1. Foundations of Professional Responsibility1.1. Introduction to the Theory of Legal EthicsIntroductionGood lawyers must engage in sincere and critical reflection upon the justification and demands of their professional role T Dare. There are three principles which constitute the standard conception of the lawyers role: (1) partisanship, (2) neutrality and (3) non-accountability.1. Partisanship. This is the most problematic principle constituting the standard conception of the lawyers role. This principle calls upon lawyers to aggressively and single-mindedly pursue the clients interests all the way up to the limits of the law. Is subject to mischaracterisation i.e. that it requires lawyers to be more zealous than in fact it does require them to be. However once the principle of partisanship is characterised in a more moderate form, its derivation from the appeal to pluralism is reasonable straightforward.2. Neutrality. According to the principle of neutrality, the lawyer must not allow his or her own view of the moral merits of the clients objectives or character to affect the diligence or zealousness with which they pursue the clients lawful objectives. Lawyers who calibrate their professional efforts according to their own view of the good not only privilege the view they favour and disenfranchise the view of the client, they undercut the strategy by which we secure community between people profoundly divided by reasonable but incompatible views of the good. In short, the principle of neutrality recognises that it is not up to lawyers to determine what we will do as a community, what rights we will allocate and to whom. The legal expertise of lawyers means they are better placed than any other group of citizens to work in, and with, our legal and political institutions. The principle of neutrality recognises this power and its potential for abuse. It guards against the possibility that someone might be denied rights allocated by a legal system because its lawyers find those rights or their allocation to that person morally objectionable. The principle of neutrality is therefore an important and deeply moral obligation.3. Non-accountability. Lawyers are not to be judged by the moral status of their clients projects, even though the lawyers assistance was necessary to the pursuit of their projects. Due to the mediating role of legal procedures, we cannot assume that the lawyers identify or sympathise with particular rights or with their allocation to particular clients. The fact that a lawyer may represent a murderer, for example, does not make them accountable for the wrongdoing of the murderer. Furthermore, this appeal to pluralism gives us reason to hope that lawyers will not allocate their expertise in a way which will function as a de facto barrier to unpopular but protected views of the good. The principle of non-accountability removes one reason lawyers may have for refusing to act for clients whose moral views and legal goals do not accord with their own. In this guise, the rule is a defence for those who do take on unpopular cases. Therefore, this rile removes a barrier to such clients obtaining representation necessary to avail themselves of legal rights. These three principles relate to the notion of detachment lawyers should be objective and detached while ably representing the client: For example when dealing with the criminal law you act for people whom you would not engage with socially. You are solely there to address the legal problem which has arisen for them they are your client. As a lawyer you should recognise there may be a point where you cannot act for a person (i.e. conflict of interest, affecting you personally or emotionally). The role of a lawyer is to give detached advice. A lawyer must act within the boundaries of the law i.e. they may only act within what the law allows. Client autonomy vs. autonomy of the lawyer a lawyer is expected to represent their client if they are able to do so (i.e. there is no conflict of interest), however what if the lawyer is capable of representing their client but the client in question disgusts them personally? To what extent would a lawyer in this case be able to turn down the client? To be discussed.

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

Legal Ethics Principle of conduct that members of the legal profession are expected to observe in the practice of law. What do we mean by profession? 1930s sociological definition various writers defined profession by reference to their distinctive characteristics or trades. The characteristics of the legal profession are considered to be:1. An expectation of high educational attainment and lengthy training.2. Use of specialised knowledge on behalf of clients.3. Self-regulation through a professional association (NZLS).4. Commitment of lawyers to public service (including the formal code of ethics). Difficulty with this approach is that it is entirely descriptive, and relies on what the profession says about itself. Question of taking at face value the claims that the particular profession makes itself.

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

Theories of Professionalism Functionalist/structural-functional theory: Requirement of identifying the basis on which we can define the group we are looking at as a distinctive group. Having identified a group, the next thing to do is ask questions about it e.g. what purpose does this group perform in society? How does this group fit with the other parts of the society it operates in? Talcott Parsons (leading writer in this area) saw lawyers as an important social group contributing significantly to operations of social control and consensus building. In his view, legal work had potential to redefine political authority and transform citizens relationships with political society. This approach was challenged in the 60s and later by the other two theories, which considered functionalist/structural-functional theory to be too narrow and rigid. Interactionist theory: Complete opposite of the functionalist/structural-functional theory. This approach focuses on individual relationships and activities it then looks at what lawyers actually do rather than looking on the profession itself as a social institution. It is in its nature that it focuses on the effect of legal practice on every day relations. It functions on the relationships between the lawyers themselves, and the relationships lawyers have with their clients. Proponents of this theory explore how legal training and work relationships socialise. They construct professionalism as an expression of individual and group identity. This theory provides insights into distance between reality of daily practice and ideology of the profession by examining closely what actually happens, it shows what goes on, and proceeds to highlight any inconsistencies between the ideology of the theory and what actually occurs in professional work. The theory stresses diversity, complexity and conflict in professional work. Market control theory: Theory came to the fore in the 1980s, however it followed the ideas of Max Vaber which was during the 60s. Came into prominence in the 1980s. In its practical application, this is a product of right-wing libertarian thinking i.e. that the market should govern. Matched the political environment at the time (political leaders during this time included Reagan, Thatcher and Douglas). This theory is the most significant of the three. Focuses on the power of the profession and its relationship with the development of the market economy and the modern state. It shows how many of the characteristics of the profession (i.e. lengthy training, self-regulation, monopoly over certain areas of work) also serve to hand control over their markets to the profession. Vaber himself a lot of his ideas are around the notion that lawyers are only human and are only motivated by selfish purposes like becoming wealthy. However market control theory proves the reality that people are motivated to become lawyers for a wide variety of reasons. What Market Control Theory states is undeniably true whatever the motivations of the individuals, the profession retains control over a significant proportion of the market. This is not necessarily a bad thing you want to have people who are qualified acting as lawyers so they know what they are doing. This theory suggests that even if this is not the intent of the profession, professionalism operates as a set of strategies for restricting the supply of services, for dampening the competition between providers for the service, and for restricting the accessibility to the market for these services. These are natural consequences of having a profession. Proponents of this theory was that this was a bad thing capture of an area of the market and gave too much power to lawyers. However this is not necessarily true. This theory challenges the public interest argument of professionalism advanced by the profession itself. This theory does have some critics opponents responded that there would be a decline in professionalism as it is traditionally understood if the MCT theorists got their way. The critics of the theory argue that the MCT does not pay enough attention to the normative and ideological dimensions of professionalism. It is important that throughout the course to bear in mind and be aware of how the criticisms of professionalism as set out in the MCT are addressed in the Lawyers and Conveyancers Act, as it is a response to some of these criticisms.

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

1.2. Introduction, Regulation and Legal Practice in New Zealand

Part 3 of the Lawyers and Conveyancers Act 2006 Admission and Enrolment Important to be familiar with this section of the Act.

