits an offence who wilfully obstructs, hinders, resists or deceives any Standards
Committee, investigator, or any other person in the execution of any powers conferred on that Standards
Committee, investigator or other person by s147 or s164 or s169 or s170 or s172 or s173.
2. Every person commits an offence who wilfully obstructs, hinders, resists or deceives the LCRO, or any
person to whom any of the functions and powers of the LCRO have been delegated under this Act, in the
performance of any of the functions, or the exercise of any of the powers, conferred on the LCRO or any
such delegate by this Act.
3. Every person who commits an offence against this section is liable on conviction to a fine not exceeding
$25,000.
The failure to cooperate with this section includes the possibility of professional sanctions being imposed
directly by the Court.
Since the LCA came into force, the Courts have consistently underlined the duty of lawyers to cooperate.
It is axiomatic that practitioners must cooperate with those tasked with dealing with complaints made, even if
practitioners consider that the complaints are without justification... the purposes of the Lawyers and
Conveyancers Act include maintenance of public confidence in the provision of legal services, protection of
consumers of legal services, and recognition of the status of the legal profession... To achieve those purposes,
the Act provides for what is described as a more responsive regulatory regime in relation to lawyers and
conveyancers... There must also be a duty to act in a professional, candid and straightforward way in dealing
with the [Law] Society and its representatives.... The purpose of the disciplinary procedures is to protect the
public and ensure that there is confidence in the standards and probity met by members of the legal
profession. - Parlane v New Zealand Law Society Waikato Bay Standards Committee No 2 (2010) per Cooper
J.
It is now well established that a lawyer may aggravate his or her position before a Standards Committee, the
LCRO or the Disciplinary Tribunal, by behaving in an obstructive, belligerent or evasive manner. Not only can
the obstructive behaviour lead to a disciplinary charge in its own right, but it can also result in the aggravation of
penalty in the underlying complaint. This was established in Hart v Auckland Standards Committee 1 of the
New Zealand Law Society [2013] NZLR 103.
40

Underlying propositions that have emerged from the professions experience with the LCA since its
commencement include:
o An essential feature of cooperation with the institutions of discipline is the timely provision of information
and relevant documentation.
o Candour in dealing with the professional bodies, on occasion including the candid admission of a
professional lapse. Will serve the lawyers best interests in the long run.
o Independent advice is essential for any lawyer engaging with the institutions of the profession in this area.
Nowhere in professional life is the loss of objectivity and sound judgment more likely to occur than in a lawyers
dealings with a complaint about him or herself.
Similarly, no area in professional life has greater potential for mental blocks, procrastination, prevarication and,
sometimes, unproductive recrimination.
Lawyers should note that a great many of the complaints received by the Lawyers Complaints Service do not
lead to an adverse finding against the lawyer complained about. In 2013, only 11.8% of complaints resulted in
determinations of unsatisfactory conduct or decisions to refer the matter to the Disciplinary Tribunal.

Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC
1987

Did his conduct come under s7(1)(a)(i), 7(1)(a)(ii) or 7(1)(b)(ii)?

The Disciplinary Tribunal had found for the two charges that they were with conduct unconnected with the
provision of legal services this was reversed by the High Court. Reflects the immense complexity that can
arise when these sections are engaged.
Three charges laid in the alternative confusion about which provision Orlovs misconduct fell within under
section 7. Orlov generally contended that his conduct was in his personal capacity, so it would fall under s7(1)
(b)(ii). Then argued his conduct was not traditionally of the type contemplated by parliament as the type that
should engage the provision, therefore did not merit Law Society charges.
High Court the two provisions s7(1)(a) and s7(1)(b) together must cover all conduct there must not be a gap
[102]. The entirety of conduct in practice must be covered under that provision.
[106] We consider the Acts definitions continue to maintain the distinction between professional and
personal misconduct. The latter involves moral obloquy. Conduct that is unconnected to being a lawyer, and
which by its nature is so inconsistent with the standards required of membership of the profession that the
practitioner is no longer a fit and proper person to practice law.
[107] The test of fit and proper person remains the touchstone for whether a lawyer is to be struck off.
[109] We have little doubt that all of Mr Orlovs activity should be seen as being connected to the provision of
legal services and should have been charged and assessed under s7(1)(a)(i) the only reason he was
insulting the judge in the first place was because he acting for a client, therefore what he was doing was
connected with legal services in accordance with the working of the act.
[112] Whilst not regulated services, the conduct is very much connected with the provision of such services
and therefore comes within the s7(1)(a)(i) limb of professional misconduct. Only comes under s7(1)(b)(i) if it
is not connected to the provision of legal services. Charges 6 and 7 are not conduct within the definition of
providing legal services, but you can say that it was connected with the provision of those services this is
enough to bring the conduct within s7(1)(a)(i).
High Court amends the charges against Orlov [114]We are satisfied no prejudice to Mr Orlov is thereby
created. First, the particulars for each charge remain unchanged. Second, the change to bring all charges
under s7(1)(a)(i) has the advantage for his sentence appeal that fit and proper person is no longer a proven
element of the offence. This was a feature Mr Orlov had complained of in relation to the existing charges.
Although it means that on some charges we will now not have the benefit of the Disciplinary Tribunals
assessment of the s7(1)(a)(i) test, we do know its conclusions on the conduct when measured against the s7(1)
(b)(ii) standard.
It is enough to bring a matter under s7(1)(a)(i) if the conduct is connected with the provision of legal services.
Case highlights the difficulty of classifying some conduct whether it is within delivering professional regulated
services, or unconnected with.
Upshot of this was that the HC reinstated Orlov on the roll [210].
41

[208] We have concluded that Mr Orlov has not shown, and indeed for many allegations has not really
attempted to show, that there is a proper foundation for these claims, Indeed in our view there is no foundation
at all, proper or otherwise. Accordingly, in relation to these claims, we agree with the Disciplinary Tribunal that
they represent disgraceful conduct within the meaning of this Act.
[209] In relation to penalty, we have concluded that striking off is a disproportionate response in the
circumstances of the case. We place weight on the fact that the practitioners offending conduct consists only of
speech, and is directed against a member of the judiciary. It does not involve mistreatment of clients or their
money. We also place weight on this being a first offence for conduct of this type. Mr Orlov can now be under
no illusions as to the standards rightly expected of all members of the profession, and that he will need to
modify how he goes about airing his grievances. Words only and against a member of the judiciary are ok
lecturer finds this extraordinary.

Unsatisfactory Conduct Section 12 Lawyers and Conveyancers Act

Section 12 Unsatisfactory conduct defined in relation to lawyers and incorporated law firms
In this Act, unsatisfactory conduct, in relation to a lawyer or an incorporated law firm, means
a. Conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated
services and is conduct that falls short of the standard of competence and diligence that a member of the
public is entitled to expect of a reasonably competent lawyer; or
b. Conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated
services and is conduct that would be regarded by lawyers of good standing as being acceptable. Including
i.
Conduct unbecoming of a lawyer or incorporated law firm; or
ii.
Unprofessional conduct; or
c. Conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act
that apply to the lawyer or incorporated law firm, or of any other Act relating to the provision of regulated
services (not being a contravention that amounts to misconduct under section 7); or
d. Conduct consisting of a failure on the part of the lawyer, or, in the case of an incorporated law firm, on the part
of a lawyer who is actively involved in the provision by the incorporated law firm of regulated services, to comply
with a condition or restriction to which a practicing certificate held by the lawyer, or the lawyer so actively
involved, is subject (not being a failure that amounts to misconduct under section 7).
Introduced as a whole new concept an aspect of control and trying to ensure that any sort of unacceptable
conduct by law practitioners should be the subject of discipline in some way.
The test is what a member of the public would think was a suitable standard of conduct.
It is also conduct that occurs when a practitioner providing regulated services would be regarded by lawyers of
good standing as being unacceptable conduct unbecoming of a lawyer, and unprofessional conduct.
Question for us is what is unsatisfactory conduct?
o Written as the Act came into effect.
o Conduct that is not so egregious as to amount to misconduct, but is still deserving as being market
out as falling below the standard of conduct or behaviour that members of the public are entitled to
expect. Professional lapse.
Penalties for unsatisfactory conduct are set out in section 156 of the Act (i.e. power of the Standards
Committee to make orders).

Duncan Webb Unsatisfactory Conduct

A breach of unsatisfactory conduct may have significant consequences for a practitioner, as Standards
Committees may make one or more of the orders found in section 156 of the Lawyers and Conveyancers Act.
At one end of the spectrum, modest orders of censure or requiring an apology may be made. However farreaching orders such as compensation (up to $25,000), a fine (up to $15,000), remission of fees and orders
relating to the management and/or inspection of the lawyers practice may be made. Such orders are made on
a summary procedure where there is no right to be heard in person (section 153).
It is noteworthy that while a standards committee may not make a finding of misconduct, the powers to make
significant orders far exceeds that of their predecessors, the district disciplinary tribunals.
Section 12(a) Conduct falling short of Competence and Diligence:
42

Probably the most significant change wrought by the concept of unsatisfactory conduct is the fact that
alack of competence is not considered a professional breach.
o The Act looks to the standards expected by a member of the public and what they are entitled to expect
from a reasonably competent lawyer.
o This is an articulation of the well-established reasonable consumer test that focuses not on the views of
professional people (i.e., a peer-based standard) as to proper standards, but the reasonable expectations
of ordinary people.
o The upshot of this is that the professional body may make orders for wrongs that were not previously
considered professional breaches. Oversights, slips, and other errors that fall foul of the reasonably
competent lawyer test will amount to unsatisfactory conduct.
Section 12(b) Conduct Unbecoming and Unprofessional Conduct:
o Unsatisfactory conduct, on this basis, will exist only where the conduct occurs at a time the practitioner is
providing regulated services.
o The inclusion of the conduct unbecoming within the definition of unsatisfactory conduct accords with the
widespread notion that it has generally involved conduct that is less egregious than misconduct.
o Conduct unbecoming is more than a mere error or negligence. In that sense, it might be thought to be more
serious than a finding of unsatisfactory conduct for a breach of the competence standard discussed above,
although there may be considerable overlap. Serious negligence may, however, amount to conduct
unbecoming.
o The standard is a professional one and unlike the competence/consumer standard, the test will be whether
the conduct is acceptable according to the standards of competent, ethical and responsible practitioners.
o While unsatisfactory conduct on the basis of conduct unbecoming is likely to be less serious than
misconduct, it appears from the cases that an element of wrongdoing will need to exist. That is to say that a
finding of conduct unbecoming has some moral colour, though clearly not of the same degree that serious
misconduct might have.
Section 12(c) and (d) Contravention of the LCA Rules or Practice Restrictions:
o One of the least complex provisions in respect of unsatisfactory conduct.
o This provision excludes a breach that amounts to misconduct under section 7. Importantly, section 7
provides that where a breach of the rules is wilful or reckless, it will amount to misconduct.
o The upshot of this is that a breach of rules that is merely negligent will amount to unsatisfactory conduct.
There is therefore no mental element required, rather the matter is effectively one of strict liability. A breach
of the rules will be unsatisfactory regardless of significance.
o The section continues to state that a failure to comply with a condition or restriction to which a practicing
certificate held by the lawyer is subject will also be unsatisfactory conduct. This is effectively a strict liability
offence. Where the failure is wilful, it will amount to misconduct under section 7.
The nature of a finding of unsatisfactory conduct:
o Unsatisfactory conduct is clearly a professional standard, from which professional consequences flow.
However it is fundamentally different from a finding of misconduct.
o A finding of misconduct has connotations of a serious failure of professional standards. The conduct in
question must be a serious failure in respect of professional obligations. A range of conduct may amount
to professional misconduct, from actual dishonesty through to serious negligence of a type that evidences
an indifference to and an abuse of the privileges which accompany registration as a legal practitioner
Complaints Committee No 1 of the Auckland District Law Society v C, 29 April 2008 High Court (as per
Randerson J).
o In contrast, the LCA makes it clear that a finding of unsatisfactory conduct may be made on the basis of
mere negligence of a practitioner (section 12(a)) or an entirely unintentional (and minor) contravention of
one of the new rules and regulations (12(c)).
o The procedure by which a practitioner may be found guilty of unsatisfactory conduct is fundamentally
different from that in relation to misconduct. Unsatisfactory conduct may be dealt with by the summary
procedure of the Standards Committee. In contrast, misconduct may only be found by the Disciplinary
Tribunal.
o Semantics of the terms themselves can also be helpful:
o

43

To mark out conduct as unsatisfactory is hardly a damning condemnation. The choice of the only
faintly damning unsatisfactory indicates that a finding of unsatisfactory conduct is not intended to be
an indicator of any kind of egregious conduct, but rather is an indication that the practitioner in question
must try harder.
It is important to note that such findings ma have no reflection of the professionalism of the practitioner
overall.
Where the failure is an isolated oversight, slip or negligence, the regulatory response is likely to be
similarly modest with the focus being on redress or compensation for the client in the event that loss
has been caused. A disciplinary response of any magnitude is unlikely.
However it is important to still bear in mind that the spectrum of unsatisfactory conduct is very broad
indeed.
o The prime focus of professional discipline is on the protection of the public from practitioners who are
incompetent, dishonest, or otherwise unfit to practice law. It is for this reason alone that orders striking off
or suspending practitioners are made. It will be rare for this protective purpose to be effectively served by
punitive orders that have a significant element of retribution or denunciation. That is the preserve of the
Criminal Law. It may, however, be that the imposition of penalties (such as a fine) will act to deter both the
practitioner involved and the wider profession from engaging in similar conduct in the future. Such a
rationale is wholly consistent with the purposes of professional discipline.
The relationship between Misconduct and Unsatisfactory conduct:
o There is some necessary overlap between the two concepts.
o There may be situations where a knowing breach of the Rules of Conduct and Client Care (by definition
misconduct) requires little response beyond censure (e.g. breach of Rule 3.1 courtesy rule), while there
may be instances of unsatisfactory conduct is a serious matter (e.g. a lawyer who makes an inappropriate
proposition to a client is considered not guilty of misconduct but is found to have engaged in unbecoming
and therefore guilty of unsatisfactory conduct). If the two were to be ranked in terms of seriousness, it might
reasonably be said that the latter is more serious than the former.
o Therefore it is suggested that it would be inappropriate to see misconduct starting where unsatisfactory
conduct stops (or vice versa). The two concepts refer to distinct professional lapse. In general,
unsatisfactory conduct will be the less serious wrong, but not always.
It is unhelpful to view unsatisfactory conduct as simply clipping a consumer protection element onto the existing
concept of misconduct. Unsatisfactory conduct does have a consumer protection element, but is itself a
separate and much broader professional standard.
The challenge for the complaints and discipline system is to apply this standard in a robust and workable way
that is both consistent with the words of the Act and its purposes, and enables the effective functioning of both
the standards committees and tribunal.

