Part 2 Restrictions on provision of legal services and conveyancing services
Legal services
21 Provision of legal services
(1)
A person commits an offence who, not being a lawyer or an incorporated law firm,—
(a)
provides legal services in New Zealand; and
(b)
describes himself, herself, or itself as—
(vi)
a barrister and solicitor; or
22 Misleading descriptions
(1)
A person commits an offence who holds himself or herself, or any other person, out (whether directly or indirectly) as providing legal services, or as being entitled, qualified, able, or willing to provide legal services, under the description of lawyer or any of the terms specified in subparagraphs (ii) to (viii) of section 21(1)(b), if it would be an offence against section 21 for that person or, as the case may be, that other person to provide legal services under that description.
(2)
A person commits an offence who uses or permits to be used in connection with that person’s name or business or with the name under which that person carries on business any words, letters, or symbols that the person intends to cause, or are reasonably likely to cause, anyone else to believe that the first-mentioned person or any other person—
(b)
holds any type of admission, enrolment, or practising certificate under this Act,—
unless the first-mentioned person or, as the case requires, that other person is a lawyer or is admitted or enrolled or holds that practising certificate.
(3)
A person commits an offence who uses or permits to be used any words, letters, or symbols that the person intends to cause, or are reasonably likely to cause, anyone else to believe that the first-mentioned person or any other person possesses a qualification in law or any branch of the law or possesses special expertise in any branch of the law, unless the first-mentioned person or, as the case requires, that other person holds that qualification or possesses that special expertise.
Compare: 1995 No 95 s 10
23 False or misleading representations in relation to supply of legal services
(1)
A person commits an offence who, in connection with the supply or possible supply of legal services or with the promotion by any means of the supply or use of legal services, makes a false or misleading representation that the legal services are provided, or are to be provided, by, or under the direct supervision of, a person (being that person or any other person)—
(a)
who is entitled to provide legal services under the description of lawyer or any other term specified in subparagraphs (ii) to (viii) of section 21(1)(b); or
(b)
who possesses any qualification in law or any branch of law.
(2)
Section 45 of the Fair Trading Act 1986 applies, with all necessary modifications, in relation to any proceedings for an offence against subsection (1) as if those proceedings were proceedings under Part 5 of that Act.
(3)
It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the contravention of that subsection was due—
(a)
to a reasonable mistake; or
(b)
to reasonable reliance on information supplied by another person.
24 Reserved areas of work for lawyers and incorporated law firms
(1)
A person commits an offence—
(a)
who, for gain or reward (whether direct or indirect) and not being a lawyer or an incorporated law firm, carries out work of a kind described in paragraph (a) of the definition of reserved areas of work (as set out in section 6); or
(b)
who, not being a lawyer, carries out work of a kind described in paragraph (b) or paragraph (c) or paragraph (d) of the definition of reserved areas of work (as set out in section 6).
(1A)
For the purposes of subsection (1), an employer organisation or a union does not carry out work of the kind referred to in paragraph (a) or (b) of that subsection merely because—
(a)
the employer organisation employs a lawyer who carries out work of that kind for members of the organisation, whether or not the organisation receives any gain or reward for that work:
(b)
the union employs a lawyer who carries out work of that kind for members of the union, whether or not the union receives any gain or reward for that work.
Section 24(1A): inserted (with effect from 1 August 2008), on 4 August 2008, by section 8 of the Lawyers and Conveyancers Amendment Act 2008 (2008 No 54).
25 Lawyers of other jurisdictions
(1)
Nothing in sections 21 to 24 prevents a person who is a member of the legal profession of a country outside New Zealand, but who does not hold any type of admission, enrolment, or practising certificate under this Act,—
(a)
from providing in New Zealand legal services that do not involve carrying out work in any of the reserved areas of work; or
(b)
from doing any work, or transacting any business, in New Zealand if that work is business concerning—
(i)
the law of a country or territory outside New Zealand; or
(c)
providing legal services (including appearances) in New Zealand in relation to any proceedings before any court or other body if, for the purpose of those proceedings, it is essential that the provider of those legal services has knowledge of—
(i)
the law of a country or territory outside New Zealand; or
(2)
Nothing in sections 21 to 24 prevents a person who is a member of the legal profession of a country outside New Zealand, but who does not hold any type of admission, enrolment, or practising certificate under this Act, from describing himself or herself in accordance with any of the terms specified in section 21(1)(b) if—
(a)
the person is able to practise under such a description in a country outside New Zealand; and
(b)
the description incorporates a reference to the country in which the person is able to practise under that description and the fact that the ability to practise under such a description is connected with that country or territory; and
(c)
the use of the description by the person does not contravene any of the provisions of Part 1 of the Fair Trading Act 1986 and, in particular, does not contravene section 11 or section 13(b) of that Act.
26 Drafting court documents
(1)
A person commits an offence who, for gain or reward (whether direct or indirect) and not being an authorised person within the meaning of subsection (2), drafts, settles, or revises for or on behalf of any person who is a party to proceedings before any court or tribunal or who proposes to intervene in, or become a party to, any such proceedings any document that is to be filed in those proceedings.
(2)
In this section,—
authorised person means, in relation to proceedings before any court or tribunal,—
(b)
a person who is entitled under an Act to draft, settle, or revise a document that is to be filed in those proceedings; or
(c)
a person acting under the supervision of a lawyer
document does not include any special document or class of document that is declared by the Governor-General by Order in Council to be a document or class of document to which subsection (1) does not apply.
(3)
This section is subject to the exceptions set out in section 27.
27 Exceptions to sections 21, 22, 24, and 26
(1)
Sections 21, 22, 24, and 26 do not prevent—
(a)
any person from representing himself or herself in proceedings before any court or tribunal; or
(b)
any person from appearing as an advocate, or representing any other person before any court or tribunal if the appearance or representation is allowed or required—
(i)
by any Act or regulations; or
(ii)
by the court or tribunal; or
(c)
any person who may, in accordance with paragraph (b), appear in any proceedings as an advocate or representative from—
(i)
giving advice in relation to those proceedings; or
(ii)
giving assistance in drafting, settling, or revising documents for filing in those proceedings.
(2)
Sections 21, 24, and 26 do not prevent any person who works in a community law centre or who is employed by a community law centre from giving to a person who is or intends to be a litigant in person in any proceedings—
(a)
advice in relation to those proceedings; or
(b)
assistance in drafting, settling, or revising documents for filing in those proceedings.
(3)
A person does not commit an offence against any provision of sections 21, 22, 24, and 26 by reason only of filling in, on behalf of any other person, a printed form required for the purposes of any proceedings before any court or tribunal if—
(a)
the printed form is either—
(i)
a form prescribed for the purpose of the proceedings; or
(ii)
a form prepared by a person who, at the time when it was prepared, was an authorised person within the meaning of section 26(2); and
(b)
it is reasonable to expect that the form could be properly completed by persons who were not authorised persons within the meaning of section 26(2); and
(c)
no charge is made, directly or indirectly, for the filling in of the form or any service in relation to the filling in of the form.
(4)
Sections 24 and 26 do not prevent a statutory officer or Crown organisation, or any employee of a statutory officer or Crown organisation,—
(a)
from discharging any of his, her, or its duties, or exercising any of his, her, or its powers, under any enactment; or
(b)
from doing any thing that is intended to facilitate, or is conducive or incidental to, the discharge of the functions conferred on the statutory officer or Crown organisation by any enactment.
(5)
Section 24 does not prevent a conveyancing practitioner from providing conveyancing services.
28 Proceedings in respect of offences against any provision of sections 21 to 24
(1)
A charging document in respect of an offence against any provision of sections 21 to 24 may be filed only—
(a)
by the President of the New Zealand Law Society; or
(b)
by a person authorised by the Council of the New Zealand Law Society to file that charging document.
(2)
In any proceedings for an offence against any provision of sections 21 to 24, a certificate purporting to be signed by the executive director of the New Zealand Law Society or a person authorised by the Council of the New Zealand Law Society to sign that certificate and stating that at any time or during any period specified in the certificate any person was not, and was not deemed to be, the holder of a current practising certificate as a barrister, or as a barrister and solicitor, as the case may require,—
(a)
is admissible in evidence; and
(b)
is, in the absence of proof to the contrary, sufficient evidence of the matters stated in it.
(3)
The production of a certificate for the purposes of subsection (2) purporting to be signed by the executive director of the New Zealand Law Society or a person authorised by the Council of the New Zealand Law Society to sign that certificate is prima facie evidence of the certificate without proof of the signature of the person purporting to have signed it.
Compare: 1982 No 123 s 56(5), (6)(a)
Section 28(1): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
29 Contempt of court
A person who, in contravention of section 21, acts as a barrister or as a solicitor in any court is guilty of both an offence against that section and a contempt of that court.
Compare: 1982 No 123 s 54(2)
30 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 practise on his or her own account.
(2)
A lawyer who is a director or shareholder of an incorporated law firm is deemed to be practising on his or her own account.
(3)
A lawyer may apply to the High Court for leave to practise on his or her own account.
(4)
The High Court, in deciding whether to grant an application for leave, must have regard to the matters that are specified in rules made under this Act in relation to such an application.
(5)
The High Court may grant leave subject to such conditions (if any) as it thinks proper.
(6)
A lawyer commits an offence who, in contravention of this section, commences practice on his or her own account.
Compare: 1982 No 123 s 55(2)
31 Exceptions to section 30
(1)
Despite anything in section 30, a lawyer may, at any time, commence practice on his or her own account, whether in partnership or otherwise, if, immediately before the commencement of this section, he or she would have been entitled to do so under the Law Practitioners Act 1982 had this Act not been passed; and, for the purposes of this subsection, section 55 of that Act has effect as if it had not been repealed.
(2)
Section 30 does not restrict the right of a lawyer—
(a)
to practise as a barrister and solicitor on his or her own account, if at any time previously (whether before or after the commencement of this section) he or she has lawfully practised on his or her own account as a solicitor or as a barrister and solicitor; or
(b)
to resume practice as a barrister on his or her own account, if at any time previously (whether before or after the commencement of this section) he or she has lawfully practised as a barrister on his or her own account.
(3)
Despite subsection (2), if,—
(a)
in the case of a lawyer to whom subsection (2)(a) applies, more than 10 years have elapsed since that lawyer last practised on his or her own account as a solicitor or as a barrister and solicitor; or
(b)
in the case of a lawyer to whom subsection (2)(b) applies, more than 10 years have elapsed since that lawyer last practised on his or her own account as a barrister,—
that lawyer is not entitled to practise on his or her own account as a barrister and solicitor or as a barrister until he or she has received adequate instruction to the satisfaction of the Council of the New Zealand Law Society in the duties of a barrister and solicitor or of a barrister, as the case may require.
(4)
Section 30 does not restrict the right of a lawyer who is not entitled to practise on his or her own account, to act in any community law centre whose employing body comprises 1 or more lawyers qualified to practise on his or her own account, under the direct supervision of a lawyer qualified to practise on his or her own account and employed by that community law centre, or with the approval of the Secretary for Justice.
Compare: 1982 No 123 s 55(7), (8)
Section 31(4): amended, on 1 July 2011, by section 144 of the Legal Services Act 2011 (2011 No 4).
Conveyancing services
32 Provision of conveyancing services
(1)
A person commits an offence who, not being a lawyer or an incorporated law firm or a conveyancing practitioner or an incorporated conveyancing firm, provides conveyancing services in New Zealand and describes himself or herself as a lawyer, a conveyancing practitioner, a conveyancer, or a land broker.
(2)
For the purposes of subsection (1), a person describes himself or herself as a lawyer not only if he or she describes himself or herself as a lawyer but also if he or she uses, in describing himself or herself, any of the terms specified in subparagraphs (ii) to (viii) of section 21(1)(b).
33 Misleading descriptions
(1)
A person commits an offence who, not being a lawyer or an incorporated law firm or a conveyancing practitioner or an incorporated conveyancing firm, uses, in connection with his or her business, employment, or profession, any words, initials, abbreviations of words, symbols, or representations intended or likely to cause any other person to believe that the person is qualified to undertake conveyancing.
34 Proceedings in respect of offence against section 32 or section 33
(1)
A charging document in respect of an offence against section 32 or 33 may be filed only—
(a)
by the President of the New Zealand Law Society; or
(b)
by the President of the New Zealand Society of Conveyancers; or
(c)
by a person authorised by the Council of the New Zealand Law Society or the Council of the New Zealand Society of Conveyancers to file that charging document.
(2)
In any proceedings for an offence against section 32 or section 33, a certificate of any of the following kinds is admissible in evidence and is, in the absence of proof to the contrary, sufficient evidence of the matters stated in it:
(a)
a certificate purporting to be signed by the executive director of the New Zealand Law Society or a person authorised by the Council of the New Zealand Law Society to sign that certificate and stating that at any time or during any period specified in the certificate any person was not, and was not deemed to be, the holder of a current practising certificate as a barrister, or as a barrister and solicitor, as the case may require:
(b)
a certificate purporting to be signed by the executive director of the New Zealand Society of Conveyancers or a person authorised by the Council of the New Zealand Society of Conveyancers to sign that certificate and stating that at any time or during any period specified in the certificate any person was not, and was not deemed to be, the holder of a current practising certificate as a conveyancing practitioner.
(3)
The production of a certificate for the purposes of subsection (2) purporting to be signed by the executive director of the New Zealand Law Society or by a person authorised by the Council of the New Zealand Law Society to sign that certificate or by the executive director of the New Zealand Society of Conveyancers or by a person authorised by the Council of the New Zealand Society of Conveyancers to sign that certificate is prima facie evidence of the certificate without proof of the signature of the person purporting to have signed it.
Compare: 1982 No 123 s 56(5), (6)(a)
Section 34(1): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
35 Practice of conveyancing
(1)
A person commits an offence who, for gain or reward (whether direct or indirect) and not being an authorised person within the meaning of subsection (2), provides conveyancing services to any other person.
(2)
In this section, authorised person means—
(b)
an incorporated law firm; or
(c)
a conveyancing practitioner; or
(d)
an incorporated conveyancing firm; or
(e)
a person acting under the supervision of a lawyer or conveyancing practitioner.
Compare: 1982 No 123 s 65(1), (3)
36 Exceptions to sections 32, 33, and 35
(1)
Sections 32, 33, and 35 do not prevent any person from preparing for or on behalf of any other person any tenancy agreement or agreement evidencing a tenancy if—
(a)
the tenancy is for a term of 12 months or less; and
(b)
no right of renewal is conferred on the tenant by the agreement.
(2)
Sections 32, 33, and 35 do not prevent any person who holds a current licence under the Real Estate Agents Act 2008—
(a)
from preparing any agreement for sale and purchase of land or any interest in land or of the goodwill of a business or of chattels; or
(b)
from giving advice about legal rights and obligations that is incidental to the preparing of an agreement of the kind referred to in paragraph (a).
(2A)
However, subsection (2) does not apply to a person who, under the Real Estate Agents Act 2008, holds a licence as a salesperson unless the person has had at least 6 months experience as such as a licensee.
(3)
Sections 32, 33, and 35 do not prevent a patent attorney from drawing, preparing, or reviewing—
(a)
those provisions of any conveyance, deed, or agreement that relate to intellectual property rights; or
(b)
any conveyance, deed, or agreement by which only intellectual property rights are assigned.
(4)
A person does not commit an offence against any provision of sections 32, 33, and 35 by reason only of preparing, on behalf of any other person, any conveyance, deed, or agreement that is prepared by filling in a printed form if—
(a)
the printed form is either—
(ii)
a form prepared by a person who, at the time when it was prepared, was an authorised person within the meaning of section 35(2); and
(b)
it is reasonable to expect that the form could be properly completed by persons who were not authorised persons within the meaning of section 35(2); and
(c)
no charge is made, directly or indirectly, for the filling in of the form or any service in relation to the filling in of the form.
(4A)
A patent attorney does not commit an offence against any provision of sections 32, 33, and 35 by reason only of—
(a)
preparing documents, transacting business, and conducting proceedings for the purposes of the Patents Act 2013:
(b)
exercising any other rights and privileges as may be prescribed under the joint registration regime provided for in Part 6 of the Patents Act 2013.
(5)
Section 35 does not prevent a statutory officer or Crown organisation, or any employee of a statutory officer or Crown organisation,—
(a)
from discharging any of his, her, or its duties, or exercising any of his, her, or its powers, under any enactment; or
(b)
from doing any thing that is intended to facilitate, or is conducive or incidental to, the discharge of the functions conferred on the statutory officer or Crown organisation by any enactment.
Compare: 1982 No 123 s 65(1)(c), (2)(a), (c); 1953 No 64 s 101(3)
Section 36(2): amended, on 16 November 2009, by section 173 of the Real Estate Agents Act 2008 (2008 No 66).
Section 36(2A): inserted, on 16 November 2009, by section 173 of the Real Estate Agents Act 2008 (2008 No 66).
Section 36(4A): inserted, on 24 February 2017, by section 8 of the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Act 2016 (2016 No 89).
Section 36 compare note: amended, on 24 February 2017, by section 8 of the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Act 2016 (2016 No 89).
37 Practice by conveyancing practitioner on his or her own account
(1)
No conveyancing practitioner 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 experience in conveyancing 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 practise on his or her own account.
(2)
A conveyancing practitioner who is a director or shareholder of an incorporated conveyancing firm is deemed to be practising on his or her own account.
(3)
A conveyancing practitioner may apply to the High Court for leave to practise on his or her own account.
(4)
The High Court, in deciding whether to grant an application for leave, must have regard to such matters as are specified in rules made under this Act in relation to such an application.
(5)
The High Court may grant leave subject to such conditions (if any) as it thinks proper.
(6)
A conveyancing practitioner commits an offence who, in contravention of this section, commences practice on his or her own account.
Compare: 1982 No 123 s 55(2)
38 Exceptions to section 37
(1)
Despite anything in section 37, a conveyancing practitioner may, at any time, commence practice on his or her own account, whether in partnership or otherwise, if, immediately before the commencement of section 67 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002, he or she held a licence as a landbroker under section 229 of the Land Transfer Act 1952.
(2)
Section 37 does not restrict the right of a conveyancing practitioner to practise as a conveyancing practitioner on his or her own account, if at any time previously (whether before or after the commencement of this section) he or she has lawfully practised on his or her own account as a landbroker or conveyancing practitioner.
(3)
Despite subsection (2), if, in the case of a conveyancing practitioner to whom subsection (2) applies, more than 10 years have elapsed since that conveyancing practitioner last practised on his or her own account as a landbroker or conveyancing practitioner, that conveyancing practitioner is not entitled to practise on his or her own account as a conveyancing practitioner until he or she has received adequate instruction to the satisfaction of the Council of the New Zealand Society of Conveyancers in the duties of a conveyancing practitioner.
Compare: 1982 No 123 s 55(7), (8)(a)
Practising certificates
39 Issue of practising certificates
(1)
The New Zealand Law Society, on application made to it by any person whose name is on the roll, must issue to that person a practising certificate either as a barrister or as a barrister and solicitor.
(2)
The New Zealand Society of Conveyancers, on application made to it by any person whose name is on the register of conveyancers, must issue to that person a practising certificate as a conveyancing practitioner.
(3)
Despite subsections (1) and (2), no person may hold at the same time both a practising certificate issued under subsection (1) and a practising certificate issued under subsection (2).
(4)
Despite subsections (1) and (2), the society to which the application is made—
(a)
may decline to issue a practising certificate to a person until that person has paid to it any fees and levies then payable by that person under this Act or under any rules made or resolutions passed under this Act; and
(b)
may refuse to issue a practising certificate to a person—
(i)
on the ground that the person does not meet the criteria prescribed by practice rules made under section 94(a); or
(ii)
on the ground set out in section 41(1), namely, that the person is not a fit and proper person to hold a practising certificate; and
(c)
may refuse to issue a practising certificate to a person who, under section 19 of the Trans-Tasman Mutual Recognition Act 1997, seeks the issue of the practising certificate, if that person does not meet the requirements that apply, under section 17 of the Trans-Tasman Mutual Recognition Act 1997, in relation to an individual who seeks the issue of a practising certificate of the kind sought.
(5)
A person who is suspended from practice must deposit his or her current practising certificate (if any) with the society that issued the certificate.
Compare: 1982 No 123 ss 57(1), 59(1)(b)
40 Effect of application for practising certificate
If a person who holds a practising certificate applies for a practising certificate for a further period and pays the prescribed fees and levies, and is otherwise entitled under this Act to the issue of the practising certificate applied for, that person is, until the certificate applied for is received by that person, or that person receives written notice that his or her application for a practising certificate has been refused, whichever first occurs, to be treated, for the purposes of this Act, as if that person were the holder of the practising certificate applied for.
Compare: 1982 No 123 s 56(3)
41 Power to refuse to issue practising certificate
(1)
A regulatory society may refuse to issue a practising certificate to a person on the ground that the person is not a fit and proper person to hold a practising certificate.
(2)
For the purposes of determining whether or not a person is a fit and proper person to hold a practising certificate, the regulatory society may take into account any matters it considers relevant and, in particular, may take into account any of the following matters:
(a)
in the case of lawyers, any of the matters that may be taken into account under section 55 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:
(b)
in the case of conveyancing practitioners, any of the matters that may be taken into account under section 83 for the purpose of determining whether or not a person is a fit and proper person to be granted registration as a conveyancer:
(c)
the person has obtained a practising certificate because of incorrect or misleading information:
(d)
the person has contravened a condition of a practising certificate held by the person:
(e)
the person has contravened this Act or a corresponding law:
(f)
the person has contravened an order of the Disciplinary Tribunal or a corresponding tribunal:
(h)
without limiting any other paragraph,—
(i)
the person’s name has been removed from a foreign roll or a foreign register; or
(ii)
the person has failed to pay a required contribution or levy to the Lawyers’ Fidelity Fund or the Conveyancing Practitioners’ Fidelity Fund; or
(iii)
the person does not hold any professional indemnity insurance required by rules made under section 99 or is otherwise in breach of any such rules; or
(iv)
the person has failed to pay any costs or expenses for which the person is liable under this Act or any regulations, rules, or resolutions made under this Act:
(i)
any other matters the regulatory society thinks appropriate.
(3)
A person may be considered to be a fit and proper person to hold a practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the regulatory society considers that the circumstances warrant the determination.
(4)
If a matter was—
(a)
disclosed in an application for admission as a barrister and solicitor or in an application for registration as a conveyancer in this or another jurisdiction; and
(b)
determined by a High Court or the body considering the application for registration as a conveyancer not to be sufficient for refusing admission or registration,—
the matter cannot be taken into account as a ground for refusing to issue a practising certificate, unless later disclosures demonstrate that the matter is part of a course of conduct that may warrant refusal.
(5)
Subsection (2) does not limit—
(a)
the grounds on which it may be determined whether or not a person is a fit and proper person to hold a practising certificate; or
(6)
In this section, regulatory society means—
(a)
the New Zealand Law Society; or
(b)
the New Zealand Society of Conveyancers.
42 Right to appeal
(1)
A person may appeal to the Disciplinary Tribunal against any decision of the New Zealand Law Society or the New Zealand Society of Conveyancers to decline to issue, or to refuse to issue, a practising certificate to the person.
(2)
Every appeal under subsection (1)—
(a)
must be by way of rehearing; and
(b)
must be made within such time and in such form as may be prescribed by the Disciplinary Tribunal under section 227(g).
(3)
On hearing an appeal under subsection (1), the Disciplinary Tribunal may confirm, reverse, or modify the decision appealed against.
Injunctions
43 Injunctions
The High Court or the District Court may, on the application of any person (including the New Zealand Law Society or the New Zealand Society of Conveyancers), grant an injunction restraining a person from engaging in conduct that constitutes or would constitute any of the following:
(b)
an attempt to contravene such a provision:
(c)
aiding, abetting, counselling, or procuring any other person to contravene such a provision:
(d)
inducing, or attempting to induce, any other person, whether by threats, promises, or otherwise, to contravene such a provision:
(e)
being in any way (whether directly or indirectly) knowingly concerned in, or party to, the contravention by any other person of such a provision:
(f)
conspiring with any other person to contravene such a provision.
Compare: 1986 No 5 s 81
Section 43: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Appointment of agent to conduct sole practice or act as board of incorporated firm
44 Practitioners to whom Schedule 1 applies
(1)
Schedule 1 applies to—
(a)
every lawyer who holds a practising certificate as a barrister and solicitor and who is providing legal services in New Zealand on his or her own account without partners:
(b)
every lawyer who is the only director of an incorporated law firm:
(c)
every conveyancing practitioner who is providing conveyancing services in New Zealand on his or her own account without partners:
(d)
every conveyancing practitioner who is the only director of an incorporated conveyancing firm.
(2)
For the purposes of this section, a practitioner does not practise on his or her own account without partners only by reason of the application to that practitioner of section 30(2) or section 37(2).
