Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008

Reprint as at 7 August 2020

Coat of Arms of New Zealand

Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008

(SR 2008/188)

Rt Hon Dame Sian Elias, Administrator of the Government

Order in Council

At Wellington this 30th day of June 2008

Present:
Her Excellency the Administrator of the Government in Council

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

These regulations are administered by the Ministry of Justice.

Pursuant to sections 94 and 108 of the Lawyers and Conveyancers Act 2006, Her Excellency the Administrator of the Government, acting on the advice and with the consent of the Executive Council, makes the following regulations.

Regulations

1 Title

These regulations are the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008.

2 Commencement

These regulations come into force on 1 August 2008.

3 Interpretation

(1)

In these regulations, unless the context otherwise requires,—

Law Society means the New Zealand Law Society continued by section 63 of the Act

legal experience means all or any of the following:

(a)

legal work for a lawyer in sole practice, a partnership of lawyers, or an incorporated law firm:

(b)

legal work as a barrister sole in practice on his or her own account (in the case only of an application by a lawyer to, or for leave of the High Court to, commence practice on his or her own account as a barrister and solicitor):

(c)

legal work as an employee of any of the State services (as defined in section 5 of the Public Service Act 2020):

(d)

legal work as an employee of a local authority (as defined in section 5(1) of the Local Government Act 2002):

(e)

legal work as an employee of a company or other body (whether incorporated or unincorporated):

(f)

work as a member of the legal academic staff (whether or not as an employee) of a university:

(g)

work as a member of Parliament (within the meaning of section 27 of the Electoral Act 1993)

required minimum amount of recent legal experience, for a lawyer, means legal experience of the lawyer that—

(a)

occurs in at least 3 (successive or separated) years in the 5 years immediately before the date of his or her commencing practice on his or her own account; and

(b)

counts only up to a maximum per week of 40 hours (and so excludes all his or her legal experience, if any, after the 40th hour in any week); and

(c)

is, in total, 4830 hours

required subjects, for a lawyer intending to practise on his or her own account in a particular way, means the subjects that (in the Law Society’s view) he or she must know about to be able to do so in accordance with the requirements of—

(a)

the Act (including, without limitation, section 30); and

(b)

all regulations, and all practice rules, made under the Act (including, without limitation, practice rules made under section 94(i) (either alone or with section 108), and regulations made under section 115(g)).

(2)

Any term that is defined in the Act and used, but not defined, in these regulations has the meaning given in the Act.

Regulation 3(1) legal experience: inserted, on 1 October 2012, by regulation 4 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

Regulation 3(1) legal experience paragraph (c): amended, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40).

Regulation 3(1) required minimum amount of recent legal experience: inserted, on 1 October 2012, by regulation 4 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

Regulation 3(1) required subjects: inserted, on 1 October 2012, by regulation 4 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

Practising certificates

4 Criteria for eligibility for practising certificate

(1)

In accordance with the Act, a person is eligible to hold a practising certificate if—

(a)

the person’s name is on the roll; and

(b)

the person is a fit and proper person to hold a practising certificate; and

(c)

the person has paid, or is up to date with payment of, all required fees and other charges referred to in regulation 5(4); and

(d)

the person does not hold, and has not applied to hold, a practising certificate as a conveyancing practitioner; and

(e)

the person meets the criteria for eligibility, as set out in subclause (2).

(2)

The criteria for eligibility for a practising certificate (as required by section 94(a) of the Act to be set out in practice rules) are as follows:

(a)

the person has made a written undertaking to comply with the fundamental obligations of lawyers, as set out in section 4 of the Act:

(b)

the person has disclosed to the Law Society any circumstances that would or might make him or her not a fit and proper person to hold a practising certificate:

(c)

the person has complied, or is complying, with any applicable orders of a Standards Committee, the Legal Complaints Review Officer, and the Disciplinary Tribunal.

5 Application for practising certificate

(1)

Every application for a practising certificate must be made to the Law Society and—

(a)

be in the appropriate form prescribed by the Law Society; and

(b)

include all fees and other charges payable under subclause (4).