Penalties for Unsatisfactory Conduct Section 156

1. If a Standards Committee makes a determination under section 152(2)(b), that Standards Committee may
a. Order that all or some of the terms of an agreed settlement between the person to whom a complaint
relates and the complainant are to have effect, by consent, as all or part of a final determination of the
complaint:
b. Make an order censuring or reprimanding the person to whom a complaint relates:
c. Order the person to whom a complaint relates to apologise to the complainant:
d. Where it appears to the Standards Committee that any person has suffered loss by reason of any act or
omission of a practitioner or former practitioner or an incorporated firm or former incorporated firm or an
employee or former employee of a practitioner or an incorporated firm, order the practitioner or former
practitioner or incorporated firm or former incorporated firm, or employee or former employee of a
practitioner or an incorporated firm, to pay to that person such sum by way of compensation as is
specified in the order, being a sum not exceeding, as the case may require, the amount that is from time to
time prescribed for the purposes of this paragraph by rules made under this Act by the New Zealand Law
Society or the New Zealand Society of Conveyancers:
44

2.
3.
4.

5.

e. Order the practitioner or former practitioner or incorporated firm or former incorporated firm to reduce his,
her, or its fees for any work (being work which has been done by the practitioner or former practitioner or
incorporated firm and which is the subject of the proceedings before the Standards Committee) by such
amount as is specified in the order:
f. Order the practitioner or former practitioner or incorporated firm or former incorporated firm to cancel his,
her, or its fees for any work (being work which has been done by the practitioner or former practitioner or
incorporated firm or former incorporated firm and which is the subject of the proceedings before the
Standards Committee):
g. For the purpose of giving effect to any order made under paragraph (e) or paragraph (f), order the
practitioner or former practitioner or incorporated firm or former incorporated firm to refund any specified
sum already paid to the practitioner or former practitioner or incorporated firm or former incorporated firm:
h. Order the practitioner or former practitioner or incorporated firm or former incorporated firm or employee or
former employee of a practitioner or an incorporated firm
i.
To rectify, at his or her or its own expense, any error or omission; or
ii.
Where it is not practicable to rectify the error or omission, to take steps to provide, at his or her or
its own expense, relief, in whole or in part, from the consequences of the error or omission:
i. Order the practitioner or former practitioner or incorporated firm or former incorporated firm, or employee or
former employee of a practitioner or an incorporated firm, to pay to the New Zealand Law Society or the
New Zealand Society of Conveyancers, as the case may require, a fine not exceeding $15,000:
j. Order the practitioner, or any related person or entity, or both to make the practitioner's practice
available for inspection at such times and by such persons as are specified in the order:
k. Order the incorporated firm to make its practice available for inspection at such times and by such persons
as are specified in the order:
l. Order the practitioner or incorporated firm to take advice in relation to the management of his, her, or
its practice from such persons as are specified in the order:
m. Order that the practitioner or any director or shareholder of the incorporated firm undergo practical
training or education:
n. Order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director
or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of
the practitioner or incorporated firm, to pay to the New Zealand Law Society or the New Zealand Society
of Conveyancers such sum as the Standards Committee thinks fit in respect of the costs and
expenses of and incidental to the inquiry or investigation made, and any hearing conducted, by the
Standards Committee:
o. Order the practitioner or former practitioner or incorporated firm or former incorporated firm, or any director
or shareholder of the incorporated firm or former incorporated firm, or any employee or former employee of
the practitioner or incorporated firm, to pay to the complainant any costs or expenses incurred by the
complainant in respect of the inquiry, investigation, or hearing by the Standards Committee.
In paragraphs (j) to (l) of subsection (1), specified, in relation to any person, means specified either by name or
as the holder for the time being of any particular office or appointment.
An order under this section may be made on and subject to such terms and conditions as the Standards
Committee thinks fit.
The making of an order under this section for the payment of compensation to any person does not affect the
right (if any) of that person to recover damages in respect of the same loss, but any sum ordered to be paid
under this section, and the effect of any order made under this section for the reduction, cancellation, or refund
of fees, must be taken into account in assessing any such damages.
Where an order made under any of the provisions of paragraphs (d) to (g) of subsection (1) is binding on any
practitioner, that practitioner and any person who is, in relation to that practitioner, a related person or entity are
jointly and severally liable to pay any amount that is payable under the order.
Matters are normally dealt with on the papers and there is no right to appear Section 153.

Woods v Legal Complaints Review Officer [2013] NZHC 674

Lawyer received instructions to prepare a will.

45

Client believed that she and her husband jointly owned their home, and if she was wrong in this then it was
owned solely by her husband.
Expected the husband to remain in ownership of that home if it were a joint tenancy, then the property would
vest in her as survivor. If not then it would be just in him.
Woman terminally ill instructed lawyer to search the title of the property. Lawyer did not search the title and
drew a will making her estate to go entirely to her son.
Turned out the house was a tenancy in common this meant that the deceased wifes share would pass under
the will because she had left everything to her son, she had inadvertently created a situation where the
husband and her son were now the two owners of the property (she had wanted the house to go entirely to
husband).
Husband complained about lawyer to the Standards Committee as he had not given effect to the wifes wishes.
Complaint dismissed by the Standards Committee who found that the wife had actually instructed the lawyer
not to search the title. This was appealed to the LCRO.
The LCRO upheld the complaint of the husband and overturned the Standards Committee decision. The
solicitor involved applied to the HC for a judicial review of the LCRO decision.
Found in the HC [30] Given that the duties owed by [the lawyer] ran beyond her immediate client, I am satisfied
that her omission to ascertain the titular position was conduct falling short of the standard of competence and
diligence that a member of the public was entitled to expect of a reasonably competent lawyer.
o Amounted to unsatisfactory conduct did not satisfy the standard imposed by s12.
o This is a clear-cut example.

Law Talk 838 at [35] Law Complaints Service: more inquiries needed by lawyer before
acting for a person with dementia

Lawyer had been engaged to assist an 84yo woman (D) to revoke an existing enduring power of attorney and to
prepare a new one.
D had Alzheimers Disease, but after spending time with her the lawyer decided that she appeared to be lucid,
and he would accept her instructions. Drafted her a new EPA.
Standards Committee found this to be unsatisfactory conduct and fined him $3,000. Lawyer refused to accept
that this was an error.
Standards Committee said that through the lawyer had received more detailed information about Ds mental
condition after he had prepared the documentation, he had received enough before it to raise obvious concerns
about Ds mental capacity.
The Committee considered that this should have at least made him consider making further enquiries before
carrying out the instructions.
Committee said his actions were negligent but not dishonest. However he refused to make a mistake or
apologise, so along with fining him, the Committee also censured him, ordered him to pay $500 to the daughter
for costs, and ordered him to pay the Law Society $1,000 costs.

Auckland Standards Committee v Sega [2013] NZLCDT 31

Sega was not a law practitioner but she was employed as a secretary in a law office.
Pleaded guilty to 6 offences involving dishonesty.
Charges included forgery, four counts of misusing cheques, and stealing cash ($200) from clients of the law
firm where she was employed. Misused or attempted to misuse $1,200 in cheques.
Sega occupied a role of trust in the law firm and had direct contact with clients, and the responsibility of
handling firm cheques.
Disciplinary Tribunal: As such, it can be seen as undermining the trust that clients are entitled to have in
providers of legal services, and therefore goes to the reputation of the profession generally and more
importantly to the issue of protection of the public.
Perpetual order made against S to the effect that she cannot be employed by a law firm at all. Had to pay the
Disciplinary Tribunal costs of $2125, and the Standards Committees costs of $5000.
Not only practitioners who can be disciplined employed non-lawyers can also be disciplined.
46

Note: Whatever the person has done must be proved to be unsatisfactory conduct or misconduct. If it is
established, the question arises how do you deal with penalty what is the appropriate penalty? As we saw in the
Hart case, some aspects did not really warrant striking off.

Sorenson v NZLS (Auckland Standards Committee No 2) [2013] NZHC 1630

S struck off by Disciplinary Tribunal for misconduct appealed to High Court seeking this to be overturned.
S was acting for the executors of an estate and he received instructions form those executors to pay those
assets of the estates to them.
Evidence that he knew that the executors would not then pay out the legacies to other people that they were
supposed to pay were taking the money for themselves. Legacies amounted to 80% of the value of the assets
of the estate.
This conduct was serious and did involve dishonesty, and meant that a number of people suffered the loss of
the legacies. However against this, it found that S had been in practice for 25 years with a completely clean
record, and this appeared to be a one-off offence, and he had not practiced for some time pending the outcome
of these proceedings, and had numerous character references supporting him. This was out of character for S.
High Court decided that a lesser penalty than striking off was sufficient to protect the public ordered a
suspension for two years, and that after this he not resume practicing on his own account. Basically a restricted
practicing certificate.
Expressly follows Hart v Standards Committee 1 when assessing fitness to practice.

Daniels v Complaints Committee 2 of Wellington District Law Society [2011] 3 NZLR 850
(HC)

D was suspended for his misconduct for a substantial period.

Harold v Legal Complaints Review Officer [2012] 2 NZLR 559 (HC)

This case is a good example highlighting the move away from the 1982 to 2006 Act shifting of rules.
Unusual case. H was barrister acting for a man who had been charged with assaulting a woman with a
weapon (had been the sister of the man). Accused told H that the sister had fabricated the entire matter and
there was not truth. Accused told H that his sister was going to see him and tell him the truth of the matter.
H had meeting with the sister, who said she had made everything up.
On this basis, the Crown Solicitor complained about H to the NZLS, alleging a breach of s12 of the LCA.
Complaint was that H had not followed the longstanding convention amongst criminal practitioners that if
counsel wish to speak with a prosecution witness, counsel should first contact the Crown Solicitor or the police
to tell them this. In short, H had not done this.
Nothing to indicate any pressure on the sister she had come forward voluntarily and H had not asked to see
her there had been no dishonesty on Hs part.
Matter with to the Standards Committee, which found that H was guilt of unsatisfactory conduct. H then took the
matter to the LCRO, who confirmed the Standards Committee finding.
Harold made an application for judicial review to the High Court.
Short judgment by Asher J. Stated that the rules of conduct and client care are a statement of the collective
opinion of the profession as to what is good practice by practitioners. Refers to rule 13.10.4 of the Conducts of
Client Care rules this rule states that a lawyer engaged in any proceedings does not have the sole right to call
or discuss the case with a witness. A lawyer acting for one party may interview a witness or prospective witness
at any stage prior to the hearing, whether or not the witness has been interviewed by the lawyer acting for
another party. Footnote to this rule where a lawyer proposes to interview a witness for the other side, it is
prudent to inform the lawyer representing the other side of this fact, especially in respect of sensitive criminal
matters, to take steps to avoid any suggestion of interfering with the Courts justice.
Asher J at [42] the phrase it is prudent implies that there is no prohibition. But it also carries with it a
particular risk that the conduct could be unbecoming.
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Goes on to state that the Standards Committee did not explain how the alleged contravention could contradict
the thrust of the relevant rules. Rather the Standards Committee appeared to have relied on its own
assessment of good practice and the statement of the Crown Solicitor, and to disregard the rules. The
Standards Committee made no attempt to interpret to apply those rules in relation to Hs conduct, and in
particular did not consider how Hs conduct could be unsatisfactory when it was impliedly permitted by rule
10.8.
No reference made to rule 8.05 certain rules had been ignored.
A competent practitioner at the time of the complaint would have been aware of the rules of professional
conduct. Such a practitioner could expect the rules of professional conduct to be good guidance. No
professional requirement or convention that the police or Crown should be notified before speaking to the sister.
Impossible to see how a Standards Committee could, applying the proper rules, conclude that Hs conduct was
unsatisfactory.
Decision of both Standards Committee and LCRO overruled. Highlights importance of knowing the rules.