Barristers and Solicitors Section 48 Admission and Enrolment of Barristers and Solicitors:(1) Every person admitted by the High Court under this Act must be admitted as a barrister and solicitor; and no person may be admitted as a barrister or solicitor only.(2) Subject to this Act and to any order made under it, and to the express provisions of any other enactment, every person admitted as a barrister or solicitor is entitled, while his or her qualification continues, to practice in or before any court or tribunal. This has been the law in NZ since 1983. There is a single rule for law practitioners in New Zealand. In the UK and Wales, as well as many other commonwealth countries, the profession of barristers is separate to that of solicitors, with separate rules and governing bodies. In NZ, a common term is fused profession this is misleading. In the US, the legal profession is genuinely fused there is one body of lawyers. However in NZ the terms barrister and solicitor still have independent meaning, and in NZ it is open to practitioners to take out a practicing certificate as a barrister sole. Chapter 14 of the Lawyers: Conduct and Client Care Rules 2008 rules applying solely to barristers sole. Barristers sole are relieved of many obligations applicable to solicitors. The correct term for the operation of barristers and solicitors in New Zealand is that they have the right of dual practice.

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

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

Queens Counsel Senior grade of barrister. Rank created in England in the 16th century. Originally consisted of a group of counsel who were retained by the Crown, ranking next after Sarjeants. Acted as assistants to the Attorney-General. Today, the appointment of Queens Counsel is a form of recognition of the professional eminence of the Counsel upon whom that honour is conferred. Queens Counsel is formerly characterised as Her Majestys Counsel learned in the Court, Silks, and Members of the Inner Bar. From 1 August 2008, the title Queens Counsel became Senior Counsel, however this was changed back due to the change of Government from Labour to National.

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

Layers and Conveyancers Act 2006 Sole statute which governs all three areas of the legal profession Barristers, Solicitors and Queens Counsel. Came into force 1 August 2008 replaced the Law Practitioners Act 1982. Created a whole new profession of conveyancers people who are not qualified as lawyers, but are trained in how to convey real estate.Part 4 of the Lawyers and Conveyancers Act The New Zealand Law Society Section 64 Membership The New Zealand Law Society has members in accordance with its constitution and this Act, but membership is voluntary and does not of itself (a) Impose on the members any liability in respect of any contract, debt, or other obligation made or incurred by the New Zealand Law Society.(b) Confer on the members any right, title, or interest in the property of the New Zealand Law Society. Section 70 Constitution of the New Zealand Law Society 1. The New Zealand Law Society must have a constitution that provides fora. (A Council of the New Zealand Law Society and the powers of the Council; andb. The ways in which persons become members of the New Zealand Law Society; andc. The ways in which persons cease to be members of the New Zealand Law Society; andd. The summoning and holding of general meetings of the New Zealand Law Society, and the method of voting at those meetings; ande. A president and 1 or more vice-presidents of the Council; andf. An Executive Board of the New Zealand Law Society; andg. The appointment by the Council of an executive director of the New Zealand Law Society, who may be a member of the Council; andh. The amendment and replacement of the constitution.2. In addition to the provisions required by subsection (1), the constitution may contain any other provisions that are not inconsistent with this Act or any other Act or any rule of law. Constitution for lawyers in NZ society which is incorporated into this Act Lawyers and Conveyancers Act (Lawyers) Constitution 2008. Act gave New Zealand a whole new organisational model for the NZLS. The NZLS operates with its head office in Wellington, but with 13 branches around the country. When you look at the constitution, you will see that the NZLS is governed by its Council, and an Executive Officer. The constitution also sets out how the President and other officers are elected, as well as how voting is to be conducted and the mechanism for amending the constitution. The Council comprises up to 25 members includes President, four Vice Presidents, a representative from each of the 13 branches, and a representative from what are known as the sections of the New Zealand Law Society (criminal law section, family law section, etc.). Note another body is the New Zealand Bar Association comprised by barristers sole. This is not a statutory body and membership is voluntary, however there is a representative from this body sitting on the NZLS Council as well. Also a group on the Council representing the large law firms. Board on the other hand comprises solely the President and four Vice Presidents. It is this body which regulates the day to day running of the affairs of the NZLS. All lawyers in NZ are regulated by the NZLS. Membership is technically voluntary. NZLS has two distinct functions:1. Regulatory function control and regulate all lawyers in New Zealand. All lawyers who wish to practice law in NZ must take out an annual practicing certificate, and pay for this to the NZLS. Also opposes those they consider not fit to apply for admission, deals with rule making, and conflicts with members of the public.2. Representative function if you as a practitioner want to be represented by the NZLS, you need to actually join it. The regulatory function does not involve joining, but if you want to take advantage of the NZLS representative function you need to join it. See ss66-68 of the Act deals with the representative capacity of the NZLS. Structure of the NZLS under the LCA is very different to what it was under the former Law Practitioners Act. Under the old legislation, District Law Societies (of which there were 14) were the powerful bodies in the country. The NZLS itself was made up of various people, principally the presidents of the District Law Societies, and all of the NZLS power was vested in the District Law Societies. Under the LCA, the balance of power was shifted to the NZLS, which then operated through branches. It is still possible to have District Law Societies the Auckland District Law Society remains separate to the NZLS as a representative body. Did not want to surrender their assets to the NZLS.

