New Zealand Bar Association Newsletter - May 2005

New Zealand Bar Association THE OFFICIAL BAR ASSOCIATION NEWSLETTER MAY 2005

President’s column The legal profession is facing great challenges at the moment which may impact on the structure of the profession and the very way in which it is regulated. Ultimately this will affect the way in which lawyers practise and in particular lead to change in the traditional model of the barrister at the separate and independent bar.

It is becoming increasingly clear that in this respect the implications of the Lawyers and Conveyancers

WHAT IS THE ROLE OF THE BAR ASSOCIATION TODAY? Bill, if passed, are not necessarily fully appreciated. This will be likely to lead to a re-think of the nature of legal services and how they are best performed. So far as litigation is concerned, the provision for the appointment of “Senior Counsel” from within law firms in the Bill may well encourage litigators to stay in their firms and so slow down if not eliminate the spectacular growth of the separate bar. That in turn will bring the spotlight back on to the intervention rule, with many barristers probably taking • Cont. on p.4

In this issue . . .

President’s column p.1, 4 Training issue p.1, 2 Grapevine p.2 Editorial committee p.2 Editorial p.3 Conference plans p.3 Meeting members p.4 QC round p.5 Bill stalls p.5 Advertising p.5 Hong Kong conference p.5 Communication pledge p.6 Intervention rule p.6, 7, 8 Litigation course p.7 Council members p.8

At a convivial Association function in the Wellington Club for members of the Wellington bar. From left, Tony Hughes-Johnson Q.C. of Christchurch, Justice William Young, and past-president Robert Dobson Q.C.

Training for barristers looms fast as issue

I

ntroduction of pupillage and tutelage requirements for New Zealand barristers is now on the agenda as a result of changes expected when the Lawyers and Conveyancers Bill is finally passed.

The Council discussed pupillage and tutelage at its April 2005 meeting and resolved that the matters had to be addressed, and that consideration should be given to the introduction of mandatory training requirements. Solicitors intending to practise on their own account require three years’ experience, whereas barristers are able to commence practice immediately after admission. This is regarded by some as anomalous. There are also concerns that the lack of practical experience requirements for barristers could result in the public not being well served.

Former New Zealand Law Society president, Christine Grice, wrote to the Association in 2002 referring to the anomaly and stating that the Society considered that a practical experience requirement

should be a prerequisite for barristers wishing to practise on their own account. She went on to say that, under the new regime introduced by the Lawyers and Conveyancers Bill, it was likely that barristers would be able to accept instructions directly from the public. The question would then arise as to how to protect the public from inexperienced barristers. Any solution would need to be simple, acceptable to a majority of the profession, and easy to police.

She said the current three years’ practical experience requirement for solicitors did not purport to train them in conveyancing or other technical procedures, but rather to provide them with time to mature in a suitable environment.

Ms Grice said requiring specific chambers’ experience would severely restrict the ability of young lawyers to become barristers sole.

Another option could accordingly be a supervised practice requirement.

After three years’ supervision, practitioners could be issued with a • Cont. on p.2

Bar Association Newsletter. May 2005. Page 1

Training for barristers looms: cont. from page 1

certificate entitling them to practise as barristers.

bar practice course must also be completed.

Council member and barrister Chris Gudsell prepared a paper about pupillage and tutelage for the Council to consider at its April 2005 meeting. In it he canvassed requirements for barristers in the United Kingdom and Australia.

In New South Wales, students must complete the bar exam, and the Bar Association’s reading programme. The latter requires candidates to read under a tutor for 12 months and complete both criminal and civil reading requirements. A four week-long bar practice course must also be done.

In the United Kingdom, barristers must complete three stages before they can practise. The academic stage requires completion of a law degree or other degree and common professional examination or post-graduate diploma in law.

The vocational stage involves doing the bar vocational course, lasting one year full-time or two years part-time. Skills taught include case preparation, legal research, drafting, interpersonal skills, and areas of knowledge ranging from evidence to ethics. Students must then join an inn and complete 12 qualifying units comprising education days, weekends at the inn and dinners. The third stage of training comprises pupillage, which consists of a non-practising six months during which pupils share a supervisor, followed by a practising six months during which pupils can, with the supervisor’s permission, supply legal services and exercise the right of audience. Pupillages are difficult to secure, with chambers commonly considering several hundred applications for very few pupillages.