Compare: 1982 No 123 s 70(1)
45 Offences
Without prejudice to Schedule 1 or any of the provisions of this Part, a practitioner to whom Schedule 1 applies commits an offence if, without lawful justification or excuse, he or she—
(b)
revokes a power of attorney otherwise than in accordance with clause 14 of Schedule 1; or
(c)
fails to give a notice under clause 20 of Schedule 1.
Compare: 1982 No 123 s 78
Penalty
46 Penalty
Section 46: amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Provisions not affected
47 Provisions not affected
This Part does not limit or affect—
(j)
the provisions of the joint registration regime for patent attorneys in Part 6 of the Patents Act 2013; or
Section 47(b): substituted, on 1 July 2009, by section 87 of the Court Martial Act 2007 (2007 No 101).
Section 47(c): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).
Section 47(g): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 47(j): replaced, on 24 February 2017, by section 8 of the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Act 2016 (2016 No 89).
Section 47(k): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Part 6 Conduct of practice by practitioners
Practice rules and regulations
94 Practice rules
The New Zealand Law Society and the New Zealand Society of Conveyancers must each have rules that include or provide for—
(a)
the criteria for eligibility for a practising certificate:
(d)
the keeping and maintenance of a register of practitioners:
(e)
standards of professional conduct and client care:
(f)
in the case of the New Zealand Law Society, the matters relating to the Lawyers’ Fidelity Fund that are referred to in section 309:
(g)
in the case of the New Zealand Society of Conveyancers, the matters relating to the Conveyancing Practitioners’ Fidelity Fund that are referred to in section 310:
(h)
in the case of the New Zealand Law Society, the circumstances in which, and the conditions subject to which, lawyers and incorporated law firms may share with patent attorneys the income from any business involving the provision of regulated services to the public:
(i)
the requirements to be met before a practitioner may practise as such on his or her own account, whether as a sole practitioner, in partnership, or otherwise:
(j)
a requirement for practitioners and incorporated firms to provide clients in advance with information on the principal aspects of client service, including—
(i)
the basis on which fees will be charged; and
(ii)
indemnity insurance arrangements or other arrangements in respect of professional indemnity; and
(iii)
the coverage provided by any fidelity fund; and
(k)
the regulation of the receipt, holding, and disbursement of money and other property received or held by practitioners or incorporated firms on behalf of other persons:
(l)
the operation of the complaints service established by it under section 121:
(m)
the criteria to be met by persons who are candidates for appointment as investigators:
(n)
the circumstances and manner in which the appointment of an investigator may be revoked:
(o)
the kinds of conduct, including criminal offences, for which a practitioner or former practitioner may be disciplined:
(p)
prescribing the maximum sum that a Standards Committee may order be paid under section 156(1)(d) by way of compensation:
(q)
the delegation of functions, duties, and powers under the practice rules:
(r)
the amendment and replacement of the practice rules.
95 Code of professional conduct and client care
The New Zealand Law Society and the New Zealand Society of Conveyancers, in exercising the powers conferred by section 94(e), must each have rules that include or provide for a code of professional conduct and client care, which will be a reference point for discipline and which will focus on, but need not be limited to,—
(a)
in the case of lawyers, the duties of lawyers as officers of the High Court and the duties of lawyers to their clients:
(b)
in the case of conveyancing practitioners, the duties of conveyancing practitioners to their clients:
(c)
in the case of both lawyers and conveyancing practitioners, the duties imposed on them by their fundamental obligation to be independent in providing regulated services to their clients.
96 Practice rules in relation to nominee companies
Practice rules made by the Council of the New Zealand Law Society must regulate, or provide for the regulation of, the formation, operation, management, and winding up of nominee companies that—
(a)
are operated by barristers and solicitors or incorporated law firms; and
(b)
invest money in contributory mortgages or other securities on behalf of clients.
Compare: 1982 No 123 s 17(2)(g)
97 Certain practice rules in relation to lawyers
(1)
Practice rules made by the New Zealand Law Society—
(a)
must provide for the issue of practising certificates to persons as “barristers”
or “barristers and solicitors”
:
(b)
may require lawyers, or any class of lawyers, to undertake ongoing legal education relating to the law or the practice of law.
(2)
Practice rules made pursuant to subsection (1)(b) may, without limitation,—
(a)
provide for the times or frequencies at which the legal education must be undertaken and the topics to be addressed:
(b)
require that particular legal education be undertaken, or (in addition or as an alternative) require that the legal education comply with specified requirements:
(c)
exempt, or provide for the exemption of, any lawyer or class of lawyer, from all or any practice rules made pursuant to subsection (1)(b).
Compare: 1982 No 123 s 17(2)(fa)
98 Certain practice rules in relation to conveyancing practitioners
(1)
Practice rules made by the New Zealand Society of Conveyancers—
(a)
must provide educational criteria to be met by candidates for practising certificates as conveyancing practitioners:
(b)
must provide for, or include mechanisms providing for, the recognition of foreign qualifications, registration, and experience:
(c)
may require conveyancing practitioners, or any class of conveyancing practitioners, to undertake ongoing education relating to the law or the practice of conveyancing.
(2)
Practice rules made pursuant to subsection (1)(c) may, without limitation,—
(a)
provide for the times or frequencies at which the education must be undertaken and the topics to be addressed:
(b)
require that particular education be undertaken, or (in addition or as an alternative) require that the education comply with specified requirements:
(c)
exempt, or provide for the exemption of, any conveyancing practitioner or class of conveyancing practitioner from all or any rules made under section 94 pursuant to subsection (1)(c) of this section.
Compare: 1982 No 123 s 17(2)(fa)
99 Indemnity rules
(1)
The New Zealand Law Society and the New Zealand Society of Conveyancers must each have practice rules concerning the indemnity of practitioners or any class of practitioners or any incorporated firms or any class of incorporated firms against claims made against them in respect of anything done or omitted by them in their professional capacity.
(2)
Practice rules made under subsection (1)—
(a)
may authorise the New Zealand Law Society or the New Zealand Society of Conveyancers or both to establish or maintain a fund or funds:
(b)
may authorise or require the New Zealand Law Society or the New Zealand Society of Conveyancers or both to take out and maintain insurance:
(c)
may require practitioners or any class of practitioners or incorporated firms or any class of incorporated firms to hold professional indemnity insurance:
(d)
may require that professional indemnity insurance held for the purposes of paragraph (c) be held only with insurers approved by the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may require.
(3)
Without prejudice to the generality of subsections (1) and (2), practice rules made under the provisions of those subsections—
(a)
may specify the terms and conditions upon which indemnity is to be available, and any circumstances in which the right to it is to be excluded or modified:
(b)
may provide for the management, administration, and protection of any fund maintained by virtue of subsection (2)(a) and require practitioners or any class of practitioners or incorporated firms or any class of incorporated firms to make payments to any such fund:
(c)
may require practitioners or any class of practitioners or incorporated firms or any class of incorporated firms to make payments by way of premium on any insurance policy maintained by the New Zealand Law Society or the New Zealand Society of Conveyancers by virtue of subsection (2)(b):
(d)
may specify the minimum terms and conditions that an insurance policy must satisfy for the purposes of subsection (2)(c):
(e)
may specify circumstances in which practitioners or any class of practitioners or incorporated firms or any class of incorporated firms are exempt from the rules or any provision of them:
(f)
may empower the New Zealand Law Society or the New Zealand Society of Conveyancers or both to take steps to ascertain whether the rules are being complied with:
(g)
may make such incidental, procedural, or supplementary provisions as are necessary to give full effect to subsections (1) and (2).
(4)
The New Zealand Law Society and the New Zealand Society of Conveyancers each has power to carry into effect any arrangements that it considers necessary or expedient for the purpose of indemnity under this section.
Compare: 1982 No 123 s 17(3), (4)(a), (b), (c), (h), (i), (j); Solicitors Act 1974 s 37(1), (2), (3)(a), (b), (c), (d), (g), (h), (i), (5) (UK)
100 Consultation in relation to rules
(1)
This section applies to—
(a)
the rules made by the Council of the New Zealand Society of Conveyancers under section 81(2)(a); and
(b)
the practice rules made by the Council of the New Zealand Law Society or the Council of the New Zealand Society of Conveyancers, as the case may be.
(2)
The rules to which this section applies must be made with the approval of the Minister and after consultation with—
(a)
lawyers or conveyancers, as the case may be; and
(b)
such other persons or groups as the Minister may direct.
101 Criteria in relation to approval of practice rules by Minister
The Minister must, in deciding whether to approve any practice rules, have regard, among other things, to—
(a)
the fundamental obligations of the practitioners to whom the practice rules relate:
(b)
the principle that it may be necessary or expedient to impose duties or restrictions on practitioners in order to protect the interests of consumers:
(c)
the principle that the burden of a duty or restriction should be proportionate to the benefits that are expected to result from the imposition of the duty or restriction:
(d)
the consistency of the rules with New Zealand’s international obligations:
(e)
the provisions of this Act and all rights and obligations of practitioners under the law.
102 Registration of practice rules
(1)
The Council of the New Zealand Law Society must, no later than 14 days after the day on which this Part comes into force, deliver to the Registrar of Companies at Wellington for registration a copy of its practice rules (as approved by the Minister).
(2)
The Council of the New Zealand Society of Conveyancers must, no later than 14 days after the day on which the whole of Part 5 comes into force, deliver to the Registrar of Companies at Wellington for registration—
(a)
a copy of the rules in force under section 81(2)(a) (as approved by the Minister); and
(b)
a copy of its practice rules (as approved by the Minister).
103 Amendment of rules
The Council of the New Zealand Law Society or the Council of the New Zealand Society of Conveyancers may, at any time, with the approval of the Minister and after consultation with lawyers or conveyancers, as the case may be, and after consultation with such other persons or groups as the Minister may direct, amend any of its rules to which section 100 applies, or revoke them and replace them with new rules.
104 Power of Minister to amend rules
(1)
If the Minister considers any rules to which section 100 applies to be deficient in any respect, the Minister may, subject to subsections (2) and (3), make such amendments to those rules as are necessary to remedy the deficiency.
(2)
Amendments made under subsection (1) to rules to which section 100 applies may relate only to matters in respect of which rules under section 81(2)(a) or practice rules, as the case may require, may be made.
(3)
The Minister, in deciding whether to make amendments under subsection (1) to any rules,—
(a)
must consult the council by which the rules were made; and
(b)
may consult such other persons or groups as the Minister thinks fit.
105 Registration of amendments to rules
(1)
The Council of the New Zealand Law Society or the Council of the New Zealand Society of Conveyancers must, no later than 14 days after—
(a)
passing any amendment to any rules to which section 100 applies; or
(b)
revoking any rules to which section 100 applies and replacing them with new rules,—
deliver to the Registrar of Companies at Wellington for registration a copy of the amendment (as approved by the Minister) or a copy of its new rules (as approved by the Minister).
(2)
If any rules are amended by the Minister under section 104, the Minister must, within 14 days after making the amendment, deliver to the Registrar of Companies at Wellington for registration a copy of that amendment.
106 Application of Legislation Act 2012 to rules
The rules to which section 100 applies and amendments to those rules are legislative instruments and disallowable instruments for the purposes of the Legislation Act 2012.
Section 106: replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
107 Effect of practice rules
(1)
The practice rules of the New Zealand Law Society are binding on all lawyers and former lawyers, whether or not they are members of the New Zealand Law Society, and on all incorporated law firms and former incorporated law firms, but are not binding on other persons.
(2)
The practice rules of the New Zealand Society of Conveyancers are binding on all conveyancing practitioners and former conveyancing practitioners, whether or not they are members of the New Zealand Society of Conveyancers, but are not binding on other persons.
(3)
No partnership deed, employment agreement, or other legal arrangement governing the manner in which a practitioner is in practice, business, or employment may require a practitioner to act in breach of the practice rules and any part of a deed, condition of employment, agreement, or other legal arrangement that purports to require such conduct is void.
Section 107(1): amended (with effect from 1 August 2008), on 4 August 2008, by section 10 of the Lawyers and Conveyancers Amendment Act 2008 (2008 No 54).
108 Regulations in relation to practitioners
(1)
The Governor-General may, by Order in Council, make regulations providing for any of the matters in respect of which rules to which section 100 applies may be made.
(2)
Regulations made under subsection (1) have general effect and are binding not only on practitioners and former practitioners but also on other persons to whom they apply.
(3)
So far as any rules to which section 100 applies are inconsistent with, or repugnant to, any regulations made under subsection (1) or section 119(1), those rules are to be treated as subject to the regulations.
Investigations
109 Investigation of affairs of practices
(1)
The New Zealand Law Society may, at any time, appoint a person—
(a)
to examine from time to time the accounts of lawyers or firms of lawyers or incorporated law firms; and
(b)
to furnish to the Society confidential reports—
(i)
as to any irregularity in the accounts of any lawyer or firm of lawyers or incorporated law firm that may be disclosed by any examination conducted under paragraph (a); and
(ii)
as to any other matter that, in the opinion of the person so appointed, should be reported upon or further investigated.
(2)
The New Zealand Society of Conveyancers may, at any time, appoint a person—
(a)
to examine from time to time the accounts of conveyancing practitioners or firms of conveyancing practitioners or incorporated conveyancing firms; and
(b)
to furnish to the Society confidential reports—
(i)
as to any irregularity in the accounts of any conveyancing practitioner or firm of conveyancing practitioners or incorporated conveyancing firm that may be disclosed by any examination conducted under paragraph (a); and
(ii)
as to any other matter that, in the opinion of the person so appointed, should be reported upon or further investigated.
(3)
A person may be appointed under subsection (1) or subsection (2) only if he or she is—
(a)
an officer or member of the Society by which the appointment is made; or
(b)
a qualified statutory accountant (within the meaning of section 5(1) of the Financial Reporting Act 2013); or
(c)
in the case of an appointment to be made under subsection (1), a person who holds office as an inspector appointed to the Law Society inspectorate; or
(d)
in the case of an appointment to be made under subsection (2), a person who holds office as an inspector appointed to the Conveyancers Society inspectorate.
(4)
An appointment made under subsection (1) or subsection (2) must be in writing.
(5)
Schedule 2 applies in relation to investigations conducted by persons appointed under this section.
Compare: 1982 No 123 s 85(1), (2)
Section 109(3)(b): amended, on 1 July 2015, by section 17 of the Financial Reporting Amendment Act 2014 (2014 No 64).
Trust accounts
110 Obligation to pay money received into trust account at bank
(1)
A practitioner who, in the course of his or her practice, receives money for, or on behalf of, any person—
(a)
must ensure that the money is paid promptly into a bank in New Zealand to a general or separate trust account of—
(ii)
a person who, or body that, is, in relation to the practitioner, a related person or entity; and
(b)
must hold the money, or ensure that the money is held, exclusively for that person, to be paid to that person or as that person directs.
(2)
An incorporated firm that, in the course of its practice, receives money for, or on behalf of, any person—
(a)
must ensure that the money is paid promptly into a bank in New Zealand to a general or separate trust account of the firm; and
(b)
must hold the money, or ensure that the money is held, exclusively for that person, to be paid to that person or as that person directs.
(3)
For the purposes of this section, a practitioner or an incorporated firm is deemed to have received money belonging to another person if—
(a)
that person, or a bank or other agency acting for, or on behalf of, that person, deposits funds by means of a telegraphic or electronic transfer of funds into the bank account of—
(i)
the practitioner or incorporated firm; or
(ii)
a person who, or body that, is, in relation to the practitioner, a related person or entity; or
(b)
the practitioner or incorporated firm takes control of money belonging to that person.
(4)
A person commits an offence against this Act and is liable on conviction to a fine not exceeding $25,000 who knowingly acts in contravention of subsection (1) or subsection (2).
Compare: 1982 No 123 s 89(1), (3)
Section 110(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
111 Obligation to account for trust money and valuable property
(1)
If, in the course of the practice of a practitioner or an incorporated firm, the practitioner, a related person or entity, or the incorporated firm receives or holds money or other valuable property on behalf of any person, the practitioner, related person or entity, or incorporated firm must account properly for the money or other valuable property to the person on whose behalf the money or other valuable property is held.
(2)
A person commits an offence against this Act and is liable on conviction to a fine not exceeding $25,000 who knowingly acts in contravention of subsection (1).
Compare: SR 1998/17 r 3(1)(a)
Section 111(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
112 Obligation to keep records in respect of trust accounts and valuable property
(1)
If, in the course of the practice of a practitioner or an incorporated firm, the practitioner, a related person or entity, or the incorporated firm receives or holds money or other valuable property in trust on behalf of any person, the practitioner, related person or entity, or incorporated firm—
(a)
must, in relation to the money, keep trust account records that disclose clearly the position of the money in the trust accounts of the practitioner, related person or entity, or incorporated firm; and
(b)
must, in relation to other valuable property, keep records that—
(i)
describe the property received or held; and
(ii)
show the date on which the property was received; and
(iii)
if the property has been disposed of, give details of the disposition of the property, including the date on which, and the person to whom, the property was disposed of; and
(c)
must keep the records required by this section in such a manner as to enable those records to be conveniently and properly audited or inspected.
(2)
Subsection (1) does not apply to a person (being a practitioner, related person or entity, or incorporated firm)—
(a)
who does not provide regulated services; or
(b)
who, in the course of providing regulated services, does not, on that person’s own behalf or in his or her capacity as a director or shareholder of an incorporated firm, do any of the following:
(i)
receive or hold money or other valuable property in trust for any other person:
(ii)
invest money for any other person:
(iv)
receive fees or disbursements in advance of an invoice being issued.
(3)
A person commits an offence against this Act and is liable on conviction to a fine not exceeding $25,000 who knowingly acts in contravention of subsection (1).
Compare: SR 1998/17 r 3(1)(b), (2)(a)
Section 112(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
113 Protection of money received
(1)
No money to which section 110(1) or (2) applies is available for the payment of the debts of any other creditor of the practitioner, related person or entity, or incorporated firm; nor is any such money liable to be attached or taken in execution under the order or process of any court at the instance of any such creditor.
(2)
Nothing in section 110 or this section takes away or affects any just claim or lien that a practitioner, related person or entity, or incorporated firm who holds money to which section 110(1) or (2) applies may have against that money.
Compare: 1982 No 123 s 89(2), (4)
114 Duty of practitioners to ensure that funds earn interest
It is the duty of every practitioner and of every related person or entity and of every incorporated firm to ensure that, wherever practicable, all money held on behalf of any person by that practitioner, related person or entity, or incorporated firm earns interest for the benefit of that person, unless—
(a)
that person instructs otherwise; or
(b)
it is not reasonable or practicable (whether because of the smallness of the amount, the shortness of the period for which the practitioner, related person or entity, or incorporated firm is to hold the money, or for any other reason) for the practitioner, related person or entity, or incorporated firm to invest the money, at the direction of the person for whom the money is held, so that interest is payable on it for the benefit of that person.
Compare: 1982 No 123 s 89A
115 Regulations relating to trust accounts
The Governor-General may, from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a)
regulating the use and audit of trust accounts of practitioners and of related persons or entities and of incorporated firms, and prescribing the duties of practitioners and of related persons or entities and of incorporated firms in regard to trust accounts:
(b)
prohibiting or regulating the collection of money of a client by a lawyer or class of person connected with a lawyer or an incorporated law firm:
(c)
regulating the lending of money of a client by a practitioner or class of person connected with a practitioner or incorporated firm:
(d)
prohibiting or regulating the borrowing of money of a client by a practitioner or class of person connected with a practitioner or incorporated firm:
(e)
regulating the receipt, banking, payment, investment, and recording of money and other valuable property entrusted to practitioners, related persons or entities, or incorporated firms:
(f)
requiring the keeping of registers of properties, authorities, and appointments held by practitioners and related persons or entities and incorporated firms:
(g)
requiring that a practitioner who intends to set up on his or her own account or to become a director or shareholder of an incorporated firm, or who manages or administers trust accounts, must undertake training in trust account management and in the obligations of lawyers or conveyancing practitioners or incorporated firms, as the case may require, in relation to trust accounts:
(h)
prescribing the duties of persons appointed under section 109 to conduct examinations of accounts, and prescribing the duties of practitioners and related persons or entities and incorporated firms in relation to such examinations and the circumstances in which a practitioner, related person or entity, or incorporated firm may be required to pay the cost of any such examination:
(i)
establishing a scheme for the protection of money entrusted to practitioners, related persons or entities, or incorporated firms:
(j)
providing for the establishment of an inspectorate by the New Zealand Law Society or the New Zealand Society of Conveyancers or by both:
(k)
prescribing functions, duties, rights, and powers of the Law Society inspectorate or the Conveyancers Society inspectorate or both:
(l)
authorising any inspector appointed to the Law Society inspectorate or the Conveyancers Society inspectorate to delegate any function, duty, right, or power conferred on that inspector in his or her capacity as a member of the inspectorate (other than the power of delegation):
(m)
providing for payment by lawyers and by related persons or entities and by incorporated law firms of fees and costs of the Law Society inspectorate:
(n)
providing for payment by conveyancing practitioners and by related persons or entities and by incorporated conveyancing firms of fees and costs of the Conveyancers Society inspectorate:
(o)
authorising any auditor or the Law Society inspectorate or the Conveyancers Society inspectorate to communicate directly, for the purpose of establishing whether the regulations have been complied with,—
(i)
with clients of lawyers and with related persons or entities; and
(ii)
with clients of incorporated law firms; and
(iii)
with clients of conveyancing practitioners and with related persons or entities; and
(iv)
with clients of incorporated conveyancing firms; and
(p)
prescribing the persons to whom the reports of auditors must be sent for inspection, information, or record:
(q)
prescribing the persons to whom written communications between the auditor or inspector and the lawyer or incorporated law firm and between the auditor or inspector and any person who, or body that, is, in relation to the lawyer, a related person or entity may be disclosed:
(r)
prescribing the persons to whom written communications between the auditor or inspector and the conveyancing practitioner or incorporated conveyancing firm and between the auditor or inspector and any person who, or body which, is, in relation to the conveyancing practitioner, a related person or entity may be disclosed:
(s)
providing that a practitioner, a related person or entity, an incorporated firm, an auditor, the Law Society inspectorate, and the Conveyancers Society inspectorate are subject to an obligation not to divulge, otherwise than as prescribed, any matter of which the practitioner, the related person or entity, the incorporated firm, the auditor, or the inspectorate is informed in the course of an audit, review, or inspection, and are also subject to the like liability in damages to a client of the practitioner, the related person or entity, or the incorporated firm as the practitioner or the incorporated firm would be if the practitioner, related person or entity, or incorporated firm divulged any such matter:
(t)
prescribing fees or costs, or scales of fees or costs, to be paid to auditors, or the Law Society inspectorate or the Conveyancers Society inspectorate, or providing for the determination of the amounts of such fees or costs in such manner as may be prescribed; and providing that the Law Society inspectorate or the Conveyancers Society inspectorate may charge fees for performing any of their respective functions:
(u)
prescribing the circumstances (if any) in which, and the conditions subject to which, any trust account may be kept in a name other than that by which the client is usually known; and requiring trust accounts to be kept in all other circumstances in the names by which the clients are usually known:
(v)
requiring practitioners and related persons or entities and incorporated firms to keep registers of documents and information:
(w)
requiring practitioners, related persons or entities, incorporated firms, banks, and other persons to supply (either at specified times or upon request) to auditors, the Law Society inspectorate, the Conveyancers Society inspectorate, the New Zealand Law Society, or the New Zealand Society of Conveyancers such information and returns as may be necessary to ensure compliance with the regulations:
(x)
prescribing offences in respect of the contravention of or non-compliance with any regulations made under this section, and the amounts of the fines that may be imposed in respect of any such offences, not exceeding $25,000 in respect of any offence:
(y)
prescribing generally such requirements as may be necessary to ensure that trust accounts are duly kept, and that persons beneficially entitled to money and securities held by practitioners, related persons or entities, or incorporated firms on trust are informed of the money and securities held and of the investment of any such money or securities.
Compare: 1982 No 123 ss 17(2)(e)–(f), 91(1)(a)–(f), (i)–(n), (q)–(s), (v), (w)
116 Provisions relating to regulations relating to trust accounts
(1)
In section 115, client, in relation to a practitioner or incorporated firm, includes any person on whose behalf money is, or securities are, held by the practitioner or incorporated firm.