Part 8 Lawyers and Conveyancers Act The New Zealand Council of Legal Education This is a distinct body which is separate from the Law Society. Composition has representatives of the Judiciary, the Legal Profession, the 6 Deans of Law from the Law Schools, and law student representation. Body representing each segment of the law as we know it in this country. The New Zealand Council of Legal Education sets the requirements for candidates for admission as Barristers and Solicitors, and arranges moderation and assessment of the core courses of the LLB, which are prescribed by the Council. At Auckland University, these are Laws 121 and 131, Public, Criminal, Tort, Contract, Land, Equity and Ethics. For example, the exam for this paper will be sent to a Council-appointed moderator. The Council also has the function of providing for professional legal training (IPLS or College of Law). It provides for the recognition of foreign qualifications for admissions in New Zealand.The Lawyers and Conveyancers Act 2006 This is the principal statute we cover for the purposes of this course. Section 3 Purposes:1. The purposes of this Act are a. To maintain public confidence in the provision of legal services and conveyancing services;b. To protect the consumers of legal services and conveyancing services;c. To recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.2. To achieve those purposes, this Act, among other things, -a. Reforms the law relating to lawyers;b. Provides for a more responsive regulatory regime in relation to lawyers and conveyancers;c. Enables conveyancing to be carried out both i. By lawyers; andii. By conveyancing practitioners.d. States the fundamental obligations with which, in the public interest, all lawyers and all conveyancing practitioners must comply with in providing regulated services.e. Repeals the Law Practitioners Act 1982. The Lawyers and Conveyancers Act is an exercise in consumer protection. Market Control Theory professions, whether they intend or not, gather a monopoly over activities in society. Consumer protection in response to this theory is significant Act attempts to overcome the criticisms of that Market Control Theory directs at professions like the legal profession, and makes the point that consumers need to be protected. Duncan Webb: The Lawyers and Conveyancers Act: Catching up with Consumerism [2007]: Through the enactment of the Lawyers and Conveyancers Act, New Zealand has followed England and many Australian States in reshaping the framework of professional regulation by shifting it towards consumerism (and arguably away from professionalism). This Act represents a massive shift from the pervious framework under the Law Practitioners Act 1982. There are numerous fundamental changes to professional regulation in the Lawyers and Conveyancers Act, including ministerial supervision of rule making, a compulsory client care code, the introduction of an independent review authority in the form of the Legal Complaints Review Officer, and the introduction of the new ground of discipline of unsatisfactory conduct. The threshold of unsatisfactory conduct is articulated in significantly lower terms than that of the traditional ground of misconduct. The function of the regulatory body under the traditional framework focused on the need to maintain the reputation of the legal profession (Bolton v Law Society [1994]). Authorities held that discipline was necessary to protect the public from unscrupulous practitioners rather than to punish the practitioners or compensate wronged clients. Under such a framework, the grounds upon which the professional body could take steps against a practitioner are centred on the concept of misconduct which remains focused on the discharge of uniquely professional duties to clients. I.e., it needed to be shown that something has been established showing either that his conduct in the management of the professional business entrusted to him has been fraudulent, or that he has neglected some positive duty to his clients, or the conduct complained of be something outside the scope of his professional behaviour. Additionally, the traditional disciplinary procedures in New Zealand had been entirely lawyer-focussed the procedure was conducted primarily by lawyers for lawyers. This gave an appearance of bias or cronyism to at least some non-lawyer complainants. The rationale for the traditional position was based on the assumption that the profession stands apart from the society in which it operates, and is wholly autonomous. However this premised is no longer tenable, due to the argument that in matters of professional conduct the client ought to be able to seek redress through an easily accessible forum focused on the clients rights as well as the conduct of members of the legal profession. For those on the outside of the disciplinary process it appeared (arguably accurately) that their interests were secondary to the interests of the profession in the proceeding. From this perspective a fair result may seem unlikely to the wronged client. Probably the most important change for the legal profession brought about by the Lawyers and Conveyancers Act is the introduction of the new professional standard of unsatisfactory conduct in section 7. The largest change is that unsatisfactory conduct will exist where the lawyer is guilty of: conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. Unsatisfactory conduct will exist (and remedies under the Lawyers and Conveyancers Act will follow) where the lawyer fails to live up to the expectations not of fellow practitioners (the tort test) but the expectations of a reasonable member of the public. Such a formulation is drawn directly from consumer legislation e.g. s7 of the Consumer Guarantees Act 1993. It accepts that what is a reasonable standard for a lawyer will be different from that which a client would consider reasonable, and that there is no notional objective intermediate position. Importantly, this may mean that what is professionally required of lawyers may be more than is required under the ordinary law of contract and tort. This is of course a reversal of the earlier situation under which a breach of private law obligations (such as negligence) did not result of itself in any professional wrong being committed. A further important aspect is that the definition of unsatisfactory conduct in s12 provides that it will be found where there has been a contravention of the Lawyers and Conveyancers Act, or of any of the rules made under the Act other than a wilful or reckless breach (which will be misconduct). This provision gives the rules considerably more force than has been the case to date. A breach of any rule, no matter how minor, will amount to at least unsatisfactory conduct. The Act introduces the concept of client care, a concept of professional regulation. Sections 94 and 95 of the Act require the Law Society to have rules that include or provide for a code of professional conduct and client care. S94(1) provides that the Law Society must provide rules requiring practitioners to provide clients in advance with information on the principal aspects of client service, including the basis on which fees will be charged, indemnity insurance arrangements or other arrangements in respect of professional indemnity, the coverage provided by any fidelity fund, and complaints mechanisms. The concept of client care goes well beyond the concept of negligence and encompasses the idea of best practice. Under the Acts framework, a failure to adhere to the principles of client care needs to be recognised as a professional wrong. The Act introduced a new complaints system whereby the Standards Committee could only decline to consider complaints on the narrow grounds set out in s138 of the Act, which includes the fact that the complaint is trivial or vexatious or is not made in good faith. S137(1)(b) makes it clear that any breach of standards by the lawyer may be complained about, including the standard of service provided. The Act conceptually differentiates complaints and discipline. While the disciplinary procedure may have its genesis in a complaint, the Act clearly distinguishes between the complaint resolution function and the discipline function. S120 outlines the framework in relation to complaints as: one within which complaints [against lawyers and their employees] may be processed and resolved expeditiously and, in appropriate cases, by negotiation, conciliation, or mediation. In respect of discipline, the same section states that the purpose in respect of discipline is to have a system in which charges may be heard and determined expeditiously. Through the addition of ministerial discretion, the Lawyers and Conveyancers Act reflects a final rejection of wholesale autonomy of the legal profession in NZ. This is the creation of the Legal Complaints Review Officer, who will have the power to revisit the decisions of standards committees under s211. The Officer also has the wider function under s192 of providing advice to the New Zealand Law Society and the Minister of Justice on any issue that the Legal Complaints Review Officer identifies in the course of carrying out reviews. The Act also provides for direct government supervision of the self-regulatory processes. While rules will still be made by the profession, they are subject to approval of, and possible revision by, the Minister who under s104 may amend any rule considered deficient in any respect. Along with the function of the LCRO, this is a radical shift from the wholly self-regulated profession which existed prior to the Acts conception. Through the Lawyers and Conveyancers Act, Parliament is trying to reflect changes in public views of the function and structure of the Legal Profession. Section 4 Fundamental obligations of lawyers:1. Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:a. The obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand;b. The obligation to be independent in providing regulated services to his or her clients;c. The obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients;d. The obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients. Highlights need to provide detached advice and act within the bounds of the law. Act concerned very much with consumer protection and lawyer competence.

Consumer Protection Lawyers and Conveyancers Act Rules 2008 The Lawyers and Conveyancers Act refers to the concept of client care. Rules of Conduct and Client Care 2008 lawyers are to have a copy and abide by these, and will be subject to the disciplinary process if they do not. Predecessor to the Lawyers and Conveyancers Act (the Law Practitioners Act 1982) formerly had the rules of professional conduct of Barristers and Solicitors. No mention in these rules and former statute of the notion of client care. Caring for a client has always been of fundamental importance to any lawyer, however society has moved in such a way that parliament has deemed it necessary to spell it out in the statute which now governs the profession again this reflects the values of a consumer society and the direction society has gone in (read: Market Control Theory). Chapters 1 3 LCA Lawyers: Conduct and Client Care Rules 2008 every lawyer must comply with the rules of conduct and client care for lawyers set out in the Schedule. Client care and service information Whatever legal services your lawyer is providing, he or she must: Act competently, in a timely way, and in accordance with instructions received and arrangements made. Protect and promote your interests and act for you free from compromising influences or loyalties. Discuss with you your objectives and how they should best be achieved. Provide you with information about the work to be done, who will do it, and the way the services will be provided. Charge you a fee that is fair and reasonable and let you know how and when you will be billed. Give you clear information and advice. Protect your privacy and ensure appropriate confidentiality. Treat you fairly, respectfully, and without discrimination. Keep you informed about the work being done and advise you when it is completed. Let you know hot to make a complaint and deal with any complaint fairly. Summary of what is expected of todays law practitioner. This part also sets out the following: The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers (the rules). Those obligations are subject to other overriding duties, including duties to the courts and to the justice system. That the Rules are based on the fundamental obligations of lawyers set out in section 4 of the Act (see above). The rules are not an exhaustive statement of the conduct expected of lawyers rather, they are the minimum standards that must be observed by lawyers and are a reference point for discipline. Charges of misconduct or unsatisfactory conduct may be brought and a conviction may be obtained despite the charge not being based on a breach of any specific rule, nor on a breach of some other rule or regulation made under the Act. Within the bounds of the Rules, every lawyer needs to be guided by their own sense of professional responsibility. The preservation of the integrity and reputation of the profession is the responsibility of every lawyer. Cannot teach anyone ethics however the way to deal with unethical behaviour is to set out machinery of discipline for those who are unethical. This is what the Conduct and Client Care Rules purport to do.1.2. Competence, Complaints and Discipline