In Queensland, the requirements for becoming a barrister comprise an approved law degree, professional indemnity insurance, and 12 months’ pupillage with a senior and a junior master. A six week

Victoria requires barristers to have a law degree and do a 12 months’ clerkship with a solicitor or undertake an approved legal training course and, unless exempted, read for nine months in the chambers of a bar member with at least 10 years’ experience. A two month long readers’ course must also be completed.

M

r Gudsell said the Australian and United Kingdom requirements illustrated that pupillage formed a major part of the education of barristers in these jurisdictions.

By contrast, New Zealand had no required reading with a tutor and no formal education programme aimed specifically at barristers: “Even if the intervention rule were to remain in place, New Zealand’s education system for barristers, in comparison with the United Kingdom and Australia, seems very basic and the importance of the intervention rule as a check becomes clear.”

The question, of course, is what is necessarily appropriate for the New Zealand bar? Should there be a mandatory three-year period of supervised practice before a new barrister can be issued with a barrister’s certificate? How would pupillage be undertaken in New

Grapevine is at your service If you want to know what is going on, who has become a barrister, who has set up new chambers, who has been appointed to the bench, who is doing what, who has had sporting success, indeed anything that a normal grapevine provides

(that does not carry liability for being repeated) please let us know.

Just email or telephone either the secretary (nzbar@xtra.co.nz, 03 544 4202) or any of the editorial committee members with your contribution or your query.

Zealand? Would the pupil be paid?

Is there need for a bar vocational course? Would the Law Society provide this or the Bar Association?

There are obvious cost issues.

But it is plainly apparent that the time is fast approaching, as the Council has recognised, when the issue of barristerial training must be addressed. There is an obvious public interest factor – as well as the reputation of the independent bar – to be considered in deciding how and when young barristers should be able to practise on their own account.

When the Lawyers and Conveyancers Bill is finally passed — see the separate article on page 5 — barristerial training is an obvious issue which will have to be addressed in implementing the provisions of that Bill. It is obviously critical that the voice of the independent bar is heard on this, particularly when it may well fall to those of us already practising to take up the mantle and help train new young barristers. So please let us have your views.

EDITORIAL COMMITTEE Miriam Dean QC Convener Telephone: 09 377 8959 Email: miriam@barrists.co.nz Marian Hinde Telephone: 09 366 7757 Fax: 09 303 4560 Jonathan Eaton Telephone: 03 372 3466 Email: j.eaton@xtra.co.nz Stephen Kós Telephone: 04 472 9026 Email: jsk@40johnston.co.nz Gené Tibbs Telephone: 03 544 4202 Email: nzbar@xtra.co.nz

Bar Association Newsletter. May 2005. Page 2

EDITORIAL

T

Bar is facing testing times ahead

esting times lie ahead for the bar. At an immediate level there is the challenge posed by the recent decision of our Court of Appeal in Lai v Chamberlains where the majority of the court considered that the reasons for abolishing the centuries-old common law immunity of advocates from courtfocused liability for damages attributable to their negligence were compelling. If ever there were a case where it could be confidently predicted that the Supreme Court would grant leave to appeal, Lai v Chamberlains is that case.

In the meantime, the central issue is on hold and will be the subject of sustained and concentrated analysis in court, in academic discussion, in legal periodicals, and wherever barristers meet for discussion.

The key questions relate to the nature and attributes of the judicial

arm of the state and the role of the advocate as representative of litigants seeking justice administered according to law within the system.

If the conduct of one category of persons in that system is to attract liability – again within that system – for failing to reach appropriate standards (negligence) in any given case, it is difficult to see how, in principle, other categories of persons involved in the process should not also be similarly liable.

Advocates will await developments in the Supreme Court with unique interest, cheering on the counsel representing the Bar Association and the New Zealand Law Society in their submissions.

At a different and more general level, a testing time will come with the enactment of the new legislation

to replace the Law Practitioners Act 1982.

The abandonment of the universal involvement of barristers and other advocates as members of the legal profession and subject to legislative oversight is almost certain to lead to a fragmentation and individualisation of the practising profession as a whole, and advocates in particular.

It is here that the Bar Association will play an important part in the training of young practitioners in litigation, in upholding the vital independence of the bar, fearlessly and respectfully, and in vigilantly upholding the rule of law so that the judicial arm of the state exercises its fundamental role of administering justice according to law.

George Barton Queen’s Counsel

Mark your diary now —

Queenstown venue for Bar Conference

This year’s Bar Conference in Queenstown on August 12 – 14 is one you will not want to miss.

