New Zealand Legislation: Regulations
Regulations are laws made under Acts
2008/188
Rt Hon Dame Sian Elias, Administrator of the Government
At Wellington this 30th day of June 2008
Present:
Her Excellency the Administrator of the Government in Council
Pursuant to sections 94 and 108 of the Lawyers and Conveyancers Act 2006, Her Excellency the Administrator of the Government, acting on the advice and with the consent of the Executive Council, makes the following regulations.
These regulations are the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008.
These regulations come into force on 1 August 2008.
(1) In these regulations, unless the context otherwise requires,—
Act means the Lawyers and Conveyancers Act 2006
Law Society means the New Zealand Law Society continued by section 63 of the Act.
(2) Any term that is defined in the Act and used, but not defined, in these regulations has the meaning given in the Act.
(1) In accordance with the Act, a person is eligible to hold a practising certificate if—
(a) the person's name is on the roll; and
(b) the person is a fit and proper person to hold a practising certificate; and
(c) the person has paid, or is up to date with payment of, all required fees and other charges referred to in regulation 5(4); and
(d) the person does not hold, and has not applied to hold, a practising certificate as a conveyancing practitioner; and
(e) the person meets the criteria for eligibility, as set out in subclause (2).
(2) The criteria for eligibility for a practising certificate (as required by section 94(a) of the Act to be set out in practice rules) are as follows:
(a) the person has made a written undertaking to comply with the fundamental obligations of lawyers, as set out in section 4 of the Act:
(b) the person has disclosed to the Law Society any circumstances that would or might make him or her not a fit and proper person to hold a practising certificate:
(c) the person has complied, or is complying, with any applicable orders of a Standards Committee, the Legal Complaints Review Officer, and the Disciplinary Tribunal.
(1) Every application for a practising certificate must be made to the Law Society and—
(a) be in the appropriate form prescribed by the Law Society; and
(b) include all fees and other charges payable under subclause (4).
(2) The Law Society may—
(a) prescribe different application forms for different kinds of practising certificates; and
(b) permit or require application forms to be completed in different ways (for instance, electronically or in hard copy); and
(c) require that particular kinds of applications be made on or before dates determined by the Law Society.
(3) Every application form must require the applicant to—
(a) make a statement that he or she undertakes to comply with the fundamental obligations of lawyers as set out in section 4 of the Act; and
(b) declare whether, during the period since his or her admission or since receipt of the last practising certificate (whichever is more recent), any matter has arisen that does or might affect the person's fitness to be issued with a practising certificate; and
(c) declare whether he or she has complied, or is complying, with any applicable orders of a Standards Committee, the Legal Complaints Review Officer, and the Disciplinary Tribunal.
(4) The fees and other charges payable by applicants before a practising certificate may be issued are as follows:
(a) the appropriate practising fee set by the Council of the Law Society under section 73 of the Act:
(b) if the applicant is subject to Part 10 of the Act, the contributions to the Lawyers' Fidelity Fund prescribed by the Council of the Law Society under section 312 of the Act:
(c) any levy fixed by the Council of the Law Society under any of sections 74(1), 277, or 314 of the Act and payable by the applicant:
(d) any outstanding fees and costs for which the applicant is liable under the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.
(5) Despite subclause (4), the Law Society may, with respect to any person, waive or modify the requirement to pay all or any of the fees and other charges set out in paragraphs (a) to (d) of that subclause.
(1) On receipt of an application for a practising certificate, the Law Society must consider whether there are any grounds under section 39(3) or (4) or section 41 of the Act for declining or refusing to issue the practising certificate.
(2) For that purpose, the Law Society may—
(a) request further information from the applicant; and
(b) make whatever inquiries the Law Society considers are relevant in determining whether there are any grounds for declining or refusing to issue the practising certificate.
(1) If the Law Society is satisfied that there are no grounds for declining or refusing to issue an applicant with a practising certificate, it must, as required by section 39(1) of the Act, issue the appropriate kind of practising certificate to the applicant, in a form prescribed by the Law Society.
(2) However, if the Law Society believes on reasonable grounds that there are or may be grounds for declining or refusing to issue a practising certificate, the Law Society must—
(a) notify the applicant of the reason why the Law Society believes there are or may be grounds for declining or refusing the application; and
(b) specify a time, which must be reasonable in the circumstances, within which the applicant may respond to the notice; and
(c) consider any response from the applicant that is received within the specified time; and
(d) either issue a practising certificate in accordance with subclause (1), or decline or refuse to do so.
(3) If the Law Society declines or refuses to issue a practising certificate, it must notify the applicant in writing of that decision and at the same time advise the applicant of his or her right to appeal against that decision to the Disciplinary Tribunal under section 42 of the Act.
Every lawyer must disclose to the Law Society, as soon as practicable, information about any matter that might affect the lawyer's continuing eligibility under regulation 4 to hold a practising certificate.
(1) Every lawyer must provide to the Law Society any information that the Law Society requires the lawyer to provide.
(2) However, subclause (1) applies only if the information is required by the Law Society in order for it to carry out its regulatory functions.