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1.3. Admission as a Barrister and Solicitor

1.3.1 Cab Rank Rule

Introduction to the Cab Rank Rule

Chapter 4 of rules of conduct and client care concerned with availability of lawyers to the public, and
concerned with retainers.
Rule 4 A lawyer as a professional person must be available to the public and must not, without good cause,
refuse to accept instructions from any client or prospective client for services within the reserved areas of work
that are within the lawyers field of practice.
This is regardless of whether you practice as barrister sole or barrister and solicitor. A practitioner needs to be
available to advise on litigation matters and apply as an advocate.
Means that a lawyer is not personally associated with a client this can be significant where you are
approached by someone who has done something distasteful.
There is no equivalent rule in the USA this has a significant bearing on writing about acting for people.
An exception to this you can refuse to accept instructions where you have good cause
o Refusing Instructions:
4.1. Good cause to refuse to accept instructions includes a lack of available time, the instructions falling
outside the lawyers normal field of practice, instructions that could require the lawyer to breach any
professional obligation, and the unwillingness or inability of the prospective client to pay the normal fee of
the lawyer concerned for the relevant work.
4.1.1. The following are not good cause to refuse to accept instructions:
(a) Any grounds of discrimination prohibited by law including those set out in section 21 of the Human
Rights Act 1993.
(b) Any personal attributes of the prospective client.
(c) The merits of the matter upon which the lawyer is consulted.
4.1.2. A lawyer who has a retainer under which he or she is to remain available to receive instructions form
the client concerned is entitled to decline instructions from others that would be inconsistent with the
lawyers obligations under the retainer.
4.1.3. A lawyer who declines instructions must give reasonable assistance to the person concerned to find
another lawyer.
In other words, where you act for someone regularly and in an arrangement with that, and another client comes
and requests your services which would be in conflict with those you have with the person you have an
arrangement with, you can decline.
49

Cannot decline to act for someone because you think their case is hopeless you are obliged to give them
advice about it. The notion behind all of this is access to justice and the courts.
A client has the right to pursue their matter without the moral or paternalistic interference f the lawyer the
lawyer is to be objective in the advice that they give.
With that said, a lawyer should refuse to act for someone if acting for them would involve them engaging in
criminality outside of discipline, a lawyer can also be criminally liable and prosecuted as a party to the crime.

McKaskell v Benseman [1989] 3 NZLR 75

The two lawyers concerned in this case were reluctant to disclose a letter containing an offensive statement
made by the solicitor of the opposing side as they knew their client was litigious and were worried he might sue
them as he had sued previous lawyers.
It was held that a retainer will be presumed where the conduct of two parties shows the relationship of solicitor
and client has in fact been established between them. The effect of the retainer is to put in operation the normal
terms of the contractual relationship, including the duty of the solicitor to protect the clients interests and carry
out his instructions in the matter to which the retainer related, by all proper means.
The client had a right to know of the letter so that he could be placed in a position to make an informed
decision.

Maree Quinlivan Article The Cab Rank Rule: A Reappraisal of the Duty to Accept
Clients

In order for every citizen to have access to legal services, the lawyer must, as representative, facilitate the
exercise of the right to legal processes.
Note that unlike jurisdictions such as the UK, most New Zealand practitioners enrol as both a barrister and
solicitor. Consequently, he or she is subject to the rules applying to both branches of the profession.
Maree concludes the following in respect of the Cab Rank Rule as it operates in NZ:
o It does not respect the moral autonomy of the individual practitioner.
o It does not guarantee access to legal processes, neither does the removal of the rule deny access.
o The interests of justice, good and professional competence are not met by requiring that a lawyer prioritise
his or her clients needs above his or her moral authority.
Whilst the professional should be reminded of the obligation to public service and client welfare, he or she
should not labour under the duty to provide representation in circumstances which she or he considers adverse
to public welfare, or adverse to moral practice.
The practitioner should be given the right to exercise moral authority. If lawyers are to be expected to uphold
tenets of justice and morality then it is submitted that the system that demands this of them should honour their
right to abide by their own personally held tenets of justice and morality. If the legal system is to be respected
for its integrity then it must allow its members to exercise morality.
To prevent the risk of absolute denied cases, a power of court appointment should be retained but only to be
used in the most extreme cases.
The ethical duty of representation is essential to the legal profession, however in its most stringent form it fails
to respect the rights of the practitioner, and generates legal practices that fall short of reflecting the values and
expectations of society.
It leads lawyers to ask the question of themselves can I be a good lawyer and still be a good person?

Duty to Complete Retainer

4.2. A lawyer who has been retained by a client must complete the regulated services required by the client under
the retainer unless
a. The lawyer is discharged from the engagement by the client; or
b. The lawyer and the client have agreed that the lawyer is no longer to act for the client; or
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c.

The lawyer terminates the retainer for good cause and after giving reasonable notice to the client specifying
the grounds for termination.
4.2.1. Good cause includes
a. Instructions that require the lawyer to breach any professional obligation.
b. The inability or failure of the client to pay a fee on the agreed basis, or, in the absence of an agreed basis, a
reasonable fee at the appropriate time.
c. The client misleading or deceiving the lawyer in a material respect.
d. The client failing to provide instructions to the lawyer in a sufficiently timely way.
e. Except in litigation matters, the adoption by the client against the advice of the lawyer of a course of action
that the lawyer believes is highly imprudent and may be inconsistent with the lawyers fundamental
obligations.
4.2.2. None of the matters set out in rule 4.1.1. is good cause to terminate a retainer.
4.2.3. A lawyer must not terminate a retainer or withdraw from proceedings on the ground that the client has failed
to make arrangements satisfactory to the lawyer for payment of the lawyers costs, unless the lawyer has
a. Had due regard to his or her fiduciary duties to the client concerned; and
b. Given the client reasonable notice to enable the client to make alternative arrangements for representation.
4.2.4. A lawyer who terminates a retainer must give reasonable assistance to the client to find another lawyer.

1.3.2. Admission as a Barrister and Solicitor

Introduction Relevant Sections in the Lawyers and Conveyancers Act
Section 48 Admission as a Barrister and Solicitor
1. Every person admitted by the High Court under this Act must be admitted as a barrister and solicitor; and no
person may be admitted as a barrister or solicitor only.
2. Subject to this Act and any order made under it, and to the express provisions of any other enactment, every
person admitted as a barrister and solicitor is entitled, while his or her qualification continues, to practice in or
before any court or tribunal.
Note that everyone in this jurisdiction is admitted as a barrister and solicitor not one or the other.
Section 49 Qualifications
1. A person is qualified for admission as a barrister and solicitor if he or she is in at least one of the categories in
this section.
2. The first category is persons who
a) Have all the qualifications for admission prescribed or required by the New Zealand Council of Legal
Education; and
b) Are fit and proper persons to be admitted as barristers and solicitors of the High Court; and
c) Meet the criteria prescribed by rules made under section 54.
3. The second category is persons who
a) Have been admitted as a barrister, solicitor, barrister and solicitor, advocate, or attorney by the superior
court of any other country; and
b) Have all the qualifications prescribed or required by the New Zealand Council of Legal Education in
consultation with the Council of the New Zealand Law Society; and
c) Are fit and proper persons to be admitted as barristers and solicitors of the High Court; and
d) Meet the criteria prescribed by rules made under section 54.
4. The third category is persons who have been issued with a certificate by a Registrar stating that the candidate
has given notice under section 19 of the Trans-Tasman Mutual Recognition Act 1997 to the Registrar acting as
a local registration authority under that Act.
I.e., you need to meet these three criteria:
1. Need all qualifications prescribed by the Council of Legal Education (NZ).
2. Need to be a fit and proper person to be admitted.
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3. Need to meet the criteria prescribed by the rules made under s54.
Lawyers who are qualified in Australia can apply under the Trans-Tasman Mutual Recognition Act 1997 on the
strength of their Australian qualifications.
Section 50 - Evidence of Qualifications
1. A document purporting to be signed on behalf of any university in New Zealand by a person authorised for the
purpose, by name or office, by the New Zealand Council of Legal Education and certifying that a candidate has
a qualification for admission prescribed or required by the New Zealand Council of Legal Education is, in the
absence of proof to the contrary, sufficient evidence of that fact.
2. A document purporting to be signed by the chief executive of the New Zealand Council of Legal Education, or
his or her delegate, and certifying that a candidate has all the qualifications for admission prescribed or
required by the New Zealand Council of Legal Education is, in the absence of proof to the contrary, sufficient
evidence of that fact.
Need to produce evidence of your qualifications this is not very complex.
Section 51 Evidence of Suitability
A certificate purporting to be signed by the executive director of the New Zealand Law Society, or a person
authorised for the purpose, by name or office, by the Council of the New Zealand Law Society, and certifying that a
candidate is both a fit and proper person to be admitted as a barrister and solicitor of the High Court and a person
who meets the criteria prescribed by the rules made under section 54 is, in the absence of proof to the contrary,
sufficient evidence of those facts.
Need to produce evidence of suitability of character for admission need to get a certificate from the NZLS to
state you are a fit and proper person.
Necessary to get a certificate from the NZLS to be admitted to the High Court.
Procedure involved
1. First step is the application for admission through a branch of the NZLS. NZLS makes inquiries about
each individual applicant.
2. They will also contact the Dean of Law for the law school where the degree was acquired, and askes
the Dean to certify whether anything is known against the applicant. This is where a lot of student
applicants fall down badly if there is anything against you in a disciplinary way in the university world,
and Dean is unable to give a certificate in support. NB not the Deans decision to decline admission
the NZLS will determine what to do if there is something against you. Usually will conduct an interview
if this is the case.
3. Students on occasion will tick the wrong box and they say they have never been disciplined when they
have. Disciplinary matters can include something like being punished for littering in a lecture theatre or
eating in the library.
NZLS may not issue certificate following interview will then need to go before the national committee, which
may refuse admission. At this point it is still not all over as you can still apply to the High Court for Admission.
The procedure for this is under the Lawyers Admission Rules. Need to give notice to the NZLS that you are
proceeding with your application, allowing them to give notice to the High Court that they oppose admission.
This results in a defended hearing in Court where each side makes out their case regarding admission.
Section 52 Admission
1. A candidate seeking admission on the ground that he or she is qualified under section 49(2) or (3) must apply
to the High Court in accordance with this Act and with any rules made under this Act.
2. The High Court must make an order admitting the candidate as a barrister and solicitor of the High Court if
a) The High Court is satisfied that the candidate is qualified for admission under section 49(2) or (3); and
b) The candidate has taken the following oath: I, AB, swear that I will truly and honestly conduct myself in the
practice of a barrister and solicitor according to the best of my knowledge and ability.
3. A candidate seeking admission on the ground that he or she is qualified under section 49(4) must apply to the
High Court.
4. The High Court must make an order admitting the candidate as a barrister and solicitor of the High Court if the
High Court is satisfied that the candidate is qualified for admission under section 49(4).
5. Nothing in subsection (4) or section 49(4) limits the provisions of sections 20 to 28 of the Trans-Tasman Mutual
Recognition Act 1997.
Deals with Court application.
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Section 54 Rules of Court as to Admission

1. Rules, not inconsistent with this Act, may from time to time be made, in the manner prescribed by the
Judicature Act 1908, in respect of the evidence of the qualifications, character, and fitness of candidates, and
generally in respect of any matter relating to the admission of candidates as barristers and solicitors of the High
Court.
2. Rues made under this section may prescribe non-educational criteria to be met by candidates for admission as
barristers or as barristers and solicitors, which criteria may preclude the admission of a person who has, at any
time, been convicted of an offence of a kind or class specified in rules made under this section or who has, at
any time, been declared bankrupt.
3. Nothing in subsection (2) limits the generality of subsection (1).
Rules give the procedure that you must follow in order to effect your admission.
Admission involves an application to the High Court, and when youre admitted you are admitted by order of this
Court.
Section 55 Fit and Proper Person
1. For the purpose of determining whether or not a person is a fit and proper person to be admitted as a barrister
and solicitor of the High Court, the High Court or the New Zealand Law Society may take into account any
matters it considers relevant and, in particular, may take into account any of the following matters:
a) Whether the person is of good character;
b) Whether the person has, at any time, been declared bankrupt or been a director of a company that has
been put into receivership or liquidation;
c) Whether the person has been convicted of an offence in New Zealand or a foreign country; and, if so, i.
The nature of the offence; and
ii.
The time that has elapsed since the offence was committed; and
iii.
The persons age when the offence was committed.
d) Whether the person has engaged in legal practice in New Zealand when not admitted under this Act or a
corresponding law, or not holding an appropriate New Zealand practicing certificate, as required by law;
e) Whether the person has practices law in a foreign country
i.
When not permitted by or under the law of that country to do so; or
ii.
If permitted to do so, in contravention of a condition of the permission.
f) Whether the person is subject to
i.
An unresolved complaint under a corresponding foreign law; or
ii.
A current investigation, charge, or order by a regulatory or disciplinary body for persons engaging in
legal practice under a corresponding foreign law.
g) Whether the person
i.
Is a subject of current disciplinary action in another profession or occupation in New Zealand or a
foreign country; or
ii.
Has been the subject of disciplinary action of that kind that has involved a finding of guilty, however
expressed.
h) Whether the persons name has been removed from a foreign roll, and that persons name has not been
restored;
i) Whether the persons right of practice as a lawyer has been cancelled or suspended in a foreign country;
j) Whether the person has contravened, in New Zealand or a foreign country, a law about trust money or a
trust account;
k) Whether the person is subject to an order under this Act or a corresponding law disqualifying the person
from being employed by, or a partner of, a lawyer in an incorporated law firm;
l) Whether, because of a mental or physical condition, the person is unable to perform the functions required
for the practice of law.
2. The High Court or the New Zealand Law Society may determine that a person is a fit and proper person to be
admitted as a barrister and solicitor even though the person
a) Is within any of the categories mentioned in any of the paragraphs of subsection (1); or
b) Does not satisfy all of the criteria prescribed by the rules made under section 54.
3. Subsection (1) does not limit
a) The grounds on which it may be determined that a candidate is not a fit and proper person for admission as
a barrister and solicitor; or
53

b) The criteria that may be prescribed by rules made under section 54.
The High Court or NZLS (criteria are same for both) may take into account any matters it considers relevant
lists a series of relevant matters.
Note conviction of a criminal offence. Criminal Records (Clean Slate) Act 2004 If a candidate has a criminal
conviction that comes within the terms of the Act, the candidate is not required to disclose information about it
which is protected by the Act. NB good idea to look at this statute fundamental underpinning is if you are
convicted of certain offences and 7 years after your conviction without reoffending, you get a clean slate, and
it is as if you had never had a conviction.
NZLS respects the terms of the Clean Slate Act do not need to disclose in application for admission.