The morning session will focus on the art of oral and written advocacy and in particular the nature of advocacy in the Supreme Court.

This will be relevant to all members of the bar whether practising in the civil or criminal fields.

With the prospect that the intervention rule will be abolished and a qualifying standard will have to be met before practising as a barrister, the two afternoon sessions will take a hard look at how we practise now and how we might be required to practise in the future.

The Association is particularly pleased that Professor Jack Greenberg will be its key international speaker. Professor Greenberg has appeared more than 40

times in the United States Supreme Court and so is well placed to speak on the art of persuasion. He has argued a number of landmark civil rights cases, including the famous case of Brown v Board of Education.

Other speakers will include the Chief Justice, Dame Sian Elias; Justice Tony Randerson, Chief High Court Judge; and Terence Arnold QC, Solicitor-General. Leading advocates Julian Miles QC and Bill Wilson QC will also be speaking.

On the changing nature of the barristerial practice there will be a diverse range of speakers, including members of the criminal and civil bars. We will also hear from those who instruct us (including corporate counsel) about what they demand of us now and may in the future. And Stephen Franks will give a political perspective on how lawyers are

often perceived by politicians and business people and the implications this has for the environment in which we operate.

Finally, the Association is delighted that Robert Fisher QC has agreed to be the after dinner speaker. He is a well known for his wit as well as his intellect.

The Council has worked hard to put together a programme which will have relevance and appeal to all members, including, in particular, younger members. Moreover, for the skiing enthusiasts, the next Bar Conference is not likely to be in Queenstown. So don’t miss the chance this year to combine some skiing with a stimulating and interesting conference programme!

A flyer will be sent to members shortly with all the relevant details.

Bar Association Newsletter. May 2005. Page 3

An invitation to talk — and socialise — with Council The Council is meeting on the following dates for the remainder of the year: May 26, Hamilton September 15 , Dunedin December 1, Christchurch After each of its meetings the Council is holding a drinks

President’s column:

function with members of the Association.

The Council is particularly keen to get feedback from members as to what the Association can be doing better and, particularly, members’ views on topical issues such as abolition of the intervention rule, pupillage and training, barristerial immunity and so on. Members should also feel

free to contact any of the Council members or the Association’s secretary with any matters they would like raised on their behalf at future Council meetings.The proposed agenda for each of these meetings will shortly be available on the Association’s website as well as a short summary of the minutes of each meeting.

cont. from page 1

What is the Bar Association’s role? the view that if solicitors are to be able to encroach on our traditional territory, then perhaps barristers should be able to form direct client relationships.

Added to this is the recent Lai v Chamberlains decision which has had the effect of abolishing, in civil proceedings at least, the longstanding principle of barristerial immunity. This is likely to lead to changes (not for the better) in the way in which court hearings are conducted.

Alongside these issues there is an increasing support for the view that the law should require some kind of pupillage system for the training of new barristers.

In my opinion, the Association is acting as an organised and efficient focal point for the ventilation and resolution of these issues.

It is responding appropriately and swiftly to these issues. The newsletter deals with some of these issues. In addition, informal functions so far held at Auckland and Wellington, and to be held later in the year at Christchurch, provide good opportunities for discussion.

There are issues that will be further discussed at the Association’s conference in Queenstown in August.

On these and other topics, the Association had been active in promoting the position of the separate bar with members of Parliament, select committees and by way of submissions (many are on the website: http://www.nzbar. org.nz).

As to the future of the intervention rule, there does not seem to be any obvious answer. As a means of illustrating this, two opposite views may be canvassed.

First, there is the view that the rule provides a clear demarcation between the role of a solicitor and a barrister, and thus provides some certainty and clarity as to the nature of the role of a barrister. Contrary to that view, many say that the rule is of no practical utility to barristers, especially those who are for all intents and purposes performing the entire litigation function themselves. It is said that much litigation will not bear the cost of two or more lawyers and it is against the public interest that the client should have the extra cost of paying for a solicitor who may in reality be acting as no more than a post box. Additionally, abolition may enable barristers themselves to sue for unpaid fees.

There is a middle ground between these two views, namely that the intervention rule should be abolished only for barristers practising in the fields of criminal or family law, or that otherwise a barrister should be free to elect whether he or she practises in accordance with the intervention rule.

of compulsory pupillage system for the training of new barristers.