(2)
In section 115, class of person connected with a practitioner or incorporated firm includes,—
(a)
in relation to a practitioner,—
(i)
a spouse or partner or child of the practitioner; and
(ii)
any nominee of the practitioner; and
(iii)
any company registered under the Companies Act 1993 of which the principal financial interest or effective control is directly or indirectly vested in the practitioner or any spouse or partner or child or children or nominee of the practitioner; and
(iv)
any other incorporated or unincorporated body of which the principal financial benefit or effective control is directly or indirectly vested in the practitioner or any spouse or partner or child or children or nominee of the practitioner; and
(b)
in relation to an incorporated firm,—
(i)
a spouse or partner or child of a person who is a director or shareholder of the firm; and
(ii)
any nominee of the firm or of a person who is a director or shareholder of the firm; and
(iii)
any company registered under the Companies Act 1993 of which the principal financial interest or effective control is directly or indirectly vested in the firm or any spouse or partner or child or children or nominee of a person who is a director or shareholder of the firm; and
(iv)
any other incorporated or unincorporated body of which the principal financial benefit or effective control is directly or indirectly vested in the firm or any spouse or partner or child or children or nominee of a person who is a director or shareholder of the firm.
(3)
In subsection (2), partner, in relation to a person, means a civil union partner or de facto partner of that person.
(4)
Regulations made under section 115(g) may, without limitation,—
(a)
provide that the training must be undertaken at specified times or frequencies, or in specified circumstances:
(b)
require that a particular course or courses be undertaken, or (in addition, or as an alternative) require that the training comply with specified requirements or be provided by a particular agency or agencies:
(c)
provide that satisfactory results from assessment or examination be required as part of training:
(d)
exempt, or provide for the exemption of, any lawyer or class of lawyer or any conveyancing practitioner or class of conveyancing practitioner or any other person or class of person from all or any regulations made under section 115(g):
(e)
provide that fees may be charged to any person applying for or undertaking the training required by regulations made under section 115(g).
(6)
Without prejudice to subsection (5), wilful failure to comply with any regulations made under section 115 is, if the High Court thinks fit, ground for the exercise of the High Court’s summary jurisdiction under this Act.
Compare: 1982 No 123 ss 17(2)(ea), 91(2)–(5)
Section 116(5): amended, on 7 July 2010, by section 10 of the New Zealand Institute of Chartered Accountants Amendment Act 2010 (2010 No 74).
Barristers and Queen’s Counsel
Heading: amended, on 3 December 2012, by section 5 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
117 Status of barristers
Subject to this Act, barristers of the High Court have all the powers, privileges, duties, and responsibilities that barristers have at law.
Compare: 1982 No 123 s 61
118 Office or rank of Queen’s Counsel
The office or rank that before 1 August 2008 was known in New Zealand as Queen’s Counsel, and that from the close of 31 July 2008 to the close of 2 December 2012 was renamed as Senior Counsel, is on and after 3 December 2012 again to be known in New Zealand as Queen’s Counsel.
Section 118: replaced, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
118A Eligibility for appointment
(1)
A person who holds a current practising certificate authorising him or her to practise as a barrister and not as a barrister and solicitor is eligible for appointment, under the Royal prerogative, as a Queen’s Counsel if he or she (whether or not he or she is a statutory officer)—
(a)
practises, and in the course of his or her practice provides regulated services, alone (that is, not in partnership with any other lawyer); and
(b)
is not actively involved in the provision by an incorporated law firm (other than one in which he or she is the only voting shareholder) of regulated services; and
(c)
is not an employee (other than an employee of an incorporated law firm in which he or she is the only voting shareholder) who, in the course of his or her employment, provides regulated services.
(2)
Nothing in this section, section 118B, or section 119 limits or affects appointments, under the Royal prerogative (as preserved by section 119C(1) and (2)), to the office of Queen’s Counsel of a person who, when appointed to that office, is all or any of the following:
(a)
a person who is not in the category in subsection (1):
(b)
a person who is appointed otherwise than in accordance with regulations under section 119(1)(a) and (b), guidelines of the kind specified in section 119(2)(b), or both:
(c)
a person who does not possess all or any of the qualifications and experience that guidelines of the kind specified in section 119(2)(a) indicate should be possessed by candidates for appointment as Queen’s Counsel.
Section 118A: inserted, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
118B Restrictions on practice of specified category of lawyers who hold rank
(1)
A person who holds the rank of Queen’s Counsel, and who when appointed to that rank was in the category in section 118A(1),—
(a)
must not practise, or in the course of his or her practice provide regulated services, as a barrister and solicitor, or in partnership with any other lawyer; and
(b)
must not be actively involved in the provision by an incorporated law firm (other than one in which he or she is the only voting shareholder) of regulated services; and
(c)
must not be an employee (other than an employee of an incorporated law firm in which he or she is the only voting shareholder) who, in the course of his or her employment, provides regulated services; but
(d)
is not precluded, by reason only of the fact that he or she holds that rank, from being a statutory officer.
(3)
A person who is subject to, and who contravenes, subsection (1) must be treated as having surrendered at the time of the contravention the rank of Queen’s Counsel.
Section 118B: inserted, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
118C Queen’s Counsel appointed before 1 August 2008
(1)
This section applies to a person who at the close of 31 July 2008 held, and at the close of 2 December 2012 continued to hold, the rank of Queen’s Counsel for New Zealand.
(2)
If, after 31 July 2008 and under section 118(5) (as repealed by section 6 of the Lawyers and Conveyancers Amendment Act 2012), the person used, in relation to himself or herself, the words Senior Counsel and the abbreviation SC, then after 2 December 2012 he or she—
(a)
may continue to use, in relation to himself or herself, those words and that abbreviation; or
(b)
may use instead, in relation to himself or herself, the words Queen’s Counsel and the abbreviation QC.
(3)
The precedence to which the person is entitled is not affected by sections 118 to 119C (as substituted by section 6 of the Lawyers and Conveyancers Amendment Act 2012).
(4)
The following apply to the person in the same way as they apply to a Queen’s Counsel appointed to that rank after 2 December 2012:
(5)
Despite subsection (4)(a), section 118B (as so substituted) does not apply, but section 118D(4) (as so substituted) does apply, to the person if after his or her appointment as a Queen’s Counsel and before or on 1 April 2010 and under section 118(2)(b) of this Act (as repealed by section 6 of the Lawyers and Conveyancers Amendment Act 2012) or not inconsistently with an enactment in or under an earlier Act that corresponds to this Act he or she—
(a)
practised, or in the course of his or her practice provided regulated services, as a barrister and solicitor, or in partnership with any other lawyer; or
(b)
was actively involved in the provision by an incorporated law firm (other than one in which he or she is the only voting shareholder) of regulated services; or
(c)
was an employee (other than an employee of an incorporated law firm in which he or she is the only voting shareholder) who, in the course of his or her employment, provided regulated services; or
(6)
Subsections (3), (4), and (5) apply to the person whether or not after 2 December 2012 and under subsection (2) he or she uses, in relation to himself or herself, the words Senior Counsel and the abbreviation SC.
Section 118C: inserted, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
118D Senior Counsel appointed after 31 July 2008 and before 3 December 2012
(1)
This section applies to a person who after 31 July 2008 was appointed to, and at the close of 2 December 2012 continued to hold, the rank of Senior Counsel for New Zealand.
(2)
After 2 December 2012, the person—
(a)
may continue to use, in relation to himself or herself, the words Senior Counsel and the abbreviation SC; or
(b)
may instead use, in relation to himself or herself, the words Queen’s Counsel and the abbreviation QC.
(3)
The precedence to which the person is entitled is not affected by sections 118 to 119C (as substituted by section 6 of the Lawyers and Conveyancers Amendment Act 2012).
(4)
After 2 December 2012, the person is not precluded, by reason only of the fact that he or she holds that rank,—
(a)
from practising, or in the course of his or her practice providing regulated services, either as a barrister or as a barrister and solicitor, or either alone or in partnership with any other lawyer; or
(b)
from being actively involved in the provision by an incorporated law firm (other than one in which he or she is the only voting shareholder) of regulated services; or
(c)
from being an employee (other than an employee of an incorporated law firm in which he or she is the only voting shareholder) who, in the course of his or her employment, provides regulated services; or
(d)
from being a statutory officer.
(5)
The following apply to the person in the same way as they apply to a Queen’s Counsel appointed to that rank after 2 December 2012:
(6)
Subsections (3), (4), and (5) apply to the person whether or not after 2 December 2012 and under subsection (2) he or she uses, in relation to himself or herself, the words Queen’s Counsel and the abbreviation QC.
Section 118D: inserted, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
119 Regulations relating to Queen’s Counsel
(1)
The Governor-General may, by Order in Council, make regulations (not inconsistent with this Act) prescribing—
(a)
the process by which candidates may be recommended to the Governor-General for appointment, by letters patent, under the Royal prerogative as Queen’s Counsel:
(b)
the fees to be paid by candidates for appointment as Queen’s Counsel:
(c)
the privileges and duties of Queen’s Counsel:
(d)
the conditions on or subject to which candidates may be appointed as Queen’s Counsel:
(e)
the conditions on or subject to which Queen’s Counsel may practise their profession:
(f)
the precedence that Queen’s Counsel are to have in the courts of New Zealand:
(g)
such other matters as may be necessary in relation to Queen’s Counsel.
(2)
Regulations made under subsection (1) may authorise the Chief Justice and the Attorney-General to issue guidelines (not inconsistent with this Act or any regulations of that kind) in relation to both—
(a)
the qualifications and experience that should be possessed by candidates for appointment as Queen’s Counsel; and
(b)
the process by which such candidates may be recommended for appointment.
Section 119: replaced, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
119A Other ways of ceasing to hold rank
(1)
A person who holds the rank of Queen’s Counsel ceases to hold that rank if—
(a)
he or she is suspended from practice as a barrister or as a solicitor or as both (even if the suspension is only until a charge against the person has been heard and disposed of by the Disciplinary Tribunal); or
(b)
his or her name is struck off the roll.
(2)
Nothing in sections 118 to 119C (as substituted by section 6 of the Lawyers and Conveyancers Amendment Act 2012) abrogates the power of the Crown to revoke, under the Royal prerogative, the appointment of any person who was appointed as a Queen’s Counsel for New Zealand.
Section 119A: inserted, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
119B Style of rank if Sovereign for time being is King
(1)
If the Sovereign for the time being is a King,—
(a)
every reference to Queen’s Counsel in a provision to which this paragraph applies is, unless the context otherwise requires, to be read as a reference to King’s Counsel; and
(b)
the words and abbreviation that a lawyer who holds the rank of Queen’s Counsel are to use, if he or she wishes, in relation to himself or herself, are King’s Counsel and KC.
(2)
Subsection (1)(a) applies to—
(a)
provisions in this Act (other than in subsection (1) or in section 118C(1)); and
(b)
provisions in (or in any guidelines issued under) any regulations made under section 119(1).
Section 119B: inserted, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
119C Royal prerogative power to appoint unaffected
(1)
Sections 118A and 118B do not derogate from the power to appoint under the Royal prerogative to the office of Queen’s Counsel a person who, when so appointed, was not in the category in section 118A(1) (and by way of explanation who, after being so appointed, is not subject to section 118B, which imposes practice restrictions).
(2)
The powers conferred by section 119 do not derogate from the power to appoint, under the Royal prerogative, people to the office of Queen’s Counsel.
Section 119C: inserted, on 3 December 2012, by section 6 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Part 7 Complaints and discipline
120 Purposes
(1)
The first purpose of this Part is to provide a framework in relation to complaints and discipline.
(2)
The framework is, in relation to complaints, to be—
(a)
one that relates to complaints about—
(i)
lawyers and former lawyers; and
(ii)
incorporated law firms and former incorporated law firms; and
(iii)
persons who are not practitioners but who are employees or former employees of lawyers and incorporated law firms; and
(iv)
conveyancing practitioners and former conveyancing practitioners; and
(v)
incorporated conveyancing firms and former incorporated conveyancing firms; and
(vi)
persons who are not practitioners but who are employees or former employees of conveyancing practitioners and incorporated conveyancing firms; and
(b)
one within which complaints of the kind referred to in paragraph (a) may be processed and resolved expeditiously and, in appropriate cases, by negotiation, conciliation, or mediation.
(3)
The framework is, in relation to discipline, to be one within which disciplinary charges against persons of the kinds described in subparagraphs (i) to (vi) of subsection (2)(a) may be heard and determined expeditiously.
(4)
The second purpose of this Part is to require the New Zealand Law Society to make, in relation to persons of the kinds described in subparagraphs (i) to (iii) of subsection (2)(a), rules necessary for the purposes of the framework referred to in this section.
(5)
The third purpose of this Part is to require the New Zealand Society of Conveyancers to make, in relation to persons of the kinds described in subparagraphs (iv) to (vi) of subsection (2)(a), rules necessary for the purposes of the framework referred to in this section.
(6)
The fourth purpose of this Part is to preserve the inherent jurisdiction of the High Court to strike off the roll and discipline lawyers in their capacity as officers of the High Court.
Complaints service
121 Obligation to establish complaints service
(1)
The New Zealand Law Society must establish a complaints service 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.
(2)
The New Zealand Society of Conveyancers must establish a complaints service to receive complaints about—
(a)
conveyancing practitioners and former conveyancing practitioners; and
(b)
incorporated conveyancing firms and former incorporated conveyancing firms; and
(c)
employees and former employees of conveyancing practitioners and incorporated conveyancing firms.
122 Rules
(1)
The New Zealand Law Society and the New Zealand Society of Conveyancers must each make and maintain practice rules governing the operation of the complaints service established by it.
(2)
The rules governing the operation of a complaints service must be designed to ensure, as far as is practicable, that all complaints received by the complaints service (whether they are about service, costs, conduct, or any other matter) are dealt with in a fair, efficient, and effective manner.
123 Administration of complaints service
Each complaints service—
(a)
must be administered in accordance with both—
(ii)
the rules governing the operation of the complaints service; and
(b)
must deal, in a fair, efficient, and effective manner, with all complaints received by the complaints service (whether they are about service, costs, conduct, or any other matter).
124 Functions of New Zealand Law Society in relation to complaints service
The functions of the New Zealand Law Society, in administering the complaints service established by it under section 121(1), are as follows:
(a)
to ensure that places are provided at which complaints about lawyers and other persons who belong to the classes of persons described in section 121(1)(a) to (c) may be lodged:
(b)
to give appropriate publicity both to the places at which complaints about lawyers and other persons who belong to the classes of persons described in section 121(1)(a) to (c) may be lodged and to the procedure to be used in lodging such complaints:
(c)
to publish information with a view to making it known that complaints about lawyers and other persons who belong to the classes of persons described in section 121(1)(a) to (c) must be in writing and be supported by appropriate documentation:
(d)
to enter into contracts, on behalf of the New Zealand Law Society, with persons who provide services to, or are employed to assist, Lawyers Standards Committees:
(e)
to ensure throughout New Zealand both the consistency and the quality of the complaints service:
(f)
to provide assistance to Lawyers Standards Committees and to the office of each such committee:
(g)
to provide to the Legal Complaints Review Officer copies of any complaints that the New Zealand Law Society receives about the operation of the complaints service:
(h)
to ensure that decisions of Lawyers Standards Committees, the Legal Complaints Review Officer, and the Disciplinary Tribunal are enforced.
125 Functions of New Zealand Society of Conveyancers in relation to complaints service
The functions of the New Zealand Society of Conveyancers, in administering the complaints service established by it under section 121(2), are as follows:
(a)
to ensure that places are provided at which complaints about conveyancing practitioners and other persons who belong to the classes of persons described in section 121(2)(a) to (c) may be lodged:
(b)
to give appropriate publicity both to the places at which complaints about conveyancing practitioners and other persons who belong to the classes of persons described in section 121(2)(a) to (c) may be lodged and to the procedure to be used in lodging such complaints:
(c)
to publish information with a view to making it known that complaints about conveyancing practitioners and other persons who belong to the classes of persons described in section 121(2)(a) to (c) must be in writing and be supported by appropriate documentation:
(d)
to enter into contracts, on behalf of the New Zealand Society of Conveyancers, with persons who provide services to, or are employed to assist, Conveyancing Practitioners Standards Committees:
(e)
to ensure throughout New Zealand both the consistency and the quality of the complaints service:
(f)
to provide assistance to Conveyancing Practitioners Standards Committees and to the office of each such committee:
(g)
to provide to the Legal Complaints Review Officer copies of any complaints that the New Zealand Society of Conveyancers receives about the operation of the complaints service:
(h)
to ensure that decisions of Conveyancing Practitioners Standards Committees, the Legal Complaints Review Officer, and the Disciplinary Tribunal are enforced.
Standards Committees
126 Lawyers Standards Committees
(1)
The New Zealand Law Society must, by practice rules, establish 1 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.
127 Conveyancing Practitioners Standards Committees
(1)
The New Zealand Society of Conveyancers must, by practice rules, establish 1 or more Conveyancers Standards Committees as part of its complaints service.
(2)
The members of each Conveyancers Standards Committee are to be appointed by the New Zealand Society of Conveyancers.
128 Notice to Minister
(1)
Where the New Zealand Law Society or the New Zealand Society of Conveyancers appoints any person as a member of a Standards Committee, it must, within 21 days after making the appointment, give to the Minister a written notice setting out particulars of the appointment.
(2)
Those particulars must include—
(a)
particulars of the committee in respect of which the appointment has been made; and
(b)
the name and address of the person appointed; and
(c)
the period for which the person has been appointed.
129 Membership of Standards Committees
(1)
Each Standards Committee is to consist of at least 3 persons.
(2)
At least 1 member of each Standards Committee must be a lay member.
(3)
Subject to subsections (1) and (2), each Standards Committee is to consist of such number of persons as is specified in the rules by which that committee is established.
(4)
Subject to the provisions of this section, the rules establishing a Standards Committee must prescribe—
(a)
the constitution and proceedings of the committee; and
(b)
the mode of appointment and tenure of office of the members of the committee (other than the lay member or lay members); and
(c)
the mode of appointment and the tenure of office of the lay member or lay members of the committee; and
(d)
the criteria that must be applied in appointing the members of the committee (other than the lay member or lay members); and
(e)
the procedure to be followed, and the criteria to be applied, in selecting any person for appointment as a lay member of the committee; and
(f)
the procedure for the filling of vacancies in the membership of the committee; and
(g)
the circumstances in which a member of the committee may be removed from office.
130 Functions of Standards Committees
The functions of each Standards Committee are (subject to any limitations imposed on the committee by or under this Act or the rules that govern the operation of the committee)—
(a)
to inquire into and investigate complaints made under section 132:
(b)
to promote, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation:
(c)
to investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner or any other person who belongs to any of the classes of persons described in section 121:
(d)
to intervene, in the circumstances prescribed by this Act, in the affairs of practitioners or former practitioners or incorporated firms:
(e)
to make final determinations in relation to complaints:
(f)
to lay, and prosecute, charges before the Disciplinary Tribunal.
131 Rules relating to Standards Committees
The rules governing the operation of a Standards Committee must include, but are not limited to,—
(a)
rules providing details of the procedures to be followed in relation to complaints:
(b)
rules specifying the manner in which a Standards Committee is to exercise its functions and powers:
(c)
rules providing for—
(i)
the publication of information relating to the existence of the complaints service; and
(ii)
the means by which a person may gain access to the complaints service; and
(iii)
the means by which a complaint may be made:
(d)
rules providing for the publication of information regarding the outcomes and the performance of the complaints service:
(e)
rules specifying the criteria that will apply in relation to a complaint about a bill of costs, which criteria may provide that a complaint is not to be dealt with unless the bill of costs to which the complaint relates is for a sum that exceeds an amount specified in the rules:
(f)
rules specifying the circumstances in which the New Zealand Law Society or the New Zealand Society of Conveyancers or a Standards Committee may publish the identity of a person who has been censured by a Standards Committee.
Complaints
132 Complaints about practitioners, incorporated firms, and their employees
(1)
Any person may complain to the appropriate complaints 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 service 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 firm 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).
Compare: 1982 No 123 ss 98(1), 145(1)
133 Complaint of failure to comply with order or final determination
(1)
A complaint that 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, has failed to comply with an order or final determination of a Standards Committee may not be made under section 132(1)(c) if,—
(a)
in any case in which an application for the review of the order or determination has been lodged with the Legal Complaints Review Officer within the time allowed, that application has not been disposed of; or
(b)
in any other case, the time allowed for the lodging with the Legal Complaints Review Officer of an application for the review of the order or determination has not expired.
(2)
For the purposes of section 132(1)(c), a reasonable time for complying with an order or final determination of a Standards Committee must not be less than the time allowed for the lodging with the Legal Complaints Review Officer of an application for the review of that order or determination.
134 Complaint to be in writing
A complaint is made by giving written notice of the complaint to the appropriate complaints service.
135 Appropriate complaints service
(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 service, 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.
(2)
If the complaint relates to a conveyancing practitioner or former conveyancing practitioner or an incorporated conveyancing firm or a former incorporated conveyancing practitioner, or an employee or former employee of a conveyancing practitioner or incorporated conveyancing firm, the appropriate complaints service, for the purposes of sections 132 and 134, is the complaints service established under section 121(2) by the New Zealand Society of Conveyancers and the complaint must be referred by that service to a Conveyancers Standards Committee.
136 Complaint by Law Society or Society of Conveyancers
Without limiting the right of any person to make a complaint under section 132, it is declared that a complaint under that section may be made by—
(a)
a member of the council of the New Zealand Law Society or a person acting on its behalf; or
(b)
a member of the council of the New Zealand Society of Conveyancers or a person acting on its behalf.
137 Action on receipt of complaint
(1)
A Standards Committee, on receiving a complaint, may—
(a)
inquire into the complaint; 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).
Compare: 1993 No 28 s 70
138 Decision to take no action on complaint
(1)
A Standards Committee may, in its discretion, decide to take no action or, as the case may require, no further action, on any complaint if, in the opinion of the Standards Committee,—
(a)
the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or
(b)
the subject matter of the complaint is trivial; or
(c)
the complaint is frivolous or vexatious or is not made in good faith; or
(d)
the person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or
(e)
the complainant does not have sufficient personal interest in the subject matter of the complaint; or
(f)
there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person aggrieved to exercise.
(2)
Despite anything in subsection (1), a Standards Committee may, in its discretion, decide not to take any further action on a complaint if, in the course of the investigation of the complaint, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
Compare: 1993 No 28 s 71(1), (2)
139 Notice of decision
(1)
In any case where a Standards Committee decides to take no action, or no further action, on a complaint, the Standards Committee must forthwith give written notice of that decision to—
(b)
the person to whom the complaint relates; and
(c)
either—
(i)
the New Zealand Law Society (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); or
(ii)
the New Zealand Society of Conveyancers (if the complaint relates to a conveyancing practitioner or former conveyancing practitioner or an incorporated conveyancing firm or former incorporated conveyancing firm, or an employee or former employee of a conveyancing practitioner or incorporated conveyancing firm).
(2)
The notice must—
(a)
state the decision and the reasons for it; and
(b)
describe the right of review conferred by section 193; and
(c)
state the period within which an application for a review of the decision may be lodged (which period is prescribed by section 198(b)).
Compare: 1993 No 28 s 71(3)
140 Inquiry by Standards Committee
If a Standards Committee decides to inquire into a complaint, it must inquire into it as soon as practicable.
Compare: 1982 No 123 s 101(1)
141 Notice to person to whom complaint or inquiry relates
The Standards Committee—
(a)
must send particulars of the complaint or matter to the person to whom the complaint or inquiry relates, and invite that person to make a written explanation in relation to the complaint or matter:
(b)
may require the person complained against to appear before it to make an explanation in relation to the complaint or matter:
(c)
may, by written notice served on the person complained against, request that specified information be supplied to the Standards Committee in writing.
Compare: 1982 No 123 s 101(3)(a), (b), (e)
142 Procedure of Standards Committee
(1)
A Standards Committee must exercise and perform its duties, powers, and functions in a way that is consistent with the rules of natural justice.
(2)
A Standards Committee may, subject to subsection (1), direct such publication of its decisions under sections 138, 152, 156, and 157 as it considers necessary or desirable in the public interest.
(3)
Subject to this Act and to any rules made under this Act, a Standards Committee may regulate its procedure in such manner as it thinks fit.
143 Negotiation, conciliation, and mediation
(1)
A Standards Committee may give, in relation to any complaint received by it, a direction that, within a time or before a date fixed by the Standards Committee, the parties both—
(a)
explore the possibility of resolving, by negotiation, conciliation, or mediation,—
(ii)
such issues relating to the complaint as the Standards Committee specifies; and
(b)
report to the Standards Committee.
(2)
A Standards Committee must not give a direction under subsection (1) if it considers that such a direction—
(a)
would not contribute constructively to resolving the complaint; or
(b)
would not, in all the circumstances, be in the public interest; or
(c)
would undermine the urgent nature of the complaint.
(3)
If a complaint involves an issue of misconduct or unsatisfactory conduct, a Standards Committee may deal with, or continue to deal with, that complaint despite—
(a)
any direction given under subsection (1); and
(b)
any negotiation, conciliation, or mediation in relation to the complaint or any issue involved in the complaint; and
(c)
any settlement agreed by the parties to the complaint.