Re Owen [2005] 2 NZLR 536

O graduated with an LLB degree in his thirties after putting his troubled youth behind him and studying law at
Otago University.
Earlier in life he had been convicted of numerous offences, some of a minor nature. These included:
o Two burglary convictions at ages 25 and 27.
o Wilfully setting fire to property in 1990, however this case was reopened in 2000 and he was acquitted.
o Possession and cultivation of cannabis at 27.
o A number of driving convictions, including driving while disqualified.
No longer abused drugs or alcohol, and worked as an employment advocate after graduation, as well as a
researcher for health organisations.
Canterbury District Law Society refused to supply certificate of good character in accordance with R6 of the
Law Practitioners Admission Rules 1987 matter went to Court, which had to decide whether O was of good
character and a fit and proper person to be admitted as a barrister and solicitor of the Court.
Court held there are four features which are relevant to the assessment as to whether someone is a fit and
proper person to be admitted as a barrister and solicitor:
1. The focus is necessarily forward looking. The function of the Court is not to punish the applicant for past
conduct.
2. The onus on a person who has erred in a professional sense following admission to a legal profession is a
heavier one than that upon a candidate for admission.
3. Due recognition must be given to the circumstances of youth where errors of conduct occurred when the
applicant was immature.
4. It is important to look at the facts of the case in the round and not just pay regard to the fact of a previous
conviction or convictions.
[8] Overall the authorities emphasise that the Court must be satisfied objectively that the candidate is of good
character and a fit and proper person to be admitted.
[10] Court refers to Re Lundon [1926] NZLR 656.658:
o The relations between a solicitor and his client are so close and confidential, and the influence required
over the client is so great, and so open to abuse, that the Court ought to be satisfied that the person
applying for admission is possessed of such integrity and moral rectitude of character that he may be safely
accredited by the Court to the public to be entrusted with their business and private affairs.
o Old case, but this matter of law is frequently referred to today in cases regarding character of an applicant
for admission. Importance of consumer protection highlighted protecting the public from someone who is
potentially untrustworthy.
Further case referred to Bolton v Law Society [1994] 2 All ER 486:
o [11] Per Sir Thomas Bingham MR at [492] The standards are to maintain the reputation of the
profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.
o Very high responsibility to the ends of the earth.
[29 30] Court is satisfied that the applicant is a reformed character. To our mind, the central issue before us
is whether admitting Mr Owen to the status of barrister and solicitor of the High Court would undermine the
collective reputation of the legal profession and the necessary public confidence in it, that the Courts must
strive to maintain.
54

[35] In the present case, the question becomes whether the frailty or defect of character indicated by the 1986
and 1989 convictions can now be regarded as entirely spent. Put another way, has Mr Owen achieved such a
complete turnaround, or reformation that the convictions entered during his early adulthood can be safely
ignored? This, we find, is a particularly anxious inquiry to have to make.
[38] But the more difficult question is whether the public generally and members of the profession would share
the view that Mr Owen is now a person of such integrity, probity and trustworthiness as to be fit to be admitted
as a barrister and solicitor. Faced with evidence of his criminal record alone the answer would undoubtedly be
No. But with the benefits which we enjoy, in having before us the positive evidence of recent years and with the
advantage o hearing Mr Owen being cross-examined by experienced counsel, we are satisfied that both the
public and responsible members of the profession would, if similarly placed, share our view that Mr Owen is a
suitable candidate for admission.
The Court concludes that on the evidence, they are convinced Mr Owen has had a complete turnaround and is
a person who can be safely admitted to the profession.

Pou v Waikato/Bay of Plenty District Law Society [2004] (unreported), High Court
Rotorua, CIV 2004-463-511, 10 May 2005

Per Baragwanath and Courtney JJ.

P was declined a certificate of good character by the President of the Waikato Bay of Plenty District Law
Society. Applied to the Court for a certificate, who found that he was of good character and a fit and proper
person to be admitted as a barrister and solicitor of the Court.
Very different to O situation applicant as a student had charged his own computer use to his supervisors
account when he should have paid for it himself. Also used the account to look at adult material (however this
latter point disregarded by the Court focused more on the dishonesty).
He had been fined $300 and ordered to pay the amount owing on the supervisors account. He proceeded to
work for a firm of solicitors after graduation, who were aware of this incident. However he did not inform the
District Law Society about this disciplinary matter. They found out about the past offending when they
approached the Dean of his law school.
When Pou was challenged about this in Court, he stated he had forgotten about it when applying and did not
intend to mislead the District Law Society.
Same quotation from Bolton quote mentioned in Owen. L v Canterbury District Law Society [1999] 1 NZLR 467,
474 also referred to the [applicant] must establish affirmatively that he is a person of unquestionable
integrity, probity and trustworthiness and that since the [offending] he has so far amended his ways and
character that he is now a fit and proper person to practice on his own account.
[42] A legal practitioner is accorded great privileges not in any personal right, but on behalf of the members
of the community in need of legal advice and assistance with great privilege comes great responsibility. A
solicitor with access to trust account funds of clients and responsibility for ensuring that discovery obligations
are complied with; the barrister who must make candid disclosure to the Court of authority running counter to
the clients interests; the practitioner owing a single minded duty of fidelity to an unpopular client and to stand
up to one who is dishonest: each must have the moral courage and integrity without which public confidence in
the profession will collapse.
Interesting judgment decides that Pou is suitable to be admitted. The Court accepts that the failure to disclose
the incident was an oversight and not deliberate suppression based on numerous character testimonials of Pou
received.

Gibbs v New Zealand Law Society [2014] NZHC 1141

Police officer who completed an LLB.

In 2007, she had accessed the NZ Police Database to check on the status of her former sister and law, and of
two people living at the address (one of who became the sister in laws partner). Although she was breaking the
rules about accessing this information, her motivation was a good one. [5] after Miss Gibbs obtained
55

primary care of his child in April 2010 and the sister in law was arrested in May 2010 for meth manufacture/use,
Miss Gibbs continued to access the database to inform herself about the proceedings against the sister/partner.
Subject to police inquiry and found culpable of police misconduct. Was demoted from sergeant to constable at
her own request. Then left the police to be admitted as lawyer.
[35] NZLS contends that she may misuse, for personal advantage, privileged information related to her
clients. She had been in a position of trust in the police force and used this position for her own purposes.
G had considerable support from the NZ Police those she had worked with supported her application for
admission, and she had been entirely frank. NZLS had not been misled, and as a result the Court decided that
she was a suitable person for admission.

Singh v Auckland District Law Society [2002] 3 NZLR 392 (HC)

S was a lawyer in India had NZ citizenship. However initially did not practice law, and instead set up an
immigration advocacy practice. Appeared regularly to appear as an advocate before the Refugee Status
Appeals Authority.
ADLS opposed his application for admission, related to his conduct before the Refugee Status Appeals
Authority. Argued that it was clear that S was actively engaged in the creation of false claims, and false
evidence to support them. Provided templated evidence constructed templated documents for individuals
seeking residency. This was recognised by members of the Authority and it was on this basis that they were
concerned and informed the Auckland District Law Society, who opposed his admission.
Harrison J refers to Re B [1981] 2 NSWR 372 (CA):
o [The] duty [of a barrister and solicitor] to his client is tempered and indeed overridden by his public duty to
uphold the law and neither break the law himself nor participate or encourage its breach and in other wellknown ways to conduct himself in a manner which will serve the proper and fair administration of the law.
High Court found he was not of proper character and his application for admission was declined he was
deemed too untrustworthy. Example of a practitioner who did not succeed in High Court.

Ali (Roble) v New Zealand Law Society [2014] NZHC 1111

NZLS reason for opposition was there were a number of incidents of plagiarism through his studies both at
University and when doing Profs. Continued to plagiarise despite formal written warnings and penalties failed
to take responsibility for his actions, and gave dishonest answers when questioned about the incidents.
s55 of the Lawyers and Conveyancers Act wording the society may take into account any matters it
considers relevant. NZLS in this case proceeded on this basis did not fit into any of the s55(1) categories.
Judgment refers to the case Re M [2005]:
o [20] States this case to be helpful due to reference to four features which are relied upon in the
assessment as to whether a person is a fit and proper person for admission: (1) The focus is necessarily
forward-looking. The function of the Court is not to punish the applicant for past conduct, (2) The onus on a
person who has erred in a professional sense following admission to a legal profession is a heavier one
than that upon a candidate for admission, (3) Due recognition must be given to the circumstances of youth
where errors of conduct occurred when the applicant was immature, (4) It is important to look at the facts of
the case in the round and not just pay regard to the fact of a previous conviction or convictions.
o 3rd point interesting. If someone is struck off, this is generally because you are considered a person no
longer fit to practice law. Striking off and application are two different things, even though things that
prevent someone being admitted are generally the same sort of things someone would be struck off for
Courts recognise that youthful folly does occur, and where it has occurred there needs to be some
generosity.
o This reference to Re M is significant.
Judge stated he had no independent verification that the applicant would not, in the future, fall into dishonest
practices or be trusted to cope with the pressures of the kind of work he would carry out as a lawyer should he
be admitted. On this basis, he was declined admission.

56

Sun v New Zealand Law Society [2014] NZHC 1318

Case where Sun, in his dealings with the NZLS with regards to his admission, was not very efficient.
[5] During the interview (which was held because of his delays), the officers asked him about the attributes he
deemed necessary for admission to the bar. Officers were of the belief he had a limited understanding of what
would be necessary to be fit and proper to practice law, particularly with respect to honesty and trust. Concern
of lack of research and understanding of the importance of timeframes, and the impact this might have on
future clients. No appreciation or understanding that he would need to take responsibility for implementing
processes.
[9] Branch and committee seemed to think S had an attitude problem.
However the conclusion they reached was that he was a fit and proper person to be admitted. Refers to the
general discretion under s65 (any other matters it considers relevant). Indication of how unusual the facts of this
case are.

Summary Admission as a Barrister and Solicitor

Cases show the importance of being as honest and scrupulous as possible when filling in forms.

1.3.3. Fees
Rules Chapter 9 Conduct and Client Care Rules
9 A lawyer must not charge a client more than a fee that is fair and reasonable for the services provided, having
regard to the interests of both client and lawyer and having regard also to the factors set out in rule 9.1.
9.1. Reasonable Fee Factors The factors to be taken into account in determining the reasonableness of a fee in
respect of any service provided by a lawyer to a client include the following:
(a) The time and labour expended;
(b) The skill, specialised knowledge, and responsibility required to perform the services properly;
(c) The importance of the matter to the client and the results achieved;
(d) The urgency and circumstances in which the matter is undertaken and any time limitations imposed,
including those imposed by the client;
(e) The degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any
property involved;
(f) The complexity of the matter and the difficulty or novelty of the questions involved;
(g) The experience, reputation, and ability of the lawyer;
(h) The possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by
other clients;
(i) Whether the fee is fixed or conditional (whether in litigation or otherwise);
(j) Any quote or estimate of fees given by the lawyer;
(k) Any fee agreement (including a conditional fee agreement) entered into between the lawyer and client;
(l) The reasonable costs of running a practice;
(m) The fee customarily charged in the market and locality for similar legal services.
Key words fair and reasonable fees must be charged. Must not be more than this.
Fair and reasonable is considered regarding the interests of both client and lawyer, as well as regard to the
factors in Rule 9.1.
Whole range of factors, including time, labour and skill, which need to be looked at under rule 9.1 which will
inform what is fair and reasonable to both lawyer and client.
Rule 9.4 on request, a lawyer must provide an estimate of fees, and inform the client when it becomes
apparent to the lawyer that this estimate is likely to be exceeded.
o Fee Information and Advice a lawyer must upon request provide an estimate of fees and inform the client
promptly if it becomes apparent that the fee estimate is likely to be exceeded.
Rule 3.4 a lawyer must provide a client with information in writing in advance concerning the principal aspects
of client service this includes the basis on which the fees will be charged (termed a client engagement letter).
57

Also needs to set out when payment has to be made, and when the lawyer may deduct fees the lawyer is
holding in hand for a trust account.
Misconduct if you fail to give a client an engagement letter, you are at risk of being convicted of misconduct.
Also bear in mind section 7(1)(a)(iv) of the LCA. Can lead to a prosecution for misconduct.
o S7(a)(iv) In this Act, misconduct, in relation to a lawyer or an incorporated law firm, means conduct of the
lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services
and is conduct that consists of the charging of grossly excessive costs for legal work carried out by the
lawyer or incorporated law firm.
o Recall charges against Barry Hart one of these charges was excessive overcharging.
o So this section is important in this regard.
Rule 9.8 Conditional Fee Agreements A lawyer may enter into a conditional fee agreement with a client only
in the circumstances and in accordance with the requirements set out in sections 333-335 of the Act and in
these rules.
9.9 and 9.10 various restrictions involved in this form of charging.
o Rule 9.9 Where a lawyer enters into the conditional fee agreement with a client, the lawyer must ensure
that:
(a) Before entering into the conditional fee agreement, the lawyer has informed the client of any other
appropriate arrangements that may be available, including, where relevant, the possibility of legal aid; and
(b) The total fee charged at the conclusion of the matter is fair and reasonable in accordance with rule 9.
o Rule 9.10 A conditional fee agreement (including an amendment or variation to a conditional fee
agreement) must be in writing and must provide
a) The method by which the fee is to be determined; and
b) The condition or conditions that will amount to success and upon the occurrence of which the fees or
any part of them will become payable; and
c) Whether there are any fees or expenses for which the client will be liable whether or not the client
succeeds; and
d) The basis upon which either party may terminate the agreement and what the liability for fees on
termination will be; and
e) The method by which the fee is to be determined in the event that an offer of settlement of compromise
is made in respect of the matter which the client declines to accept against the advice of the lawyer;
and
f) The circumstances in which the client may be liable to pay the costs of any other party to the
proceedings; and
g) That the client may give notice cancelling the conditional fee agreement within 5 working days after it
has been entered into by the client on the basis that the lawyer may charge a normal fee for any work
done during that period.
9.11 Conditional Fee Agreement Upon conclusion of a matter that is the subject of a conditional fee charge,
the lawyer must provide the client with an account that discloses the normal fee and also the premium.
9.12 Conditional Fee Agreement Rule 9.11 applies whether the conditional fee is charged in terms of a
conditional fee agreement (as defined by section 333 of the Act) or under an agreement that is not a conditional
fee agreement as so defined. In the latter case, the expression normal fee and premium have corresponding
meanings to those set out in s333 of the Act.
o Where you do charge a conditional fee, must disclose to the client what the normal fee will be on
conclusion of the matter. Even where charging a conditional fee, the fee must meet the fair and reasonable
test.
Under the Lawyers and Conveyancers Act, you are not permitted to make provision of a conditional fee based
solely on a fixed percentage. Recent case involving Meyrick where this occurred.
o LawTalk 9 October 2013 Meyrick - Found guilty of unsatisfactory conduct because he simply charged on
a percentage basis. Was disciplined accordingly.