This will almost certainly be a consequence of the passing of the new legislation and establishment of the new regulatory regime under it. Christopher Gudsell provided a discussion paper on this topic for the last Council meeting and it remains on our agenda. In my view, the bar must be pro-active in this area and we have a responsibility for ensuring that proper standards are established and maintained.

The abolition or modification of the intervention rule would remove an existing check on barristerial competence and this will highlight the need for training.

Finally, I do urge you to attend our annual conference on August 12 and 13 in Queenstown. This will provide the occasion and venue for the consideration of these and other issues. Moreover, it provides the opportunity for the dissemination of information about current practices and what is going on throughout the country at the bar. Discussion and debate will take place in a congenial atmosphere, including dinner on the Friday and Saturday evenings and no doubt attendance at the other bar.

A survey is being conducted of members of the Association for their views on this whole issue.

Your participation and response is urged.

I am confident that those who attend will come away convinced of the importance of having and supporting our own Association, separately and alongside the work done for us as lawyers by the law societies.

The issue has also been raised of the value of introducing some kind

Jim Farmer QC President

Bar Association Newsletter. May 2005. Page 4

Apply now for QC round this year A Queen’s Counsel appointment round will be held this year after all. The Bar Association had asked the Attorney-General to reconsider the decision not to appoint any silks this year in view of the deferment of the Lawyers and Conveyancers Bill.

Making the announcement, the Attorney-General (Dr Michael Cullen) said, “The round was deferred in February on the basis that the Lawyers and Conveyancers Bill was about to be enacted and it was necessary to establish new appointment mechanisms under that legislation. As the passage of the Bill has now been deferred, I have in consultation with the Chief Justice decided to hold a round in accordance with the existing processes.

“Those wishing to be considered for appointment as Queen’s Counsel should apply in writing to the Solicitor-General before May 31 2005 with the information required by the practice note dated August 12 1991.

“Applicants will be notified of the outcome by June 30 2005,” Dr Cullen said.

A

Regulatory Bill stalls until after election

last-ditch bid to progress the Lawyers and Conveyancers Bill before the general election has failed.

The House Business Committee met on May 3 to discuss a proposal to advance the Bill by way of a time-limited debate, but decided to reject the proposal.

The legislation had been expected to become law prior to the election, but stalled in its committee stages debate at the end of March.

The Leader of the House, Michael Cullen, on March 31 announced that it was now unlikely that the Bill would be passed before the election. He accused Opposition parties of obstructive behaviour, saying the large number of amendments they were proposing meant that there was not enough time to conclude the committee stages of the debate.

“As the Bill’s passage has been eagerly anticipated within the legal profession, I am sure that the great majority of them will share my disappointment. The obstruction is also a disservice to the public as the Bill will protect consumers by

National’s justice spokesperson, Richard Worth, accused Dr Cullen of misrepresenting the position of Opposition parties, saying National had made it plain that, with some reservations, it supported the Bill.

The business committee’s rejection of the limited debate proposal means that the Bill will now be carried over to the new Parliament.

The new Leader of the House will then decide where it sits on the order paper.

The New Zealand Law Society president Chris Darlow and executive director Alan Ritchie said it was hoped the Bill would progress soon after the election. That would depend on the make-up of the next government.

The legislation had been expected to take effect on July 1 2007 if passed before the House rose.

Practice rules need to be drafted, consulted on and submitted for ministerial approval, which will be a lengthy process.

Advertising

World Bar Conference Hong Kong, Easter 2006

The International Council of Advocates and Barristers is to hold its third conference in Hong Kong during Easter 2006. The Association is a constituent member of this Council. Although only small numbers of our members have made it to the previous conferences in Edinburgh in 2002, and Cape Town in 2004, those who attended are uniformly enthusiastic about what good conferences they have been.

The prospects are bright for a similarly stimulating and enjoyable conference in Hong Kong, with the additional prospect of a follow-on one-day event in Shanghai.

offering a new complaints regime and providing greater competition in the conveyancing area.”

Business sessions tend to be a blend of human rights type issues and topics affecting developments in advocacy and judicial practice.

The social events are an excellent opportunity to meet colleagues from a diverse array of jurisdictions, but with many common interests.

The website will keep members posted as to further details and registration arrangements. If members wish to register interest in attending, by all means convey that to Gené Tibbs, Secretary of the Association.

Advertise your goods and services and reach all our members (currently approx 600 throughout New Zealand) at reasonable rates (reduced for members).

The only limit on the advertising is that the advertised product or service should be related to legal practice.