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

1.2.1. Competence

Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regs 2008 Rule 12 Once someone qualifies as a barrister and solicitor, all this does is bring them on the roll. They cannot immediately begin providing services to the general public. LLB and professional training undertaken so far is insufficient at this stage. Section 30 Lawyers and Conveyancers Act Practice by lawyer on his or her own account:1. No lawyer may commence practice on his or her own account, whether in partnership or otherwise, unless a. He or she i. Meets the requirements with regard to both practical legal experience and suitability that are imposed by rules made under this Act; andii. Meets any other criteria that are prescribed by rules made under this Act; orb. He or she is granted by the High Court on grounds set out in rules made under this Act, leave to practice on his or her own account...... Rule 12 (Lawyers: Practice Rules) Regs 2008 Criteria to practice on own account:1. For the purposes of section 30(1)(a) of the Act, subclauses (3) to (6) set out the requirements and other criteria that must be met before a lawyer who applies to do so on or after 1 October 2012 may commence practice on her or her own account.2. Those requirements and other criteria apply, without limitations, to a lawyer who before 1 October 2012 commenced practice on his or her own account as a barrister sole, and who on, or after 1 October 2012 applies to practice on his or her own account as a barrister and solicitor.3. The lawyer must have had at least the required minimum amount of recent legal experience in New Zealand****.4. During the two years immediately before the date of commencing practice on his or her own account, the lawyer must have completed, and passed all mandatory assessments in, a course that, when the lawyer began it, was approved by the Law Society as providing adequate instruction and assessment on the required subjects (which may be or include all or any of business management, professional conduct and client care, and trust account management and the lawyers or, as the case may require, incorporated forms, obligations in relation t trust accounts).5. The lawyer must have satisfied the Law Society that he or she is a suitable person to practice on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation a. The nature and extent of his or her experience practicing in law, whether in or outside New Zealand; andb. If he or she intends to practice as a barrister and solicitor, how (whether in sole practice, as a partner in a firm, or otherwise) he or she intends to practice on his or her own account; andc. If he or she intends to practice as a barrister, how (whether with or without other barristers, employees, or both, or otherwise) he or she intends to practice on his or her own account; andd. The areas of law in which he or she intends to practice......****Need to have had 3 years legal experience in New Zealand during the immediately preceding eight years. This applies to both Barristers/Solicitors and Barrister Sole.

Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education Continuing Professional Development) Rules 2013 Continuing legal education occurs from the moment of admission so it is important for lawyers to come to grips with the CPD scheme. Most recent period began at the beginning of 1 April 2014 and will finish on 31 March 2015 (lasts a full year). Lawyer must put in a minimum of 10 hours of CPD within this yearlong timeframe. Where more than 10 hours is completed, up to 5 hours may be carried over and credited to the next year. This is mandatory must be undertaken. CPD activities are defined in the rules as learning which: Is planned and structured with a purpose of outcomes it is not haphazard. Provides for interaction and feedback. Is related to identified learning needs. Cannot be a part of the lawyers day-to-day work. Individual lawyers must devise a written CPD plan and record where CPD activities are recorded. Firms generally have a clear idea of what they want from new lawyers and will do a lot of this for them. The purpose is to record, document, reflect on and verify CPD activities. Referred to as CPDPR. Examples include: Participating in courses, seminars, conferences, training programmes, one to one training and study groups. Latter must be properly structured and planned the activity must not be file-specific. It is not about practicing law; it is about learning how to practice law. It must be an activity which progresses the layer individually as a lawyer and not be a work activity Can be a verifiable distance-learning programme, which provides opportunities for interaction and feedback. May be completion of or study of relevant degrees, diplomas or certificate. Can include lecturing or teaching. Writing law related books and articles. Activities which count:1. Preparing or presenting certain types of submission.2. Can be something to develop advocacy, writing, drafting skills.3. Personal management skills. Law profession has a higher rate of mental illness, particularly depression, than any other profession.4. Practice management.5. Ethics, professionalism and client care. Flexibility is the key to all of this, however the topics need to relate to your individual learning needs as a lawyer. Annually, need to submit a declaration of compliance to the Law Society. Completing CPD requirements is a declaration of continued competence as a barrister and solicitor. Point that these rules are learner-centred rather than prescriptive. However the sanction for non-compliance is withholding practicing certificate (not yet in the rules). It is intended that the rules will be amended to allow for this however the amendment is yet to come through, and is not stated on the New Zealand Law Society website. However we can expect that the rules will be amended for this sanction. Lecturer opinion: NZ is lacking, given the short period of professional profession, that in the three years under Rule 12 there ought to be some proper programme with milestones that need to be reached and completed satisfactorily. Also see Rule 3.9 of the Lawyers: Conduct and Client Care Rules A lawyer must undertake the continuing education and professional development necessary to ensure an adequate level of knowledge and competence in his or her fields of practice.Loss of Competence and Section 163 of the Lawyers and Conveyancers Act A further issue of competence relates to practitioners losing their competency through mental/degenerative disease or brain injury. The New Zealand Law Society is largely dependant on other practitioners telling them about this, or if it becomes apparent from complaints from the public. Standards Committee, a committee convened by the New Zealand Law Society, has the ability to exercise powers under sections 164 and 169 if satisfied (in respect of any practitioner and formal practitioner):c. The practitioner is, because of his or her mental or physical condition, unable to properly administer any trust account that the practitioner is required to administer as a regulated trust account; ord. The practitioner is, because of his or her mental or physical condition, unable to properly conduct his or her own practice. There may also be intervention where the practitioner has been found guilty of theft (a), died (e), been adjudicated bankrupt (f), struck off the roll (i), suspended from practice (j), or ordered by the Disciplinary Tribunal not to practice as a solicitor on his or her own account (k). LCA Complaints Service and Standards Committees Regulations 2008 deals with Standards Committees.