(2)

The Law Society may—

(a)

prescribe different application forms for different kinds of practising certificates; and

(b)

permit or require application forms to be completed in different ways (for instance, electronically or in hard copy); and

(c)

require that particular kinds of applications be made on or before dates determined by the Law Society.

(3)

Every application form must require the applicant to—

(a)

make a statement that he or she undertakes to comply with the fundamental obligations of lawyers as set out in section 4 of the Act; and

(b)

declare whether, during the period since his or her admission or since receipt of the last practising certificate (whichever is more recent), any matter has arisen that does or might affect the person’s fitness to be issued with a practising certificate; and

(c)

declare whether he or she has complied, or is complying, with any applicable orders of a Standards Committee, the Legal Complaints Review Officer, and the Disciplinary Tribunal.

(4)

The fees and other charges payable by applicants before a practising certificate may be issued are as follows:

(a)

the appropriate practising fee set by the Council of the Law Society under section 73 of the Act:

(b)

if the applicant is subject to Part 10 of the Act, the contributions to the Lawyers’ Fidelity Fund prescribed by the Council of the Law Society under section 312 of the Act:

(c)

any levy imposed by the Council of the Law Society under any of sections 74(1), 277, or 314 of the Act and payable by the applicant:

(d)

any outstanding fees and costs for which the applicant is liable under the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.

(5)

Despite subclause (4), the Law Society may, with respect to any person, waive or modify the requirement to pay all or any of the fees and other charges set out in paragraphs (a) to (d) of that subclause.

Regulation 5(4)(c): amended, on 1 October 2012, by regulation 5 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

6 Processing applications for practising certificates

(1)

On receipt of an application for a practising certificate, the Law Society must consider whether there are any grounds under section 39(3) or (4) or section 41 of the Act for declining or refusing to issue the practising certificate.

(2)

For that purpose, the Law Society may—

(a)

request further information from the applicant; and

(b)

make whatever inquiries the Law Society considers are relevant in determining whether there are any grounds for declining or refusing to issue the practising certificate.

7 Issuing, or declining or refusing to issue, practising certificates

(1)

If the Law Society is satisfied that there are no grounds for declining or refusing to issue an applicant with a practising certificate, it must, as required by section 39(1) of the Act, issue the appropriate kind of practising certificate to the applicant, in a form prescribed by the Law Society.

(2)

However, if the Law Society believes on reasonable grounds that there are or may be grounds for declining or refusing to issue a practising certificate, the Law Society must—

(a)

notify the applicant of the reason why the Law Society believes there are or may be grounds for declining or refusing the application; and

(b)

specify a time, which must be reasonable in the circumstances, within which the applicant may respond to the notice; and

(c)

consider any response from the applicant that is received within the specified time; and

(d)

either issue a practising certificate in accordance with subclause (1), or decline or refuse to do so.

(3)

If the Law Society declines or refuses to issue a practising certificate, it must notify the applicant in writing of that decision and at the same time advise the applicant of his or her right to appeal against that decision to the Disciplinary Tribunal under section 42 of the Act.

8 Lawyers’ continuing obligation to advise Law Society of relevant changes

Every lawyer must disclose to the Law Society, as soon as practicable, information about any matter that might affect the lawyer’s continuing eligibility under regulation 4 to hold a practising certificate.

9 Lawyers’ obligation to provide information to Law Society if required

(1)

Every lawyer must provide to the Law Society any information that the Law Society requires the lawyer to provide.

(2)

However, subclause (1) applies only if the information is required by the Law Society in order for it to carry out its regulatory functions.

Register of lawyers

10 Register of lawyers

(1)

The Law Society must establish and maintain a register of lawyers and, as far as practicable, must keep the register accurate and up to date.

(2)

The Law Society must ensure that, as far as practicable, the register is available for inspection by the public on an Internet site at all times.