(4)
If the parties reach an agreed settlement in relation to the complaint or any issue involved in the complaint, the Standards Committee—
(a)
may record the terms of the settlement; and
(b)
may, by consent of the parties, declare all or some of the terms of the settlement to be all or part of a final determination of the complaint by the Standards Committee.
(5)
No evidence is admissible in any court or before any person acting judicially or before a Standards Committee or before the Legal Complaints Review Officer or the Disciplinary Tribunal of any information, statement, or admission disclosed or made to any person in the course of any negotiation, conciliation, or mediation conducted, pursuant to a direction given under subsection (1), for the purpose of resolving a complaint or any issue involved in a complaint.
(6)
Nothing in this section prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discoverable or admissible and which existed independently of any negotiation, conciliation, or mediation conducted pursuant to a direction given under subsection (1) for the purpose of resolving a complaint or any issue involved in a complaint) merely because the evidence was presented in the course of the negotiation, conciliation, or mediation.
144 Power to appoint investigators
(1)
The New Zealand Law Society or the New Zealand Society of Conveyancers or a Standards Committee (acting within the terms of any authority given by either of those societies) may, from time to time, appoint 1 or more persons to act as investigators in relation to—
(a)
complaints and matters being inquired into by a Standards Committee; or
(b)
any particular complaint or matter being inquired into by a Standards Committee.
(2)
Every appointment under subsection (1) is to be made on such terms and conditions, including terms and conditions as to salary, fees, or expenses as the body making the appointment considers appropriate.
(3)
Every person appointed under subsection (1) must meet the criteria prescribed, in respect of appointments under that subsection, by practice rules made by the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may require.
(4)
Any appointment made under subsection (1) may, at any time, be revoked in accordance with practice rules made by the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may require.
145 Instrument of appointment
(1)
The body effecting an appointment under section 144(1) must supply to the person appointed a written instrument of appointment evidencing that the person appointed has the authority vested in an investigator appointed under this Act.
(2)
The instrument must be signed by at least 2 members of—
(a)
the Council of the New Zealand Law Society; or
(b)
the Council of the New Zealand Society of Conveyancers; or
(3)
The production by any person of the instrument of appointment supplied to that person under subsection (1) is sufficient proof of that person’s authority to act as an investigator appointed under this Act.
(4)
Every person appointed as an investigator under this Act must, if so required, produce the instrument of appointment supplied to that person under subsection (1) before exercising any power under section 147.
(5)
Every person appointed as an investigator under this Act must, on the termination of his or her appointment, surrender to the body by which he or she was appointed the instrument of appointment supplied to that person under subsection (1).
Compare: 1982 No 123 s 85(1), (2)
146 Investigations by investigators
(1)
A Standards Committee may, for the purpose of inquiring into any complaint or matter, require an investigator appointed under section 144(1)—
(a)
to inquire into the complaint or matter and any matters related to, or arising from, the complaint or matter; and
(b)
to furnish to the Standards Committee a report on the complaint or matter and any such related matters.
(2)
The investigator may, in inquiring into, and reporting on, the complaint or matter and any such related matters,—
(a)
examine (among other things) any accounts (including trust accounts) kept—
(i)
by a practitioner or former practitioner; or
(ii)
by a person who, or body that, is or was, in relation to a practitioner, a related person or entity; or
(iii)
by an incorporated firm or former incorporated firm; and
(b)
state (among other things), in his or her report, the investigator’s opinion on the question whether there are reasonable grounds to suspect that a breach of any of the provisions of this Act or the practice rules has been committed—
(i)
by a practitioner or former practitioner; or
(ii)
by a person who, or body that, is, or was, in relation to a practitioner, a related person or entity; or
(iii)
by an incorporated firm or former incorporated firm; or
(iv)
by a person who is not a practitioner but who is an employee or former employee of a practitioner or an incorporated firm.
147 Powers of investigation
(1)
In this section, source of information means—
(a)
a practitioner or former practitioner:
(b)
a person who, or body that, is or was, in relation to a practitioner, a related person or entity:
(c)
an incorporated firm or former incorporated firm:
(d)
an agent or a banker of—
(i)
a practitioner or former practitioner; or
(ii)
a person who, or body that, is or was in relation to a practitioner, a related person or entity:
(iii)
an incorporated firm or former incorporated firm:
(e)
a person who is not a practitioner but who is an employee or former employee of a practitioner or an incorporated firm.
(2)
For the purposes of any inquiry or investigation being conducted under this Act, a Standards Committee or an investigator—
(a)
may, at any time, require a source of information to do any of the following:
(i)
produce for inspection by the Standards Committee or investigator all books, documents, papers, accounts, or records which are in the possession or under the control of the source of information and which are reasonably necessary for the purposes of the inquiry or investigation:
(ii)
allow copies of, or extracts from, any such books, documents, papers, accounts, or records to be made:
(iii)
furnish, in a form approved by, or acceptable to, the Standards Committee or investigator, any information or particulars that may be required by the Standards Committee or investigator, and any copies of, or extracts from, any such books, documents, papers, accounts, or records:
(iv)
give to the Standards Committee or investigator such information in relation to any such books, documents, papers, accounts, or records as may reasonably be required by the Standards Committee or investigator:
(v)
produce to the Standards Committee or investigator any trust account records required under this Act or any regulations or rules to be kept by a practitioner or former practitioner or an incorporated firm or former incorporated firm, whether or not those trust accounts are held by the practitioner or former practitioner or a related person or entity or the incorporated firm or former incorporated firm:
(vi)
allow, to such extent as may reasonably be required in relation to the matters under inquiry or investigation, inspection of all records and documents relating to money received by the person to whom the complaint or inquiry relates or any related person or entity or any agent or banker of the related person or entity, whether the money has been paid into a private account or a trust account at a bank or has not been paid to the credit of any such account:
(vii)
assist the Standards Committee or investigator by requiring the person or entity who is producing the record or document or trust account records to reproduce, in usable form, any information recorded or stored in the document or record or trust account records:
(b)
may require that any written information or particulars or any copies or extracts furnished under paragraph (a) are verified by statutory declaration or otherwise as the Standards Committee or investigator may require:
(c)
may employ any person or body to give assistance.
(3)
If a person or body is employed under subsection (2)(c) by a Standards Committee or an investigator, the person or body so employed is to be treated as having been employed on behalf of the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may require.
Compare: 1982 No 123 ss 85(3), 101(3)(c)–(e)
148 Report to Standards Committee
(1)
The consideration by a Standards Committee of a report from an investigator must take place in private.
(2)
No person (being a member of a Standards Committee or a member of the staff of a Standards Committee) may publish to any other person any information disclosed in a report made to the Standards Committee except—
(a)
pursuant to any provision of paragraphs (a) to (h) of section 188(2); or
(c)
in the performance of his or her duty as a member of a Standards Committee or a member of the staff of a Standards Committee.
(3)
A report that is, under section 146(1)(b), furnished to a Standards Committee may be adduced in evidence in proceedings before the Disciplinary Tribunal or the High Court.
149 Disclosure of report
(1)
Subject to subsection (2), a Standards Committee that receives a report from an investigator must give a copy of that report to—
(a)
any person to whom the report relates, being—
(i)
a practitioner or former practitioner; or
(ii)
a person who, or body that, is or was, in relation to a practitioner, a related person or entity; or
(iii)
an incorporated firm or former incorporated firm; or
(iv)
an employee or former employee of a practitioner or an incorporated firm; and
(b)
any practitioner representing the person to whom the report relates; and
(2)
Where, in the opinion of the Standards Committee there is good reason for not, under subsection (1), giving a copy of the report to a person or for withholding from a person some of the information contained in the report, the Standards Committee may, as the case requires,—
(a)
refuse to give a copy of the report to that person; or
(b)
make, to the copy given to that person, such deletions or alterations as the Standards Committee considers necessary.
(3)
If, under subsection (2), a Standards Committee takes, in respect of any person, either of the actions referred to in subsection (2), the Standards Committee must give to that person its reasons for the action.
150 Discretion in relation to contents of report
A Standards Committee that receives a report from an investigator may, in its discretion, communicate the contents of it, or any part of the contents, to—
(a)
any person who is a partner in a firm of practitioners to which the practitioner or former practitioner to whom the report relates belongs or belonged:
(b)
any person—
(i)
who is or was, in relation to the practitioner or former practitioner to whom the report relates, a related person; or
(ii)
who is or was a director of an entity that is or was, in relation to the practitioner or former practitioner to whom the report relates, a related entity:
(c)
the Law Society inspectorate or the Conveyancers Society inspectorate, as the case may require:
(d)
the auditor of the trust account of the practitioner or former practitioner to whom, or of an incorporated firm or former incorporated firm to which, the report relates:
(e)
the Council of the New Zealand Law Society or the Council of the New Zealand Society of Conveyancers, as the case may require:
(f)
a qualified statutory accountant (within the meaning of section 5(1) of the Financial Reporting Act 2013):
(g)
any Police employee or member of the Serious Fraud Office acting in the performance of his or her duty:
(h)
the Registrar-General of Land for the purpose of enabling the Registrar-General of Land to discharge his or her duties under the Land Transfer Act 1952 or any other enactment:
(i)
any client of the practitioner or former practitioner to whom, or of the incorporated firm or former incorporated firm to which, the report relates.
Compare: 1982 No 123 s 85(6)–(9)
Section 150(f): replaced, on 1 July 2015, by section 17 of the Financial Reporting Amendment Act 2014 (2014 No 64).
Section 150(g): amended, on 1 October 2008, by section 130(1) of the Policing Act 2008 (2008 No 72).
151 Evidence
(1)
A Standards Committee may receive in evidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not the statement, document, information, or matter would be admissible in a court of law.
(2)
A Standards Committee may take evidence on oath, and for that purpose, any member or officer of the Standards Committee may administer an oath.
(3)
A Standards Committee may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Standards Committee thinks fit, verifying that statement by oath.
(4)
Subject to subsections (1) to (3), the Evidence Act 2006 applies to a Standards Committee in the same manner as if it were a court within the meaning of that Act.
Section 151(4): amended, on 1 August 2007, by section 216 of the Evidence Act 2006 (2006 No 69).
152 Power of Standards Committee to determine complaint or matter
(1)
A Standards Committee may,—
(a)
after both inquiring into a complaint and conducting a hearing with regard to that complaint; or
(b)
after both inquiring into a matter under section 130(c) and conducting a hearing with regard to that matter,—
make 1 or more of the determinations described in subsection (2).
(2)
The determinations that the Standards Committee may make are as follows:
(a)
a determination that the complaint or matter, or any issue involved in the complaint or matter, be considered by the Disciplinary Tribunal:
(b)
a determination that there has been unsatisfactory conduct on the part of—
(i)
a practitioner or former practitioner; or
(ii)
an incorporated firm or former incorporated firm; or
(iii)
an employee or former employee of a practitioner or incorporated firm:
(c)
a determination that the Standards Committee take no further action with regard to the complaint or matter or any issue involved in the complaint or matter.
(3)
Nothing in this section limits the power of a Standards Committee to make, at any time, a decision under section 138 with regard to a complaint.
Section 152(1)(b): amended, on 20 September 2007, by section 4 of the Lawyers and Conveyancers Amendment Act 2007 (2007 No 67).
153 Hearings on the papers
(1)
A hearing conducted under section 152(1) by a Standards Committee is to be a hearing on the papers, unless the Standards Committee otherwise directs.
(2)
Subsections (3) to (8) apply to hearings under section 152(1) that are conducted on the papers.
(3)
If the hearing is with regard to a complaint, the persons who may make written, but not oral, submissions to the Standards Committee are—
(b)
the person in respect of whom the complaint was made:
(c)
a person who, or body that, is or was, in relation to the person in respect of whom the complaint was made, a related person or entity:
(d)
a person who is or was a director of an entity that is or was, in relation to the practitioner or former practitioner in respect of whom the complaint was made, a related entity:
(e)
the New Zealand Law Society (if the person in respect of whom the complaint was made is or was a lawyer or an incorporated law firm or an employee of a lawyer or an incorporated law firm):
(f)
the New Zealand Society of Conveyancers (if the person in respect of whom the complaint was made is or was a conveyancing practitioner or an incorporated conveyancing firm or an employee of a conveyancing practitioner or an incorporated conveyancing firm).
(4)
If the hearing is with regard to a matter under section 130(c), the persons who may make written, but not oral, submissions to the Standards Committee are—
(b)
a person who, or body that, is or was, in relation to the person to whom the inquiry under section 130(c) relates, a related person or entity:
(c)
a person who is or was a director of an entity that is or was, in relation to the practitioner or former practitioner to whom the inquiry under section 130(c) relates, a related entity:
(d)
the New Zealand Law Society (if the person to whom the inquiry relates is or was a lawyer or an incorporated law firm or an employee of a lawyer or incorporated law firm):
(e)
the New Zealand Society of Conveyancers (if the person to whom the inquiry relates is or was a conveyancing practitioner or an incorporated conveyancing firm or an employee of a conveyancing practitioner or incorporated conveyancing firm).
(5)
The persons specified in subsections (3) and (4) may include in their submissions—
(a)
additional relevant written material; and
(b)
responses to any submissions made to the Standards Committee by any other person.
(6)
Neither the persons specified in subsections (3) and (4) nor their representatives may appear before the Standards Committee.
(7)
The Standards Committee must make its determination on the basis of the written material before it.
(8)
Consideration of the written material may be undertaken in whatever manner the Standards Committee thinks fit.
154 Reference of complaint or matter to Disciplinary Tribunal
(1)
If a Standards Committee makes a determination that the complaint or matter be determined by the Disciplinary Tribunal, the Standards Committee must—
(a)
frame an appropriate charge and lay it before the Disciplinary Tribunal by submitting it in writing to the chairperson of the Disciplinary Tribunal; and
(b)
give written notice of that determination and a copy of the charge to the person to whom the charge relates; and
(c)
if the determination relates to a complaint, give both written notice of that determination and a copy of the charge to the complainant.
(2)
If the person who is the subject of the complaint or matter is a provider under the Legal Services Act 2011, the Standards Committee must provide a written notice of the determination to the Secretary for Justice.
Compare: 1995 No 95 s 93(1)(b)
Section 154(2): added, on 1 July 2011, by section 139 of the Legal Services Act 2011 (2011 No 4).
155 Application for suspension of practitioner
If, under section 154(a), a Standards Committee lays before the Disciplinary Tribunal a charge against a practitioner, the Standards Committee may apply to the Tribunal for an order that, pending the determination of the charge, the practitioner be suspended from practice—
(c)
as both a barrister and a solicitor; or
(d)
as a conveyancing practitioner.
Compare: 1995 No 95 s 95(a)
156 Power of 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 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.
(2)
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.
(3)
An order under this section may be made on and subject to such terms and conditions as the Standards Committee thinks fit.
(4)
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.
(5)
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.
Compare: 1982 No 123 s 106(2), (4)(a), (b), (e), (f), (g), (i), (j), (7)–(9)
157 Further power to make order for payment of costs
(1)
If a Standards Committee makes a determination under section 152(2)(c), that Standards Committee may order that costs be awarded to any person to whom the complaint or matter related, and that those costs be paid—
(a)
by the New Zealand Law Society (if that person is 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 an incorporated law firm); or
(b)
by the New Zealand Society of Conveyancers (if that person is a conveyancing practitioner or former conveyancing practitioner or an incorporated conveyancing firm or former incorporated conveyancing firm or an employee or former employee of a conveyancing practitioner or an incorporated conveyancing firm).
(2)
Even though, in proceedings relating to a complaint or matter, a Standards Committee has made a determination under section 152(2)(c) and has not made a finding that there has been unsatisfactory conduct on the part of a person (being 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 whom the proceedings relate, the Standards Committee may, if it considers that the proceedings were justified and that it is just to do so, order that person to pay to the New Zealand Law Society or the New Zealand Society of Conveyancers such sums as the Standards Committee thinks fit in respect of the expenses of and incidental to the proceedings and any investigation of that person’s conduct or of that person’s affairs or trust account carried out by, or on behalf of, the Standards Committee.
(3)
In this section, expenses includes not only out-of-pocket expenses but also such amounts in respect of salaries of staff and overhead expenses incurred by either the New Zealand Law Society or the New Zealand Society of Conveyancers as the Standards Committee considers properly attributable to an investigation.
Compare: 1982 No 123 s 129
158 Notice of determination
(1)
If a Standards Committee makes a determination of the kind described in section 152(2)(b) or (c), that Standards Committee must forthwith give written notice of that determination to each of the persons who may, under section 193, apply to the Legal Complaints Review Officer for a review of the determination.
(2)
The notice must—
(a)
state the determination and the reasons for it; and
(c)
describe the right of review conferred by section 193; and
(d)
state the period within which an application for a review of the determination or of any such order or both may be lodged (which period is prescribed by section 198(b)).
(2A)
A duty under subsection (1) (read with sections 6 and 193 to 197) to forthwith give written notice to each member of a class (of related persons) in column 1 of a row of the following table is performed sufficiently by forthwith giving written notice only to the individual or smaller class (of related persons) in column 2 of that row:
| Column 1
Class | | Column 2
Individual or smaller class |
|---|
| 1 | All persons who practise in partnership with the practitioner | | Any 1 of those persons who practise in partnership with the practitioner |
| 2 | All directors of an incorporated law firm or incorporated conveyancing firm in which the practitioner practises | | Any 1 of those directors of that firm |
| 3 | All shareholders of an incorporated law firm or incorporated conveyancing firm in which the practitioner practises | | All shareholders of that firm who are shareholders of that firm in respect of shares that confer voting rights |
(3)
If the person who is the subject of the determination is a provider under the Legal Services Act 2011, the Standards Committee must provide a written notice of the determination to the Secretary for Justice.
Compare: 1993 No 28 s 71(3)
Section 158(2A): inserted, on 20 November 2012, by section 13 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 158(3): added, on 1 July 2011, by section 140 of the Legal Services Act 2011 (2011 No 4).
159 Power to notify Registrar-General of Land
(1)
If a Standards Committee makes a determination of the kind described in section 152(2)(a) or (b), that Standards Committee may give written notice of the making of the determination to the Registrar-General of Land if the Standards Committee considers that the giving of notice of the making of that determination to the Registrar-General is or may be relevant to the discharge by the Registrar-General of his or her duties under the Land Transfer Act 1952 or any other enactment.
(2)
If the determination is of the kind described in section 152(2)(a), the notice must—
(a)
state the determination; and
(b)
contain a copy of the charge laid before the New Zealand Disciplinary Tribunal in accordance with section 154.
(3)
If the determination is of the kind described in section 152(2)(b), the notice must comply with section 158(2) as if it were a notice given under section 158(1).
160 Complaints by beneficiaries in relation to costs
(1)
If a trustee, executor, or administrator has become chargeable with a bill of costs, any person interested in any property out of which a trustee, executor, or administrator has paid or is entitled to pay the bill may, under section 132(2), complain about the amount of the bill.
(2)
If a Standards Committee, on a complaint made pursuant to subsection (1), orders that any money be paid by a practitioner or former practitioner or an incorporated firm or former incorporated firm, it may, if it thinks fit, order that the money or any part of it be paid to the trustee, executor, or administrator chargeable with the bill, instead of to the complainant.
(3)
If the complainant pays any money to the practitioner or former practitioner or incorporated firm or former incorporated firm in respect of the bill, the complainant has the same right to be paid by the trustee, executor, or administrator chargeable with the bill as the practitioner or former practitioner or incorporated firm or former incorporated firm had.
(4)
This section does not limit the right of a trustee, executor, or administrator to complain under section 132(2) about the amount of a bill of costs with which the trustee, executor, or administrator has become chargeable.
Compare: 1982 No 123 s 147(1), (3)
161 Stay of proceedings for recovery of costs
(1)
If, under section 141, a Standards Committee gives notice to a practitioner or former practitioner or an incorporated firm or former incorporated firm that it has received a complaint under section 132(2) about the amount of a bill of costs rendered by that practitioner or former practitioner or incorporated firm or former incorporated firm, no proceedings for the recovery of the amount of the bill may be commenced or proceeded with until after the complaint has been finally disposed of.
(2)
Where a Standards Committee makes a final determination on a complaint made under section 132(2), it must certify the amount that is found by it to be due to or from the practitioner or former practitioner or incorporated firm or former incorporated firm in respect of the bill and under the determination.
(3)
The certificate of the Standards Committee or, as the case may be, the decision of the Legal Complaints Review Officer on a review of the determination is final and conclusive as to the amount due.
(4)
For the purposes of this section, a complaint is finally disposed of—
(a)
if—
(i)
the Standards Committee has made a final determination on the complaint or has, under section 138, decided to take no action, or, as the case may require, no further action on the complaint; and
(ii)
the complainant has not, within the time allowed, applied to the Legal Complaints Review Officer for a review of the determination or decision; or
(b)
if the Legal Complaints Review Officer has conducted a review of the determination or decision made by the Standards Committee on the complaint and has reported the outcome of the review to—
(ii)
the practitioner or former practitioner or incorporated firm or former incorporated firm; and
Compare: 1982 No 123 ss 154, 155(1)
Intervention in practice
162 Purpose
The purpose of sections 163 to 173 is to give to each Standards Committee powers that may be exercised to protect the interests of persons who have suffered loss or are likely to suffer loss or are otherwise likely to be adversely affected as a result of circumstances of the kind described in section 163.
163 Circumstances justifying intervention
A Standards Committee may exercise any power under section 164 or section 169 if it is satisfied, in respect of any practitioner or former practitioner, that—
(a)
there is reasonable cause to believe that the practitioner or former practitioner has been guilty of theft or of any improper conduct in relation to the money or other property of any other person; or
(b)
there is reasonable cause to believe that any person who is an agent (within the meaning of section 305) of the practitioner or former practitioner has been guilty of theft or of any improper conduct in relation to any money or other property entrusted to the practitioner or former practitioner or any related person or entity; or
(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
(d)
the practitioner is, because of his or her mental or physical condition, unable to properly conduct his or her practice; or
(e)
the practitioner or former practitioner has died; or
(f)
the practitioner or former practitioner has been adjudicated a bankrupt; or
(g)
the body corporate by which the practitioner or former practitioner is or was employed is in receivership or liquidation other than for the purpose of amalgamation under Part 13 of the Companies Act 1993; or
(h)
the incorporated firm of which the practitioner or former practitioner is or was a director or shareholder is in receivership or liquidation other than for the purpose of amalgamation under Part 13 of the Companies Act 1993; or
(i)
the name of the practitioner or former practitioner has been struck off the roll; or
(j)
the practitioner or former practitioner has been suspended from practice; or
(k)
the practitioner or former practitioner has been ordered by the Disciplinary Tribunal not to practise as a solicitor on his or her own account; or
(l)
the practitioner or former practitioner has ceased to practise and has neglected to wind up any trust account required by this Act or by any rules made under this Act to be kept by the practitioner.
Compare: 1982 No 123 s 81
164 Intervention in relation to regulated trust accounts
(1)
A Standards Committee, if satisfied that any of the circumstances specified in section 163 exist in respect of a practitioner or former practitioner, may serve on any banker a notice, signed by 2 members of the Standards Committee, requiring the banker to pay to the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers all money held in any account that is, in relation to that practitioner or former practitioner, a regulated trust account.
(2)
On receipt of the notice, the banker must forthwith pay to the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers all money held by the banker in any such account; and the receipt of the Standards Committee (or the New Zealand Law Society or the New Zealand Society of Conveyancers) is a complete discharge to the banker from all liability in respect of the money.
Compare: 1982 No 123 s 82(1), (2)
165 Administration of funds obtained from regulated trust accounts
(1)
A Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers, on receiving money paid to it under section 164(2), must forthwith cause that money to be paid into a separate account at such bank as the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers appoints; and that account may be operated on by such 2 or more persons as the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers appoints in that behalf.
(2)
If any money that was contained in a regulated trust account and that was paid to a Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers under section 164(2) is money that was held on behalf of any person other than the practitioner or the person or persons in whose name or names the account was held, that money must be held by the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers in trust for the person on whose behalf the money was held.
Compare: 1982 No 123 s 82(3), (4)
166 Claims in respect of money paid to Standards Committee
(1)
Where, under section 164(2), any money is paid to a Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers,—
(a)
any person claiming to be adversely affected by the payment; and
(b)
if the money was paid from the regulated account of a deceased practitioner, the executor or administrator of the deceased practitioner or any person claiming to be entitled to a grant of probate or letters of administration of the estate of the deceased practitioner,—
may at any time apply to the court for an order directing the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers to repay the money into the bank account from which it was paid or for such order as the court thinks fit.
(2)
The court, on hearing an application under subsection (1), may make such order as it thinks fit.