1.2.2. Complaints and DisciplineIntroduction to Complaints and Discipline Part 7 Lawyers and Conveyancers Act 2006 A lack of competence generally brings about complaints, which lead to discipline. The procedure for complaints and discipline is set out in Part 7 of the Lawyers and Conveyancers Act. Section 121 of the Act imposes an obligation on the NZLS to establish a complaints service. The function of this service is to receive complaints about lawyers and former lawyers, incorporated law firms (under the LCA, it is possible for a practice to incorporate itself under the Companies Act), and employees of these categories:1. The New Zealand Law Society must establish a complaints services to receive complaints about a. Lawyers and former lawyers; andb. Incorporated law firms and former incorporated law firms; andc. Employees and former employees of lawyers and incorporated law firms. Rules of Conduct and Client Care right from the outset of the lawyer/client relationship, it needs to be made clear to clients what the procedures for complaint actually are. The lawyer/client relationship is one of confidence therefore there is a requirement to tell them about procedures for complaint right from the outset.Rules of Conduct and Client Care for Lawyers - Rule 3.4 3.4. Provision of information: a lawyer must, in advance, provide a client with information in writing on the principal aspects of client service including the following:a. The basis on which the fees will be charged, when payment of fees is to be made, and whether the fee may be deducted from the funds held in trust on behalf of the client (subject to any requirement of regulation 9 or 10 of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008).b. The professional indemnity arrangements of the lawyers practice. This obligation is met if it is disclosed that the practice holds indemnity insurance that meets or exceeds any minimum standards from time to time specified by the Law Society. If a lawyer or a practice is not indemnified, this must be disclosed in writing to the client.c. The coverage provided by the Lawyers Fidelity Fund and if the clients funds are to be held or utilised for purposes not covered by the Lawyers Fidelity Fund, the fact that this is the case.d. The procedures in the lawyers practice for the handling of complaints by clients, and advice on the existence and availability of the Law Societys complaints service and how the Law Society may be contacted in order to make a complaint. I.e., clients must be informed of: The procedure in the practice for handling written complaints. Existence of the NZLS Complaints Service. How to contact NZLS to complain.

Procedure for Complaints When a complaint is made to the service, a qualified person in dispute resolution assists the client and their lawyer to deal with the problem. Process is explained and attempts to negotiate a settlement may occur. Above diagram 1. A complaint is received and acknowledged, and checked to confirm that all required information has been included and that the complaint is valid. The complaint may be referred to Early Resolution Service by the Law Society if it is assessed as appropriate for this procedure (see below) if this is not appropriate, the NZLS must satisfy itself that the complaint is genuine before engaging the process and sending the complaint to the Standards Committee. Some complaints may be vexatious, and will be filtered out at this stage.2. Standards Committee can deal with the complaint and may proceed it to the Lawyers and Conveyancers Disciplinary Tribunal. Where a complaint reaches the Standards Committee, a copy will be sent to the lawyer being complained about, and he or she will have the right to make a written submission to the Standards Committee.3. The Standards Committee has three options:i. It may inquire into the complaint; orii. It may ask the person who has made the complaint and the lawyer being complained about to consider resolving matters by negotiation, conciliation or mediation;iii. It may decide to take no action.4. If a Standards Committee decides to inquire into a complaint, it can determine that:i. No further action is warranted; orii. There has been unsatisfactory conduct on the part of the lawyer; oriii. The complaint is so serious that it should be referred to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.Whatever determination a Standards Committee makes, the complainant will be informed of the decision and the reasons for it.5. If the Standards Committee decides that the lawyers conduct was unsatisfactory:i. It may make an order formally confirming the terms of an agreed settlement resulting from negotiation, conciliation or mediation.ii. It may censure or reprimand the lawyer.iii. It may order the lawyer to: Apologise to the complainant. Pay the complainant compensation (up to a maximum of $25,000) for actual loss. Reduce, cancel or refund some or all of the fees they charged the complainant. Rectify any offence or omissions at his or her own expense. Pay a fine of up to $15,000. Pay the complainant for expenses incurred in making the complaint.The Standards Committee may make one or more of these orders in respect of any one finding. It can also make other orders aimed at improving the lawyers standard of practice.6. Decisions of the Standards Committee may be appealed to the Legal Complaints Review Officer by either the complainant or the lawyer where they are the subject of a complaint and disagree with the Standards Committee decision. The LCRO has the same powers as the Standards Committee and may make any order the Standards Committee can make, including confirming or changing the Standards Committees decision. The LCRO may also refer a matter to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (who can in turn refer a matter back to the LCRO), or back to the Standards Committee.7. Beyond this, there is the right of appeal to the High Court and Court of Appeal. In the statute, the Court of Appeal is the final appellate body for disputes in this area, however as these bodies are subject to judicial review (administrative action), a complaint may potentially make its way to the Supreme Court. Grounds for complaint set out in s132 Complaints about Practitioners, Incorporated Firms, and their Employees:1. Any person may complain to the appropriate complaint service about a. The conduct i. Of a practitioner or former practitioner; orii. Of an incorporated firm or former incorporated firm; oriii. Of a person who is not a practitioner but who is an employee or former employee of a practitioner or an incorporated firm; orb. The standard of the services provided, in relation to the delivery of regulated services i. By a practitioner or former practitioner; orii. By an incorporated firm or former incorporated firm; oriii. By a person who is not a practitioner but who is an employee or former employee of a practitioner or an incorporated firm; orc. The alleged failure of a practitioner or former practitioner or an incorporated firm or former incorporated firm, or an employee or former employee of a practitioner or an incorporated firm, to comply, within a specified time or a reasonable time, with any order or final determination made under this Act by a Standards Committee or the Legal Complaints Review Officer.2. Any person who is chargeable with a bill of costs, whether it has been paid or not, may complain to the appropriate complaints service about the amount of any bill of costs rendered by a practitioner or former practitioner or an incorporated form or former incorporated firm (being a bill of costs that meets the criteria specified in the rules governing the operation of the Standards Committee that has the function of dealing with the complaint). NZLS introduced in 2014 introduced a concerns form can be filled in by a client, which enables the NZLS to contact the lawyer and inform them about a concern. May lead to a formal complaint if the situation is not adequately dealt with.