(3)

With respect to every lawyer, the register must show the following:

(a)

the lawyer’s full name:

(b)

the lawyer’s contact details, which—

(i)

must include the lawyer’s work address, telephone number, and fax number (if any); and

(ii)

may include any of the following that the lawyer agrees to make available on the register: home address, home or other contact phone number, and work email address:

(c)

the kind of practising certificate currently held by the lawyer, and when it was issued:

(d)

when and where the lawyer was admitted:

(e)

if the lawyer is in practice on his or her own account, whether the lawyer is in sole practice, or is in practice as a partner in a partnership, a shareholder of an incorporated law firm, a director of an incorporated law firm, or an employee:

(f)

whether the lawyer is an in-house lawyer (as described in the Schedule of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008):

(g)

whether the lawyer is providing or intends to provide real estate services (as described in the Schedule of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008):

(h)

whether the lawyer’s practising certificate is currently suspended and, if so, when the suspension took effect and when (if known) it will be lifted.

(4)

The register may also contain any other information about individual lawyers if—

(a)

the Law Society wishes to place the information on the register; and

(b)

the individual lawyer concerned agrees, in writing, to that information being placed on the register.

11 Continuing obligation to advise Law Society of changes to information on register

Every lawyer must advise the Law Society, as soon as practicable, if any of the information that the Law Society keeps on the register about that lawyer changes, in order that the Law Society may fulfil its obligation to keep the register accurate and up to date.

Practice on own account

12 Criteria to practise on own account

(1)

For the purposes of section 30(1)(a) of the Act, subclauses (3) to (6) set out the requirements and other criteria that must be met before a lawyer who applies to do so on or after 1 October 2012 may commence practice on his or her own account.

(2)

Those requirements and other criteria apply, without limitation, to a lawyer who before 1 October 2012 commenced practice on his or her own account as a barrister sole, and who on or after 1 October 2012 applies to practise on his or her own account as a barrister and solicitor.

(3)

The lawyer must have had at least the required minimum amount of recent legal experience in New Zealand.

(4)

During the 2 years immediately before the date of commencing practice on his or her own account, the lawyer must have completed, and passed all mandatory assessments in, a course that, when the lawyer began it, was approved by the Law Society as providing adequate instruction and assessment on the required subjects (which may be or include all or any of business management, professional conduct and client care, and trust account management and lawyers’ or, as the case may require, incorporated firms’, obligations in relation to trust accounts).

(5)

The lawyer must have satisfied the Law Society that he or she is a suitable person to practise on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation,—

(a)

the nature and extent of his or her experience practising in law, whether in or outside New Zealand; and

(b)

if he or she intends to practise as a barrister and solicitor, how (whether in sole practice, as a partner in a firm, or otherwise) he or she intends to practise on his or her own account; and

(c)

if he or she intends to practise as a barrister, how (whether with or without other barristers, employees, or both, or otherwise) he or she intends to practise on his or her own account; and

(d)

the areas of law in which he or she intends to practise.

(6)

The lawyer must have paid any levy imposed by the Council of the Law Society under section 74(1) of the Act and payable by the lawyer under section 74(2) of the Act in respect of his or her intended practice on his or her own account.

Regulation 12: replaced, on 1 October 2012, by regulation 6 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

12A Exception to legal experience requirement

(1)

This regulation applies to an application to commence practice on his or her own account made by a lawyer who does not meet the requirement in regulation 12(3).

(2)

If satisfied that special circumstances apply, the Law Society may treat the application as if the lawyer met that requirement.

Regulation 12A: inserted, on 1 October 2012, by regulation 6 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

13 High Court’s leave to practise on own account

(1)

For the purposes of section 30(1)(b) of the Act, subclauses (3) to (6) set out the grounds on which the High Court may grant a lawyer who applies for it on or after 1 October 2012 leave to practise on his or her own account.

(2)

Those grounds apply, without limitation, to a lawyer who before 1 October 2012 commenced practice on his or her own account as a barrister sole, and who on or after 1 October 2012 applies to the High Court for leave to practise on his or her own account as a barrister and solicitor.