So, chambers for occupation, bookshelves, law books, electronic gizmos (designed to make barristers into do-it-all anywhere, anytime professionals), data processing and secretarial services, forensic and litigation support services, are all in (even cross-selling your specialist services to other barristers).

For enquiries and rates contact: Gené Tibbs (nzbar@xtra.co.nz or ph 03 544 4202).

Bar Association Newsletter. May 2005. Page 5

Council pledges better communication

The new Bar Council is very conscious of the need to ensure good communication between the Association and its members.

This is especially when there are a number of issues that have been simmering for some years likely to come into sharp focus in the near future.

The Council has resolved to improve communication in three main ways:

1. Attention is being currently given to the Association’s website with a view to making it more user-friendly and improving its functions and mode of communication with members. You will shortly

receive a letter outlining the improvements which have been implemented and providing each member with a confidential login and password permitting access to the new members’ area of the website. The members’ area will contain a range of Association documentation which is confidential to members.

2. The Council is committed to issuing quarterly newsletters.

This year there will only be three newsletters, however, since it has taken some time to establish a new infrastructure.

The Association is grateful to Catriona MacLennan, a member of the Association, who has taken on the role of editor. An

editorial committee has also been formed with a view to ensuring that the newsletter does reflect members’ needs and is published regularly. Members should feel free to contact any of the members of the editorial committee with suggestions or ideas for further newsletters.

(See p.2). Contributions will always be welcome.

3. Since the Council is very keen to obtain input from barristers on the issues currently before it, the Council is holding its two-monthly meetings this year in different centres. This is being followed in each centre by an early evening drinks and discussion session.

To intervene or not to intervene?

T

That is the question

he future of the Intervention Rule is unclear as the profession awaits progress with the stalled Lawyers and Conveyancers Bill.

However, the passage of the Bill will raise the prospect of abolition of the rule. Practitioners will then need to consider a range of issues, including the consequential loss of the tax break permitting barristers to return income on a cash basis and pay tax only on income received during the tax year.

Rule 11.03 of the Rules of Professional Conduct for Barristers and Solicitors provides that, except in the circumstances prescribed in Rule 11.04, a barrister sole must accept instructions only from a solicitor and may not accept instructions directly from a lay client. The exceptions set out in Rule 11.04 cover situations including acting in a judicial or quasi-judicial capacity, legal aid assignments, working as a duty solicitor, or where instructed by a registered patent attorney or official assignee or liquidator.

Council members, Trevor Shiels and Terry Sissons, prepared a paper

for discussion by the Council about the Intervention Rule at its February meeting. The paper canvassed the features of the rule, noting that it provided protection for clients by ensuring that clients’ funds were held in a solicitor’s trust account.

Mr Shiels and Mr Sissons noted that, in England, instructing solicitors manage the litigation in the sense of advising clients, preparing and filing documents and preparing witness briefs.

The barrister’s role is limited to providing legal advice to solicitors, settling pleadings and submissions, and courtroom advocacy.

By contrast, in New Zealand it is common for barristers to carry out the litigation management function as well as providing courtroom advocacy. The instructing solicitor in such cases has no more than a formal role. Other aspects of the rule are that, as barristers act as sole practitioners without an ongoing relationship with the client, they can supposedly bring an independent mind to bear on particular problems. Fee recovery

is a matter of professional ethics between the barrister and solicitor, as the barrister has no contract with the client. The inability to sue for fees means that barristers are entitled to return income for income tax and GST purposes on a cash rather than an accruals basis.

Mr Shiels and Mr Sissons noted there was considerable support for • Cont. on p.7

New Barristers’ Chambers Expressions of interest are sought from current or intending members of independent bar to form a new set of Barristers’ Chambers.

A three by three year or longer term lease is currently available for a prime Shortland St, Auckland address which contains seven fully partitioned office spaces, reception room, meeting room. support area, etc.

Immediate or deferred lease commencement available.

There is currently a commitment to take two of the available seven spaces.

Expressions of interest should be directed to Chris Patterson, Barrister: Ph 09 300-6007, Mob 029-300-607 Email: chris. patterson@eldonchambers.net

Bar Association Newsletter. May 2005. Page 6

Continued from page 6

Intervention rule’s uncertain future

abolition of the rule, especially among barristers practising in the criminal and family law areas.