Early Resolution Service (ERS) In its first full year of operation, the ERS was able to conclude more than one third of the complaints the Lawyers Complaints Service received (approximately 35.2%). Further recent figures include: NZLS complaints service received 1742 complaints in 2013/2014. 785 of those were taken into the ERS. Of those, 105 were referred back to the standard track process. During a Pilot Scheme beginning Nov 2011, the average time to conclude an ERS complaint was 30 days. This is significantly faster than the ordinary complaint resolution process, and the comment by the service on the whole situation was that protection of the public is the key factor. Again, great emphasis on consumer protection. The ERS was established with the aim of resolving complaints which were not serious, and were suitable for resolution in a timely and more flexible manner. It was instated nationally following a trial period, which found it allowed for improved resolution rates and higher satisfaction levels. As the ERS is set up to deal with more minor complaints rapidly and efficiently, from the point of view of the New Zealand Law Society, this should lead to a better use of the time of the Standards Committee Complaints referred to the ERS took an average of 35 days to be resolved, compared with 188 days for complaints that followed the standard track, due to the statutory processes that need to be followed through the latter process. At first triage, complaints are channelled either to the standard track, or accepted for submission to the second triage. At this latter stage, there are two specialist early resolution committees who will deal with the complaint. The ERS process is voluntary, and if either party declines it, the ordinary process will be engaged. ERS proceedings are confidential, and will not be available to the Standards Committee if the process fails and the normal process is engaged. Three important benefits from the ERS are as follows:1. Less stress for lawyers facing a complaint when it is accepted into the ERS.2. The opportunity for client-lawyer relationships to be repaired.3. More timely resolution. Only complaints about certain matters are deemed appropriate for the ERS process. Complaints which involve any form of dishonesty or a significant breach of any trust account rules are not considered to be suitable for ERS.

Ordinary/Statutory Complaints Process If complaint is identified as a legitimate complaint, it will be sent to the Standards Committee to deal with (see process outlined above). Lawyers Standards Committees are established under s126 of the LCA. Are made up of senior law practitioners and lay people (people of good standing in the community).Section 126 Lawyers Standards Committees1. The New Zealand Law Society must, by practice rules, establish one or more Lawyers Standards Committees as part of its complaints service.2. The members of each Lawyers Standards Committee are to be appointed by the New Zealand Law Society. Committee must have a minimum of two lawyers and one lay person, but may have up to 7 and 2 of each respectively. Initially there were 24 of these in NZ NZLS then established a National Standards Committee to deal with extremely serious matters. When a complaint is sent to a standards committee, a copy is sent to the lawyer who is being complained about. They may make a written submission regarding what has been said about him/her. The Lawyers Standards Committee has certain options about what they may do: Inquire about the complaint. Ask both parties (complainant and lawyer) to go to ERS. Take no action at all. If the Committee enquires into the matter, it can do certain things by way of decision it can determine that: No further action is warranted. There is a finding of unsatisfactory conduct on part of the lawyer. This is a term of art unsatisfactory conduct is a technical term. The Committee can also decide the complaint is so serious that it needs to be referred to the Disciplinary Tribunal. Whatever the Committee decides, the complainant is informed of the decision and the reasons for it. This has given rise to the following decision:

Deliu v Lawyers Complaints Service of NZLS [2012] NZHC 2582 Office holders involved in administering the complaints process men and women who were actually engaged in working for the NZLS complaints service. When they received the complaints, Deliu complained about the very people who were trying to take steps to have him disciplined. What happened when the complaint was received was that these various lawyers on the committee dismissed it. Deliu argued that the lawyers involved as office holders of the complaints service had no power to this his complaints were genuine and should be referred to a Standards Committee. What happened here was the High Court found that any complaint against a lawyer which is a genuine complaint must be referred to a Standards Committee by a complaints service. This step must always be taken the complaints service may not make a judgment on a genuine complaint. Court found in favour of Deliu declaration he was seeking was upheld, and a complaint received under s132 must be referred to a standards committee under s135(1), and must be determined by the Standards Committee under s137. Section 135(1) If the complaint relates to a lawyer or former lawyer or an incorporated law firm or former incorporated law firm, or an employee or former employee of a lawyer or incorporated law firm, the appropriate complaints services, for the purposes of sections 132 and 134, is the complaints service established under section 121(1) by the New Zealand Law Society and the complaint must be referred by that service to a Lawyers Standards Committee. Section 137 (Action on receipt of a complaint) (1) A Standards Committee, on receiving a complaint, may (a) inquire into the complaint; or (b) give a direction under section 143; or (c) decide, in accordance with section 138, to take no action on the complaint. (2) A Standards Committee that receives a complaint must, as soon as practicable, advise the complainant and the person to whom the complaint relates of the procedure that the Standards Committee proposes to adopt under subsection (1). Provided it is something which on the face of it is a complaint, the complaint service may not reject it it must follow the normal procedure.

Section 156 of the Lawyers and Conveyancers Act Powers of the Standards Committee to Make Orders1. If a Standards Committee makes a determination undersection 152(2)(b), that Standards Committee maya. 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 firmi. To rectify, at his or her or its own expense, any error or omission; orii. 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. Standards Committee may make one or more of these orders, as well as other orders aimed at improving the lawyers standard of practice. Both complainant and lawyer may ask the LCRO to review the decision of the standards committee.

Law Complaints Review Officer May make order that a standards committee can make. Can confirm the Standards Committee decision, or change it. May refer the matter to the Disciplinary Tribunal, which can also refer back to the LCRO.

