The New Zealand Legal Profession and Court System

What is a Profession?

Definitions and Traits

What is the difference between a profession and an ordinary job? Here are some key definitions and traits:

• Dictionary Definition: According to Littrich & Murray, citing the Oxford English Dictionary, a profession is “a vocation or calling, especially one that involves some branch of advanced science or learning.”
• Common Traits (Millerson in Littrich & Murray):
  • Skill based on a body of theoretical knowledge.
  • Provision of training and education.
  • Testing competence prior to entrance.
  • Organisation.
  • A code of ethics.
  • An ethos of altruistic service.
  • Selflessness.
• Dal Pont’s Common Attributes of a Profession:
  • Special skill and learning.
  • Public service.
  • Differentiates from other professions.
  • Self-regulation and autonomy.
  • Special jargon/language and collegiality.
  • Support and understanding.

Modern Expectations of Professionalism

1. Common traits don’t differentiate accurately between activities which are not “classically” professions (Littrich & Murray).
2. Professionalism is expected of many agencies within the law and justice sector and beyond, not traditionally thought of as professions.

The Role and Definition of a Lawyer

Definitions and Traits

1. According to the Collins English Dictionary, a lawyer is “a member of the legal profession, esp a solicitor. See also advocate, barrister, solicitor.”
2. See the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 for the lawyer's code of conduct.

Statutory Definitions (s 6 Lawyers and Conveyancers Act 2006)

• Lawyer: A person who holds a current practising certificate as a barrister or as a barrister and solicitor.
• Barrister: A person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act and practising as a barrister, whether or not he or she also practises as a solicitor.
• Solicitor: A person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act and practising as a solicitor, whether or not he or she also practises as a barrister.

Difference Between Barristers and Solicitors

In New Zealand's fused legal profession, lawyers are admitted as both a barrister and a solicitor and can practice as both.

• Barrister: Works mainly in courts and tribunals.
• Solicitor: Involved in other areas, for example:
  • General advisory work.
  • Drafting legal documents.
  • Property and land transactions.
  • Administering estates (wills, forming companies).
  • Raising or securing loans.
  • Preparatory work for barristers.
• Barristers Sole: Specialists in court and tribunal work only (litigation advocates). They form an independent bar (a separate group in the profession) and generally take instructions through solicitors rather than directly from clients.

21st Century Aotearoa New Zealand

1. Lawyers are not yet representative of society, with an underrepresentation of Māori, Pacific, and Asian people.
2. It is difficult to be an effective lawyer these days if you don’t have the same grounding in the basics of Tikanga Māori.

Alternative Conceptions of the Legal Profession

1. It's more accurately about power and control (see Johnson and Larson in Littrich & Murray readings).
2. It’s a money-making business like no other (see Harlan Stone (1934) quoted in Dal Pont (2020)).

The Judiciary

To be a judge, you must have been a practicing lawyer for at least 7 years. The judiciary includes:

• 184 District Court judges
• 40 High Court judges (and 7 associate judges)
• 14 Māori Land Court judges
• 10 Court of Appeal judges
• 6 Supreme Court judges
• Other courts including the Coroners Court, Environment Court, and Employment Court.

Tribunals and Authorities

These bodies are staffed by adjudicators, mediators, judicial officers, panel members, etc. There are over 20 tribunals, including:

• Disputes Tribunal
• Waitangi Tribunal
• Tenancy Tribunal
• Copyright Tribunal
• Alcohol Regulatory & Licensing Authority
• Real Estate Agents Disciplinary Tribunal

Other Legal Career Paths

A law degree can lead to various roles, including:

• Business
• Local and central government officials
• Journalists
• Sworn and unsworn members of Police, Customs, MPI, etc.
• 17 MPs (14%)
• University professors, etc.

Qualifying as a Lawyer in New Zealand

Admission Rules

1. Complete a law degree.
2. Complete the Professional Legal Studies Course ('Profs').
3. Be admitted to the High Court to the roll of barristers and solicitors.
4. Obtain a current practising certificate issued annually by the NZ Law Society.