Compare: 1982 No 123 s 82(5)
167 Power of Standards Committee to repay money
(1)
Where, under section 164(2) any money is paid to a Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers, that Committee or that Society may at any time, in its discretion, repay the money or any part of it into the bank account from which it was paid.
(2)
Subsection (1) is subject to—
(b)
any order made by the court under any provision of this Part.
Compare: 1982 No 123 s 82(6)
168 Directions relating to Fidelity Scheme
(1)
Where a Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers has, in relation to a practitioner, served a notice under section 164(1) on the grounds that there is reasonable cause to believe—
(a)
that the practitioner has been guilty of theft or of any improper conduct in relation to money or other property of any other person; or
(b)
that any person who is an agent (within the meaning of section 305) of the practitioner has been guilty of theft or of any improper conduct in relation to any money or other property entrusted to the practitioner,—
the money paid to the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers under section 164(2) must be held by the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers on behalf of and subject to the general or special directions of the Management Committee.
(2)
Subsection (1) is subject to—
(b)
any order made by the court under this Part.
Compare: 1982 No 123 s 82(7)
169 Power to take possession of money, property, records, and documents
A Standards Committee may take possession of any money or other property entrusted to a practitioner or former practitioner or any related person or entity and of any records or documents belonging to a practitioner or former practitioner or any related person or entity or held in a practitioner’s or former practitioner’s or related person’s or entity’s possession or under a practitioner’s or former practitioner’s or related person’s or entity’s control in the course of the practitioner’s or former practitioner’s or related person’s or entity’s practice—
(a)
if satisfied that any of the circumstances specified in section 163 exist in respect of the practitioner or former practitioner; and
(b)
if, in its opinion, it is expedient to do so.
Compare: 1982 No 123 s 83(1)
170 Power in relation to postal articles and email communications
(1)
For the purposes of section 169, a Standards Committee may serve—
(a)
on the practitioner or former practitioner or any related person or entity a notice requiring the practitioner or former practitioner or related person or entity to deliver to the Standards Committee all postal articles received at the practitioner’s or former practitioner’s office address by the practitioner or former practitioner or any related person or entity:
(b)
on any postal operator or on any person in charge of a mail distribution centre operated by or on behalf of a postal operator or on both a notice requiring the postal operator or person or both to cause to be delivered to the Standards Committee all postal articles addressed to the practitioner or former practitioner at the practitioner’s or former practitioner’s office address:
(c)
on any Internet service provider a notice requiring the Internet service provider to cause to be delivered to the Standards Committee exact copies of all emails addressed to the practitioner at any email address used at any time by the practitioner or former practitioner for business purposes.
(2)
Every person who is served with a notice under subsection (1) must comply with that notice.
(3)
The notice must be signed by 2 of the members of the Standards Committee.
Compare: 1982 No 123 s 83(2)
171 Offences
(1)
Every person commits an offence against this Act who, having possession or control of any records or documents belonging to a practitioner or former practitioner or any related person or entity or held in a practitioner’s or former practitioner’s or related person’s or entity’s possession or under a practitioner’s or former practitioner’s or related person’s or entity’s control in the course of the practitioner’s or former practitioner’s or related person’s or entity’s practice, refuses or fails without lawful justification or excuse to deliver them or cause them to be delivered to a Standards Committee forthwith on demand made by that Standards Committee for the purposes of section 169 or section 170.
(2)
Every person who commits an offence against this section is liable on conviction to a fine not exceeding $25,000.
Compare: 1982 No 123 s 87(a)
Section 171(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
172 Warrant to search premises
(1)
A Standards Committee may apply to a Judge of the High Court or a District Court Judge for a warrant to empower any member of the Standards Committee, or any other person on its behalf, to enter upon any premises, by force if necessary, and search for any money or other property or any records or documents of which the Standards Committee is entitled to take possession under section 169 and to remove them to such place as the member or person thinks fit.
(2)
A warrant may be issued under subsection (1) only if the Judge of the High Court or District Court Judge issuing the warrant is satisfied, in relation to a practitioner or former practitioner, that there is reasonable cause to believe—
(a)
that any of the circumstances specified in section 163 exist in respect of the practitioner or former practitioner; and
(b)
that any money or other property entrusted to the practitioner or former practitioner or a related person or entity or any records or documents belonging to the practitioner or former practitioner or a related person or entity or held in the possession of the practitioner or former practitioner or under the control of the practitioner or former practitioner or related person or entity in the course of the practitioner’s or former practitioner’s practice are or may be held on the premises in respect of which the warrant is issued.
(3)
Where any person is empowered by a warrant issued under subsection (1) to enter upon any premises, that person may be accompanied when so entering by a constable and must be so accompanied when so entering a dwellinghouse.
Compare: 1982 No 123 s 83(3), (4)
Section 172(3): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).
173 Warrant to inspect bank accounts
(1)
A Standards Committee may apply to a Judge of the High Court or a District Court Judge for a warrant to empower any member of the Standards Committee, or any other person on its behalf,—
(a)
to examine or audit the account of any person in any bank; and
(b)
for the purpose of the examination or audit,—
(i)
to require any officer of the bank to produce any document or provide any information that relates to that account and is in the bank’s custody, care, or control; and
(ii)
to take copies of any document so produced.
(2)
A warrant may be issued under subsection (1) only if the Judge of the High Court or District Court Judge issuing the warrant is satisfied, in relation to the account in respect of which the warrant is issued, that there is reasonable cause to believe that money entrusted to a practitioner or former practitioner or a related person or entity in connection with legal or conveyancing services has been fraudulently or wrongfully paid into that account.
Compare: 2001 No 10 s 27
174 Obligation to produce warrant
Any person who executes a warrant issued under section 172 or section 173—
(a)
must carry the warrant with him or her; and
(b)
must produce the warrant for inspection, along with evidence of his or her identity, on initial entry and, if requested, at any subsequent time; and
(c)
must, if requested at the time of the execution of the warrant or at any subsequent time, provide a copy of the warrant within 7 days after the request is made.
175 Notice of execution of warrant
(1)
If the occupier of the place is not present at the time at which a warrant issued under section 172 is executed, the person executing the warrant must leave in a prominent location at the place a written statement of—
(a)
the time and date of the execution of the warrant; and
(c)
the address of his or her place of business or of any other place at which inquiries may be made.
(2)
If, in the execution of a warrant issued under section 172, the person executing the warrant removes from the premises to which the warrant relates any money or other property or any records or documents, that person—
(a)
must leave in a prominent place on the premises a written inventory of all things removed; or
(b)
must, within 10 working days after the execution of the warrant, deliver, or send by registered mail, to the occupier of the premises or the person in charge of the premises, as the case may require, a written inventory of all things removed.
176 Powers and duties of Standards Committee in relation to documents and records
(1)
Where a Standards Committee, in exercising in relation to a practitioner or former practitioner or related person or entity any of its powers under sections 169 to 172, receives any documents belonging to a person other than the practitioner or former practitioner or related person or entity, those documents must be held by the Standards Committee until—
(a)
any application made under section 180 and relating to those documents is disposed of by the High Court; or
(b)
if no application relating to those documents is made under section 180, the expiration of the time allowed for making such an application.
(2)
Thereafter, subject to any order made by the High Court on an application under section 180, the documents must, on demand made by the person to whom the documents belong, be delivered by the Standards Committee to that person or to such other person as that person may direct in writing.
(3)
Where a Standards Committee, in exercising in relation to a practitioner or former practitioner or related person or entity any of its powers under sections 169 to 172, obtains any records, it may, for the purpose of ascertaining the true position concerning any trust account of the practitioner or former practitioner or any related person or entity, or any money or other property entrusted to the practitioner or former practitioner or any related person or entity, cause such entries as may be necessary to be made in those records, or cause any entries in those records to be amended.
(4)
A Standards Committee may at any time apply to the High Court for directions concerning any documents or records obtained by the Committee in the exercise of any of its powers under sections 169 to 172.
(5)
A Standards Committee may at any time in its discretion return any records or documents obtained by the Committee in the exercise of any of its powers under sections 169 to 172 to the person or persons from whom those records or documents were received.
(6)
Subsection (5) is subject to—
(a)
any lawful demand made under subsection (2); and
(b)
any order made by the High Court under any provision of this Part.
(7)
While any documents are in the possession of a Standards Committee pursuant to the powers conferred on it by sections 169 to 172, any lien or right to a lien which, but for this section, could be exercised by the practitioner or former practitioner or any related person or entity enures for the benefit of the Standards Committee to the exclusion of the practitioner or former practitioner or related person or entity.
Compare: 1982 No 123 s 83(5)–(10)
177 Notification to clients of practitioner or former practitioner
A Standards Committee that exercises in respect of any practitioner or former practitioner or any related person or entity any power under section 164 or section 169—
(a)
may notify any client of the practitioner or former practitioner or any related person or entity of the actions taken by the Standards Committee and of the circumstances that have occasioned the intervention in the practice of the practitioner or former practitioner; and
(b)
may seek from any client of the practitioner or former practitioner or the related person or entity the client’s instructions as to the completion of any transactions then current and as to the future disposition of the client’s records, documents, money, and other property; and
(c)
may refer transactions to other practitioners for completion if circumstances, such as a client not being available or a client being incapable by reason of incapacity from giving instructions, so require.
178 Power to notify Registrar-General of Land
A Standards Committee that exercises in respect of any practitioner or former practitioner or any related person or entity any power under section 164 or section 169 may give written notice to the Registrar-General of Land of the actions taken by the Standards Committee and of the circumstances that have occasioned the intervention in the practice of the practitioner or former practitioner if the Standards Committee considers that the giving of notice of that intervention or of those circumstances or of both to the Registrar-General of Land is or may be relevant to the discharge by the Registrar-General of his or her duties under the Land Transfer Act 1952 or any other enactment.
179 Notification of practitioner or former practitioner, partner, employer, or director
(1)
A Standards Committee must, on receiving any money or any records or documents or postal articles or email communications under any provision of sections 164, 169, 170, and 172, forthwith serve a notice on—
(a)
the practitioner or former practitioner or related person or entity concerned; and
(b)
if the practitioner or former practitioner concerned is a partner in a firm of practitioners, on each partner in the firm; and
(c)
if the practitioner or former practitioner concerned is or was an employee, his or her employer; and
(d)
if the practitioner or former practitioner concerned is, or has been, providing regulated services to the public in his or her capacity as a shareholder or director of a body corporate, every director of that body corporate.
(2)
The notice must set out,—
(a)
in relation to any money received, the amount of that money and the date of receipt; or
(b)
in relation to any records, documents, postal articles, and emails received, both particulars of each item and the date of receipt of each item.
(3)
The notice—
(a)
may be served personally on the practitioner, former practitioner, related person or entity, partner, employer, or director; or
(b)
may be sent to the practitioner, former practitioner, related person or entity, partner, employer, or director by registered letter addressed to the practitioner’s, former practitioner’s, related person’s or entity’s, partner’s, employer’s, or director’s last known place of business or residence.
Compare: 1982 No 123 s 84(1), (2)
180 Application to High Court by practitioner, former practitioner, related person or entity, partner, employer, or director
(1)
If a notice of the kind referred to in section 179 is served on, or posted to, any person, that person may, within 14 days after the date when the notice was so served or posted, apply to the High Court—
(a)
for an order directing the Standards Committee—
(i)
to repay any money referred to in the notice into the bank account from which it was received; or
(ii)
to return any records or documents or postal articles or emails referred to in the notice to the person or persons from whom they were received; or
(b)
for such other order as the High Court thinks fit.
(2)
The High Court may, on hearing any application under subsection (1), make such order as it thinks fit.
Compare: 1982 No 123 s 84(3), (4)
181 Recovery of expenses of Standards Committee
(1)
The reasonable expenses of a Standards Committee in performing or exercising, in respect 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, any of the functions and powers of the Standards Committee under sections 162 to 180 are recoverable from the practitioner or former practitioner or incorporated firm or former incorporated firm as a debt.
(2)
If the functions or powers are performed or exercised in respect of 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 an incorporated law firm, the reasonable expenses are recoverable at the suit of the New Zealand Law Society.
(3)
If the functions or powers are performed or exercised in respect of a conveyancing practitioner or former conveyancing practitioner or an incorporated conveyancing firm or former incorporated conveyancing firm or an employee or former employee of a conveyancing practitioner or an incorporated conveyancing firm, the reasonable expenses are recoverable at the suit of the New Zealand Society of Conveyancers.
(4)
In this section, reasonable expenses, in relation to the performance of any function or the exercise of any power, includes not only out-of-pocket expenses but also a reasonable sum in respect of salaries of staff and overhead expenses incurred by the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may be, and properly attributable to the performance of the function or the exercise of the power.
Compare: 1982 No 123 s 86(1), (6)
182 Application of money in satisfaction of expenses
(1)
Subject to this section, a Standards Committee may apply any money belonging to a practitioner or former practitioner or an incorporated firm or former incorporated firm or to which he or she or it may be entitled, being money that comes into the possession of the Standards Committee, in or towards satisfaction of any reasonable expenses that are recoverable under section 181 from the practitioner or former practitioner or incorporated firm or former incorporated firm; but nothing in this subsection affects any other remedy available to the Standards Committee or the New Zealand Law Society or the New Zealand Society of Conveyancers.
(2)
No money may be applied under subsection (1) until a notice giving particulars of the expenses claimed has been served on—
(a)
the practitioner or former practitioner or his or her personal representatives; or
(b)
the incorporated firm or former incorporated firm.
(3)
A notice under subsection (2)(a) may be served personally on the practitioner or former practitioner or any such representative, or may be forwarded to the practitioner or former practitioner or any such representative by registered letter addressed to his or her last known place of business or residence.
(4)
A notice under subsection (2)(b) may be served on the incorporated firm or former incorporated firm in accordance with section 387(1) of the Companies Act 1993.
(5)
Within 14 days after a notice has been served or posted in accordance with subsection (3) or subsection (4), the practitioner or former practitioner or his or her personal representatives or the incorporated firm or former incorporated firm may apply to the High Court for a review of the expenses claimed; and on hearing any such application the High Court may make such order as it thinks fit.
Compare: 1982 No 123 s 86(2)–(5)
General provisions in relation to Standards Committees
183 Power to appoint committees
(1)
A Standards Committee may from time to time appoint committees, consisting of 2 or more members of the Standards Committee and such other persons (if any) as the Standards Committee thinks fit,—
(a)
to inquire into and report to the Standards Committee on such matters within the scope of the functions or powers of the Standards Committee as are referred to them by the Standards Committee; or
(b)
to exercise on behalf of the Standards Committee any of its functions or powers.
(2)
Every committee appointed under this section is subject in all things to the control of the Standards Committee by which it is appointed, and may from time to time be discharged, altered, or reconstituted by that Standards Committee.
184 Delegation of functions and powers
(1)
A Standards Committee may from time to time delegate to any of its members or to any committee appointed under section 183(1)(b) or to any other person any of its functions and powers, including this power of delegation.
(2)
Every delegation under this section must be in writing.
(3)
No delegation under this section may include—
(b)
the power to appoint an investigator under section 144; or
(c)
the power to make a final determination under section 152; or
(4)
Subject to any general or special directions given or conditions imposed by the Standards Committee, the person or committee to whom or to which any function or power is delegated under this section may perform or exercise that function or power in the same manner and with the same effect as if it had been conferred on that person or committee directly by this Act and not by delegation.
(5)
Every person or committee purporting to act pursuant to any delegation under this section is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.
(6)
Every delegation under this section is revocable in writing at will.
(7)
No delegation under this section affects or prevents the performance or exercise of any function or power by the Standards Committee that made the delegation, nor does any such delegation affect the responsibility of that Standards Committee for the actions of any person acting under the delegation.
Compare: 1988 No 20 ss 23, 24(1)
185 Members, investigators, etc, not personally liable
A person who is a member of a Standards Committee or an investigator or an agent, employee, or delegate of a Standards Committee or a member of any committee appointed by a Standards Committee is not under any civil or criminal liability in respect of—
(a)
any act done or omitted to be done in the course of performing or exercising any of that person’s functions, duties, or powers under this Act or any rules made under this Act; or
(b)
any words spoken or written at, or for the purpose of, the hearing of any inquiry or other proceedings under this Act or any rules made under this Act; or
(c)
anything contained in any notice given under this Act or any rules made under this Act, —
unless that person has acted in bad faith.
Compare: 1995 No 95 s 135(1); 1996 No 39 s 12(1)
186 Protection and privileges of witnesses
(1)
Every person has the same privileges in relation to—
(a)
the giving of information to a Standards Committee; and
(b)
the giving of evidence to, or the answering of questions put by, a Standards Committee; and
(c)
the production of papers, documents, records, or things to a Standards Committee—
as witnesses have in a court of law.
(2)
In this section, Standards Committee includes an investigator and any other person acting on behalf of, or as the delegate of, a Standards Committee.
Compare: 1982 No 123 s 127
187 Privileges and immunities of counsel
Every counsel appearing before a Standards Committee has the same privileges and immunities as counsel in a court of law.
Compare: 1982 No 123 s 127
188 Disclosure of information
(1)
This section applies to—
(a)
any person, being a Standards Committee or a person who holds, or has held, office as a member of a Standards Committee:
(b)
any person to whom any of the functions and powers of a Standards Committee are, or have been, delegated under this Act:
(c)
any person who holds, or has held, office as an investigator:
(d)
any person, being a person or body that is employed or has been employed under section 147(2)(c):
(e)
any person, being an employee or former employee or officer or former officer of a person or body that is employed or has been employed under section 147(2)(c).
(2)
No person to whom this section applies may communicate any matter that came to the knowledge of that person or the employer of that person in the course of the exercise by that person, or the employer of that person, of powers conferred by this Act on that person, or the employer of that person, in relation to any complaint made, or inquiry or investigation conducted, under this Act except—
(a)
for the purposes of the inquiry or investigation; or
(b)
in the course of any report to a Standards Committee; or
(c)
in accordance with a direction for publication given under section 142(2) by a Standards Committee; or
(d)
in evidence in any proceedings before—
(i)
a Standards Committee; or
(ii)
the Legal Complaints Review Officer; or
(iii)
the Disciplinary Tribunal; or
(iv)
the Disciplinary Tribunal of the New Zealand Institute of Chartered Accountants or a disciplinary tribunal, committee, or other body of any other accredited body (within the meaning of section 6(1) of the Auditor Regulation Act 2011); or
(e)
to a Police employee or member of the Serious Fraud Office acting in the performance of his or her duty; or
(f)
to any person who—
(i)
holds office under section 109 as a person appointed to examine the accounts of lawyers or firms of lawyers or incorporated law firms or as a person appointed to examine the accounts of conveyancing practitioners or firms of conveyancing practitioners or incorporated conveyancing firms; and
(ii)
is acting in the performance of his or her duty under section 109; or
(g)
to the Registrar-General of Land for the purpose of enabling the Registrar-General of Land to discharge his or her duties under the Land Transfer Act 1952 or any other enactment; or
(h)
in evidence in any court.
Compare: 1982 No 123 s 85(6)
Section 188(2)(d)(iv): amended, on 1 July 2015, by section 17 of the Financial Reporting Amendment Act 2014 (2014 No 64).
Section 188(2)(d)(iv): amended, on 7 July 2010, by section 10 of the New Zealand Institute of Chartered Accountants Amendment Act 2010 (2010 No 74).
Section 188(2)(e): amended, on 1 October 2008, by section 130(1) of the Policing Act 2008 (2008 No 72).
189 Enforcement of orders
(1)
If a Standards Committee, acting in accordance with this Act or any rules made under this Act, makes an order or otherwise exercises any power in respect of any person who is or was a practitioner, that order or other exercise of any power has effect whether or not that person remains a practitioner.
(2)
If a Standards Committee, acting in accordance with this Act or any rules made under this Act, orders any person who is or was a practitioner or an incorporated firm or an employee of a practitioner or an incorporated firm to pay a fine, expenses, or other monetary amount to the New Zealand Law Society or the New Zealand Society of Conveyancers, that amount is recoverable from that person by the society to which it is ordered to be paid as a debt due to that society, whether or not that person remains a practitioner or an incorporated firm or an employee of a practitioner or an incorporated firm.
Compare: 1996 No 39 s 13
Legal Complaints Review Officer
190 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.
191 Criteria for appointment
In appointing any person as the Legal Complaints Review Officer, the Minister must have regard, among other things to—
(a)
the person’s personal attributes:
(b)
the person’s knowledge of, and experience in, matters relevant to the functions of the Legal Complaints Review Officer, such as—
(ii)
the provision of legal services:
(iii)
the issues related to professional conduct:
(c)
the person’s ability, by reason of his or her skills or experience or both, to deal with the resolution and management of disputes.
192 Functions of Legal Complaints Review Officer
The functions of the Legal Complaints Review Officer are—
(a)
to exercise the powers of review conferred on the Legal Complaints Review Officer by this Act:
(b)
to promote, in appropriate cases, the resolution, by negotiation, conciliation, or mediation, of—
(ii)
such issues relating to complaints as the Legal Complaints Review Officer specifies:
(c)
to provide advice to the New Zealand Law Society and the New Zealand Society of Conveyancers and the Minister on any issue that the Legal Complaints Review Officer identifies in the course of carrying out reviews (being an issue that relates to the manner in which complaints are received and dealt with under this Act or any rules made under this Act).
193 Right of review
A person who is specified in any provision of sections 194 to 197 as a person who may apply under this section for a review may apply to the Legal Complaints Review Officer for that review.
194 Applicants in relation to complaints
(1)
This section applies to any determination, requirement, or order made, or direction given, by a Standards Committee (or by any person on its behalf or with its authority)—
(a)
in relation to a complaint (including a decision to take no action or no further action on a complaint); or
(b)
on a matter arising from a complaint.
(2)
A person may apply under section 193 for a review of a determination, requirement, order, or direction to which this section applies if that person is—
(b)
the person in respect of whom the complaint was made; or
(c)
a person who, or body that, at the time when the complaint was made, was, in relation to the practitioner or former practitioner in respect of whom the complaint was made, a related person or entity; or
(d)
the New Zealand Law Society (if the person in respect of whom the complaint was made was, or had been, a lawyer or an incorporated law firm or an employee of a lawyer or incorporated law firm); or
(e)
the New Zealand Society of Conveyancers (if the person in respect of whom the complaint was made was, or had been, a conveyancing practitioner or an incorporated conveyancing firm or an employee of a conveyancing practitioner or incorporated conveyancing firm).
195 Applicants in relation to inquiries
(1)
This section applies to any determination, requirement, or order made, or direction given, by a Standards Committee (or by any person on its behalf or with its authority) in relation to any act, omission, allegation, practice, or other matter that the Standards Committee (or any person on its behalf or with its authority) is inquiring into, of its own motion, under section 130(c).
(2)
A person may apply under section 193 for a review of a determination, requirement, order, or direction to which this section applies if that person is—
(a)
the person to whom the inquiry relates; or
(b)
a person or body that is, in relation to the person to whom the inquiry relates, a related person or entity; or
(c)
the New Zealand Law Society (if the person to whom the inquiry relates is or was a lawyer or an incorporated law firm or an employee of a lawyer or incorporated law firm); or
(d)
the New Zealand Society of Conveyancers (if the person to whom the inquiry relates is or was a conveyancing practitioner or an incorporated conveyancing firm or an employee of a conveyancing practitioner or incorporated conveyancing firm).
196 Applicants in relation to power to intervene
In the case of the exercise by a Standards Committee (or by any person on its behalf or with its authority) of any of its powers under section 164, section 169, or section 170, a person may apply under section 193 for a review of the exercise of those powers if that person is—
(a)
a practitioner or former practitioner who is directly affected by the exercise of the power; or
(b)
a person who, or body that, is, in relation to the practitioner or former practitioner who is directly affected by the exercise of the power, a related person or entity; or
(c)
an incorporated firm or former incorporated firm that is directly affected by the exercise of the power; or
(e)
a person on whom a notice under section 170 is served; or
(f)
the New Zealand Law Society (if the person who is directly affected by the exercise of the power is or was a lawyer or an incorporated law firm); or
(g)
the New Zealand Society of Conveyancers (if the person who is directly affected by the exercise of the power is or was a conveyancing practitioner or an incorporated conveyancing firm).
197 Applicants in other cases
(1)
In the case of the performance or exercise by a Standards Committee (or by any other person on its behalf or with its authority) of any of its functions or powers (not being functions or powers to which sections 194 to 196 apply), a person may apply under section 193 for a review of the performance or exercise of those functions or powers if that person is—
(a)
the New Zealand Law Society; or
(b)
the New Zealand Society of Conveyancers; or
(c)
any other person who has the leave of the New Zealand Law Society or the New Zealand Society of Conveyancers or the Legal Complaints Review Officer to apply.