(3)

The lawyer must either—

(a)

have had at least the required minimum amount of recent legal experience in New Zealand; or

(b)

have satisfied the Law Society that he or she is a suitable person to practise on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation, those in regulation 12(5)(a) to (d).

(4)

During the 2 years immediately before the date of commencing practice on his or her own account, the lawyer must have completed, and passed all mandatory assessments in, a course that, when the lawyer began it, was approved by the Law Society as providing adequate instruction and assessment on the required subjects (which may be or include all or any of business management, professional conduct and client care, and trust account management and lawyers’ or, as the case may require, incorporated firms’, obligations in relation to trust accounts).

(5)

The lawyer must have satisfied the High Court that he or she is a suitable person to practise on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation,—

(a)

the nature and extent of his or her experience practising in law, whether in or outside New Zealand; and

(b)

if he or she intends to practise as a barrister and solicitor, how (whether in sole practice, as a partner in a firm, or otherwise) he or she intends to practise on his or her own account; and

(c)

if he or she intends to practise as a barrister, how (whether with or without other barristers, employees, or both, or otherwise) he or she intends to practise on his or her own account; and

(d)

the areas of law in which he or she intends to practise.

(6)

The lawyer must have paid any levy imposed by the Council of the Law Society under section 74(1) of the Act and payable by the lawyer under section 74(2) of the Act in respect of his or her intended practice on his or her own account.

(7)

If a lawyer applies to the High Court for leave to practise on his or her own account (whether as a barrister and solicitor, or as a barrister sole),—

(a)

a copy of the application must be served on the Law Society; and

(b)

the Law Society is entitled to be heard on the application.

Regulation 13: replaced, on 1 October 2012, by regulation 6 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

13A High Court’s power to impose conditions on leave

These regulations do not limit or affect the High Court’s power under section 30(5) of the Act, when granting a lawyer leave to practise on his or her own account, to impose such conditions (if any) as it thinks proper.

Regulation 13A: inserted, on 1 October 2012, by regulation 6 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

14 Applications based on courses before 1 October 2012

If the course referred to in regulation 12(4) or 13(4) was begun by the lawyer before 1 October 2012,—

(a)

it is approved for the purposes of that regulation if, when begun, it provided for the purposes of regulation 12(1)(b) (as in force before 1 October 2012) adequate (in the Law Society’s view) instruction and examination on the duties of lawyers under the Act, and any regulations and rules made under it, that relate to the receipt and handling of client money and the operation of lawyers’ trust accounts; and

(b)

“2 years” in that regulation must be read as “3 years”.

Regulation 14: replaced, on 1 October 2012, by regulation 6 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

15 Special rules for legal profession in Australia

(1)

Despite regulation 12, a person is to be treated as satisfying the requirements and other criteria set out in that regulation if he or she satisfies the Council of the Law Society that he or she is entitled to practise as a member of the legal profession, in 1 or more Australian jurisdictions, in a manner that is equivalent to, or materially the same as, practising on one’s own account in New Zealand as a barrister and solicitor, or as a barrister sole, as the case may be.

(2)

Despite regulation 13(1) to (3), the High Court may grant a person leave to practise on his or her own account as a barrister and solicitor, or as a barrister sole, if the person satisfies the court that he or she is entitled to practise as a member of the legal profession, in 1 or more Australian jurisdictions, in a manner that is equivalent to, or materially the same as, practising on one’s own account in New Zealand as a barrister and solicitor, or as a barrister sole, as the case may be.

(3)

However, subclauses (4) to (6) of regulation 13 apply when an application is made to the High Court for leave to be granted in accordance with subclause (2) of this regulation.

Regulation 15: replaced, on 1 October 2012, by regulation 6 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220).

Incorporated law firms

16 Incorporated law firms to advise Law Society of certain matters

(1)

An incorporated law firm must, immediately after it is formed, advise the Law Society of—

(a)

its name; and

(b)

the names of its directors and shareholders.

(2)

Thereafter, the incorporated law firm must advise the Law Society, as soon as practicable, of every change to—

(a)

its name; and

(b)

its directors and shareholders.