The Clean Slate Act allows individuals to be deemed as having no criminal record for the purpose of being asked about their criminal record if:

• Seven years have passed since the applicant's last offending.
• They have never been imprisoned.
• They have not been convicted of any offence on a list of serious offences.

Regulation of the Legal Profession in NZ

The profession is primarily regulated by the Lawyers and Conveyancers Act 2006, which outlines reservations, fundamental obligations, the role of the Law Society, and processes for complaints and discipline.

Purposes of the Act

• Maintain public confidence.
• Protect consumers.
• Recognise the status of the legal profession and establish the new conveyancing profession.
• Reform the law.
• Provide for a more responsive regulatory regime.
• State the fundamental obligations in the public interest.

Scheme of the Act

1. Changed professional regulation:
   • Significant reduction in the lawyer's “monopoly”.
   • Reduction of the Law Society’s dominance.
   • Separates the Law Society’s regulatory and representative functions.
2. Establishes the “new” conveyancing profession regarding transfers of ownership/land.
3. A focus on consumer/client protection:
   • Poor service becomes a ground for complaint under the “Conduct and Client Care Rules,” a lower threshold than “professional misconduct.”
   • Ministerial approval of rules.
   • An independent Complaints Review Officer.

Consumer and Client Protection

Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:

1. Uphold the rule of law and facilitate the administration of justice in NZ.
2. Be independent in providing regulated services to his or her clients.
3. Act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients.
4. 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.

The New Zealand Law Society (NZLS)

All lawyers are now regulated by the NZLS, but membership for representative purposes is voluntary.

NZLS Representative Functions

• Membership is voluntary.
• To represent its members and to serve their interests.
• Promoting collegiality between members of the profession through social events, focus/interest groups, and publications like Lawtalk magazine and Canterbury Tales.
• Practitioner support.
• Training and practical advice on running a practice, including education, conferences, seminars, and skills courses.
• Māori Law Society (Te Hunga Rōia Māori o Aotearoa): Established in 1988 with voluntary membership, it provides an annual opportunity for Māori lawyers to discuss issues relevant to Māori under the motto: Mā te Ture, Mō te Iwi (By the Law, For the People).

NZLS Regulatory Functions

• Control and regulate the profession of law.
• Uphold the fundamental obligations imposed on lawyers in NZ.
• Monitor and enforce the Act.
• Assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in NZ, the reform of the law.
• The Society sets, with the approval of the Minister, an annual practising certificate fee to be paid by all lawyers, with this income solely for funding regulatory functions.
• The NZLS is required to make rules of conduct and client care, which the Minister must approve, setting out the effect of those rules.

The rules are not an exhaustive statement of the conduct expected of lawyers. They set the minimum standards that lawyers must observe and are a reference point for discipline. Each lawyer must 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.

Regulation and Professional Traits

Some rules that arguably reflect the classic notions of a legal profession include:

• A lawyer is obliged to uphold the rule of law and to facilitate the administration of justice (public interest).
• A lawyer must report to the Law Society any person providing legal services when not authorised to do so (monopoly/organisation).
• A lawyer must undertake the continuing education and professional development necessary for competence.
• The relationship between a lawyer and client is one of confidence and trust that must never be abused.
• A lawyer must not act or continue to act if there is a conflict of interest (concern for others/altruism/ethical behaviour).

Complaints and Discipline Process

1. Early Resolution: A lawyer/client can try to resolve a complaint directly. The client can also lodge a complaint with the Law Complaints Service (Law Society), which may lead to the Early Resolution Service (ERS) for a facilitated negotiation.
2. Tier 1 - Standards Committee (SC): This committee has two functions: resolving complaints and traditional discipline for a breach of the rules. It usually has two lawyers and one lay-person. Orders can include refunds, apologies, censures, or fines up to $15,000.
3. Tier 2 - Legal Complaints Review Officer (LCRO): If a client is not satisfied with the SC outcome, they can go to the LCRO. The LCRO is independent of the Law Society and can change the SC outcome, refer it back, or lay charges for the Disciplinary Tribunal to determine.
4. Tier 3 - Disciplinary Tribunal (DT): If the SC or LCRO lays serious charges, the case goes to the Lawyers and Conveyancers Disciplinary Tribunal. It is chaired by a judge and focuses on serious misconduct. It can make a wide range of orders, including striking a lawyer off the roll, suspension, censure, or fines up to $30,000.