(2)
Nothing in this section authorises the review of any order of a Standards Committee that any complaint or matter be considered by the Tribunal.
198 Applications for review
Every application for a review under section 193 must—
(a)
be in the prescribed form; and
(b)
be lodged with the Legal Complaints Review Officer within 30 working days after a copy or notice of the determination, requirement, or order made, or the direction given, or the performance or exercise of the function or power, by the Standards Committee (or by any person on its behalf or with its authority) is served on, given to, or otherwise brought to the attention of, the applicant for review (which, in the absence of proof to the contrary, is presumed to have occurred on the fifth working day after it is made, given, or performed or exercised); and
(c)
be accompanied by the prescribed fee (if any).
Section 198(b): replaced, on 20 November 2012, by section 12(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
199 Obligation to conduct review
(1)
The Legal Complaints Review Officer must, on receiving an application for review that is made in accordance with this Act, conduct that review.
200 Avoidance of unnecessary formality
The Legal Complaints Review Officer must conduct any review with as little formality and technicality, and as much expedition, as is permitted by—
(a)
the requirements of this Act; and
(b)
a proper consideration of the review; and
(c)
the rules of natural justice.
Compare: 1997 No 60 s 60
201 Postponement for consideration of negotiation, conciliation, or mediation
(1)
The Legal Complaints Review Officer may, on receiving an application for review,—
(a)
postpone the conduct of that review for such period as he or she considers reasonable; and
(b)
direct that, within a time or before a date fixed by the Legal Complaints Review Officer, the parties both—
(i)
explore the possibility of resolving, by negotiation, conciliation, or mediation, the matter to which the review relates or any issue involved in that matter; and
(ii)
report back to the Legal Complaints Review Officer.
(2)
A Legal Complaints Review Officer must not postpone the conduct of a review and give a direction under subsection (1) if he or she considers that such a direction—
(a)
would not contribute constructively to resolving the matter or issue; or
(b)
would not, in all the circumstances, be in the public interest; or
(c)
would undermine the urgent nature of the matter or issue.
(3)
The Legal Complaints Review Officer may, at any time, end the period of any postponement and proceed with the conduct of the review.
(4)
If the matter to which a review relates involves an issue of misconduct or unsatisfactory conduct, the Legal Complaints Review Officer may conduct the review in relation to that issue despite—
(a)
any postponement effected or direction given under subsection (1); and
(b)
any negotiation, conciliation, or mediation in relation to the matter to which the review relates or any issue involved in that matter; and
(c)
any settlement agreed by the parties to the review.
(5)
If the parties reach an agreed settlement in relation to the matter to which the review relates or any issue involved in that matter, the Legal Complaints Review Officer—
(a)
may record the terms of the settlement; and
(b)
may, by consent of the parties, declare all or some of the terms of the settlement to be all or part of a final determination of the issues involved in the matter to which the review relates.
(6)
No evidence is admissible in any court or before any person acting judicially or before a Standards Committee or before the Legal Complaints Review Officer or before the Disciplinary Tribunal of any information, statement, or admission disclosed or made to any person in the course of any negotiation, conciliation, or mediation conducted, pursuant to a direction given under subsection (1), for the purpose of resolving the matter to which the review relates or any issues involved in that matter.
(7)
Nothing in this section prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discoverable or admissible and which existed independently of any negotiation, conciliation, or mediation conducted pursuant to a direction given under subsection (1) for the purpose of resolving a complaint or any issue involved in a complaint) merely because the evidence was presented in the course of the negotiation, conciliation, or mediation.
Powers of Legal Complaints Review Officer
202 General powers
The Legal Complaints Review Officer has, in addition to the powers conferred on the Legal Complaints Review Officer by this Act, all such powers as are reasonably necessary or expedient to enable the Legal Complaints Review Officer to carry out his or her functions under this Act.
203 Scope of review of final determination
The Legal Complaints Review Officer may, in reviewing a final determination of a Standards Committee, review all the aspects, or any of the aspects,—
(a)
of any inquiry carried out by or on behalf of a Standards Committee in relation to the complaint or matter to which the final determination relates; and
(b)
of any investigation conducted by or on behalf of the Standards Committee in relation to the complaint or matter to which the final determination relates (including any investigation conducted by an investigator or any other person on behalf of or with the authority of the Standards Committee).
204 Power to obtain information
The Legal Complaints Review Officer may—
(a)
make inquiries of, and request explanations from, a Standards Committee as to—
(i)
the handling of any inquiry or investigation, or any aspect of any inquiry or investigation, that has been conducted by that Standards Committee or by an investigator on behalf of that Standards Committee; or
(ii)
the reasons for any final determination of that Standards Committee:
(b)
request a Standards Committee or an investigator to supply to the Legal Complaints Review Officer the originals of, or copies of, any records, reports, documents, or other information relating to a complaint and held by the Standards Committee or investigator:
(c)
make further inquiries or investigations into—
(i)
any complaint or any aspect of a complaint; or
(ii)
any aspect of the manner in which a complaint was handled or investigated:
(d)
exercise, for the purpose of any inquiry or investigation conducted under paragraph (c), all the powers of a Standards Committee or an investigator.
205 Power to decline to make further inquiry or investigation
The Legal Complaints Review Officer may, in conducting a review of a determination made in relation to a complaint or matter, decline to make any further inquiry or any further investigation into the complaint or matter or any reinvestigation of the complaint or matter.
Procedure
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 Legal Complaints Review Officer 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 Legal Complaints Review Officer may conduct the review on the basis of such information, records, reports, or documents as are available to the Legal Complaints Review Officer (including any obtained by the Legal Complaints Review Officer as a result of a request made under section 204(b)).
(3)
Subject to subsection (2) and to sections 205, 207, and 208, the Legal Complaints Review Officer must perform his or her functions and duties and exercise his or her powers in a way that is consistent with the rules of natural justice.
(4)
The Legal Complaints Review Officer 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 Legal Complaints Review Officer may regulate his or her procedure in such manner as he or she thinks fit.
Compare: 1988 No 2 s 23(2), (3)(b), (c), (4)
207 Evidence
(1)
In relation to any review of a determination of a Standards Committee, the Legal Complaints Review Officer may, on his or her own initiative, seek and receive such evidence and make such investigations and inquiries as he or she thinks fit.
(2)
The Legal Complaints Review Officer may receive and take into account any relevant evidence or information, whether or not that evidence or information would normally be inadmissible in a court of law.
Compare: 1988 No 110 s 40(2), (4)
208 Disclosure of evidence and information to parties
(1)
Subject to subsection (2), all evidence and information received or ascertained under section 207(1) must be disclosed to every party, and every party must be given an opportunity to comment on it.
(2)
Where, in the opinion of the Legal Complaints Review Officer, there is good reason for not disclosing to every party any evidence or information received or ascertained under section 207(1) or for withholding from a party some of the evidence or information so received or ascertained, the Legal Complaints Review Officer may, as the case requires,—
(a)
refuse to disclose that evidence or information to that party; or
(b)
give that evidence or information to that party after the Legal Complaints Review Officer has made to it such deletions or alterations as he or she considers necessary.
(3)
If, under subsection (2), the Legal Complaints Review Officer takes, in respect of any party, either of the actions referred to in subsection (2), the Legal Complaints Review Officer must give to that party the reasons for the action taken by the Legal Complaints Review Officer.
Compare: 1988 No 110 s 40(3)
209 Power to direct reconsideration of complaints, matters, or decisions
(1)
The Legal Complaints Review Officer may—
(a)
direct a Standards Committee to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of the complaint, matter, or decision to which any application for review relates:
(b)
give to a Standards Committee, in any case where the Legal Complaints Review Officer gives a direction under paragraph (a),—
(i)
his or her reasons for the direction; and
(ii)
such other directions as he or she thinks just as to the reconsideration or otherwise of the whole or any part of the complaint, matter, or decision that is referred back for reconsideration:
(c)
request, in giving a direction under paragraph (a), that the Standards Committee supply a follow-up report to him or her when it has complied with the direction.
(2)
A Standards Committee, in reconsidering any complaint, matter, or decision referred back to it under subsection (1)(a), must have regard to the direction given by the Legal Complaints Review Officer and to his or her reasons for giving the direction.
Compare: 1972 No 130 s 4(5), (6)
210 Order for payment of costs
(1)
The Legal Complaints Review Officer may, after conducting a review under this Act, make such order as to the payment of costs and expenses as the Legal Complaints Review Officer thinks fit.
(2)
In particular, the Legal Complaints Review Officer may order that costs be awarded to any person to whom the proceedings relate, and that those costs be paid—
(a)
by the New Zealand Law Society (if that person is 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 an incorporated law firm); or
(b)
by the New Zealand Society of Conveyancers (if that person is a conveyancing practitioner or former conveyancing practitioner or an incorporated conveyancing firm or former incorporated conveyancing firm or an employee or former employee of a conveyancing practitioner or an incorporated conveyancing firm).
(3)
In particular, without finding that there has been unsatisfactory conduct on the part of a person (being 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 whom the proceedings relate, the Legal Complaints Review Officer may, if he or she considers that the proceedings were justified and that it is just to do so, order that person to pay to the New Zealand Law Society or the New Zealand Society of Conveyancers such sums as the Legal Complaints Review Officer thinks fit in respect of the expenses of and incidental to the proceedings and any investigation of that person’s conduct or of that person’s affairs or trust account carried out by, or on behalf of, a Standards Committee or the Legal Complaints Review Officer.
(4)
In this section, expenses includes not only out-of-pocket expenses but also such amounts in respect of salaries of staff and overhead expenses incurred by either the New Zealand Law Society or the New Zealand Society of Conveyancers as the Legal Complaints Review Officer considers properly attributable to an investigation.
Compare: 1982 No 123 s 129
211 Powers exercisable on review
(1)
The Legal Complaints Review Officer may, on a review under section 193, do any 1 or more of the following things:
(a)
confirm, modify, or reverse any decision of a Standards Committee, including any determination, requirement, or order made, or direction given, by the Standards Committee (or by any person on its behalf or with its authority):
(b)
exercise any of the powers that could have been exercised by the Standards Committee in the proceedings in which the decision was made or the powers were exercised or could have been exercised.
(2)
Section 189 applies, with all necessary modifications, to any order made or power exercised under this section by the Legal Complaints Review Officer as if that order had been made or that power had been exercised by a Standards Committee.
212 Laying of charge with Disciplinary Tribunal
(1)
The Legal Complaints Review Officer, if he or she decides that any complaint or matter should be considered by the Disciplinary Tribunal, must either—
(a)
frame an appropriate charge and lay it before the Disciplinary Tribunal; or
(b)
direct a Standards Committee to lay, under section 154, a specified charge before the Disciplinary Tribunal.
(2)
If the Legal Complaints Review Officer lays before the Disciplinary Tribunal a charge against a practitioner, the Legal Complaints Review Officer may apply to the Disciplinary Tribunal for an order that, pending the determination of the charge, the practitioner be suspended from practice—
(c)
as a barrister and solicitor; or
(d)
as a conveyancing practitioner.
(3)
If the Legal Complaints Review Officer directs that a specified charge against a practitioner be laid, under section 154, by a Standards Committee, the Legal Complaints Review Officer may, at the same time, direct the Standards Committee to apply to the Disciplinary Tribunal under section 155 for an order that, pending the determination of the charge, the practitioner be suspended from practice—
(c)
as a barrister and solicitor; or
(d)
as a conveyancing practitioner.
(4)
The Legal Complaints Review Officer may not, under section 211, decide that a complaint or matter should be considered by the Disciplinary Tribunal unless he or she has given the person who would be the subject of the charge laid before the Disciplinary Tribunal a reasonable opportunity to be heard.
(5)
If the Legal Complaints Review Officer decides to lay, or directs a Standards Committee to lay, a charge against a person who is a provider under the Legal Services Act 2011, the Legal Complaints Review Officer must give written notice of the decision to the Secretary for Justice.
Section 212(5): added, on 1 July 2011, by section 141 of the Legal Services Act 2011 (2011 No 4).
213 Obligation to report outcomes and recommendations
(1)
The Legal Complaints Review Officer must—
(a)
report the outcome of each review to—
(i)
the Standards Committee concerned; and
(iii)
each of the other persons who was entitled, under section 193, to apply to the Legal Complaints Review Officer for the review; and
(b)
report to the New Zealand Law Society or the New Zealand Society of Conveyancers, as the case may require, both the outcome at each review and any recommendations made as a result of the review.
(2)
The report of the outcome of a review must state the reasons for any decision made, as a result of that review, under section 205 or section 211.
(2A)
A duty under subsection (1)(a)(iii) (read with sections 6 and 193 to 197) to report the outcome of a review to each member of a class (of related persons) in column 1 of a row of the following table is performed sufficiently by reporting that outcome only to the individual or smaller class (of related persons) in column 2 of that row:
| Column 1
Class | | Column 2
Individual or smaller class |
|---|
| 1 | All persons who practise in partnership with the practitioner | | Any 1 of those persons who practise in partnership with the practitioner |
| 2 | All directors of an incorporated law firm or incorporated conveyancing firm in which the practitioner practises | | Any 1 of those directors of that firm |
| 3 | All shareholders of an incorporated law firm or incorporated conveyancing firm in which the practitioner practises | | All shareholders of that firm who are shareholders of that firm in respect of shares that confer voting rights |
(3)
If the person who is the subject of the review is a provider under the Legal Services Act 2011, the Legal Complaints Review Officer must report both the outcome of the review and any recommendations made as a result of the review to the Secretary for Justice.
Section 213(2A): inserted, on 20 November 2012, by section 14 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 213(3): added, on 1 July 2011, by section 142 of the Legal Services Act 2011 (2011 No 4).
214 Adverse comment
The Legal Complaints Review Officer may not, in any decision, direction, or order made under section 211 or in any report made under section 213, make any comment that is adverse to any person unless that person has been given a reasonable opportunity to be heard.
215 Enforcement of orders for costs or expenses
(1)
For the purpose of enforcing any order of the Legal Complaints Review Officer for the payment of costs or expenses or both, a duplicate of the order may be filed by the person to whom the costs or expenses or both are payable in the office of the court named in the order and thereupon becomes enforceable in all respects as a final judgment of that court in its civil jurisdiction.
(2)
In every case where an order for costs or expenses or both is made by the Legal Complaints Review Officer, the order must name the court in which the order may, if necessary, be enforced.
(3)
The court so named must,—
(a)
where the amount recoverable under the order does not exceed $12,000, be the District Court; and
(b)
in every other case, be the High Court.
Section 215(3)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Cost recovery
216 Purpose
The purpose of sections 217 to 221 is to provide for the recovery from the New Zealand Law Society and the New Zealand Society of Conveyancers of the cost to the Crown of the performance of the functions of the Legal Complaints Review Officer.
217 Levy
(1)
The New Zealand Law Society, in its regulatory capacity, and the New Zealand Society of Conveyancers, in its regulatory capacity, must, in respect of each financial year, pay to the Ministry of Justice a levy to meet—
(a)
the actual and anticipated cost to the Crown of the performance, in the financial year to which the levy relates, of the functions of the Legal Complaints Review Officer; and
(b)
any unanticipated cost to the Crown of the performance, in the financial year to which the levy relates, of the functions of the Legal Complaints Review Officer.
(2)
The cost to the Crown of the performance of the functions of the Legal Complaints Review Officer includes—
(a)
the remuneration and allowances payable under clause 4 of Schedule 3 to the Legal Complaints Review Officer and each Deputy Legal Complaints Review Officer; and
(b)
the cost of the accommodation and services provided under clause 5 of Schedule 3.
(3)
The amount of the unanticipated cost referred to in subsection (1)(b) is not to exceed 10% of the actual and anticipated cost referred to in subsection (1)(a).
(4)
The rate of the levy—
(a)
is to be determined in respect of each financial year by the Minister after consultation with the New Zealand Law Society and the New Zealand Society of Conveyancers; and
(b)
is, in the case of the New Zealand Law Society, to be based on the number of practitioners who hold current practising certificates issued by that society; and
(c)
is, in the case of the New Zealand Society of Conveyancers, to be based on the number of practitioners who hold current practising certificates issued by that society.
(5)
The Minister must, on determining the rate of the levy, give written notice to each society of both the rate of the levy and the date by which the levy is required to be paid to the Ministry of Justice.
Section 217(2)(a): amended, on 12 December 2012, by section 4 of the Lawyers and Conveyancers Amendment Act (No 2) 2012 (2012 No 105).
218 Legal Complaints Review Officer Trust Account
(1)
Money paid to the Ministry of Justice by way of levy under section 217 or section 219 is money paid to the Crown in trust for the purpose of meeting the cost to the Crown of the performance of the functions of the Legal Complaints Review Officer and is to be treated as trust money to which section 66 of the Public Finance Act 1989 applies.
(2)
The Ministry of Justice must establish under section 67(1) of the Public Finance Act 1989 a bank account to be known as the Legal Complaints Review Officer Trust Account.
(3)
The Legal Complaints Review Officer Trust Account is to be operated and maintained by the Ministry of Justice.
(4)
The trust money referred to in subsection (1) must be lodged in the Legal Complaints Review Officer Trust Account.
(5)
The Ministry of Justice must from time to time pay into a Departmental Bank Account operated by that Ministry such sums as are required to reimburse that Ministry for the costs incurred by that Ministry, with the approval of the Minister, in meeting the cost to the Crown of the performance of the functions of the Legal Complaints Review Officer.
(6)
The sums paid by way of reimbursement under subsection (5) must be paid from the Legal Complaints Review Officer Trust Account.
(7)
The Ministry of Justice may from time to time invest, in accordance with section 68 of the Public Finance Act 1989, any money held in the Legal Complaints Review Officer Trust Account.
(8)
Subject to the provisions of this Act, Part 7 of the Public Finance Act 1989 applies in relation to both the Legal Complaints Review Officer Trust Account and the trust money held in that account.
219 Special circumstances levy
(1)
If the amount held in the Legal Complaints Review Officer Trust Account is not sufficient to meet the cost to the Crown of the performance of the functions of the Legal Complaints Review Officer, the Minister may, for the purpose of ensuring that the cost is met, impose a special circumstances levy on the New Zealand Law Society and the New Zealand Society of Conveyancers.
(2)
The rate of a special circumstances levy is to be determined by the Minister after consultation with the New Zealand Law Society and the New Zealand Society of Conveyancers; and paragraphs (b) and (c) of section 217(4) apply in relation to the determination of that rate.
(3)
Each society must pay to the Ministry of Justice each special circumstances levy imposed on that society.
(4)
The Minister imposes a special circumstances levy on a society by giving written notice to that society of—
(a)
the imposition of the levy; and
(b)
the rate of the levy; and
(c)
the date by which the levy is required to be paid to the Ministry of Justice.
220 Payment of levies
(1)
Each levy payable under section 217 or section 219 must be paid to the Ministry of Justice by such date as the Minister determines in respect of that levy.
(2)
Money paid to the Ministry of Justice by way of levy under section 217 or section 219 must be lodged in the Legal Complaints Review Officer Trust Account.
(3)
Every levy under section 217 or section 219 is recoverable in any court of competent jurisdiction as a debt due to the Crown.
221 Recovery of levy
(1)
The New Zealand Law Society may, by a levy imposed under section 74(1)(b) on all lawyers, recover from those lawyers the amount of any levy paid by the New Zealand Law Society under section 217 or section 219.
(2)
The New Zealand Society of Conveyancers may, by a levy imposed under section 91(1)(b) on all conveyancing practitioners, recover from those practitioners the amount of any levy paid by the New Zealand Society of Conveyancers under section 217 or section 219.
Annual reports
222 Reports in relation to cost recovery
(1)
The annual report of the Ministry of Justice prepared in accordance with the provisions of the State Sector Act 1988 must include, in relation to the financial year to which the report relates, a statement of—
(a)
the amount received from the New Zealand Law Society by way of levy under section 217; and
(b)
the amount received from the New Zealand Law Society by way of levy under section 219; and
(c)
the amount received from the New Zealand Society of Conveyancers by way of levy under section 217; and
(d)
the amount received from the New Zealand Society of Conveyancers by way of levy under section 219; and
(e)
the amount paid under section 218(5) into a Departmental Bank Account operated by the Ministry of Justice; and
(f)
the amount held in the Legal Complaints Review Officer Trust Account at the end of that financial year.
(2)
The annual report of the Ministry of Justice prepared in accordance with the provisions of the State Sector Act 1988 must include a statement of the total amount expended by that Ministry in the financial year to which the report relates in meeting the cost to the Crown of the performance of the functions of the Legal Complaints Review Officer.
223 Annual report
(1)
The Legal Complaints Review Officer must, in each year, furnish to the Minister and the New Zealand Law Society and the New Zealand Society of Conveyancers a report on the performance of his or her functions under this Act.
(2)
The Minister must present a copy of the report to the House of Representatives as soon as practicable after it is furnished to the Minister.
224 Contents of annual report
(1)
The annual report of the Legal Complaints Review Officer must include, among other things, the following information:
(a)
the number and types of applications for review made in the year:
(b)
whether the reviews in respect of which the applications have been made have been completed:
(c)
the timeliness with which reviews have been completed:
(d)
the outcomes of the reviews:
(e)
the number of applications for review still outstanding.
(2)
Nothing in subsection (1) requires disclosure of matters that may identify particular individuals or bodies corporate.
225 Further provisions relating to Legal Complaints Review Officer
The provisions of Schedule 3 have effect in relation to the Legal Complaints Review Officer and the proceedings of the Legal Complaints Review Officer.
New Zealand Lawyers and Conveyancers Disciplinary Tribunal
226 New Zealand Lawyers and Conveyancers Disciplinary Tribunal
This section establishes a body to be known as the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
Compare: 1982 No 123 s 108(1)
227 Functions of Disciplinary Tribunal
The functions of the Disciplinary Tribunal are—
(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 firm 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:
(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 or 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 practitioner’s or incorporated firm’s 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.
Compare: 1982 No 123 ss 110, 130
228 Membership of Disciplinary Tribunal
The Disciplinary Tribunal consists of—
(a)
1 member who is to be appointed as the chairperson:
(b)
1 member who is to be appointed as the deputy chairperson:
(c)
not less than 7 nor more than 15 lay members (being persons whose names are neither on the roll nor on the register of conveyancers):
(d)
not less than 7 nor more than 15 members who are lawyers:
(e)
not less than 3 nor more than 5 members who are conveyancing practitioners.
Compare: 1982 No 123 s 108(2)
229 Disciplinary Tribunal may sit in divisions
(1)
The chairperson may, from time to time, if he or she considers it appropriate in a particular case or class of case, determine, by writing signed by the chairperson, that the Disciplinary Tribunal is to sit in divisions.
(2)
A division of the Disciplinary Tribunal may exercise all the powers of the Disciplinary Tribunal.
(3)
Each division of the Disciplinary Tribunal is to consist of such members as are for the time being assigned to that division by the chairperson of the Disciplinary Tribunal.
(4)
If the members assigned to a division do not include either the chairperson or the deputy chairperson of the Disciplinary Tribunal, the chairperson of the Disciplinary Tribunal must, from time to time, designate the person who is to be the chairperson of that division.
(5)
The chairperson of the Disciplinary Tribunal is to determine in each case which division of the Disciplinary Tribunal is to conduct particular proceedings.
(6)
For the purposes of any proceedings that are before any division of the Disciplinary Tribunal by virtue of any determination under this section, the Disciplinary Tribunal is deemed to consist of that division of the Disciplinary Tribunal, and the powers of that division are not affected by any changes or vacancies in its membership.
(7)
A division of the Disciplinary Tribunal may exercise any powers of the Disciplinary Tribunal even though another division of the Disciplinary Tribunal is exercising powers of the Disciplinary Tribunal at the same time.
(8)
Any determination made by the chairperson of the Disciplinary Tribunal under this section may be revoked or amended by that chairperson by writing signed by that chairperson.
Compare: 1986 No 5 s 16; 1993 No 94 s 101
230 Appointment of chairperson and deputy chairperson
(1)
The chairperson of the Disciplinary Tribunal and the deputy chairperson of the Disciplinary Tribunal must each be a person who, whether or not he or she holds or has held judicial office,—
(a)
is not a practitioner; but
(b)
has had not less than 7 years’ practice as a lawyer.
(2)
The chairperson of the Disciplinary Tribunal and the deputy chairperson of the Disciplinary Tribunal are to be appointed by the Governor-General on the recommendation of the Minister.