Lawyers and Conveyancers Act s333(d)

Section 333 Definitions
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(d) Premium, in relation to a conditional fee agreement, means remuneration that a lawyer may become entitled to
under the agreement in addition to a normal fee, being remuneration by way of premium that is not calculated as a
proportion of the amount recovered.
Concerns the no win, no fee situation.
Ss333-335 clear set of rules governing conditional fee agreements. These must be complied with strictly.
One thing you are not allowed to do under this section is to charge a fee which is calculated as a proportion of
the amount recovered charging a percentage is prohibited.

Section 334 Conditional Fee Agreements

1. A conditional fee agreement is not an illegal contract or an unenforceable contract by reason only of the fact
that the remuneration the lawyer may receive under it is dependent on the outcome of the matter to which the
remuneration relates if
a) That remuneration is either
i.
A normal fee; or
ii.
A normal fee plus a premium; and
b) The application of this section is not excluded by section 335; and
c) The agreement complies with such requirements (if any) as are prescribed by the practice rules.
2. If a conditional fee agreement is, by virtue of subsection (1), not an illegal contract or an unenforceable
contract, a lawyer does not by entering into that agreement make himself liable to proceedings founded on the
tort of maintenance or the tort of champerty.

Section 335 Exclusions

Section 334 does not apply to any conditional fee agreement that relates to
a) Criminal proceedings; or
b) Proceedings under the Immigration Act 2009; or
c) Review proceedings in respect of a statutory power of a decision arising out of or under the Immigration Act
2009; or
d) Proceedings in respect of which a Family Court has jurisdiction; or
e) Appeals from, or applications for judicial review made in relation to, decisions made in any of the proceedings
described in paragraphs (a) to (d).
Certain exclusions parliament recognises there are situations where it is inappropriate to charge a
contingency fee of the client.
This is where dealing in criminal proceedings, proceedings under the Immigration Act 2009, proceedings in
regard to Family Court matters, and Appeals/Applications for judicial review of any of those matters.

2. Ethics in Practice
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2.1. Conflicts of Interest

Introduction to Conflicts of Interest

NZ Law Dictionary defines conflict of interest as: A situation where a person has a personal interest or
divided loyalties in a matter that is the subject of a decision or duty of that person.
Conflicts can arise in a range of situations however they may be grouped into various categories.
1. Conflicts of interest between clients:
a) Conflicts between clients over their interests in the same matter.
b) Conflicts between clients over their interests in separate matters.
c) Conflicts between a current clients interests and those of a former clients.
2. Conflicts of interest between a client and their lawyer.

Conduct and Client Care Rules Chapters Regarding Conflict of Interest

Ch5 Independence.
Ch6 Client interests.
Ch7 Disclosure and communication of information to clients.
Ch8 Confidential Information.

Chapter 6 Conduct and Client Care Rules

Rule 6 In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the
interests of the client to the exclusion of the interests of other parties. This is the principle of partisanship.
Rationale for this above rule a lawyer owes a fiduciary duty of loyalty to a client.
General principle Moody v Cox and Hatt [1917] A solicitor may have a duty to one side and a duty to
another if he puts himself in that position it does not lie in his mouth to say to the client I have not discharged
that which the law says is my duty towards you, my client, because I owe a duty to the other side.
o In a conflict of interest situation, you owe duties to two people, and those duties will be in conflict.

Hilton v Barker Booth and Eastwood [2005] 1 WLR 567

UK case House of Lords.

Solicitor acted for both a property developer and a person who wished to purchase the developed property.
Difficulties arose over the transaction upshot was the developer lost his money, and additionally wife left him
due to this.
Conflicts point arises in that the lawyer acting for both sides did not disclose to the developer that the purchaser
had at one stage been declared bankrupt, that he was a person who had been convicted of offences of
dishonesty, and had been imprisoned following those convictions.
o In NZ terms, this is a conflict between the duty of disclosure (rules under chapter 7 of the Conduct and
Client Care Rules) and the conflict with the duty to observe confidentiality under chapter 8 of the Rules. Put
the solicitor in a conflict situation under chapter 6.
House of Lords rejected the argument that those inconsistent duties implied a term into the contract of retainer
that the confidentiality would not be breached.
Lord Scott of Foscote at [570]: The solicitors had put themselves in a position in which they owed to their two
clients, [the purchaser] on the one hand and the [developer] on the other, contractual duties that were
inconsistent with one another.
Ch7 a lawyer must promptly disclose to a client all information the lawyer has in respect of the matter to which
the lawyer is engaged to the client.
Ch8 lawyer has duty to hold in strict confidence all information related to the client acquired in relation to the
professional relationship. Direct conflict between this and the above rule in NZ House of Lords held that the
solicitor was bound by both. Solicitors had duty to disclose to the developer client all the information the solicitor
60

held that was relevant to the affairs being dealt with. These were duties which were inconsistent with one
another.
Solicitors were in breach of their obligation to the client, and were therefore in a position to be disciplined.
Impossible situation for themselves which would be to the detriment to both clients.

Starting Point
Chapter 6.
Rule 6.1. A lawyer must not act for more than one client on a matter in any circumstances where there is a
more than negligible risk that the lawyer may be able to discharge the obligations owed to one or more of the
clients.
o From the wording of 6.1, a conflict does not automatically arise simply because the same lawyer is acting
for both parties. There must be divergent interests involved.
Back to the precise wording of 6.1 when might there be a more than negligible risk of conflict?
o There is going to be a more than negligible risk when you cannot discharge your duty of loyalty to one client
because in doing so, you might breach your duty of confidentiality to the other client.
o Problem of complexity with the relationship under chapters 7 and 8 leading immediately to problem under
chapter 6.
Rule 7 A lawyer must promptly disclose to a client all information that the lawyer has or acquires that is
relevant to the matter in respect of which the lawyer is engaged by the client.
o Footnote to rule 7 the fiduciary must, in dealing with the obligation, reveal fully all circumstances that
might affect their affairs, and is this under a duty of disclosure not imposed on others. For whatever
reasons, the solicitors still are obliged to disclose the letter no matter what the consequences direct
references to Hilton case.
o Keep in mind rule 8 when looking at rule 7.
Rule 8 A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the
retainer, and the clients business and affairs acquired in the course of the professional relationship.
Obvious problem arising between Chapters 7 and 8. How do you deal with this?
o Number of potential solutions.
o Do not act for more than one party in any one matter however this is easier said than done.
o If you are acting for more than one party, you have the problem that there is a duty to disclose.
o You can decline to act for both parties. Can inform them that the reason for this is the conflict.
o Taylor v Schofield Peterson outcome.

Taylor v Schofield Peterson [1999] 3 NZLR 434

Requirements for solicitor to act in a conflict situation.

1. Recognise there is a conflict of interest, or a real possibility of one.
2. Explain to the clients that there is such a conflict.
3. Explain to the clients the ramifications of that conflict. Hammond J refers to the lawyer being in the position
of only being able to give hobbled advice because there is a conflict, the lawyer is acting under a
disability due to owing conflicting duties.
4. Ensure the client has a proper appreciation of the conflict.
5. Obtain the informed consent of the client.

Conflict of Interest (continued)

Three types of situation where you can have a conflict, because clients have an interest in the same matter:
1. Where the clients have the same interest in the same matter, there is no conflict.
2. Where clients have opposing interests there is actual conflict.
3. Where clients generally have the same interests but there is a potential for their interests for diverge
potential conflict.
Where there is actual or potential conflict, the rules provide that informed consent may allow a lawyer to
continue to act:
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Rule 6.1. A lawyer must not act for more than one client on a matter in any circumstances where there is
a more than negligible risk that the lawyer may be unable to discharge the obligations owed to one or more
of the clients.
o Rule 6.1.1. Subject to rule 6.1, a lawyer may act for more than one party in respect of the same
transaction or matter where the prior informed consent of all parties concerned is obtained.
Rule 1.2. Informed consent means consent given by the client after the matter in respect of which the consent
is sought and the material risks of and alternatives to the proposed course of action have been explained to the
client and the lawyer believes, on reasonable grounds, that the client understands the issues involved.
Common for there to be situations where even with informed consent, it is impossible for a lawyer to act at all.
The important thing is to recognise when you are confronted with this situation.
o

Clark Boyce v Mouat [1993] 3 NZLR 641 (PC)

Privy Council.
Involved M (72 year old widow) mortgaged home for sons benefit (to raise money for him to use). Son
guaranteed the loan.
Sons task to make the mortgage payments was unable to do so.
No benefit in this at all for M was purely to assist her son.
CB acted for both parties. CB told M that she should seek independent advice, however she was adamant she
wanted CB to act.
CB uncomfortable about this got M to sign a written document acknowledging the advice he had given her
and recording his consent for her to act for both parties.
CB did not tell M that her son had already been to a number of other solicitors who had refused to act. Also did
not tell her that he had no info about the sons ability to service the mortgage. Son was unable to do so
obligation fell on M to pay off the debt to preserve the home (lenders were chasing her).
M sued CB for negligence in tort, breach of duty of care in contract, and breach of fiduciary relationship in
equity.
Question of whether CB should have acted for her in the circumstances where they were also acting for the
son. Duty of confidentiality, but also duty of disclosure = clashing duties.
Claim unsuccessful in High Court this was reversed by the Court of Appeal. Then appealed to PC, which
reversed the decision of CA and restored the initial HC decision.
There is a duty to avoid a conflict of interest, and this duty is for the benefit of the client the client may waive
this benefit.
Court found that the duty of loyalty and the corresponding obligation to avoid a conflict of interest is not only the
duty of the lawyer, but a right of the client. As such, the client can surrender that right.
Also found that it was not incumbent on the lawyer that a client be represented by an independent lawyer where
a client has refused this right.
CB had done everything he could to alert the woman to the dangers, and had advised her to get someone else
to act for her she refused to do so.
Points to note here:
o Concept of consent extremely important in this case. Court of Appeal decision (1991) found that the
consent did not relieve the lawyer of their duty of loyalty. Found the conflict was so great that it was
impossible to act adequately for both clients, and the Court referred to Farrington v Rowe McBride and
Partners [1985] There will be some circumstances in which it is impossible notwithstanding such
disclosure. (per Randerson J) PC unclear on this matter it seems to limit this to situations where the
retainer could not be carried out without disclosing information from one party which was detrimental to the
interests of the other. Limits the scope for where you can say it is impossible to act for situations were the
retainer could not be carried out without disclosing information to one party which was detrimental to the
other. PC found B had acted adequately - one might well ask what more he could reasonably have done?
o Nature of the retainer itself highly relevant. PC held that on the facts of the case, the lawyer was only
required to carry out the conveyancing and explain the legal implications to M. Could not have told M that
the transaction was unwise because he was acting for the son as well example of the conflict between
rules 7 and 8.
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Criticisms of the Clark Boyce Decision (Webb)

The PCs approach to consent in this case is not appropriate for unsophisticated clients. PC had taken the view
that the solicitor had advised the client of the problems of him acting, had suggested that he shouldnt act and
that she should seek other representation. Therefore nothing further he could do, and the woman was provided
with a choice and should live with the consequences.
o Webb this might be ok in a commercial/corporate situation however is this appropriate in the case of a
70 year old widow without legal training, high expectation of what a layperson can understand and be
expected to do.
In this case, CB made up his own mind as to what he could and could not do and reveal. Webb it is not really
for the lawyer to make this decision, it is for the client to be informed that there is a problem and outline what
this means, with the client then making the decision as to whether or not they can proceed.
Issue where there are some cases where it is impossible for a lawyer to act, despite informed consent being
given. Webbs criticism is that the PC acknowledges this, but is vague in about what the circumstances are
where this applies. This is an important matter which needs to be clear for all practitioners.
Webb has one note of praise the real point of all of this is that parties to a dispute where there is a conflict of
interest should always have separate independent lawyers. Reaches this conclusion and encourages this POV.