Misconduct Terminology

The Lawyers and Conveyancers Act differentiates between conduct that occurs while providing regulated legal services and conduct that occurs otherwise. For non-legal services conduct, the test is whether it would be regarded as disgraceful or dishonourable by lawyers of good standing. For activity done outside of providing regulated services, the test is whether the conduct means the person is not a fit and proper person to engage in practice.

Definition of Misconduct

Misconduct includes:

• Disgraceful or dishonourable conduct.
• Wilful or reckless breach of rules.
• Charging grossly excessive fees.
• Dishonesty, theft, or fraud.
• Lying to or misleading a tribunal or another lawyer.
• Continuing to act in the face of a conflict of interest.
• Breaching duties of confidentiality.
• Sexual advances towards clients.
• Failure or inadequate supervision of staff.

There is a right of appeal to the High Court, which can confirm, reverse, or modify the decision of the DT.

Definition of Unsatisfactory Conduct

This is a lower level than misconduct. It is 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, or conduct that would be regarded by lawyers of good standing as being unacceptable. It is typically dealt with by the Standards Committee and the LCRO.

Modern Issues and Reforms in the Legal Profession

Harassment and Discrimination

Since 2018, there have been ongoing high-profile cases and wider observations of the profession being sexist and accepting of a culture in which harassment and inappropriate sexual behaviour are commonplace. Harassment and discrimination based on gender occur in legal practice in NZ, causing both personal harm and systemic damage. Formal remedies are seldom sought for reasons including power imbalances, arduous complaints processes, and the risk of being marked as a complainer.

NZLS Responses

• Set up a 0800 number for people to raise/discuss sensitive matters.
• Commissioned the Dame Silvia Cartwright report on the regulatory regime.
• Encouraged firms to sign up to a Charter on gender equality.
• Issued information on related issues like responsible workplace alcohol policies.

Whistleblowing Rules Introduced

• Pre-2021: A lawyer who had reasonable grounds to suspect that another lawyer “has been guilty” of misconduct had to make a confidential report.
• Now: A lawyer who has reasonable grounds to suspect that another lawyer “may have engaged” in misconduct must report it. A lawyer may also report suspected unsatisfactory conduct.
• Exceptions: A lawyer who is a victim of the misconduct themselves, or if the disclosure would pose a serious risk to the health or safety of a victim.

Other Changes

• Firms must designate a lawyer to report annually to the Society on conduct issues.
• Definitions of bullying, discrimination, harassment, and sexual harassment have been introduced.
• A new rule prohibits the victimising of a complainant.

Major Regulatory Reform Proposed

An independent review panel reported in March 2023 with recommendations including:

• Establishment of an independent regulator.
• A statutory requirement for the regulator to give effect to Treaty principles.
• Increased focus on steps to encourage ethnic diversity, gender equality, and an improved culture.
• Enhanced requirements around continuing legal education.
• Comprehensive changes to the complaints system.

The NZLS largely supports the recommendations, but changes to the Lawyers and Conveyancers Act 2006 are required, a process slowed by the new government in 2024.

Understanding Access to Justice

Access to justice is looking at the responses to the issue of any failure of people to obtain timely and appropriate legal help which has a consequent effect on them enjoying their legal rights.

Civil vs. Criminal Law

• Civil Law: “Of or relating to private rights and remedies that are sought by action or suit, as distinct from criminal proceedings.” Examples include family law, contract, negligence, and insurance claims. (Black's Law Dictionary)
• Criminal Law: “The body of law defining offences against the community at large, regulating how suspects are investigated, charged, and tried and establishing punishments.” Examples include murder, theft, assault, and bribery. (Black's Law Dictionary)

Access to Justice: Rhetoric vs. Reality

“The financial and emotional toll of delay, cost, and the effect of vexatious litigation in the civil justice system cannot be overstated… it has the power to destroy lives.”