Compare: 1982 No 123 s 108(3)
231 Responsibilities of chairperson
(1)
The chairperson of the Disciplinary Tribunal is responsible for—
(a)
making such arrangements as are practicable to ensure the orderly and expeditious discharge of the functions of the Disciplinary Tribunal:
(b)
deciding whether the Disciplinary Tribunal is to sit in divisions:
(c)
designating the times and places at which hearings will be conducted:
(d)
designating, where necessary, the member who is to be the chairperson of any division of the Disciplinary Tribunal:
(e)
training members of the Disciplinary Tribunal and making such arrangements for the training of members of the Disciplinary Tribunal as the chairperson considers necessary:
(2)
Despite subsection (1)(e), no member of the Disciplinary Tribunal is to be entitled, under the arrangements made under subsection (1)(e), to receive more than 2 days of training in any period of 12 months.
232 Deputy chairperson and acting deputy chairperson
(1)
If—
(a)
the chairperson becomes incapable of acting as chairperson by reason of illness, absence, or other sufficient cause; or
(b)
there is a vacancy in the office of chairperson; or
(c)
the chairperson considers it not proper or desirable that he or she adjudicate on any specified matter,—
the deputy chairperson has and may perform or exercise all the functions, duties, and powers of the chairperson.
(2)
The deputy chairperson is, while acting for the chairperson, deemed to be the chairperson of the Disciplinary Tribunal.
(3)
If, in any case to which subsection (1) applies,—
(a)
the deputy chairperson is incapable of acting as chairperson by reason of illness, absence, or other sufficient cause; or
(b)
there is a vacancy in the office of deputy chairperson; or
(c)
the deputy chairperson considers it not proper or desirable that he or she adjudicate on any specified matter,—
the Minister may appoint a suitable person to act for the deputy chairperson for the period or purpose stated in the appointment.
(4)
No person is qualified for appointment under subsection (3) unless that person is qualified under section 230(1) for appointment as the deputy chairperson of the Disciplinary Tribunal.
(5)
Any person appointed under subsection (3) to act for the deputy chairperson is, while acting as such, deemed to be the deputy chairperson, and has and may perform or exercise all the functions, duties, and powers of that office for the period or for the purpose stated in the appointment.
(6)
No appointment of a person to act for the deputy chairperson and no act done by the deputy chairperson while acting for the chairperson or by a person acting pursuant to an appointment under subsection (3), and no act done by the Disciplinary Tribunal while the deputy chairperson or any such person is so acting may, in any proceedings, be questioned on the ground that the occasion for the deputy chairperson or any such person to so act had not arisen or had ceased.
233 Appointment of other members
(1)
The members appointed under section 228(c) are to be appointed by the Governor-General on the recommendation of the Minister, after consultation by the Minister with the chairperson of the Disciplinary Tribunal, the Council of the New Zealand Law Society, and the Council of the New Zealand Society of Conveyancers.
(2)
The members appointed under section 228(d) are to be appointed by the Council of the New Zealand Law Society.
(3)
The members appointed under section 228(e) are to be appointed by the Council of the New Zealand Society of Conveyancers.
Compare: 1982 No 123 ss 108(2), 109(1)
234 Constitution for proceedings
(1)
For the purposes of proceedings before the Disciplinary Tribunal or a division of the Disciplinary Tribunal, the Disciplinary Tribunal or division consists of—
(a)
a chairperson, being,—
(i)
in the case of proceedings before the Disciplinary Tribunal, the chairperson of the Disciplinary Tribunal; or
(ii)
in the case of proceedings before a division of the Disciplinary Tribunal (being a division of which the chairperson of the Disciplinary Tribunal is a member), either the chairperson of the Disciplinary Tribunal or a member of the Disciplinary Tribunal designated by the chairperson of the Disciplinary Tribunal as the chairperson of that division; or
(iii)
in the case of proceedings before a division of the Disciplinary Tribunal (being a division of which the deputy chairperson of the Disciplinary Tribunal, and not the chairperson of the Disciplinary Tribunal, is a member), either the deputy chairperson of the Disciplinary Tribunal or a member of the Disciplinary Tribunal designated by the chairperson of the Disciplinary Tribunal as the chairperson of that division; and
(b)
such other members of the Disciplinary Tribunal as are selected in accordance with this section by the chairperson of the Disciplinary Tribunal.
(2)
The number of members of the Disciplinary Tribunal selected under subsection (1)(b) must be an even number that is not less than 4.
(3)
Half of the number of members selected under subsection (1)(b) must be lay members.
(4)
Half of the number of members selected under subsection (1)(b)—
(a)
must, if the proceedings relate 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 an incorporated law firm, be members who hold office under section 228(d); or
(b)
must, if the proceedings relate to a conveyancing practitioner or former conveyancing practitioner or an incorporated conveyancing firm or former incorporated conveyancing firm or an employee or former employee of a conveyancing practitioner or incorporated conveyancing firm, be members who hold office under section 228(e).
Section 234(5): repealed, on 20 November 2012, by section 27(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
235 Quorum
(1)
The quorum at any sitting of the Disciplinary Tribunal or a division of the Disciplinary Tribunal is 5 members of the Disciplinary Tribunal.
(2)
Despite subsection (1), a quorum is not present if—
(a)
no lay member is present; or
(3)
Every question before the Disciplinary Tribunal or a division of the Disciplinary Tribunal is to be determined by the opinion of the majority of the members present at a sitting of the Disciplinary Tribunal or division, and, if the members are equally divided in their opinions, that of the chairperson prevails.
(4)
Subsection (1) is subject to subsection (5) (which permits a reduced, specified 3-member quorum for specified purposes) and section 244(2) (which specifies minimum attendance and voting requirements for the making of certain orders).
(5)
For the purposes specified in section 240(4) (which relates to interim name suppression orders), and for the purposes of section 245 (which relates to interim suspension from practice), the quorum at any sitting of the Disciplinary Tribunal or a division of the Disciplinary Tribunal is (not only compliance with subsection (2)(b) of this section, but also) the following 3 members of the Disciplinary Tribunal:
(a)
the chairperson of the Disciplinary Tribunal; and
(b)
a lay member of the Disciplinary Tribunal; and
(c)
either—
(i)
a member of the Disciplinary Tribunal appointed under section 228(d) (if the practitioner to whom the charge relates is a lawyer); or
(ii)
a member of the Disciplinary Tribunal appointed under section 228(e) (if the practitioner to whom the charge relates is a conveyancing practitioner).
Section 235(4): replaced, on 20 November 2012, by section 15 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 235(5): inserted, on 20 November 2012, by section 15 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Procedure
236 Rules of natural justice
The Disciplinary Tribunal must, in performing and exercising its functions and powers, observe the rules of natural justice.
Compare: 1982 No 123 s 124(1); 1996 No 39 s 9
237 Representation before Disciplinary Tribunal
(1)
Every person who makes an application to the Disciplinary Tribunal and every practitioner or other person to whom an application to the Disciplinary Tribunal relates is entitled to appear and be heard at the hearing of that application and to be represented by counsel or otherwise.
(2)
A charge made by a Standards Committee against a practitioner or any other person is, at the hearing, to be prosecuted by that Standards Committee, which, for that purpose, may be represented by counsel or otherwise.
(3)
A charge made by the Legal Complaints Review Officer against a practitioner or any other person is, at the hearing, to be prosecuted by the Legal Complaints Review Officer, who, for that purpose, may be represented by counsel or otherwise.
(4)
The practitioner or other person against whom a charge is made by a Standards Committee or the Legal Complaints Review Officer is entitled to appear and be heard at the hearing of that charge and to be represented by counsel or otherwise.
(5)
If any party to proceedings before the Disciplinary Tribunal is represented by counsel, any other party to those proceedings may be represented by counsel.
238 Hearings to be in public
(1)
Except as provided in subsections (2) and (3) and section 240, every hearing of the Disciplinary Tribunal must be held in public.
(2)
If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may hold a hearing or part of a hearing in private.
(3)
The Disciplinary Tribunal may, in any case, deliberate in private as to its decision or as to any question arising in the course of a hearing.
Compare: 1982 No 123 s 111(1), (2)(a), (4)
239 Evidence
(1)
Subject to section 236, the Disciplinary Tribunal may receive as evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matters before it, whether or not that statement, document, information, or matter would be admissible in a court of law.
(2)
The Disciplinary Tribunal may take evidence on oath, and, for that purpose, any member of the Disciplinary Tribunal may administer an oath.
(3)
The Disciplinary Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and verifying that statement by oath.
(4)
Subject to subsections (1) to (3), the Evidence Act 2006 applies to the Disciplinary Tribunal in the same manner as if the Disciplinary Tribunal were a court within the meaning of that Act.
(5)
A hearing before the Disciplinary Tribunal is a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
Compare: 1995 No 95 Schedule 1 cl 6; 1996 No 39 s 10
Section 239(4): amended, on 1 August 2007, by section 216 of the Evidence Act 2006 (2006 No 69).
240 Restrictions on publication
(1)
If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:
(a)
an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:
(b)
an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
(c)
an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.
(2)
Unless it is reversed or modified in respect of its currency by the High Court on appeal under section 253, an order made under subsection (1) continues in force until such time as may be specified in the order, or, if no time is specified, until the Disciplinary Tribunal, in its discretion, revokes it on the application of any party to the proceedings in which the order was made or any other person.
(2A)
Subsections (1)(c) and (2) are subject to subsection (4).
(3)
Subsection (1)(c) does not apply to, or in respect of,—
(a)
any communications by or between any or all of the following:
(i)
the Council of the New Zealand Law Society:
(ii)
the Council of the New Zealand Society of Conveyancers:
(iii)
an officer of either of the societies specified in subparagraphs (i) and (ii):
(iv)
an employee of either of the societies specified in subparagraphs (i) and (ii):
(vi)
an employee of a Standards Committee:
(vii)
the Legal Complaints Review Officer:
(viii)
the Disciplinary Tribunal:
(b)
the publication pursuant to section 256 of a notice in the Gazette.
(4)
For the purposes of exercising the Disciplinary Tribunal’s powers under subsections (1)(c) and (2) to make or revoke, before the start of the hearing of the charge, an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person, the quorum at any sitting of the Disciplinary Tribunal or a division of the Disciplinary Tribunal is, despite section 235(1), the 3-member quorum specified in section 235(5).
Compare: 1982 No 123 s 111(2)(b)–(d), (3), (6)
Section 240(1)(c): amended, on 20 November 2012, by section 16(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 240(2A): inserted, on 20 November 2012, by section 16(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 240(4): inserted, on 20 November 2012, by section 16(3) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
241 Charges that may be brought before Disciplinary Tribunal
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 practise 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 practise, 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.
Compare: 1982 No 123 s 112(1)
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:
(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.
(2)
Paragraphs (c) and (d) of subsection (1) are subject to section 244.
Compare: 1982 No 123 ss 112(2), 114(2)
Section 242(1)(c): replaced, on 20 November 2012, by section 17 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 242(1)(d): replaced, on 20 November 2012, by section 17 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 242(1)(e): replaced, on 20 November 2012, by section 17 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 242(1)(f): replaced, on 20 November 2012, by section 17 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 242(1)(g): replaced, on 20 November 2012, by section 17 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
243 Power to refer bill of costs to Standards Committee
(1)
This section applies in relation to any case that is before the Disciplinary Tribunal and arises wholly or partly out of a complaint of overcharging by a practitioner or former practitioner or an incorporated firm or former incorporated firm.
(2)
If, in any case to which this section applies, the Disciplinary Tribunal considers that the practitioner’s or former practitioner’s or incorporated firm’s or former incorporated firm’s bill of costs in respect of any matter to which the complaint relates is unfair or unreasonable, the Disciplinary Tribunal may, whether or not it makes an order under section 242, order that the bill be referred to a Standards Committee.
(3)
The Standards Committee must, after considering the bill of costs, make such order or orders under section 156 as it would have made under that section if it had determined a complaint in respect of that bill of costs.
Compare: 1982 No 123 s 112(4)
244 Making of order for striking off roll, cancellation of registration, or suspension from practice
(1)
The Disciplinary Tribunal may not make an order, under section 242(1)(c), striking the name of a practitioner or former practitioner off the roll or an order, under section 242(1)(d), cancelling the registration of a practitioner or former practitioner unless in its opinion the practitioner or former practitioner is, by reason of his or her conduct, not a fit and proper person to be a practitioner.
(2)
Except by consent, the Disciplinary Tribunal may not make—
(a)
an order, under section 242(1)(c), striking the name of a practitioner or former practitioner off the roll; or
(b)
an order, under section 242(1)(d), cancelling the registration of a practitioner or former practitioner; or
(c)
an order, under section 242(1)(e), suspending a practitioner or former practitioner from practice,—
unless at least 5 members of the Disciplinary Tribunal are present and vote in favour of the order and those members are either the only members present and voting at the sitting of the Disciplinary Tribunal or the division of the Disciplinary Tribunal or are a majority of the members present and voting at the sitting of the Disciplinary Tribunal or the division of the Disciplinary Tribunal.
(3)
Where the Disciplinary Tribunal makes an order, under section 242(1)(c), striking the name of a practitioner or former practitioner off the roll or an order, under section 242(1)(d), cancelling the registration of a practitioner or former practitioner, the order is, until the expiry of the time allowed for appeal under section 253 or, if an appeal is commenced, until the determination of the appeal, to take effect only as an order that the practitioner or former practitioner be suspended from practice as a barrister or as a solicitor or as both, or from practice as a conveyancing practitioner, as the case may require.
Compare: 1982 No 123 ss 113, 117(3)
Section 244(1): amended, on 20 November 2012, by section 18(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 244(2)(a): amended, on 20 November 2012, by section 18(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 244(2)(b): amended, on 20 November 2012, by section 18(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 244(2)(c): amended, on 20 November 2012, by section 18(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 244(3): amended, on 20 November 2012, by section 18(3) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
245 Interim suspension from practice
(1)
If a charge against a practitioner has been made or referred to the Disciplinary Tribunal, it may,—
(a)
on the application of the party by whom the charge was laid or of its own motion; and
(b)
without any prior notice to the practitioner,—
make an order that the practitioner be suspended from practice as a barrister or as a solicitor or as both, or as a conveyancing practitioner, until the charge has been heard and disposed of.
(2)
The Disciplinary Tribunal may make an order under subsection (1) only if it is satisfied that it is necessary or desirable to do so having regard to—
(a)
the interests of the public; or
(b)
the financial interests of any person.
(3)
On the making of an order under subsection (1), or at any time while such an order is in force, the Disciplinary Tribunal may direct that, after the expiration of the period of 14 days beginning with the day on which the order is made, a notice stating the date and effect of the order is to be published in such publications as are specified by the Disciplinary Tribunal.
(4)
The practitioner in respect of whom an interim suspension order is made under this section may, at any time, apply to the Disciplinary Tribunal for the revocation of—
(b)
any direction given under subsection (3); or
(5)
An application under subsection (4) must be heard within 7 days after the day on which it is received by the Disciplinary Tribunal, and the Disciplinary Tribunal may grant or refuse the application as it thinks fit.
(6)
If an order under subsection (1) is made or revoked by the Disciplinary Tribunal, the Disciplinary Tribunal must forthwith give written notice of the making or revocation of the order to the Registrar-General of Land.
(7)
For the purposes of exercising the Disciplinary Tribunal’s powers under this section, the quorum at any sitting of the Disciplinary Tribunal or a division of the Disciplinary Tribunal is, despite section 235(1), the 3-member quorum specified in section 235(5).
(8)
Nothing in this section or in section 236 requires the Disciplinary Tribunal to give a practitioner an opportunity to appear or be heard before the Disciplinary Tribunal makes an order under subsection (1) or gives a direction under subsection (3).
Compare: 1982 No 123 ss 115, 124(2)
Section 245(7): replaced, on 20 November 2012, by section 19 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
246 Restoration of name to roll or register
(1)
Any person whose name has been struck off the roll under this Act or, before the commencement of this Act, under the Law Practitioners Act 1982 or the Law Practitioners Act 1955 may, in accordance with rules made under this Act, apply to the Disciplinary Tribunal for the restoration of his or her name to the roll.
(2)
Any person whose registration as a conveyancer has been cancelled under this Act may, in accordance with rules made under this Act, apply to the Disciplinary Tribunal for the restoration of his or her name to the register.
(3)
On hearing an application under subsection (1) or subsection (2), the Disciplinary Tribunal, if satisfied that the applicant is a fit and proper person to practise as a barrister or as a solicitor or as both, or as a conveyancing practitioner, may order that the applicant’s name be restored to the roll or register, as the case may require.
(4)
An order under subsection (3) may impose the condition that the applicant must not practise as a solicitor or as a conveyancing practitioner on his or her own account, whether in partnership or otherwise, until authorised by the Disciplinary Tribunal to do so.
(5)
Subsection (4) does not limit subsection (3).
(6)
No application by a person for the restoration of his or her name to the roll or to the register of conveyancers may be made except under section 60 or under this section.
Compare: 1982 No 123 s 116
247 Revocation of order in respect of employee
(1)
Any person in respect of whom an order has been made under section 242(1)(h) may apply to the Disciplinary Tribunal for the revocation of the order.
(2)
Rules made for the purposes of this Part apply to the application as if it were an application under section 246(1) by a practitioner whose name had been struck off the roll.
(3)
If, on hearing any application under subsection (1), the Disciplinary Tribunal is satisfied that the applicant is a fit and proper person to be employed by a practitioner, it may revoke the order.
(4)
The revocation of the order does not entitle the applicant to be reinstated in the employment that was terminated by the order.
248 Consent to employ
(1)
A practitioner or an incorporated firm may apply to the Disciplinary Tribunal for its consent to the employment by the practitioner or incorporated firm of a person who—
(a)
is under suspension from practice as a barrister or as a barrister and solicitor or as a conveyancing practitioner; or
(b)
has had his or her name struck off the roll otherwise than at his or her own request; 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.
(2)
The applicant must,—
(a)
if a lawyer or an incorporated law firm, serve notice of the application on the New Zealand Law Society (which is to be entitled to appear and be heard on the application); or
(b)
if a conveyancing practitioner or an incorporated conveyancing firm, serve notice of the application on the New Zealand Society of Conveyancers (which is to be entitled to appear and be heard on the application).
(3)
If the Disciplinary Tribunal is satisfied, on the application of a practitioner or an incorporated firm, that there is good reason why the person to whom the application relates should be employed, the Disciplinary Tribunal may, in its discretion, after taking into consideration the matters specified in subsection (4) and such other matters as it considers relevant, grant or refuse its consent to the employment of that person by that practitioner or incorporated firm.
(4)
The matters that the Disciplinary Tribunal must consider in relation to the proposed employment of the person to whom the application relates are as follows:
(a)
the need to protect both the public and the standing of the profession:
(b)
the seriousness of the proved offending of that person:
(c)
any matter relevant to the honesty of that person:
(d)
the work on which that person will be employed and the extent to which, and the manner in which, the carrying out of that work by that person will be supervised:
(e)
the previous record, in relation to disciplinary matters, of that person:
(f)
the relevance of the nature of the penalty imposed on that person by way of suspension, striking off, cancellation of registration, or disqualification.
(5)
Despite subsections (3) and (4), the Disciplinary Tribunal may take into account, but to a minor degree, the personal circumstances of the person to whom the application relates.
(6)
Consideration of the personal circumstances of the person to whom the application relates must always be subordinated to the need to protect both the public and the standing of the profession.
(7)
If the Disciplinary Tribunal grants its consent, it may do so on such terms and conditions as it thinks fit.
249 Order for payment of costs
(1)
The Disciplinary Tribunal may, after the hearing of any proceedings, make such order as to the payment of costs and expenses as it thinks fit.
(2)
In particular, the Disciplinary Tribunal may order that costs be awarded to any person to whom the proceedings relate, and that those costs be paid—
(a)
by the New Zealand Law Society (if that person is a lawyer or a 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); or
(b)
by the New Zealand Society of Conveyancers (if that person is a conveyancing practitioner or a former conveyancing practitioner or an incorporated conveyancing firm or former incorporated conveyancing firm or an employee or former employee of a conveyancing practitioner or incorporated conveyancing firm).
(3)
In particular, without finding the person charged to be guilty, the Disciplinary Tribunal may, if it considers that the proceedings were justified and that it is just to do so, order that person to pay to the New Zealand Law Society or the New Zealand Society of Conveyancers such sums as the Disciplinary Tribunal thinks fit in respect of the expenses of and incidental to the proceedings and any investigation of that person’s conduct or of that person’s affairs or trust account carried out by, or on behalf of, a Standards Committee or the Legal Complaints Review Officer.
(4)
In this section, expenses includes not only out-of-pocket expenses but also such amounts in respect of salaries of staff and overhead expenses incurred by either the New Zealand Law Society or the New Zealand Society of Conveyancers as the Disciplinary Tribunal considers properly attributable to an investigation.
Compare: 1982 No 123 s 129
250 Rules of procedure
The Disciplinary Tribunal may, from time to time, make rules, not inconsistent with this Act, in respect of the making, hearing, and determination of applications, inquiries, appeals, and other proceedings before it.
Compare: 1982 No 123 s 130
251 Contempt of Disciplinary Tribunal
(1)
Every person commits an offence and is liable on conviction to a fine not exceeding $5,000 who—
(a)
assaults, threatens, intimidates, or wilfully insults any person, being a member of the Disciplinary Tribunal, an officer of the Disciplinary Tribunal, or any witness, during that person’s sitting or attendance in the Disciplinary Tribunal, or in going to or returning from the Disciplinary Tribunal; or
(b)
wilfully interrupts or obstructs the proceedings of the Disciplinary Tribunal or otherwise misbehaves in the Disciplinary Tribunal; or
(c)
wilfully and without lawful excuse disobeys any order or direction of the Disciplinary Tribunal in the course of the hearing of any proceedings.
(2)
A member of the Disciplinary Tribunal may order the exclusion from a sitting of the Disciplinary Tribunal of any person whose behaviour, in that member’s opinion, constitutes an offence against subsection (1), whether or not that person is charged with the offence; and any constable may take such steps as are reasonably necessary to enforce such an exclusion.
Section 251(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 251(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).
252 Power of Disciplinary Tribunal to determine procedure
Except as provided by this Act or by rules made under this Act, the Disciplinary Tribunal may determine its own procedure.
Compare: 1982 No 123 s 108(6)
Appeals
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 an application under section 248(1),—
(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:
(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 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.
Compare: 1982 No 123 s 118
254 Appeal to Court of Appeal on question of law
(1)
Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 56 of the Senior Courts Act 2016 applies to any such appeal.
(2)
In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.
(3)
The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.
(4)
The decision of the Court of Appeal on any appeal under this section is final.
Compare: 1987 No 74 s 116
Section 254(1): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).
255 Order for striking off, cancellation of registration, restoration, or suspension to be filed in High Court
(1)
Where the Disciplinary Tribunal makes—
(a)
an order under section 242(1)(c) striking the name of a lawyer or former lawyer off the roll; or
(b)
an order under section 242(1)(d) cancelling the registration of a person as a conveyancer; or
(d)
an order under section 246(3) that the name of any person be restored to the roll or register,—
the chairperson of the Disciplinary Tribunal must ensure that the order is filed in the office of the High Court at Wellington.
(2)
Subject to subsection (3), on the filing of the order it takes effect as if it were an order of the High Court to the like effect made within the jurisdiction of the High Court.
(3)
If the order filed is an order made under section 242(1)(c) or (d), that order must, until the expiry of the time allowed for appeal under section 253, or, if an appeal is commenced, until the determination of the appeal, take effect only as an order that the practitioner or former practitioner be suspended from practice as a barrister or as a barrister and solicitor or as a conveyancing practitioner, as the case may require.
(4)
An order filed in the High Court under this section may be inspected by any person during office hours without payment of any fee.
(5)
If the person who is the subject of the order is a provider under the Legal Services Act 2011, the chairperson of the Disciplinary Tribunal must give a copy of the order to the Secretary for Justice.
Compare: 1982 No 123 s 117
Section 255(1)(a): amended, on 20 November 2012, by section 20(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 255(1)(c): amended, on 20 November 2012, by section 20(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 255(3): amended, on 20 November 2012, by section 20(3) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 255(5): added, on 1 July 2011, by section 143 of the Legal Services Act 2011 (2011 No 4).
Miscellaneous provisions
256 Notice of order for striking off, cancellation of registration, restoration, or suspension to be published in Gazette
(1)
Where—
(a)
the Disciplinary Tribunal makes—
(i)
an order under section 242(1)(c) striking the name of a lawyer or former lawyer from the roll; or
(ii)
an order under section 242(1)(d) cancelling the registration of a person as a conveyancer; or
(b)
no appeal to the High Court is commenced against the order within the time allowed for appeal,—
the chairperson of the Disciplinary Tribunal must, forthwith after the expiry of that time, publish in the Gazette a notice stating the date and the effect of the order.