Orlov v New Zealand Law Society [2013] NZCA 230 (High Court: [2013] 1 NZLR 390) Was initially struck off, but later reinstated. Barrister subject to a number of complaints, which essentially related to his competence to Act. Not a NZ qualified lawyer got into NZ under the trans-Tasman mutual recognition legislation was accepted in Australia, then could move to practice in NZ. Various complaints against him lead to court cases came to a climax in this NZCA decision. Court of Appeal decision application by Orlov and cross-appeal against the decision of Heath J in the High Court. In the High Court, Heath J found there was a threshold test for referring a matter to the Disciplinary Tribunal under s152(2)(a). The Tribunal has a power to strike off a practitioner Standards Committees may not do this. There was a threshold test in the previous act (Law Practitioners Act 1982), but it is not explicitly in the Lawyers and Conveyancers Act. Heath J found the test ought to be similar to the past Act: is there a real risk the practitioner might be suspended or struck off? If this threshold is then met, the case is a suitable one to go from the Standards Committee to the Disciplinary Tribunal. Orlovs argument was that the likely outcomes of consideration of charge against the practitioner would act as a disincentive to anyone on a Standards Committee motivated by animosity or ill-will towards a practitioner. Orlov himself did not endorse the formulation of the test that Heath J made, but submitted a higher threshold should be made encompassing the severity of the charge and evidence before a matter should be sent to the Disputes Tribunal to protect the practitioner from arbitrary action. NZCA decision Stated there is no threshold test to be met before a complaint may be referred to the Disciplinary Tribunal under section 152(2)(a) of the Lawyers and Conveyancers Act, thereby overturning Heath Js ruling on this matter in the High Court. The Court of Appeal took the view that the correct outcome had been reached by the High Court in a different case Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83, which also did not agree that such a threshold exists. The Standards Committee can refer a complaint or matter on to the Disciplinary Tribunal whenever it deems it appropriate to do so. Reasons for this finding included: The imposition of a threshold has the potential to undermine the role of the tribunal to maintain national standards. To fragment the disciplinary process in cases involving multiple complaints of varying degrees of seriousness against the same lawyer, the Court said, would be unfortunate. Having regard to the legislative purposes of consumer protection and the maintenance of public confidence in the provision of legal services, it is in our view important that the Tribunal be able to determine some complaints even though the likely sanction will not involve striking off or suspension. The complaints may, for example, involve complex issues of law or fact or be likely to result in a significant precedent. There are other instances of threshold tests expressly stated in the Lawyers and Conveyancers Act. If parliament intended there to be a threshold test in section 152(2), they would have expressly provided for one. Furthermore, there is a threshold that the Disciplinary Tribunal has to meet if it is to strike someone off this is expressly stated in section 244(1) of the Act. Parliament clearly intentionally discarded the threshold test which was under the previous Act in this situation as it not desirable to retain it. Other reasons for not applying a threshold test for complaints to go to the Disciplinary Tribunal included: There is no requirement in the Lawyers and Conveyancers Act for the Standards Committee to give any reasons for referring its decisions to the Disciplinary Tribunal. The Disciplinary Tribunal has all the powers of the Standards Committee, as well as additional powers of suspension and striking off. Consumer Protection concerns, and maintenance of public confidence in the profession, makes it important that the Disciplinary Tribunal is able to determine complaints even if they are unlikely to result in a striking off or suspension. Other findings of the Court included: Lawyers are under an ethical duty to cooperate with the investigative phase of the process [108]; If a Standards Committee decides to inquire into a complaint it must do so as soon as practicable and give notice to the lawyer against whom the complaint is made [15]; Standards Committees need to give proper notice of the allegations so the lawyer is able to respond to the substance of the complaint in an informed manner [64]; Standards Committees have the power to regulate their own procedure in such manner as they think fit. Where a matter has been initiated as a complaint under s132, a Standards Committee can commence an own motion investigation and inquire into the same matter [89] [91]; For cases referred to the Disciplinary Tribunal, good process requirements include an inquiry, a hearing, a determination and compliance with the rules of natural justice [161]; The rules of natural justice need to be tailored to meet the objective of dealing with complaints promptly [50] There is no threshold test for a referral to the Tribunal pursuant to s152(2)(a) [53]; The Standards Committee can refer not only a complaint or matter to the Tribunal, but also any issue involved in the complaint or matter [54]; It is important that the Tribunal is able to determine some complaints even though the likely sanction will not involve striking off or suspension [54]; Section 158 does not require a Standards Committee to give reasons for a decision under s152(2)(a) to refer a mater to the Tribunal [101]; There is only very limited scope to review a referral to the Tribunal. For example, where there has been non-compliance with the statutory prerequisites to the making of the determination, such as failing to conduct a hearing as required by s152(1) or where there has been bad faith [50]. The 14 charges against Mr Orlov were deemed by Heath J in the High Court to be sufficiently serious to be referred to the Disciplinary Tribunal this was upheld by the Court of Appeal. As noted at [166], the disciplinary regime exists primarily for the benefit of the consumers of legal services, but also for the benefit of all lawyers. Further points to note about the Standards Committee: As well as referral of a complaint to the Disciplinary Tribunal, the Standards Committee may find itself that there has been unsatisfactory conduct, or that no further action is warranted. A decision of the Standards Committee to refer a complaint to the Disciplinary Tribunal is amendable to Judicial Review. Standards Committees are not required to obtain corroborating evidence of complaints that are made, although the committees can consider evidence in related complaints. This is very relevant for Orlov, as there were a whole series of complaints made against him. Importantly, the Standards Committee may convert a complaint by a member of the public into an investigation of its own motion. NB: this has been asked in previous exam questions.

M v Wellington Standards Committee (No 2) [2013] NZHC 1037 This case was decided 9 May 2013. Orlov High Court decision not followed by Pankhurst J, however he is vindicated through the NZCAs overturning of Heath Js decision.

Legal Complaints Review Officer Section 190 The Legal Complaints Review Officer:1. A person who is not a lawyer or a conveyancing practitioner is to be appointed to be the Legal Complaints Review Officer.2. The Legal Complaints Review Officer is to be appointed by the Minister, after consultation with the New Zealand Law Society and the New Zealand Society of Conveyancers. There is a right of review to the Legal Complaints Review Officer. They (like the Standards Committee) can refer matters/complaints across to the Disciplinary Tribunal rather than dealing with them his or herself. Appointed by Minister of Justice, and their office is administered by the Ministry of Justice. They are therefore very independent from the Law Society. The Legal Complaints Review Officer must not be a practicing lawyer this is set out in s190(1) of the Act (section 6 defines a lawyer a person who holds a current practicing certificate as a barrister or as a barrister and solicitor). The holders of this office may be qualified lawyers, but they must not hold a practicing certificate. The essence of this is independence once you have a practicing certificate, you are under the jurisdiction of the NZLS. The separation of this Office from the New Zealand Law Society is a further example of the Acts attempts to protect consumers of legal services from the negative side-effects of professionalism. Section 206 Proceedings of Legal Complaints Review Officer:1. Every review conducted by the Legal Complaints Review Officer under this Act must be conducted in private.2. If a. It appears to the LCRO that a review can be adequately determined in the absence of the parties, their representatives, and witnesses; andb. The parties consent to the review being determined in the absence of the parties, their representatives, and witnesses, -The LCRO may conduct the review on the basis of such information, reports, or documents as are available to the LCRO.3. Subject to subsection (2), the LCRO must perform his or her functions and exercise his or her powers in a way that is consistent with the rules of natural justice.4. The LCRO may, subject to subsection (3), direct such publication of his or her decisions as he or she considers necessary or desirable in the public interest.5. Subject to this Act and to any rules made under this Act, the LCRO may regulate his or her procedure in such manner as he or she thinks fit. So reviews are conducted in private, and may be conducted entirely on the papers. The review process must be carried out with as little formality and technicality and as much expedition as is permitted by the requirements of the Lawyers and Conveyancers Act, in order that there be a proper consideration of the review and that the rules of natural justice be observed.