- Former Attorney-General, Chris Finlayson

“The new judges will help manage the increasing workload in the district court, improve access to justice and reduce the toll that long delays have on those accessing the courts… it will also mean victims of crime and their families will be able to have their day in court sooner.”

- Attorney-General, David Parker

Barriers to Accessing Justice

Causes and factors for the failure to access justice include:

• Cultural inflexibility: A Eurocentric system can be alienating, especially considering population diversity and the Māori partnership under the Treaty.
• Mysterious and unfriendly system: It can be hard to get basic information.
• Geographic barriers: The need to travel to a High Court.
• Other barriers: Language barriers (English dominance, jargon), legal ignorance, and physical barriers for those with disabilities.
• Cost of legal services.

Rights of a Person Charged (NZ Bill of Rights Act 1990)

Everyone who is charged with an offence:

1. Shall be informed promptly and in detail of the nature and cause of the charge.
2. Shall have the right to consult and instruct a lawyer.
3. Shall have the right to receive legal assistance without cost if the interests of justice require it and the person does not have sufficient means to provide for that assistance.

Responses to Financial Barriers

When a person cannot pay a lawyer's bill, there is a trio of responses:

1. Taxpayer-funded: Legal Services Act 2011.
2. Lawyers: Conditional/contingency fees.
3. Lawyers: Pro bono work.

Financial Barriers and Legal Costs

“A lawyer must not charge a client more than a fee that is fair and reasonable… having regard to the interests of both client and lawyer and… to the factors set out.” Factors include:

• Time spent and results achieved.
• Importance of the matter to the client.
• Value of property involved.
• The going rate in the market.
• Urgency and time limits imposed, etc.

Taxpayer-Funded Mechanisms

The purpose is to promote access to justice by establishing a system that provides legal services to people of insufficient means and delivers those services effectively and efficiently. Examples include:

• Legal Aid
• Community Law Centres
• Public Defence Service
• Duty Lawyer Scheme
• Police Detention Legal Assistance Scheme

Legal Aid Scheme

This is a government-funded programme to pay a lawyer's fee if the client cannot afford one. Civil and criminal matters are covered, but different eligibility thresholds apply; it is much easier to get criminal legal aid. In 2023-24, 88,446 legal aid applications were processed.

Community Law Centres

There are over 20 centres nationwide providing community legal services. They offer free legal information/advice, representation, law-related education, and connect people with pro bono lawyers. They served 41,234 individual clients in 2023/24.

Public Defence Service (PDS)

This is a government-funded agency of salaried defence lawyers who defend people on criminal charges eligible for legal aid. It is the “largest criminal law practice in NZ,” accepting approximately 12,000 cases in 2023-24.

Duty Lawyer Scheme

This scheme ensures that lawyers are available in each District Court to assist, advise, and represent unrepresented defendants on their first day in criminal court. It is taxpayer-funded and operates for criminal matters only.

Police Detention Legal Assistance Scheme

This taxpayer-funded scheme ensures lawyers are available to provide legal advice to any person questioned by the police, whether arrested or not, in relation to an offence they are suspected of committing.

Conditional/Contingency Fees

This is an agreement where the payment of the lawyer's fee is conditional on a specific event, usually the success of the litigation (“no win, no fee”). In NZ, only two types are acceptable under the Lawyers and Conveyancers Act: speculative (normal fee only if successful) and fee premium (normal fee plus a premium, provided the premium is not a percentage). They are not permitted in family, immigration, or criminal cases.

Pro Bono Work

Pro bono publico means services “in the public good.” It broadly refers to a lawyer providing services without a fee or at a reduced fee. A 2020 University of Otago Legal Issues Centre (OLIC) report suggests pro bono should be limited to giving free legal assistance to people who have legal problems and whose incomes place them in the “justice gap” (i.e., they don’t qualify for legal aid).