(2)
Where—
(a)
an appeal to the High Court against an order of the kind described in subsection (1) results—
(i)
in the name of a lawyer or former lawyer being ordered to be struck off the roll; or
(ii)
in the registration of a person as a conveyancer being ordered to be cancelled; or
(iii)
in the name of a practitioner or former practitioner being ordered to be restored to the roll or the register of conveyancers; or
(iv)
in a practitioner or former practitioner being suspended from practice; or
(v)
in an employee or former employee of a practitioner or an incorporated firm being made subject to an order of the kind described in section 242(1)(h)(ii) or (iii); and
(b)
no appeal to the Court of Appeal is commenced against the determination of the High Court within the time allowed,—
the chairperson of the Disciplinary Tribunal must forthwith cause a notice stating the date and effect of the determination to be published in the Gazette.
(3)
Where an appeal to the Court of Appeal against any determination of the High Court on an appeal under section 254 results—
(a)
in the name of a lawyer or former lawyer being ordered to be struck off or restored to the roll; or
(b)
in the registration of a person as a conveyancer being ordered to be cancelled; or
(c)
in the name of a person being ordered to be restored to the register of conveyancers; or
(d)
in a practitioner or former practitioner being suspended from practice; or
(e)
in an employee or former employee of a practitioner or an incorporated firm being made subject to an order of the kind described in section 242(1)(h)(ii) or (iii),—
the chairperson of the Disciplinary Tribunal must forthwith cause a notice stating the date and effect of the determination to be published in the Gazette.
(4)
The expenses incurred in publishing a notice under this section must,—
(a)
if the notice relates to a lawyer or an employee or a former employee of a lawyer or an incorporated law firm, be paid by the New Zealand Law Society; or
(b)
if the notice relates to a conveyancing practitioner or an employee or former employee of a conveyancing practitioner or an incorporated conveyancing firm, be paid by the New Zealand Society of Conveyancers.
Compare: 1982 No 123 s 119
Section 256(1)(a)(i): amended, on 20 November 2012, by section 21(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 256(1)(a)(iii): amended, on 20 November 2012, by section 21(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 256(2)(a)(i): amended, on 20 November 2012, by section 21(3) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 256(2)(a)(iii): amended, on 20 November 2012, by section 21(4) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 256(2)(a)(iv): amended, on 20 November 2012, by section 21(4) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 256(3)(a): amended, on 20 November 2012, by section 21(5) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 256(3)(d): amended, on 20 November 2012, by section 21(6) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
257 Reimbursement of costs of hearing
(1)
Except where any regulations made under this Act otherwise provide, where the Disciplinary Tribunal hears a charge against any person,—
(a)
the New Zealand Law Society must, if that person is a lawyer or a 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, pay into a Crown Bank Account the amount required to reimburse the Crown for the costs of the hearing; and
(b)
the New Zealand Society of Conveyancers must, if that person is a conveyancing practitioner or a former conveyancing practitioner or an incorporated conveyancing firm or former incorporated conveyancing firm or an employee or former employee of a conveyancing practitioner or incorporated conveyancing firm, pay into a Crown Bank Account the amount required to reimburse the Crown for the costs of the hearing.
(2)
The costs of the hearing—
(a)
include not only out-of-pocket expenses in relation to the hearing but also a reasonable sum in respect of—
(i)
the remuneration and allowances payable under clause 4 of Schedule 4 to the chairperson, deputy chairperson, and lay members of the Disciplinary Tribunal; and
(ii)
the costs of the accommodation and the administrative and secretarial services provided to the Disciplinary Tribunal by the Ministry of Justice; but
(b)
do not include any part of the costs of the hearing that are, under any order made by the Disciplinary Tribunal, recovered by the Tribunal from any other person.
(3)
The amount payable under subsection (1)(a) and the amount payable under subsection (1)(b) are to be fixed in each case by the chairperson of the Disciplinary Tribunal.
Section 257(1)(a): amended, on 25 January 2005, pursuant to section 65R(3) of the Public Finance Act 1989 (1989 No 44).
Section 257(1)(b): amended, on 25 January 2005, pursuant to section 65R(3) of the Public Finance Act 1989 (1989 No 44).
258 Enforcement of orders of Disciplinary Tribunal
(1)
Where the Disciplinary Tribunal, acting in accordance with this Act or any rules made under this Act, makes an order or otherwise exercises any power in respect of any person who is or was a practitioner, that order or other exercise of any power has effect whether or not that person remains a practitioner.
(2)
If the Disciplinary Tribunal, acting in accordance with this Act or any rules made under this Act, orders any person who is or was a practitioner or an incorporated firm or an employee of a practitioner or an incorporated firm to pay a fine, expenses, or other monetary amount to the New Zealand Law Society or the New Zealand Society of Conveyancers, that amount is recoverable from that person by the society to which it is ordered to be paid as a debt due to that society, whether or not that person remains a practitioner or an incorporated firm or an employee of a practitioner or an incorporated firm.
(3)
If the Disciplinary Tribunal makes an order under this Part, not being an order to which section 255 applies, the order may be filed in an office of the High Court.
(4)
On the filing of the order it takes effect as if it were an order of the High Court to the like effect made within its jurisdiction.
Compare: 1982 No 123 s 132; 1996 No 39 s 13
259 Annual report
(1)
The chairperson of the Disciplinary Tribunal must, in each year, furnish to the Minister and the New Zealand Law Society and the New Zealand Society of Conveyancers a report on the performance of his or her functions under this Act.
(2)
The report must include details of both the number of determinations and the nature of the determinations made by the Disciplinary Tribunal in the period to which the report relates.
(3)
The Minister of Justice must present a copy of the report to the House of Representatives as soon as practicable after it is furnished to the Minister.
260 Further provisions relating to Disciplinary Tribunal
The provisions of Schedule 4 have effect in relation to the Disciplinary Tribunal and its proceedings.
Offences
261 Failure to comply with summons
(1)
Every person summoned under clause 6 of Schedule 4 to attend a hearing of the Disciplinary Tribunal commits an offence if he or she, without sufficient cause, does any or all of the following:
(a)
fails to attend in accordance with the summons:
(b)
does not give evidence when required to do so:
(c)
does not give evidence under oath when required to do so:
(d)
does not answer any question that is lawfully asked by the Disciplinary Tribunal:
(e)
does not provide any documents, things, or information the summons requires the person to provide.
(2)
A person summoned to attend a hearing of the Disciplinary Tribunal is not to be convicted of an offence against subsection (1) unless witnesses’ expenses are paid or tendered to that person in accordance with clause 7(4) of Schedule 4.
(3)
Every person who commits an offence against this section is liable on conviction to a fine not exceeding $25,000.
Compare: 1996 No 39 s 16
Section 261(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
262 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 173.
(2)
Every person commits an offence who wilfully obstructs, hinders, resists, or deceives the Legal Complaints Review Officer, or any person to whom any of 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.
Section 262(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
263 Publication
(1)
Every person commits an offence who, without lawful excuse, acts in contravention of any order made by the Disciplinary Tribunal under any of paragraphs (a) to (c) of section 240(1).
(2)
Every person who commits an offence against this section is liable on conviction to a fine not exceeding $25,000.
Compare: 1982 No 123 s 111(5)
Section 263(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
264 Liability of principal for acts of agent, etc
(1)
Where an offence is committed against any provision of sections 261 to 263 by any person acting as the agent or employee of another person, or being otherwise subject to the supervision or instructions of another person for the purposes of any employment in the course of which the offence was committed, that other person is, without prejudice to the liability of the first-mentioned person, liable under that provision in the same manner and to the same extent as if he or she had committed the offence if it is proved that the act that constituted the offence was committed with his or her authority, permission, or consent or that it was attributable to any neglect on his or her part.
(2)
Where any body corporate is convicted of an offence against any provision of sections 261 to 263, every director and every person concerned in the management of the company is guilty of a like offence if it is proved that the act that constituted the offence was committed with his or her authority, permission, or consent or that it was attributable to neglect on his or her part.
Compare: 1975 No 116 s 17
265 Time for filing charging document
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against any provision of sections 261 to 263 ends on the date that is 2 years after the date on which the offence was committed.
Section 265: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Jurisdiction of High Court and Court of Appeal
266 Lawyer’s name may be struck off on application to High Court
On application to the High Court in that behalf, the name of a person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act may be struck off the roll for reasonable cause, whenever and wherever it arises, in accordance with section 267.
Compare: 1982 No 123 s 92
Section 266: amended, on 20 November 2012, by section 22 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
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 be 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.
Compare: 1982 No 123 s 93
Section 267(1): amended, on 20 November 2012, by section 23(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 267(2)(b): amended, on 20 November 2012, by section 23(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
268 Inherent jurisdiction of High Court
(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 practising as a barrister and solicitor, or as a barrister but not also as a solicitor).
(2)
Despite section 245, 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 practising as a barrister and solicitor, or as a barrister but not also as a solicitor).
Compare: 1982 No 123 s 94(1)
Section 268(1): amended, on 20 November 2012, by section 24(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
Section 268(2): amended, on 20 November 2012, by section 24(2) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
269 Notice of order for striking off or suspension to be published in Gazette
(1)
This section applies if the Court of Appeal or the High Court makes—
(a)
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; or
(b)
an order that a person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act be suspended from practice.
(2)
The Registrar of the court in which the order is made must forthwith cause a notice stating the date and effect of the order to be published in the Gazette.
Section 269: replaced, on 20 November 2012, by section 25 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
270 Jurisdiction of High Court not limited
Except as provided in this Part, nothing in this Part limits the jurisdiction of the High Court.
Compare: 1982 No 123 s 138
General provisions
271 Legal professional privilege
Nothing in this Part limits or affects legal professional privilege.
272 Protection of New Zealand Law Society and New Zealand Society of Conveyancers and other persons
Neither the New Zealand Law Society nor the New Zealand Society of Conveyancers, nor any member, officer, or employee of either of those bodies, is to be under any criminal or civil liability in respect of anything done or omitted to be done, or in respect of words spoken or written,—
(a)
at, or for the purposes of, any inquiry or the hearing of, or otherwise dealing with, any proceedings under this Part; or
(b)
in connection with any investigation of a practitioner’s conduct or affairs or accounts for the purposes of this Part; or
(c)
in the publication of any report or statement relating to any proceedings before a Standards Committee or the Legal Complaints Review Officer or the Disciplinary Tribunal under this Part, in the exercise or purported exercise of any power conferred by this Act or any rules made under this Act to publish any such report or statement,—
unless it is proved to the satisfaction of the court before which any proceedings are taken that the defendant in those proceedings acted in bad faith.
Compare: 1982 No 123 s 137
Part 8 New Zealand Council of Legal Education
273 Continuation and renaming of Council
(1)
This section continues in being the council continued in being by section 31(1) of the Law Practitioners Act 1982 and existing, immediately before the commencement of this section, under the name of the Council of Legal Education.
(2)
On the commencement of this section, the council continued in being by subsection (1) is renamed the New Zealand Council of Legal Education.
(3)
The Council is a body corporate, with perpetual succession and a common seal, and, except as provided in this Act, has and may exercise—
(a)
all the rights, powers, and privileges, and may incur all the liabilities and obligations, of a natural person of full age and capacity; and
(b)
the power to do any other thing it is authorised to do—
(ii)
by any other enactment; or
(4)
The Council may not exercise any of its rights, powers, or privileges, except for the purpose of performing its functions.
(5)
Sections 153 to 156 of the Crown Entities Act 2004 apply to the Council as if it were a Crown entity within the meaning of that Act.
Compare: 1982 No 123 ss 31(1), 31A
274 Functions
The functions of the Council are,—
(a)
subject to this Act, to set the qualification and educational requirements for candidates for admission as barristers and solicitors of the High Court:
(b)
subject to this Act, to define, prescribe, and approve, from time to time and as it thinks fit, the courses of study required to be undertaken by candidates for admission as barristers and solicitors:
(c)
to arrange for the delivery of the courses of study referred to in paragraph (b) or to provide those courses where necessary:
(d)
to deliver courses of study in practical legal training for candidates for admission as barristers and solicitors or to license other persons to deliver those courses:
(e)
to arrange for the courses of study referred to in paragraph (b) to be monitored and assessed:
(f)
to prescribe, in relation to the admission of barristers and solicitors, mechanisms and criteria for—
(i)
the recognition of foreign qualifications, registration, and experience; and
(ii)
the recognition of qualifications for the purposes of the principle set out in section 15 of the Trans-Tasman Mutual Recognition Act 1997:
(g)
to tender advice to the council of any university on any matter relating to legal education:
(h)
to inquire into, consider, and report to the Minister on any matter relating to legal education as the Minister may, from time to time, require.
Compare: 1982 No 123 s 38(1)(a)–(c), (e), (f)
275 Powers
(1)
The Council has all such rights, powers, and authorities as are necessary or expedient for, or conducive to, the performance of its functions.
(2)
Without limiting the generality of subsection (1), the Council has, in addition to the powers conferred on it by this or any other Act, the following powers:
(a)
subject to this Act, to grant to any candidate for admission as a barrister and solicitor such credits (whether ad eundem or otherwise) or exemptions as it thinks fit, and on such conditions as it thinks fit, for the purposes of any course of study:
(b)
to encourage and, where the Council thinks it necessary or appropriate, to arrange provision for research and postgraduate study:
(c)
to charge any person or organisation any reasonable fees it thinks fit in respect of—
(i)
any matter the person or organisation submits to the Council for its consideration:
(ii)
any work or services the Council has done or performed for the person or organisation:
(iii)
enrolling for or sitting any examination conducted or proposed to be conducted by, or on behalf of, the Council.
(3)
The Council may, in exercising its powers under subsection (2)(a),—
(a)
require that a candidate credited or exempted under subsection (2)(a) must pass an examination in the law of New Zealand or in the practice of law in New Zealand or in both; and
(b)
set and conduct, or arrange for the setting and conducting of, any examination required for the purposes of paragraph (a).
Compare: 1982 No 123 s 38(1)(c), (d), (2), (3)
276 Consultation with New Zealand Law Society
The Council must consult the Council of the New Zealand Law Society—
(a)
in prescribing under section 274(f) the mechanisms and criteria that will apply in relation to the admission as barristers and solicitors of the High Court of New Zealand of persons who are barristers or solicitors of a senior court of any country other than New Zealand; and
(b)
in preparing the annual budget of the Council.
Section 276(a): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).
277 Levies
(1)
For the purpose of providing funds for the Council in accordance with its annual budget, the Council of the New Zealand Law Society must, in each year, by resolution, impose a levy or levies on all lawyers.
(2)
Subject to subsection (4), the levy or levies imposed under subsection (1) may not exceed in the aggregate, in any year in respect of any lawyer, an amount equal to 5% of the maximum practising fee payable by any lawyer for that year.
(3)
Any levy imposed under subsection (1) on any lawyer in any year is in addition to levies imposed on that lawyer in that year under section 74.
(4)
The limitation imposed by subsection (2) does not apply in relation to any year if—
(a)
that limitation would prevent the levies being sufficient to provide the amount of funding sought by the Council in respect of that year; and
(b)
the Minister determines that, instead of that limitation, the levy or levies imposed under subsection (1) in respect of that year are not to exceed in the aggregate in respect of any lawyer an amount equal to such percentage as the Minister determines of the maximum practising fee payable by any lawyer for that year.
(5)
The proceeds of any levy imposed under subsection (1) must be paid by the New Zealand Law Society to the Council.
(6)
The amount of any levy imposed under subsection (1) is payable in such manner as the resolution prescribes or authorises and is recoverable on behalf of the New Zealand Law Society as a debt due to it.
278 Power of Council to make regulations
(1)
Subject to this Act, the Council may, from time to time, by resolution, make, alter, or revoke any regulations not inconsistent with this Act that are necessary or expedient in respect of—
(a)
any course of study and the practical training and experience of candidates for admission as barristers and solicitors of the court:
(b)
any matters that by this Act are required or permitted to be prescribed, or with respect to which regulations are necessary or expedient for giving effect to the provisions of this Act, in relation to legal education.
(2)
Without limiting subsection (1), regulations made under that subsection may—
(a)
provide for the granting of credits or exemptions in special circumstances or in order to avoid hardship to any student:
(b)
provide for the licensing of persons to provide practical legal training for candidates for admission as barristers and solicitors of the High Court:
(c)
prescribe the terms and conditions on which persons may be licensed to provide practical legal training of the kind referred to in paragraph (b):
(d)
prescribe the standards to be observed, and the course prescriptions to be followed, in the provision of practical legal training of the kind referred to in paragraph (b):
(e)
provide for the courses of training provided by persons licensed to provide practical legal training of the kind referred to in paragraph (b) to be monitored and assessed:
(f)
provide for the expiry, cancellation, or withdrawal of licences issued under the regulations.
(3)
All such regulations have effect according to their tenor, and must be published by the Council.
(4)
A copy of any such regulation certified by the chairperson of the Council is sufficient evidence of it in all courts.
(5)
For the purposes of this section, notice is to be taken judicially, without further proof, of the appointment or right to the office of the chairperson and his or her signature.
(6)
Regulations made under subsection (1) must be made with the approval of the Minister.
Compare: 1982 No 123 s 39
279 Power of Council to make rules
The Council may, from time to time, by resolution, make, alter, or rescind any rules not inconsistent with this Act, for all or any of the following purposes:
(a)
prescribing the procedure to be followed at any meeting of the Council, or at any committee of the Council:
(b)
providing for the custody of its property and the use of its common seal:
(c)
prescribing the duties of its officers and other employees:
(d)
such other purposes as may be deemed necessary or expedient for duly carrying out the work of the Council or of any committee thereof.
280 Power to appoint committees
(1)
The Council may, from time to time, appoint standing or special committees, and may refer to any such committee any matters for consideration or inquiry or management.
(2)
The Council may, from time to time, either generally or particularly, delegate any of its powers and functions (including any powers and functions delegated to the Council by any other body or person) to any such committee or to any person.
(3)
Every delegation under this section must be in writing.
(4)
No delegation under this section may include—
(a)
the power to delegate under subsection (2):
(5)
Subject to any general or special directions given or conditions imposed by the Council, the committee to which, or the person to whom, any delegation is made under this section may, without confirmation by the Council, exercise or perform the delegated powers or functions in the same manner and with the same effect as the Council could itself have exercised or performed them.
(6)
It is not necessary for any person who is appointed to be a member of any such committee or to whom any delegation is made to be a member of the Council.
(7)
Despite paragraph (a) of subsection (4), but subject to paragraphs (b) to (d) of that subsection, the Council may, with the consent of the council of any university in New Zealand, delegate to the council of that university any of the powers and functions of the Council, together with power to subdelegate any of the powers and functions so delegated.
(8)
Every delegation under this section is revocable at will; and no such delegation prevents the exercise or performance of any power or function by the maker of the delegation.
(9)
Until any such delegation is revoked, it continues in force according to its tenor.
Compare: 1982 No 123 s 40
281 Institute of Professional Legal Studies
(1)
Subject to subsection (2), the Council—
(a)
must continue to maintain, as a committee of the Council, the committee known as the Institute of Professional Legal Studies (which committee is, at the commencement of this section, established under that name under section 40 of the Law Practitioners Act 1982); and
(b)
must ensure that the Institute of Professional Legal Studies continues to provide practical legal training for candidates for admission as barristers and solicitors of the High Court.
(2)
The Council may, with the consent of the Minister,—
(a)
proceed to disestablish the Institute of Professional Legal Studies and any branches of that institute if the Council is satisfied that satisfactory arrangements can be made for the provision by other persons of the practical legal training required by candidates for admission as barristers and solicitors of the High Court; or
(b)
proceed—
(i)
to disestablish the Institute of Professional Legal Studies and any branches of that institute; and
(ii)
to establish or incorporate, or to join in establishing or incorporating, a body, whether corporate or not, that has, among other things, the capacity to carry out functions and activities comparable to those that, at the commencement of this section, are being discharged and carried out by the Institute of Professional Legal Studies; and
(iii)
to transfer to any body corporate of the kind referred to in subparagraph (ii), on such terms and conditions as the Council thinks fit, such of the funds of the Council and such of the other property of the Council as the Council considers appropriate, having regard to the manner in which the Council may be required to discharge its own functions; or
(c)
proceed—
(i)
to disestablish the Institute of Professional Legal Studies and any branches of that institute; and
(ii)
to sell, on such terms and conditions as the Council thinks fit, the business conducted by the Institute of Professional Legal Studies and its branches (if any), and all or any of the property of the Council used in that business, if the Council is satisfied that the purchaser has the capacity to provide the practical legal training required by candidates for admission as barristers and solicitors of the High Court.
282 Membership
(1)
The Council comprises—
(a)
2 Judges of the High Court nominated by the Chief Justice:
(b)
a District Court Judge, nominated by the Chief District Court Judge:
(c)
5 members nominated by the Council of the New Zealand Law Society:
(d)
the Dean of the Faculty or School of Law of each of the following universities, namely, the University of Auckland, the Auckland University of Technology, the University of Waikato, the Victoria University of Wellington, the University of Canterbury, and the University of Otago:
(e)
2 members nominated by the Council of the New Zealand Law Students’ Association Incorporated:
(f)
1 member (not being a practitioner or a law student) nominated by the Minister of Justice:
(g)
not more than 1 member nominated by the Council.
(2)
All members of the Council other than those referred to in subsection (1)(d) are appointed by the Governor-General, on the advice of the Attorney-General.
Compare: 1982 No 123 s 31(2), (3)
Section 282(1)(d): amended, on 20 November 2012, by section 26 of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).
283 Term of office
(1)
Subject to section 284, every appointed member of the Council holds office for such term not exceeding 3 years as the Governor-General on the advice of the Attorney-General specifies in the instrument appointing the member.
(2)
Every appointed member is eligible for reappointment from time to time.
(3)
Where the term for which an appointed member has been appointed expires, that member, unless he or she sooner vacates office under section 284, continues to hold office, by virtue of the appointment for the term that has expired, until—
(a)
that member is reappointed; or
(b)
a successor to that member is appointed; or
(c)
that member is informed in writing by the Attorney-General that the member is not to be reappointed and is not to hold office until a successor is appointed.
Compare: 1982 No 123 s 32(1), (3)
284 Extraordinary vacancies
(1)
An appointed member of the Council may, at any time, be removed from office by the Governor-General for inability to perform the functions of the office, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.
(2)
An appointed member is deemed to have vacated his or her office if he or she is, under the Insolvency Act 2006, adjudged bankrupt.
(3)
Despite subsection (1), if at any time an appointed member holds judicial office, he or she may not be removed from the office of appointed member, except for inability to perform the functions of the office, unless he or she is removed or suspended from his or her judicial office.
(4)
An appointed member may, at any time, resign his or her office by giving notice in writing to that effect to the Attorney-General.
(5)
If an appointed member dies or resigns or is removed from office, or is deemed to have vacated his or her office, the vacancy so created is deemed to be an extraordinary vacancy and must be filled in the manner in which the appointment to the vacant office was originally made.
(6)
Every person appointed to fill an extraordinary vacancy in the office of an appointed member must be appointed for the residue of the term for which the vacating member was appointed.
Compare: 1982 No 123 s 33
Section 284(2): amended, on 3 December 2007, by section 445 of the Insolvency Act 2006 (2006 No 55).
285 Proceedings not affected by vacancies
No act or proceeding of the Council, or of any committee of the Council, or of any person acting as a member of the Council or any such committee, is invalidated merely because of a vacancy in the number of the Council or committee at the time of the act or proceeding, or of the subsequent discovery that there was some defect in the appointment of any person so acting, or that he or she was incapable of being or had ceased to be such a member.
Compare: 1982 No 123 s 34
286 Chairperson
(1)
Subject to subsection (2), the Council may, from time to time, appoint one of its members to be the chairperson of the Council.
(2)
If the Chief Justice is a member, the Chief Justice is to be the chairperson unless he or she otherwise determines.
(3)
If the chairperson is an appointed member (other than the Chief Justice), he or she holds the office of chairperson while he or she remains in office as an appointed member, unless he or she sooner resigns the office of chairperson or is removed from that office by resolution of the Council.
(4)
If the Chief Justice is the chairperson, he or she vacates that office if he or she ceases to be a member of the Council or decides to cease being the chairperson of the Council.
(5)
If the chairperson is not an appointed member, he or she holds that office for such period as the Council determines or until he or she sooner ceases to be a member or resigns the office of chairperson or is removed from that office by resolution of the Council.
Compare: 1982 No 123 s 35
287 Further provisions applying to Council
The provisions set out in Schedule 5 apply in relation to the Council and its proceedings.
288 Annual report
(1)
The Council must, in each year, give the Minister a report on the operation of this Part.
(2)
The Council must include in every annual report the financial statements prepared by the Council, in accordance with Part 4 of the Crown Entities Act 2004, in respect of the financial year to which the report relates, together with the audit report and the statement of responsibility relating to those financial statements.
(3)
The Minister must present a copy of the report to the House of Representatives in accordance with section 150(3) of the Crown Entities Act 2004.
Compare: 1982 No 123 s 42K