Q v Legal Complaints Review Officer [2013] NZCA 570 and [2014] NZAR 134 Q filed proceedings in the High Court, seeking judicial review of the LCRO who had upheld a complaint of unsatisfactory conduct made against him. The complaint had been previously dismissed by a Law Society Standards Committee. On judicial review, Dobson J held the findings of the LCRO were reasonably open to here and there were no grounds to interfere with the decision. Q argued both the LCRO and Dobson J erred in their approaches to their respective jurisdictions, and that the decision of the Standards Committee should be reinstated. The basis of the complaint was an allegation by a doctor that Q had referred to him as a crook when arguing that his medical opinion should not have been sought in an ACC case as he had a conflict of interest, and that this was part of a concerted campaign by Q to discredit the complainant and prevent him from carrying out any ACC assessments. Solicitors for the complainant argued a breach of rules 2.3 (Proper Purpose), 10 (Professional Dealings), and 13.8 (Reputation of other parties) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Standards Committee had declined to uphold the complaint, finding that Q had not referred to the complainant as a crook and had merely questioned the impartiality of the complainant and suggested the possibility of a conflict of interest, which was done in a robust manner. It is a normal part of testing the credibility of an expert witness to probe issues of competence, knowledge, and impartiality. Doing so is not, of itself, a breach of either Rules 10 or 13.8 Dissatisfied, the complainant sought a review of the Standards Committees decision by the LCRO under section 193. LCRO found there were two errors by the Standards Committee (1) erred in treating communications and allegations other than the crook statement as being part of the complaint, and (2) dealing with the statement as being in the course of cross-examination as opposed to in submissions. LCRO found that there was an intention by Q to discredit the complainant in the eyes of ACC. The statements were therefore made for an improper purpose and breached rule 2.3. There was also a breach of rule 13.8, as the LCRO viewed the comments as amounting to an attack on the reputation of the complainant, and as being unnecessary for the conduct of the review hearing. Dobson J of the High Court, on judicial review of the LCROs finding, upheld her findings that they were neither unlawful or unreasonable. It was open to her to attribute an improper motive to Q. On Appeal, the Court of Appeal held that there were a number of unsatisfactory aspects about the complaint against Q and the way it was treated by the LCRO: The account of what Q had said at the review hearing was inaccurate. The Standards Committee was correct in identifying that the complaint was not limited to the comments made at the ACC review hearing, therefore the LCRO was wrong to find the Committee had erred. LCRO was also wrong in finding that the Standards Committee had dealt with the complaint on a mistaken basis. The LCRO had seized on the Committees reference to expert witnesses in its determination without considering whether the reference was simply provided by way of supporting statement. Dobson J also overlooked the partial transcript from which the Committee quoted expressly stated that it was an exchange by Q and the reviewer. LCRO also erred in her analysis of comments made at the review hearing, the thrust of which were that he was actually not making those allegations. Both LCRO and High Court failed to consider Qs plausible explanation for his comments, namely that he was simply attempting to explain to a lay person (the ACC reviewer) the difference between actual bias and perceived bias. The policy of the Lawyers and Conveyancers Act is for complaints to be dealt with as expeditiously as possibly and it would be wrong to prolong the matter any further. LCRO and High Court decisions quashed Standards Committee reinstated.

Zhao v Legal Complaints Review Officer [2012] NZHC 3247 Z was undertaking functions as both barrister and solicitor even though he only had a practicing certificate as a barrister sole. As a barrister sole, you are not supposed to handle money from clients (unlike a solicitor where this is part of the job). Therefore he was acting in breach of the rules. Standards Committee dealt with this matter at first instance, and declined to uphold the complaint. The complainant applied to the LCRO for a review of the Standards Committees decision. Central to this case was a posting in Chinese on a website called Sky Kiwi put there by Zhao, setting out details of the services that he offered. The complainant had translated the entry on the website, and went on to have a professional translation made of the entry. However the date on this translation was the 26th November 2010 this was the date after the Standards Committee had disposed of the complaint. The LCRO at the time became confused about this, because in the decision he made it was stated that the Standards Committee should have considered the professional translation obviously this was impossible. Complaint therefore dismissed by the High Court decision of the LCRO overturned.

New Zealand Lawyers and Conveyancers Disciplinary Tribunal The establishment of the Disciplinary Tribunal is provided for in section 226 of the Lawyers and Conveyancers Act. Independent of the law society. It is administered by the Tribunal' division of the Ministry of Justice. The function of the Disciplinary Tribunal is to hear and determine charges against members of the legal profession. Composition - Chair, Deputy Chair and 12 lay members - 14 lawyer members 3 conveyancing members Deputy chair and lay members are appointed by the Governor General on the recommendation of the Ministry of Justice. Lawyers on the Disciplinary Tribunal are appointed by the NZLS. Conveyancers are appointed by the NZ Society of Conveyancers. Matters before the Tribunal half must be lay members, and half must be lawyers where it is a lawyers complaint or Conveyancers where the proceeding is against a conveyance. Section 227 Functions of Disciplinary Tribunal:1. The functions of the Disciplinary Tribunal are a. To hear and determine any application made by a Standards Committee or the Legal Complaints Review Officer for the suspension of a practitioner pending the determination of a charge that the Standards Committee or the Legal Complaints Review Officer has laid against that practitioner.b. To hear and determine any charge against a practitioner or former practitioner or an incorporated firm or former incorporated firm or an employee or former employee of a practitioner or an incorporated form that is made to it by a Standards Committee or the Legal Complaints Review Officer.c. To hear and determine any application made by a person under section 246 for the restoration of his or her name to the roll or to the register of conveyancers,d. To hear and determine any application made by a person under section 247 for the revocation of an order made under section 242(1)(h).e. To hear and determine any appeal under section 42.f. To hear and determine any application made by a practitioner or an incorporated firm under section 248 for the consent of the Disciplinary Tribunal to the employment by the practitioner or incorporated firm of a person who i. Is under suspension from practice as a barrister and solicitor or as a conveyancing practitioner; orii. Has had his or her name struck off the roll otherwise than at his or her own request; oriii. Has had his or her registration as a conveyancing practitioner cancelled by an order made under this Act; oriv. Is disqualified, by an order made under section 242(1)(h), from employment in connection with a practitioners or incorporated firms practice.g. To make rules, not inconsistent with this Act, in respect of the making, hearing, and determination of applications, inquiries, appeals, and other proceedings before the Disciplinary Tribunal.h. To perform such other functions as are conferred on it by this Act or any other enactment. Note that reinstatement to the roll, or where you seek to employ someone who has been struck off as a lawyer, is also dealt with by the Disciplinary Tribunal under this section. Under section 238(1), every hearing of the Disciplinary Tribunal must be held in public. Parties are entitled to appear and be heard, and they can be represented by counsel. However there is a discretion for the Disciplinary Tribunal to hold a hearing either partially or entirely in private under section 238(2). The Disciplinary Tribunal can place restrictions on publicity, including names of the person before the Disciplinary Tribunal, under section 240 Restrictions on Publication. In terms of charges that can be brought before the Tribunal, these are listed in section 241:If the Disciplinary Tribunal, after hearing any charge against a person who is a practitioner or former practitioner or an employee or former employee of a practitioner or incorporated firm, is satisfied that it has been proved on the balance of probabilities that the person a. Has been guilty of misconduct; orb. Has been guilty of unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct; orc. Has been guilty of negligence or incompetence in his or her professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his or her fitness to practice or as to bring his or her profession into disrepute; ord. Has been convicted of an offence punishable by imprisonment and the conviction reflects on his or her fitness to practice, or tends to bring his or her profession into disrepute. It may, if it thinks fit, make any 1 or more of the orders authorised by section 242. This area does not cover matters for civil claim, unless the negligence or incompetence is so serious that it has a significant impact on the lawyers practice. The Disciplinary Tribunal has jurisdiction to deal with practitioners convicted of an offence punishable by imprisonment. Under section 241, the standard of proof is on the balance of probabilities. Section 242 Orders that may be made where charge proved:1. In any case to whichsection 241applies, the Disciplinary Tribunal may makea. Any order that a Standards Committee has power to make undersection 156on 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 163exist in respect of the practitioner or former practitioner and directing a Standards Committee to exercise any power undersection 164orsection 169:c. If the person is a lawyer or former lawyer, an order that theperson'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 exceeding36 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 36months, 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