(1) The Law Society must establish and maintain a register of lawyers and, as far as practicable, must keep the register accurate and up to date.
(2) The Law Society must ensure that, as far as practicable, the register is available for inspection by the public on an Internet site at all times.
(3) With respect to every lawyer, the register must show the following:
(a) the lawyer's full name:
(b) the lawyer's contact details, which—
(i) must include the lawyer's work address, telephone number, and fax number (if any); and
(ii) may include any of the following that the lawyer agrees to make available on the register: home address, home or other contact phone number, and work email address:
(c) the kind of practising certificate currently held by the lawyer, and when it was issued:
(d) when and where the lawyer was admitted:
(e) if the lawyer is in practice on his or her own account, whether the lawyer is in sole practice, or is in practice as a partner in a partnership, a shareholder of an incorporated law firm, a director of an incorporated law firm, or an employee:
(f) whether the lawyer is an in-house lawyer (as described in the Schedule of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008):
(g) whether the lawyer is providing or intends to provide real estate services (as described in the Schedule of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008):
(h) whether the lawyer's practising certificate is currently suspended and, if so, when the suspension took effect and when (if known) it will be lifted.
(4) The register may also contain any other information about individual lawyers if—
(a) the Law Society wishes to place the information on the register; and
(b) the individual lawyer concerned agrees, in writing, to that information being placed on the register.
Every lawyer must advise the Law Society, as soon as practicable, if any of the information that the Law Society keeps on the register about that lawyer changes, in order that the Law Society may fulfil its obligation to keep the register accurate and up to date.
(1) For the purposes of section 30(1)(a) of the Act, the requirements and other criteria that must be met before a lawyer may commence practice on his or her own account as a barrister and solicitor are—
(a) that during the 8 years immediately before the date of commencing practice on his or her own account, the lawyer has had not less than 3 years' legal experience in New Zealand; and
(b) that the lawyer has received, during the 3 years immediately before the date of commencing practice on his or her own account, adequate (in the view of the Law Society) instruction and examination on the duties of lawyers under the Act, and any regulations and rules made under it, that relate to the receipt and handling of client money and the operation of lawyers' trust accounts; and
(c) that the lawyer has satisfied the Council of the Law Society that he or she is a suitable person to practise on his or her own account as a barrister and solicitor, having regard to—
(i) the lawyer's legal experience; and
(ii) how the lawyer intends to practise on his or her own account (for instance, in sole practice, as a partner in a firm, or otherwise); and
(iii) the fields of law in which the lawyer intends to practise; and
(iv) any other matters that the Council considers are relevant.
(2) In the case of a lawyer wishing to practise on his or her own account as a barrister sole, the only requirement or criteria is that the lawyer has satisfied the Council of the Law Society that he or she is a suitable person to practise on his or her own account as a barrister sole, having regard to the matters set out in subclause (1)(c)(i), (iii), and (iv).
(1) For the purposes of section 30(1)(b) of the Act, the grounds on which the High Court may grant a lawyer leave to practise on his or her own account as a barrister and solicitor are—
(a) that the lawyer has received, during the 3 years immediately before the date of commencing practice on his or her own account, adequate (in the view of the Law Society) instruction and examination on the duties of lawyers under the Act, and any regulations and rules made under it, that relate to the receipt and handling of client money and the operation of lawyers' trust accounts; and
(b) that either—
(i) during the 8 years immediately before the date of commencing practice on his or her own account, the lawyer has had not less than 3 years' legal experience in New Zealand; or
(ii) the Council of the Law Society is satisfied that the person is suitable to practise on his or her own account as a barrister and solicitor, having regard to the matters set out in regulation 12(1)(c); and
(c) that the High Court is satisfied that the lawyer is a suitable person to practise on his or her own account as a barrister and solicitor, having regard to—
(i) the lawyer's legal experience; and
(ii) how the lawyer intends to practise on his or her own account (for instance, in sole practice, as a partner in a firm, or otherwise); and
(iii) the fields of law in which the lawyer intends to practise; and
(iv) any other matters that the High Court considers are relevant.
(2) In the case of a lawyer wishing to practise on his or her own account as a barrister sole, the only ground on which the High Court may grant leave is that the High Court is satisfied that the person is a suitable person to practise on his or her own account as a barrister sole, having regard to the matters set out in subclause (1)(c)(i), (iii), and (iv).
(3) If a lawyer applies to the High Court for leave to practise on his or her own account (whether as a barrister and solicitor or as a barrister sole), the application must be served on the Law Society and the Law Society is entitled to be heard on the application.
(4) If the High Court grants leave for a lawyer to practise on his or her own account, the court may impose any conditions on that leave as it thinks fit.
In regulations 12 and 13, legal experience means experience in any 1 or more of the following:
(a) legal work in the office of a lawyer in sole practice, a partnership of lawyers, or an incorporated law firm:
(b) legal work as a barrister sole:
(c) legal work in any State service (as defined in section 2 of the State Sector Act 1988):
(d) legal work in the office of a local authority:
(e) legal work as an employee of a company or other body (whether incorporated or unincorporated):
(f) full-time law teaching in a university:
(g) experience as a member of the House of Representatives.
