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

Direct instructions

14.5

A barrister sole may accept instructions from a person who is not an instructing lawyer if the barrister sole is—

14.5.1

instructed or appointed by:

(a)

a person acting in a judicial or quasi-judicial capacity; or

(b)

a person acting as an arbitrator, mediator, or in any similar capacity; or

(c)

a court27; or

(d)

the Law Society; or

(e)

a registered patent attorney; or

(f)

a member of the legal profession in an overseas country; or

(g)

an Official Assignee; or

(h)

a body, officer, or person approved by the Law Society under rule 14.6, which approval may be given with such restrictions and/or subject to such terms and conditions as the Law Society may determine.

14.5.2

instructed to act or acting in any of the following capacities or matters:

(a)

in a judicial or quasi-judicial capacity or as counsel to assist any court28; or

(b)

as an arbitrator, mediator, or in any similar capacity; or

(c)

as a revising barrister pursuant to any enactment; or

(d)

representing a person charged with any offence other than in any prosecution by the Serious Fraud Office, the Financial Markets Authority or the Commerce Commission; or

(e)

for any person who has been granted or has a pending application for legal aid under the Legal Services Act 2011 or any re-enactment; or

(f)

in a family law matter that is capable or was initially capable of being brought within the jurisdiction of a Family Court other than in respect of any aspect of the matter which involves complex property issues29; or

(g)

in an employment law matter that does not involve proceedings in the Employment Court in the first instance, or proceedings in or an appeal to the High Court, Court of Appeal, or Supreme Court; or

(h)

in any civil matter (other than a family law or employment law matter as provided for under rules 14.5.2(f) and (g)) which is not a proceeding before the Supreme Court, the Court of Appeal, the High Court or a District Court30; or

(i)

providing a legal opinion; or

(j)

is a duty lawyer; or

(k)

providing assistance to a legal advice service operating on a non-profit basis or acting pro bono on work referred by such a service; or

(l)

as a specialist adviser to the Ministry of Justice; or

(m)

in a refugee status matter pursuant to the United Nations Convention relating to the Status of Refugees, adopted on 28 July 1951; or

(n)

representing a client under the provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(o)

representing a prisoner in an internal disciplinary hearing; or

(p)

moving the admission by the court of a person as a barrister and solicitor31.

Heading above Schedule rule 14.5: inserted, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

Schedule rule 14.5: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

Schedule rule 14.5(2)(j): replaced, on 1 July 2015, by rule 4(1) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules (No 2) 2015 (LI 2015/188).

14.6

The Law Society may, after consultation with the New Zealand Bar Association, publish a list of approved bodies, officers, and persons for the purposes of rule 14.5.1(h), together with any restrictions, terms or conditions which may be applicable.

Schedule rule 14.6: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

14.7

A barrister sole may not (except in criminal proceedings where the client is legally aided or has a pending application for legal aid) accept direct instructions under rules 14.5.2(d) to (h) unless he or she:

14.7.1

is practising on his or her own account, in accordance with the provisions of section 30 of the Act or is entitled to do so;

14.7.2

has completed any prescribed training requirements set by the Law Society after consultation with the New Zealand Bar Association and has satisfied the Law Society that he or she is a suitable person to accept direct instructions from clients; and

14.7.3

has provided in writing to the prospective client the information required by rules 3.4A and 3.5A and has informed the prospective client in writing of his or her:

(a)

capacity and experience in performing the requested service; and

(b)

advocacy experience as a barrister; and

(c)

any disadvantage which the barrister believes may be suffered by the prospective client if no instructing lawyer is retained.

Schedule rule 14.7: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules (No 2) 2015 (LI 2015/188).

14.8

A barrister sole must not accept direct instructions under rules 14.5.2(d) to (i) if he or she considers that, in all the circumstances, it would be in the best interests of the client or in the interests of justice for an instructing lawyer to be retained.

Schedule rule 14.8: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

14.9

Where a barrister sole has accepted direct instructions under rules 14.5.2(d) to (i), he or she must not continue to act if at any stage he or she considers that, in all the circumstances, it would be in the best interests of the client or in the interests of justice, for an instructing lawyer to be retained, but the client is not prepared to retain one. Such a situation is good cause for the purposes of rule 4.2(c).

Schedule rule 14.9: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

14.10

Where a barrister sole accepts direct instructions under rules 14.5.2(d) to (i), all money in advance of such work must be paid into a trust account of a fund holder who must be either:

(a)

a practice32; or

(b)

a person or entity approved for that purpose by the Law Society.

The moneys must be held and dealt with in accordance with terms to be prescribed by the Law Society.

Schedule rule 14.10: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

14.11

Nothing in these rules requires a barrister sole to accept direct instructions from a person who is not an instructing lawyer.

Schedule rule 14.11: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

14.12

The Law Society may at any time or times carry out a review of the intervention provisions set out in rules 14.4 to 14.11 and determine whether and to what extent those provisions are to remain in force. In carrying out any review, the Law Society must consult with the Ministry of Justice, the New Zealand Bar Association, and such other organisations, groups, or persons as the Law Society considers have an interest in the issue.

Schedule rule 14.12: replaced, on 1 July 2015, by rule 4(2) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015 (LI 2015/187).

27 Under rule 1.2 ‘court’ means a court or tribunal.

28 Under rule 1.2 ‘court’ means a court or tribunal.

29 Irrespective of whether there are complex property issues, implementing the transfer or assignment of any interest in land or other property pursuant to an agreement or Court order must not be carried out by a barrister sole—see rule 14.2(b).

30 The reference to ‘courts’ in rule 14.5.2(h), without limitation, does not extend to the Environment Court, the Māori Land Court, the Waitangi Tribunal, Coroners Courts, the Accident Compensation Appeals District Court Registry, and all other specialist courts, tribunals and authorities.

31 Each paragraph in rules 14.5.1 and 14.5.2 comprises a separate and discrete exemption from the Intervention Rule and is not limited by the terms of any other exemption.

32 Under Rule 1.2 ‘practice’ means a law practice, whether conducted by one lawyer, a partnership of lawyers, or an incorporated law firm.