(3)

If asked by the Law Society to provide further information about its structure, directors, or shareholders, an incorporated law firm must promptly provide the information to the Law Society.

(4)

However, subclause (3) applies only if the information is required by the Law Society in order for it to carry out its regulatory functions.

Amendment of practice rules

17 Amendment of practice rules

The Council of the Law Society may, when seeking any amendment to, or replacement of, the practice rules, take any steps it considers necessary and appropriate in order to comply with the requirements of section 103 of the Act.

Meaning of direct supervision

18 Meaning of direct supervision

For the purposes of the definition of direct supervision in section 6 of the Act, a lawyer provides direct supervision to a person who is providing regulated services if the lawyer—

(a)

regularly reviews the regulated services provided by the person on behalf of the lawyer or the lawyer’s practice (as described in the Schedule of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008); and

(b)

takes appropriate steps to ensure that those regulated services are provided—

(i)

in accordance with the Act and all regulations and rules made under it; and

(ii)

competently; and

(iii)

in accordance with proper professional standards.

Transitional provisions

19 Transitional provisions relating to practising certificates

(1)

In this regulation and regulation 20, unless the context otherwise requires,—

changeover date means the date set by the Law Society under subclause (3)(b) (being the date on which all old practising certificates expire and all new practising certificates come into effect)

new practising certificate means a practising certificate issued under the Act in accordance with these regulations to a person who, immediately before the practising certificate comes into effect, held an old practising certificate

old practising certificate means a practising certificate, issued before the commencement of these regulations by a District Law Society under section 57(1) of the Law Practitioners Act 1982, that is in effect immediately before the changeover date.

(2)

Every old practising certificate—

(a)

has effect under the Act as if it were a practising certificate issued by the Law Society under section 39(1) of the Act; and

(b)

expires on the changeover date, unless earlier cancelled.

(3)

As soon as practicable after the commencement of these regulations, the Law Society must fix the following dates:

(a)

the date by which the holder of an old practising certificate who wishes to be issued with a new practising certificate must apply for a new practising certificate:

(b)

the date on which all old practising certificates expire and all new practising certificates come into effect.

(4)

If the changeover date is before 31 January 2009, the practising fee set by the Law Society for a new practising certificate must reflect the fact that—

(a)

the old practising certificate entitled a person to practise until 31 January 2009, but the old practising certificate will expire before that date; and

(b)

the new practising certificate may not entitle a person to practise for a full 12-month period.

(5)

The practising fee set for a practising certificate that is issued before 1 July 2009, but is not a new practising certificate, must reflect the fact that the certificate may not entitle the holder to practise for a full 12-month period.

(6)

Nothing in this regulation affects the operation or effect of any transitional provisions in the Act, or any regulations or rules made under it, that relate to practising certificates issued under the Law Practitioners Act 1982.

20 Limited application of certain regulations before changeover date

Before the changeover date,—

(a)

the obligation imposed by regulation 8 does not apply to lawyers who hold old practising certificates; and

(b)

the register of lawyers need not include, in relation to lawyers who hold old practising certificates, all the matters set out in regulation 10(3).

21 Delegation to District Law Societies

(1)

Until the date that is 6 months after the date on which the Act comes into force, the Law Society may delegate to any District Law Society any of its functions, duties, or powers under practice rules (whether or not those rules are enacted as regulations under section 108 of the Act).

(2)

A delegation may be subject to whatever conditions the Law Society considers appropriate, and may at any time be revoked or amended.

Rebecca Kitteridge,
Clerk of the Executive Council.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 3 July 2008.

Reprints notes
1 General

This is a reprint of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008 that incorporates all the amendments to those regulations as at the date of the last amendment to them.

2 Legal status

Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes

Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.

4 Amendments incorporated in this reprint

Public Service Act 2020 (2020 No 40): section 135

Lawyers and Conveyancers Act (Lawyers: Practice Rules) (Practice on Own Account) Amendment Regulations 2012 (SR 2012/220)