(1) Despite regulation 12, a person is to be treated as satisfying the requirements and other criteria set out in that regulation if he or she satisfies the Council of the Law Society that he or she is entitled to practise as a lawyer, in 1 or more Australian jurisdictions, in a manner that is equivalent to, or materially the same as, practising on one's own account in New Zealand as a barrister and solicitor, or as a barrister sole, as the case may be.
(2) Despite regulation 13(1) and (2), the High Court may grant a lawyer leave to practise on his or her own account as a barrister and solicitor, or as a barrister sole, if the lawyer satisfies the court that he or she is entitled to practise as a lawyer, in 1 or more Australian jurisdictions, in a manner that is equivalent to, or materially the same as, practising on one's own account in New Zealand as a barrister and solicitor, or as a barrister sole, as the case may be.
(3) Subclauses (3) and (4) of regulation 13 apply when an application is made to the High Court for leave to be granted in accordance with subclause (2) of this regulation.
(1) An incorporated law firm must, immediately after it is formed, advise the Law Society of—
(a) its name; and
(b) the names of its directors and shareholders.
(2) Thereafter, the incorporated law firm must advise the Law Society, as soon as practicable, of every change to—
(a) its name; and
(b) its directors and shareholders.
(3) If asked by the Law Society to provide further information about its structure, directors, or shareholders, an incorporated law firm must promptly provide the information to the Law Society.
(4) However, subclause (3) applies only if the information is required by the Law Society in order for it to carry out its regulatory functions.
The Council of the Law Society may, when seeking any amendment to, or replacement of, the practice rules, take any steps it considers necessary and appropriate in order to comply with the requirements of section 103 of the Act.
For the purposes of the definition of direct supervision in section 6 of the Act, a lawyer provides direct supervision to a person who is providing regulated services if the lawyer—
(a) regularly reviews the regulated services provided by the person on behalf of the lawyer or the lawyer's practice (as described in the Schedule of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008); and
(b) takes appropriate steps to ensure that those regulated services are provided—
(i) in accordance with the Act and all regulations and rules made under it; and
(ii) competently; and
(iii) in accordance with proper professional standards.
(1) In this regulation and regulation 20, unless the context otherwise requires,—
changeover date means the date set by the Law Society under subclause (3)(b) (being the date on which all old practising certificates expire and all new practising certificates come into effect)
new practising certificate means a practising certificate issued under the Act in accordance with these regulations to a person who, immediately before the practising certificate comes into effect, held an old practising certificate
old practising certificate means a practising certificate, issued before the commencement of these regulations by a District Law Society under section 57(1) of the Law Practitioners Act 1982, that is in effect immediately before the changeover date.
(2) Every old practising certificate—
(a) has effect under the Act as if it were a practising certificate issued by the Law Society under section 39(1) of the Act; and
(b) expires on the changeover date, unless earlier cancelled.
(3) As soon as practicable after the commencement of these regulations, the Law Society must fix the following dates:
(a) the date by which the holder of an old practising certificate who wishes to be issued with a new practising certificate must apply for a new practising certificate:
(b) the date on which all old practising certificates expire and all new practising certificates come into effect.
(4) If the changeover date is before 31 January 2009, the practising fee set by the Law Society for a new practising certificate must reflect the fact that—
(a) the old practising certificate entitled a person to practise until 31 January 2009, but the old practising certificate will expire before that date; and
(b) the new practising certificate may not entitle a person to practise for a full 12-month period.
(5) The practising fee set for a practising certificate that is issued before 1 July 2009, but is not a new practising certificate, must reflect the fact that the certificate may not entitle the holder to practise for a full 12-month period.
(6) Nothing in this regulation affects the operation or effect of any transitional provisions in the Act, or any regulations or rules made under it, that relate to practising certificates issued under the Law Practitioners Act 1982.
Before the changeover date,—
(a) the obligation imposed by regulation 8 does not apply to lawyers who hold old practising certificates; and
(b) the register of lawyers need not include, in relation to lawyers who hold old practising certificates, all the matters set out in regulation 10(3).
(1) Until the date that is 6 months after the date on which the Act comes into force, the Law Society may delegate to any District Law Society any of its functions, duties, or powers under practice rules (whether or not those rules are enacted as regulations under section 108 of the Act).
(2) A delegation may be subject to whatever conditions the Law Society considers appropriate, and may at any time be revoked or amended.
Rebecca Kitteridge,
Clerk of the Executive Council.
This note is not part of the regulations, but is intended to indicate their general effect.
These regulations, which come into force on 1 August 2008, set out certain practice rules of the New Zealand Law Society that are enacted as regulations (under section 108 of the Lawyers and Conveyancers Act 2006 (the Act)) to ensure that they are binding on all persons.
The regulations set out the rules relating to—
the application for, and issue of, practising certificates:
the maintenance and content of, and access to, the register of lawyers:
criteria for eligibility to practise on own account:
a definition of direct supervision, as required by section 6 of the Act:
the amendment and replacement of practice rules, as required by section 94(r) of the Act:
transitional provisions.
Date of notification in Gazette: 3 July 2008.
These regulations are administered by the Ministry of Justice.