Rule 6.1 Further Example of Breach

Breach Acting for both parties is not appropriate when their interests differ.
Example cited in LawTalk 841 09/05/2014:
o S a solicitor whose firm acted for the wife in separation proceedings. One of the transactions in the
separation involved a conveyance of a new property to the wife, but the bank as mortgagee required
participation of the husband as a guarantor as a condition of providing finance. S proceeded to act for both
parties (husband and wife) in this transaction. Only part involving the husband was the guarantee of the
mortgage.
o Lawyer knew full well that the husband already had a firm of solicitors acting for him made no contact with
them at all.
o Law Standards Committee found this had breached the Rules of Conduct and Client Care, and censured
S as a result.
o During conveyancing transactions, you need to make numerous disclosures to the person acting as
guarantor.
o Over time, the husband made a complaint to the NZLS stating that when he met with the lawyer and his
former wife, he had signed a range of papers affecting his interest and he had not been given adequate
advice, and it had not been suggested to him by the lawyer that he should seek independent advice.
o Recall rule 6.1: a lawyer must not act for more than one client on a matter where there is more than a
negligible risk that the lawyer may be unable to discharge the obligations to one or more of the clients.
o S cited the exception in rule 6.1.1. and claimed he had received the husbands informed consent. This rule
provides that a lawyer may act for more than one party in respect of the same transaction where the prior
informed consent of all parties is obtained.
S said that he had advised the husband to obtain independent legal advice, but the husband said he
did not wish to do so. S did not, however, have a file note to this effect (or any other evidence), and the
husband could not recall this part of the discussion.
Nothing to support what the lawyer said in his own defence.
o S had clearly advised the wife of the risks to her in the arrangement.
o Standards Committee: The potential implications for [the husband] could have been to his detriment and
could not be protected satisfactorily by a practitioner who is obliged to act in the best interests of [the
husbands] former spouse. As a result, there was a more than negligible risk that S was unable to
discharge his obligations to one or both of the parties. Therefore there was a breach of rule 6.1.
o Furthermore, the husband did not have a proper understanding of the risks for him in the transaction so he
could not be seen as having given informed consent for S to act for him. The Standards Committee found
that S had breached rule 6.1 by acting where there were more than negligible risks for one or both parties.
63

Standards Committee accepted that having one firm act for both parties to a separation on resulting
conveyancing transactions can often be an efficient way to proceed, where the parties have a common
purpose. However that is on the basis that independent legal advice is obtained to ensure that each partys
interests are adequately protected, even where there is a common purpose. This was not the case here
no opportunity for the husband to take independent legal advice.
Also see chapter 10 of the rules (Professional Dealings).
Rule 10.2 a lawyer acting in a matter must not communicate directly with a person whom the lawyer
knows is represented by another lawyer in that matter except as authorised in this rule.
Subject to certain exceptions, when you know someone does have a lawyer acting for them, you may
not contact them directly and instead need to contact their lawyers.
Standards Committee censured the lawyer, and he needed to pay $1,000 costs.

Conflicts Arising after Instructions are Accepted

Cases we have dealt with so far have involved cases where there has been a conflict right from the outset.
These cases we are going to do now are situations where the conflict arises after you have commenced acting
for the client.
Rule 6 In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote
the interests of the client to the exclusion of the interests of third parties.
Rule 6.1. A lawyer must not act for more than one client on a matter in any circumstances where there is a
more than negligible risk that the lawyer may be unable to discharge the obligations owed to one or more of the
clients.
Rule 6.1.1. Subject to the above (6.1.), a lawyer may act for more than one party in respect o the same
transaction or matter where the prior informed consent of all parties concerned is obtained.
Rule 6.1.2. Despite rule 6.1.1. if a lawyer is actin for more than one client in respect of a matter and it
becomes apparent that the lawyer will no longer be able to discharge the obligations owed to all of the clients
for whom the lawyer acts, the lawyer must immediately inform each of the clients of this fact and terminate the
retainers with all of the clients.
Rule 6.1.3. Despite rule 6.1.2., a lawyer may continue to act for one client provided that the other clients
concerned, after receiving independent advice, give informed consent to the lawyer continuing to act for the
client, and no duties to the consenting clients have been breached.
Can you give the matter to someone else in your firm to deal with? See Rule 6.2:
o Rule 6.2: Rule 6.1 applies with any necessary modifications whenever lawyers who are members of the
same practice act for more than one party.
o Makes it clear that the same firm acting for more than one party makes all lawyers in the firm acting in a
conflict situation.
So if a conflict arises; you should:
1. Stop as soon as you are aware that a conflict has arisen and assess the situation.
o Frequently, in these cases regarding conflict we do we are not dealing with lawyers who are bad people
who do not perceive any conflict to begin with. This is when they need to stop and think about it.
2. Terminate the retainers with all the clients involved.
3. You may continue to act for one of the clients, but only if the others have received independent advice and
given informed consent.
o This is problematic in itself how are you going to choose one client over the other? May upset the
other client.
Where a conflict arises after instructions have been accepted, the requirements interposed on the lawyer with
the conflict are much greater than when the conflict is apparent on the outset. This is because the lawyer has
already acquired information concerning the clients interests. If the lawyer continues to act for one of them, this
may give the appearance one client is being advantaged over the other.
The safest course of action for the lawyer is to send all the clients to other lawyers if a conflict arises.
Rule 6.4. Conflicting Office. Situation where the lawyer is a member of a public authority.
o A lawyer must not act in any matter where, by virtue of membership of a public authority by the lawyer,
a member of the lawyers practice, or a member of the lawyers family,

64

a. A significant risk of a conflict exists; or

b. It may reasonably be concluded that the lawyer or his or her practice are able to make use of the
membership to the advantage of the client; or
c. The lawyers ability to advise the client properly and independently is compromised.
o Rule 1.2. Public authority means any tribunal, commission, panel, board, parliamentary committee, or
body, which in each case carries out a public function.
o Rationale for this is that justice must be seen to be done. If you act in breach of this rule, then there is the
risk of the appearance of bias.

Separate Matter Conflicts

Conflicts between clients over their interests in separate matters.

Chapter 7 A lawyer must properly disclose to a client all information that the lawyer has or acquires that is
relevant to the matter in respect of which the lawyer is engaged by the client.
Where the info you have about Client A is also relevant to your other Client B, look to Rule 7 you are required
to disclose that information to B while at the same time you are under a duty to A to keep it confidential. How
can these two duties (disclosure and confidentiality) be reconciled?
When dealing with clients in separate matters, there is a further dimension involved (as opposed to where you
are dealing with clients in the same matter). With separate matter conflicts, there is no relationship between the
clients at all.
Chapter 6 applies to conflicts of this kind the rules are the same as they are for Same Matter conflicts. Recap
the wording of Rule 6.1. clearly says a lawyer must not act for more than one client on a matter in any
circumstances where there is a more than negligible risk that the lawyer may be unable to discharge the
obligations owed to 1 or more clients.
Problem arises how to you communicate to your clients that a problem has arisen when you may not disclose
any information about this conflict due to the confidentiality obligation? It may be that the only way to avoid
breaching confidentiality is to simply say to the client: A conflict of interest has arisen that means I can no
longer act for you in this matter.

Conflicts between a Current Clients Interests and Those of a Former Client

Rule 8.7. A lawyer must not use information that is confidential to a client (including a former client) for the
benefit of any other person or of the lawyer.
o This tells us that you cannot act against a former client in any way where the knowledge that you have
about their affairs will hurt them.
Rule 8.7.1. A lawyer must not act for a client against a former client of the lawyer or of any other member of
the lawyers practice where
a. The practice or a lawyer in the practice holds information confidential to the former client; and
b. Disclosure of the confidential information would be likely to affect the interests of the former client
adversely; and
c. There is a more than negligible risk of disclosure of the confidential information; and
d. The fiduciary obligation owed to the former client would be undermined (duty of loyalty).
Again conflict between duty of confidentiality and duty of disclosure. However there is a difference:
o With former clients the obligation is only to protect existing confidential information; there is no on-going
obligation with regard to new information.
In a practical sense, this means that a current client is able to give you informed consent not to disclose
everything too, because youve been involved with a former client.
The difficulty which arises is what then happens if the former client comes back to you to act for them again?
Cannot disclose matters to this client information you have obtained from the second client you acted for. Does
this mean that the advice you are going to give them hobbled as you cannot be full and frank? This is
something the client will need to be informed of and figure out for themselves.

65

Otago Standards Committee v Saunderson-Warner [2013] NZLCDT 24

Decision of the Disciplinary Tribunal.

Case involved a practitioner who was charged with cancelling a retainer without good cause, but also involves
conflicts of interest.
A acted for B, and A was a solicitor who was employed by Saunderson Warner. A was engaged in trying to
enforce a judgment debt against C.
A, on behalf of B, applied for a distress warrant. In this case, the judgement debtor owned a very distinctive
motor car something that could be seized and realised to pay off the debt.
One day to As surprised, she noticed this vehicle in her firms car park. She was informed that the owner of it,
C, was actually consulting with SW. A spoke to SW after this, and she was directed to tell their B that the firm
would no longer act for him.
B laid a complaint with the NZLS.
Clear conflict of interest here, because the opportunity of seizing the vehicle was lost because in effect, SW
had decided to drop B in favour of C.
Disciplinary Tribunal found there was a conflict of interest, and the proper resolution would have been to
disclose the conflict to both clients and invite both of them to go away and seek separate representation.
Initially SW faced two counts of misconduct over this found not guilty on one, the other was reduced to a
lesser charge of unsatisfactory conduct. The result of this was that A was sanctioned needed to give a written
apology, pay the amount of the judgment debt, and had costs of nearly $11,000 against her. Very extensive
exercise for her.

LawTalk 840, 28 April 2014

Lawyer (D) acted for a client (A).

This case involved As daughter who alleged that A had assaulted her. At the same time, D was acting for B,
and B is before the Courts on charges involving sexual offences against As daughter.
Therefore the link between the two cases is the daughter.
A did not know that D was acting for B and only found out by chance when he saw D appear in Court for B on
the sentencing.
A complained to the NZLS alleging a conflict of interests. D told the Standards Committee that she believed that
A knew she was acting for B, but she was unable to produce a file note to support this.
A continued to deny that he knew about this.
Standards Committee held this was a clear conflict of interest breaches of Rule 6 and 6.1.
D tried to argue that her role was restricted with dealing with Bs sentencing, but evidence showed that she had
been instructed to act for B before he even entered a plea, and had dealt with various preliminary matters
before a plea had been made.
Penalty D was censured, fined $500, directed to make an apology, directed to refund As fees to him. She was
directed to attend the next ethics course dealing with conflict of interest issues.

Russell McVeagh McKenzie Bartleet & Co v Tower Corp [1998] 3 NZLR 641 (CA)

Wellington office was giving advice of Tower Corporation concerning a $40million tax dispute with IRD.
In 1996, company named GPG approached RMVs Auckland office seeking to have them act in a takeover in
Tower (which was a hostile one) one that Tower would not want and did not know was going to occur.
Immediate potential conflict of interest.
Auckland partner involved spoke to the Wellington partner, who advised that his function was specialised and
in a narrow capacity. No reason why RMV should not act for GPG.
RMV was in a difficult position could not consult Tower as GPG did not want Tower to know what it was
proposing to do.
RMV accepted GPGs instructions.
The tax dispute was resolved in April 1997. GPG presented its takeover proposals to Tower in September 1997.
It was then that Tower discovered RMVs involvement.
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Tower immediately objected to RMV acting for GPG, and in response to this RMV instituted formal internal
arrangements to ensure that no information passed from the tax team to the team advising GPG on the
takeover.
Tower then took the matter to the High Court claiming that RMV had access to information that was valuable to
GPG, including knowledge of its management culture and method of operation.
High Court found no information had ben disclosed, but disqualified RMV from acting for GPG. RMV appealed.
Basis of the claim was the existence of current retainers of parties with conflicting interests.
The Court of Appeal decided that this was no longer the case the tax matter had been dealt with and
concluded. The basis of the conflict had disappeared.
The Courts intervention must be for the reasonable protection of confidential information. In determining this
protection of confidential information, there are three questions:
1. Whether confidential information is held which if disclosed is likely to affect the concerned (former) clients
interests adversely.
2. The second is whether in the particular factual circumstances, viewed objectively, there is a real and
appreciable risk that the confidential information will be disclosed.
3. The third, which arises if the first two questions are answered affirmatively, is whether recognising the
significance and importance of the special fiduciary relationship which gives rise to the duty of protection,
the Courts discretionary power to disqualify should be exercised.
In answering these questions, the CA decided this was a case where there was no need to restrain RMV.
CA considers the likelihood of confidential information being disclosed held there was no real risk of
disclosure.
Webb has criticised this decision:
o Partner of RMB who decided that the two matters were so separate as not to create conflict, rather than the
client who was affected. In principle this is wrong.
o Also, it is arguable that a firm should never act both for and against a client without consent, no matter how
separate the matters are. It is the whole firm owing the duty to the client, not individual practitioners.
o When in doubt, a firm should always consult its clients it is the interests of the client that are being
protected.
o However the judgment does show that in an appropriate case where there is a breach of confidentiality,
then it would be appropriate to restrain a practitioner from acting.

Torchlight Fund No 1 LP (in receivership) v NZ Credit Fund (GP) 1 Ltd [2014] NZHC 2552

Judgment delivered by Gilbert J.

Case involving Buddle Findlay, who had acted for a client K and for his related entities over a period of 14
years.
This ended in 2012.
K was a major client of BF they had fees over the years totalling $10million. Over the time of the relationship,
K worked with numerous lawyers of BF, and BF gained an intimate knowledge of K personally, his business
activities, his assets and their location, and how K actually operated.
The solicitor-client relationship with BF ended in 2012 because a particular partner with whom K worked with
closely left the firm.
Situation here where BF accepted instructions to act against Ks interests, to which he objected. K applied for
an order to restrain BF from acting against him.
BF responded such an order would be contrary to the interests of justice because it would deprive the
applicant of a choice of lawyers. Also there was no risk of justice not being done because they had acted for K
in the past. Finally, BF claimed that it did not possess any confidential information that might be relevant to the
issues in the proceedings.
Where to courts get the power to restrain a lawyer from acting for a client? In this case, this question was
looked at in detail. Black v Taylor [1993] 3 NZLR 403 (CA) this case confirms that the Court has an inherent
jurisdiction to disqualify a lawyer from acting against a former client. Richardson J considered the
disqualification would be an appropriate response in cases where counsels representation in one part of the
case or another may impair the integrity of the judicial process.
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Bolkiah (Prince Jefri) v KPMG [1999] 2 AC 222 (HL) in this case, Lord Millett stated what the Courts
jurisdiction to intervene is. Again, based it on the need to protect confidential information. A plaintiff seeking to
restrain former solicitors from acting for another client must establish first the solicitor is in possession of
information that is confidential to that solicitor, and to the disclose of which the client has not consented, and
the information is or may be relevant to the new matter.
Rule 8.7.1 is referred to holds that the first limb of rules test is satisfied on the facts of this case solicitor is
in possession of information which is confidential. Furthermore Gilbert J holds that the second limb would or
could be satisfied as the case develops i.e. there is a risk that there may be information which is relevant to
the matter that is currently being acted on by the BF solicitors.
Gilbert J decided that there was more than a negligible risk that confidential information could be disclosed or
misused to Ks detriment. On this basis, he disqualified BF from acting in this matter.