Motivations for Pro Bono Work

Motivations include a sense of professional duty, altruism, collegiality, personal satisfaction, client expectations, attracting high-quality staff, and potential spin-offs like paid work and an enhanced profile.

The Case for Compulsory Pro Bono

Some jurisdictions, like New York, have pre-admission or aspirational pro bono requirements. Arguments for compulsion in Aotearoa include the profession's monopoly, a commitment to the justice system, and the educational experience for new lawyers. Arguments against include definitional issues, it being an illegitimate tax on lawyers' time, and the risk of a second-rate service.

The New Zealand Court System

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

- Preamble, Universal Declaration of Human Rights, UN 1948

The Hierarchy of New Zealand Courts

1. Supreme Court
2. Court of Appeal
3. High Court
4. District Court

Other specialist courts include the Employment Court, Māori Land Court, Environment Court, and Coroners Court. Generally, lower courts are bound by the decisions of higher courts, and appeals move up one step in the hierarchy.

Understanding Court Jurisdiction

Jurisdiction is the authority granted to a legal body to administer justice. A court must act within its legal jurisdiction (intra vires) or its decision may be invalid (ultra vires).

Sources of Jurisdiction

• Statutory: Most NZ courts derive their jurisdiction from statutes (e.g., District Court Act 2016, Senior Courts Act 2016).
• Inherent: The High Court is the only NZ court with inherent jurisdiction, meaning it has the judicial powers necessary to administer the laws of New Zealand beyond what is explicitly granted by statute.

Adversarial vs. Inquisitorial Systems

Most legal proceedings in NZ's core courts are adversarial, where opposing parties argue their case and a judge decides based on the evidence presented. This contrasts with the inquisitorial system (common in Europe), where the judge is more actively involved in fact-finding and investigation.

The Independence of the Judiciary

Judges are appointed by the Governor-General on the recommendation of the Attorney-General. They are protected by measures ensuring their independence, such as secure salaries, immunity from civil liability, and strict removal procedures. Complaints about judicial conduct are handled by the Judicial Conduct Commissioner.

Courts of Record

The District Court, High Court, Court of Appeal, and Supreme Court are all “courts of record,” meaning their acts and judicial proceedings are recorded and preserved, and they have the power to punish for contempt of their authority.

Contempt of Court

The Contempt of Court Act 2019 covers actions that tend to create a disregard for the authority of the courts. Penalties can range from exclusion from the courtroom to imprisonment or a fine.

The Role of Juries in Criminal Trials

The Juries Act 1981 governs the procedure for juries, which consist of 12 jurors. There is a right to a jury trial for criminal offences with a penalty of imprisonment for 2 years or more. Jury trials are rare in civil cases.

The District Court

The District Court is the busiest court in New Zealand and has four main divisions:

1. General Division: Handles civil claims up to $350,000 and less serious criminal matters.
2. Family Court: Deals with family-related matters like separation, guardianship, and domestic violence.
3. Youth Court: Deals with criminal proceedings involving children and young persons.
4. Disputes Tribunal: A faster, informal venue for resolving small civil claims up to $30,000.

Te Kōti Rangatahi and Pasifika Youth Courts

These courts apply the same law as any other Youth Court but operate in a marae or Pasifika community setting, incorporating culturally relevant languages and protocols to better connect young offenders with their heritage and community.

The High Court

The High Court has jurisdiction over major civil claims (over $350,000) and the most serious criminal cases (e.g., murder, manslaughter). It is the only court with inherent jurisdiction and also has a supervisory role over lower courts and tribunals through judicial review.

The Court of Appeal

This is New Zealand's intermediate appellate court, hearing appeals from the High Court, Māori Appellate Court, and from criminal jury trials in the District Court. Cases are typically heard by a panel of three judges.

The Supreme Court

Established in 2004, the Supreme Court is New Zealand's highest court and final court of appeal. Headed by the Chief Justice, it only hears cases if it grants leave to appeal, which requires the case to involve a matter of general or public importance, a potential substantial miscarriage of justice, or a matter of general commercial significance. A significant issue relating to the Treaty of Waitangi is considered a matter of general or public importance.