Mike Pero Mortgages Ltd v Pero [2014] NZHC 2798

In this case, BF in one of its offices was acting for Mike Pero, and BF in another of their offices were accepting
instructions against MP. Same firm acting for and against MP.
BFs argument there was no contact between the two offices in this matter.
Valuable statement by Matthews J [15] It is appropriate in my view to reiterate the inherent jurisdiction of the
Court to determine which persons should be permitted to appear before it as advocates. This is because this
case concerns litigation, and there is a distinction drawn in New Zealand between acting on litigation, and
acting on commercial transactions. And it is because all solicitors are officers of the Court, and the powers of
the Court in relation to their conduct of cases before it are of fundamental importance.
Black, Torchlight, and KPMG cases all referred to.
[56] BF owes a fiduciary duty to its existing clients. A fundamental element of this duty is loyalty. It cannot
fulfil this duty on its present course. A fair-minded, reasonably informed member of the public that would
conclude the proper administration of justice requires the removal of BF from the role of solicitors for the
plaintiff. The integrity of the judicial process is at risk.

Information Barriers
Rule 8.7.2 Rule 8.7.1. is not breached where there is an effective information barrier between the lawyer who
holds the confidential information of the former client and the lawyer who proposes to act for the new client.
o Tells us when an information barrier is effective.
Rule 8.7.3. An information barrier is effective when, in all the circumstances, there is a negligible risk that the
confidential information in respect of the former client will be or has been disclosed to the new client or to any
lawyer acting for the new client.
Tells us that simply using another solicitor in a firm is not enough there needs to be special measures taken in
order to ensure that the information is kept confidential. The presumption is that information moves within a firm
knowledge of one partner can be imputed to another partner.
Russell McVeagh McKenzie Bartleet & Co v Tower Corp [1998] 3 NZLR 641 (CA) RMV had created an
information barrier to isolate the confidential information obtained from Tower away from GPG. Henry J at
[654]: Although the concepts of Chinese walls and cones of silence leave much to be desired... internal control
measures may nevertheless in some circumstances be both appropriate and sufficient to ensure protection. In
this case, the Court did find on the facts that the information barrier was inadequate as it had been put in place
too late.
Bolkiah (Prince Jefri) v KPMG [1999] 2 WLR (HL) information barriers were also considered here. For an
information barrier to be effective and ensure confidentiality, it needs to be an established part of the
organisational structure of the firm. In this case, the arrangements made were ad hoc, and on this basis the
HoL found that they were inadequate. Lord Millett doesnt like the notion of acting against a client he criticised
the approach taken by the NZCA in the Russell McVeagh case.

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Young v Robson Rhodes [1999] 3 All ER 524

Judge in this case (High Court) re-reading Lord Millett in KPMG and giving it a different interpretation. Argues it
does not matter whether or not the information barrier was ineffective from the outset only question should be
whether it is effective?

Rule 8.7.4.

Unless the lawyer is unable to contact the former client, particulars of any information barrier must be disclosed
to the former client prior to commencing to act for the new client.
What if the former client objects to the lawyer acting? The lawyer may rely on chapter 8 but will lose the former
client.
This rule is only about giving notice no requirement for the client to give consent.
Torchlight Fund Gilbert J at [29]: Given the extent of BFs involvement in Ks affairs over such a lengthy
period and the number of partners and staff involved, I doubt whether an information barrier would be effective
in negating the risk of disclosure.
o This is obiter as this matter was not up for consideration however it was an interesting statement.

Conflict of Interest between a Client and their Lawyer

Chapter 5 is the starting point lawyer must be independent and free from compromising influences or loyalties
when providing services to his or her clients.
o 5.1. The relationship between a lawyer and client is one of confidence and trust that must never be
abused.
o 5.2. The professional judgment of a lawyer must at all times be exercised within the bounds of the law
and the professional obligations of the lawyer solely for the benefit of the client.
o 5.3. A lawyer must at all times exercise independent professional judgment on a clients behalf. A lawyer
must give objective advice to the client based on the lawyers understanding of the law.
There can be situations where there is no conflict of interest as such between the lawyer and client, but there
are still difficulties under Chapter 5.
o E.g. lawyer is acting for close friends, family members, or domestic partners.
o Webb the perils of acting for family.
1. Lack of objectivity.
2. May make the lawyer over-zealous.
3. Professionalism may be missing Everist v McEvedy [1996] 3 NZLR 348:
Junior lawyer acting for his brother and his brothers mother in law on a mortgage transaction.
Lawyer failed to advise mother in law properly lawyers firm was held liable for resulting financial
loss.
Rule 5.7 addresses the lawyer acting for someone with whom the lawyer is in a sexual relationship.
o Breach of fiduciary duty, and is a matter for discipline.
o A lawyer must not enter into an intimate personal relationship with the client where to do so would or could
be inconsistent with the trust and confidence reposed by the client.
o 5.7.1. The lawyer must not enter into an intimate personal relationship with a client where the lawyer is
representing the client in any domestic relations matter.
o Daniels v Complaints Committee 2 of Wellington District Law Society [2011] 3 NZLR 850 (HC) the lawyer
here was found guilty of misconduct and suspended from practice.
o Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 situation where P was a lawyer, and
she was in a violent and abusive personal relationship with a client. Client charged with a serious crime. To
help him, P pressured another client to withdraw his evidence against the client. P was convicted of
attempting to pervert the course of justice and was struck off.
o Davina Murray was smuggling contraband into prison for her client, with whom she was in a personal
relationship with struck off.
o Law Talk 850 12 September 2014 two charges. The lawyer was providing regulated services while in a
personal relationship with the client, and lied to the NZLS about the nature of their relationship was
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suspended for three years. It was felt here that the mitigating features of the case were just sufficient to
prevent him being struck off included a long career and significant contributions to the profession.
Rule 5.4. Conflicting Interests A lawyer must not act or continue to act if there is a conflict or a risk of a
conflict between the interests of the lawyer and the interests of a client for whom the lawyer is acting or
proposing to act.
o These situations raise where a lawyer has a business or financial interest that may conflict with the clients
interests.

Gifts from Client to Lawyer

Rule 5.8. A lawyer must not accept a gift from a client if there is a possibility of the gift being or appearing to
be inconsistent with the trust and confidence reposed by the client.
o 5.8.1. In any case where a lawyer proposes to accept a gift of a significant amount or value, the lawyer
must do so only if the client has taken prior independent advice in respect of the matter.
o 5.8.2. This rule extends to gifts from clients to any person with whom the lawyer has a close personal
relationship or to any member of the lawyers practice.
A lawyer may accept a gift, and this extends to gifts to a person with whom the lawyer has a close personal
relationship, or other members of the lawyers practice. The client must first take prior independent advice (rule
5.8.1).
Definition of close personal relationship rule 1.2. Includes, but is not limited to, the relationships of parents
and children, siblings, spouses, civil union partners, and the relationship between persons living together as
partners on a domestic basis.

Drafting Instruments

Rule 5.10. A lawyer must not draft or assist in drafting a provision of a will or other instrument under which the
lawyer may take a benefit other than a benefit normally attached to acting in a professional capacity in respect
of the will or instrument unless, before the execution of the will or instrument, the person concerned has taken
independent advice
o 5.10.1. It is not a breach of this rule for a member of the lawyers practice (other than the proposed
beneficiaries) to assist in the drafting of the will or instrument if the testator (or donor) is related by blood or
marriage to the proposed beneficiary or has a close personal relationship with the proposed beneficiary.
o 5.10.2. This rule extends to the drafting of wills or other instruments under which a person with whom the
lawyer has a close personal relationship, or any member of his or her practice, may benefit. This rule is of
wide application.

Conflicting Interests

Rule 5.4. Conflicting Interests A lawyer must not act or continue to act if there is a conflict or a risk of a
conflict between the interests of the lawyer and the interests of a client for whom the lawyer is acting or
proposing to act.
o These situations raise where a lawyer has a business or financial interest that may conflict with the clients
interests.
o Rule 5.4.1. Where a lawyer has an interest that touches on the matter in respect of which regulated
services are required, the existence of that interest must be disclosed to the client or prospective client
irrespective of whether a conflict exists.
A lawyer should not act where they have an interest in the matter upon which he or she has been retained.
If the matter is completely non-contentious, then there is no conflict however need to be very careful.
As a general rule, you should not enter as a lawyer into transactions with your own clients.
Spector v Ageda [1973] Ch 30.46:
o Not only must the solicitors duty be discharged, but it must manifest with and undoubtedly be seen to have
been discharged.
Conflict is not avoided by getting someone else in the practice to handle the matter.
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Rule 5.4.5. In this rule, a lawyer is deemed to be a party to a transaction if the transaction is between
entities that are related to the lawyer by control (including a trusteeship, directorship, or the holding of a
power of attorney) or ownership (including a shareholding), or between parties with whom the lawyer or
client has a close personal relationship.
o I.e. with regards to a lawyer who is a director of a company or a trustee, the fact they are acting as an office
holder and not as a solicitor does not get them around this rule.
Official Assignee of Collier v Creighton [1993] 2 NZLR 534:
o Lawyer (C) and wife offered to buy a house however withdrew offer. Told the solicitors of the vendors that
they might be interested again if the property was still available after xmas.
o C then went on to act for a company, who then wanted to buy the property and made an unsuccessful bid
to do so.
o In acting for this company, C acted properly in telling them about his own personal prior interest in the
property but did not disclose that he told the vendor he might still be interested if the property had not
sold after xmas.
o Company C was acting for offered $35,000 for the property. However the transaction fell through, and after
this happened, C stepped in and he purchased the property for $35,200.
o Client was concerned with this matter went to the Court of Appeal who held that this did amount to a
conflict of interest, and if C wanted to act for the company on its offer to purchase, then he had to make full
disclosure and had to get the fully informed consent of the client.
There is an exception to rule 5.4.1. In rule 5.4.2, is an exception where you are dealing with a noncontentious matter and the interests of the lawyer and client correspond in all respects.
o A lawyer must not act for a client in any transaction in which the lawyer has an interest unless the matter is
non-contentious and the interests of the lawyer and the client correspond in all respects.
It is well established in NZ that as long as informed consent is obtained, it is possible to act where there is a
conflict of interest.
o Dal Pont Informed consent as elixir to conflict.
Rule 5.4.3. A lawyer must not enter into any financial, business, or property transaction or relationship with a
client if there is a possibility of the relationship of confidence and trust between lawyer and client being
compromised.
Rule 5.4.4. A lawyer who enters into any financial, business, or property transaction or relationship with a
client must advise the client of the right to receive independent advice in respect of the matter and explain to
the client that should a conflict of interest arise, the lawyer must cease to act for the client on the matter and,
without the clients informed consent, on any other matters. This rule does not apply where:
a. The client and the lawyer have a close personal relationship; or
b. The transaction is a contract for the supply by the client of goods or services in the normal course of
the clients business; or
c. A lawyer subscribes for or otherwise acquires shares in a listed company for which the lawyers
practice acts.
Where the lawyer does enter into a transaction with a client, the onus is on the lawyer to establish that the client
consented and was fully informed about the nature of the transaction.
Law Society of NSW v Harvey [1976]:
o The lawyer must make full disclosure of his interest. It must be a conscientious disclosure of all
material circumstances, and everything known to him relating to the proposed transaction which might
influence the conduct of the client or anyone from whom he might seek advice.
o Informed consent as defined in 1.2. Consent given by the client after the matter in respect of which the
consent is sought and the material risks of and alternatives to the proposed course of action have been
explained to the client and the lawyer believes, on reasonable grounds, that the client understands the
issues involved.
Farrington v Rowe McBride [1985]:
o R encouraged client to invest in a company which was also a client of R. This alone is a potential conflict
between clients.
o However goes further in this case, four of Rs partners were shareholders in the company, and two of the
partners were directors of the company.
o

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The client who had been encouraged to invest invested a large sum of money the company collapsed two
years later, and the client sued R for breach of fiduciary duty.
o R held liable in these circumstances.
o Case proceeded on the basis that the loss was caused by a failure to disclose there is a presumption that
where there is a failure to disclose, loss will result.
Day v Mead [1987]:
o M encouraged D to invest in a company which M was a shareholder in. However this was disclosed to D.
o In reliance on the advice he received from M, D bought a significant number of shares in the company and
bought more at a later date.
o What M did not do however was disclose to D that the company was in difficulty the company went into
receivership.
o NZCA held that M should have disclosed the difficulties the company was in at the time of the first
investment. The proper thing for M to have done was to refer D to an independent legal advisor. He failed to
do those things, and damages were awarded against M for a breach of fiduciary duty.
Witten-Hannah v Davis [1995]:
o Couple who split up female partner wanted home, and lawyer wished to assist her in doing this.
o He took a 1/3 share in the property, however his mistake was that he did not ensure that the female partner
did not have any independent advice.
o Difficulty that arose was that the woman buying the property and selling it at a later date meant she sold it
at a loss sued the lawyer for breach of fiduciary duty causing the loss.
o NZCA found in the womans favour.
o [153] per McKay J: The transaction should not have been made between a solicitor and a client who were
in the close relationship of the present parties without the client being independently advised.
o

Rule 5.5. Conflicting Business Interests

A lawyer must not engage n a business or professional activity other than the practice of law where the
business or professional activity would or could reasonably be expected to compromise the discharge of the
lawyers professional obligation.
o 5.5.1. Where a lawyer or the lawyers practice provides, or intends to provide to clients, services other
than regulated services, the services must
a. Be associated with the provision of regulated services; and
b. Be provided by the lawyer or the lawyers practice or by an entity in which the lawyer or the lawyers
practice has a controlling interest.
Clearly defined set of circumstances a lawyer should not be involved or other business or professional
activities that might compromise the discharge of the lawyers obligations. Any other services offered by the
lawyer must be associated with the legal services employed by the lawyer for his practice.
This means that a lawyer can form a company to deal with conveyancing matters as a separate company, for
example.
Withers v Standards Committee No 3 of the Canterbury-Westland Branch of the NZLS [2014]:
o W eventually struck off for misconduct for his activities in this matter. Was acting in a property transaction
for the vendor and did not reveal to the vendor that he had a personal financial interest in the company that
was the purchaser.
o Evidence this was concealed from the purchaser.
o W kept this concealed for two years, and eventually the female vendor figured out and took external advice.
W struck off for misconduct.
o Interest because W put up considerable argument. However turned out he had a history of disciplinary
problems, so the judges involved found his argument unconvincing.

Third Party Conflicts of Interest

Interest through a relationship of a non-commercial capacity this interest may be entirely indirect.
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Rule 5.6 A lawyer must ensure that the existence of a close personal relationship with a third part does not
compromise the discharge of the duties owed to a client.
o 5.6.1. A lawyer must not act if there is a conflict of interest or an appearance of a conflict of interest
between a client and a third party with whom the lawyer has a close personal relationship.
o 5.6.2. Where a person with whom the lawyer has a close personal relationship has an interest in the
matter being dealt with or proposed to be dealt with on behalf of the client, the existence of that close
personal relationship and the nature of the interest must be disclosed to the client or prospective client
irrespective of whether an actual conflict of interest exists.
o 5.6.3. A lawyer is not precluded from acting for a client solely because another lawyer in the lawyers
practice has a close personal relationship with a person whose interests conflict with the interests of the
lawyers client.
o 5.6.4 Where lawyers are in a close personal relationship with each other they must not act for different
parties in a matter unless the clients of both lawyers give their informed consent to their respective lawyers
acting. Where both lawyers are retained by their respective clients before the close personal relationship is
established, then, in the absence of both clients consent to their respective lawyers continuing to act, the
lawyer retained later in time must cease to act.
o 5.6.5. A lawyer is not precluded from acting for a client because another lawyer in his or her practice has
a close personal relationship with the lawyer acting for the opposing party.

Claims Made Against Lawyer

Rule 5.11 When a lawyer becomes aware that a client has or may have a claim against him or her, the lawyer
must immediately:
a. Advise the client to seek independent advice; and
b. Inform the client that he or she may no longer act unless the client, after receiving independent advice,
gives informed consent.
There is a conflict because in these circumstances, the lawyers interests and the clients interests are no longer
consistent. This is because the lawyer now needs to defend themselves, rather than just simply advance the
interests of the client.
Rule 5.12. A lawyer may resume acting for a former client where the matter in dispute has been resolved.
Kooky Garments v Charlton [1994]:
o Tenant sued landlord claimed letter written by the landlords lawyers to him amounted to acceptance of an
offer.
o Lawyers who had written the letter represented the landlord through court hearing.
o Arguable that the letter written on behalf of the landlord was negligently written. If this were the case, then
the landlord would have a claim against the lawyers.
o Thomas J [589]: Where the acts or omissions of the law firm are at the heart of the question in issue, the
firm is, in a real sense, defending its actions or advice. There is, in such circumstances, a danger that the
client will not be represented with the objectivity and independence which the client is entitled to and which
the Court demands.
o Held that the conflict that had arisen because of this potential claim precluded any members of the firm
from continuing to act. Underlying reason for this is all members of the firm are regarded as being loyal to
the firm conflicts with the loyalty owed to the client.

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2.2. Duties to the Court

Chapter 13 Lawyers as Officers of the Court

The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a
duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.
o 13.1. Duty of Fidelity to the Court A lawyer has an absolute duty of honesty to the Court and must not
mislead or deceive the Court.
o 13.2. Protection of Court processes A lawyer must not act in a way that undermines the processes of the
court or dignity of the judiciary.

Duties of Prosecution and Defence Lawyers

Prosecution Rule 13.12

A prosecuting lawyer must act fairly and impartially at all times and in doing this must
a. Comply with all obligations concerning disclosure to the defence of evidence material to the prosecution
and the defence; and
b. Present the prosecution case fully and fairly and with professional detachment; and
c. Avoid unduly emotive language and inflaming bias or prejudice against an accused person; and
d. Act in accordance with any ethical obligations that apply specifically to prosecutors of the Crown.
John Banks example CA initially thought that he should be re-trialled, however just released decision that he
will not stand retrial and be acquitted due to confusion surrounding the evidence of the lunch at which he was
supposed to be present and at which the question of donations for the election campaign was discussed. After
he was initially convicted, dotcom acknowledged he may have been incorrect about which of the two lunches
donations were discussed.
o Highlights need to be very clear about when the event occurred and what was discussed.
o Mistake by the prosecution did not present evidence of this doubt/lack of surety. This was on this basis
that the conviction was quashed. Crown law did not present evidence of the confusion around dates as
they did not believe it would effect the case did not believe it to be significant.
o The effect of this non-disclosure was to mislead the Court. Clear example of a breach of chapter 13 of the
client conduct care rules.
o CA at [28] satisfied that there has been a serious error of process. Accept it is attributable to an error of
judgment rather than misconduct.
o Possibility that the NZLS may take disciplinary proceedings against those involved at Crown Law.

A and B v Legal Complaints Review Officer [2013] NZHC 1100

Two prosecutors involved in a manslaughter case. A was a senior practitioner and experienced, B was the
junior and new to the tasks at hand.
Case involved bungee jumping. In this case, the rope had not been properly fastened to the bridge so the
young woman died.
Accused in this case was the man responsible for fitting people into the harness and ensuring that the rope was
properly attached to the bridge. Issue was whether or not he was grossly negligent.
One of the witnesses, H, was the next person in the queue. Crown theory of the case was that the accused was
distracted by the woman Hs presence, and for this reason had failed to properly tie off the deceased persons
harness to the bridge. Background to this is the accused had met H over the internet and told her he was
unmarried and looking forward to meeting her (although he was already married).
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Requirement of sufficient evidence to go to trial (deposition hearing). In the deposition statement made, there
was no mention of the fact that the accused had in fact been in touch with H in advance through the internet.
When evidence was led at the preliminary hearing by the Crown, no mention was made to indicate this part of
the background.
The problem arose because when the Crown opened the case against the man for manslaughter, in the
opening address B (who had taken over from A because A was absent due to illness).
See 3.12.a prosecution lawyer must comply with all obligations concerning disclosure to the defence of
evidence material to the prosecution and the defence.
Info should not have been included in the opening address, or even at trial at all. Was a mistake attributable to
Bs inexperience had shown A in advance what he was going to say in opening, and A had omitted to
supervise him properly did not pick up that the material that was in the opening address not included in
preliminary hearing.
Defence in the case had applied for a mistrial and to have a rehearing however Judge held it was only
modest prejudice and instructed the jury to ignore what B had said in opening address. Defence then laid a
complaint against A and B:
o Alleged misconduct under section 7 on the part of A and B, being conduct which could reasonably be
regarded by lawyers of good standing as disgraceful or dishonourable, or, alternatively, comprise a wilful or
reckless contravention of Rule 13.12(b),(c) and (d) Conduct and Client Care Rules.
Standards Committee conducted itself in a bizarre manner at the hearing. It sent out a notice to A and B about
the hearing that they were going to conduct, and put it in the post on 23 December 2010 (so close to xmas that
they were not working). Notice requested submissions by 18 January 2011, and A and B were on holiday
knowing nothing about this and came back to work on 26 January 2011 to discover they had been found guilty
of unsatisfactory conduct.
Matter went to Legal Complaints Review Officer, who also found unsatisfactory conduct under s12. A and B
then applied to the High Court for judicial review.
o [8] The LCRO found that Bs main defence is his inexperience. That she did not accept that a lawyer should
be able to raise inexperience as a defence to disciplinary sanction for breaching professional skills. That
she did not accept inexperience explained the failures in this case.
o [9] The central issue in this case is whether the adjudicator correctly understood section 12 (unsatisfactory
conduct).
Appeal to the High Court was successful, and the decision of the LCRO was quashed on the basis that she had
made an error of law in applying ss12(a)(b)(c) of the LCA.
Look at [55], [56], [62], [63], [65], and [66] of the case significance is that Fogarty J explains the role of senior
lawyers in training junior lawyers. What he does here is hold that s12(a) does not rule out training during a trial.
S12 needs to be read against the purpose of the Act. S3(1)(a) to maintain public confidence in the provision
of legal services. [66] to maintain such public confidence, young practitioners need to be trained during trials.
LCRO found that Bs inexperience was not a factor in disciplinary proceedings. Fogarty found that this
amounted to an error of law this error meant that the LCRO did not frame the merit issues of the case in the
context of a training exercise being undertaken by A for the benefit of B.
The test imposed by the LCRO involved a standard that was so strict, that no junior lawyer could never
progress.

Duties of a Defence Lawyer Rule 13.13.

A defence lawyer must protect his or her client so far as is possible from being convicted (except upon
admissible evidence sufficient to support a conviction for the offence with which the client is charged) and in
doing so must
a. Put the prosecution to proof in obtaining a conviction regardless of any personal belief or opinion of the
lawyer as to his or her clients guilt or innocence; and
b. Put before the court any proper defence in accordance with his or her clients instructions
But must not mislead the Court in any way.

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Rule 13.9.4 (Discovery and Privilege)

If a lawyer becomes aware that privileged information or documents have been inadvertently released in
circumstances where privilege has not been waived, the lawyer must not disclose the contents of the material to
the client, must inform the other lawyer (or litigant if unrepresented) of the release, and must return any
documents forthwith. This rule applies despite the rules relating to disclosure in chapter 7.
When considering privileged information, need to consider this rule.
Situation where you are talking to the other lawyer, and you accidentally say something privileged to them, then
this other lawyer may not disclose this information to their own client and ensure the information remains
privileged.

Rule 13.4. Alternatives to Litigation

A lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to
litigation that are reasonably available (unless the lawyer believes on reasonable grounds that the client already
has an understanding of those alternatives) to enable the client to make informed decisions regarding the
resolution of the dispute.

Issues around Former Practitioners

Inclusion of former practitioner in the wording of section 132 to get around the problem of lawyers who try and
avoid discipline by surrendering their practicing certificate.
NB where a High Court strikes off a lawyer, it needs to be referred to the New Zealand Court of Appeal for
approval (ss266 and 267).
o New Zealand Law Society v Burton [2014]
o New Zealand Law Society v Camp [2014]
Situations where a person who had practiced law had given up practice but never removed their name from
the roll of barristers and solicitors. Had been convicted after this of criminal offending.
Former practitioners question arises as to how to deal with them.
Question of drafting the Burton and Camp cases have revealed a situation in which the only process that
can be used is the High Court one. This is clearly not intended by parliament and is the result of a mistake
in drafting the legislation.
Section 132 refers to a practitioner or former practitioner. Section 6 defines practitioner as a lawyer,
which is defined in the same sentence as a person who holds a current practicing certificate as a barrister
or as a barrister and solicitor.
Under the LCA, if the NZLS wishes to have a lawyer struck off, a Standards Committee must bring a charge
against that practitioner in the Disciplinary Tribunal.
Section 130(c) The investigation must relate to a matter that appears to indicate that there may have
been misconduct or unsatisfactory conduct on the part of a practitioner...
Section 130(f) committee may lay and prosecute charges before the Disciplinary Committee.
However the difficulty under section 130(c) is use of the word misconduct, which is defined in s7 as
conduct of the lawyer.
Moore J at [22]: Mr Burtons convictions cannot constitute misconduct on the part of a practitioner or any
other person because misconduct, as defined, is confined only to the conduct of a lawyer. A lawyer is a
person who holds a current practicing certificate as a barrister or as a barrister and solicitor. Mr Burton
does not meet that definition because he does not hold and did not hold at the time of his offending, a
current practicing certificate.
Only pathway for striking off in these situations is through the High Court jurisdiction which was done in
both decisions, and both were confirmed by the NZCA.
Clearly parliament did not intend this. Without further amendment to the Act, people like Burton and Camp
will not be able to be struck off under this section and emphasises the reason for preserving the High Court
right to strike off.

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The Section Heading of s266

Lawyers name may be struck off on application to the High Court.

Final Points
Rule 2 a lawyer is obliged to uphold the rule of law and to facilitate the administration of justice.
Rule 2.1. The overriding duty of a lawyer is as an officer of the Court.
Rule 2.2. A lawyer must not attempt to obstruct, prevent, pervert, or defeat the course of justice.
Rule 10.8 A lawyer must not, in the course of his or her professional activity, make a video or sound recording
of any person without first informing the person of the lawyers intention to do so.
Rule 15.2 When an in-house lawyer provides regulated services to the non-lawyer by whom he or she is
engaged, he or she must do so pursuant to a lawyer-client relationship.
Rule 15.4 An in-house lawyer must, in that capacity, comply with the provisions of the Lawyers and
Conveyancers Act and these rules, apart from Chapter 4 (availability of lawyers to the public) and Chapter 9
(fees).
Note if you become a lawyer in the police force, or Defence Force, you are still subject to the rules of conduct
and client care.

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