In a 1996 paper to the Auckland District Law Society, then-president Robert Chambers QC said abolition of the rule would leave members of the public unprotected. In particular, as barristers did not have trust accounts, any change would need to provide protection for clients’ money at least equal to the protection clients currently enjoyed when dealing with solicitors.

Dr Chambers suggested that barristers could be split into two camps – barristers and members of the independent bar. Barristers would not be subject to the current restrictions in the rules and would be permitted to practise in partnership and accept instructions from lay clients. However, they would not be permitted to hold or deal with clients’ money. District law societies could set up trust accounts to collect fees paid to barristers in advance. Members of the independent bar would continue to practise in much the same way as barristers practise at present, and be subject to the restrictions set out in chapter 11 of the rules, Dr Chambers proposed.

I

n their paper, Mr Shiels and Mr Sissons observe that, since June 2004, amendments to the Code of Conduct of the United Kingdom Bar Council had provided for the public to have direct access to barristers, subject to the barristers observing certain rules. These require a barrister to have insurance, be of more than three years’ standing, comply with training requirements and notify the council of a willingness to accept instructions from lay clients. The rules relating to public access impose significant restrictions on the functions which barristers can perform.

Their paper goes on to discuss the implications of the Lawyers and Conveyancers Bill for the intervention rule. They said that,

under clause 104, barristers had all the powers, privileges, duties and responsibilities that barristers had at law. The current Law Practitioners Act expressly refers to barristers in England, while the Bill does not. The scope of the section was unclear, they stated.

The Bill required the New Zealand Law Society to have practice rules providing for the issue of practising certificates to persons as “barristers” or “barristers and solicitors.” There

Scholarships for Litigation Skills Programme

The New Zealand Litigation Skills Programme will be held at Lincoln University from August 21 to 27, 2005.

The programme is designed for practitioners probably in their first five years of practice. Some litigation experience is required and most participants will have had at least two years litigation experience.

The New Zealand Bar Association is offering three scholarships of $1,000 to barristers practising at the independent bar towards the cost of the course. The recipients of the scholarship also receive free membership of the Association until September 30, 2006.

Application forms are available from www.lawyerseducation.org.nz.

Please note application must be made to the New Zealand Law Society for a place on the course as well as applying for the New Zealand Bar Association scholarship.

was no scope for practice rules to abolish completely the separate profession of barrister. Equally, they said, there was no scope for different practising certificates for barristers who chose to practise in different ways.

On the other hand as Mr Shiels and Mr Sissons noted, clause 59(2)(c) provides for practice rules to bind all lawyers, or any specified class of lawyers. That appeared to be wide enough to authorise rules

distinguishing between barristers practising in different ways, notwithstanding that they held the same type of practising certificate.

They suggested the rules could make mandatory requirements for continuing education and insurance, including the possibility of insurance only with insurers approved by the NZLS. Further consideration would be needed to determine whether a Bar Association trust account for payment of fees was consistent with the Act. It would need to be covered by practice rules.

T

he drafting of practice rules is the key to the future shape of the intervention rule and the separate bar. Formally, this would need to be done by the NZLS Council, with consultation and ministerial approval. However, there appear to be practical timing difficulties as the first set of rules has to be registered 14 days after the Act comes into force. Yet the requirements for consultation and ministerial approval do not exist until the Act is in force. In the authors’ views, it was likely the NZLS would set up working parties to draft the practice rules.

They expected the Bar Association would have major input into the whole process of rule making. The interests of barristers would be best served if they were well represented in the initial discussions and drafting, and not just in reacting to drafts prepared by others. Mr Shiels and Mr Sissons noted that controls on practising on one’s own account would apply to all lawyers and not just to solicitors, but there was some “grandfathering’ of the rights of those currently practising as barristers.

They said there had been talk from time to time about Commerce Commission interest. If anything, however, the statutory basis for the intervention rule had been weakened. If the commission revived its interest, there would accordingly be • Cont. on p.8

Bar Association Newsletter. May 2005. Page 7

Continued from page 7

Intervention rule’s uncertain future

a weaker basis for arguing that an intervention rule was “expressly authorised.” (But there are good arguments that the independent bar and its trappings (including the rule) is pro-competitive since it acts as a counter to the market power exercised by the large law firms.)

I

n a separate development, Tony Hughes-Johnson QC set out his views in relation to the intervention rule in a letter to New Zealand Bar Association president, Jim Farmer QC. He noted that there was likely to be a diverse range of views about the future of the rule. In particular, he said, there would be arguments advanced in favour of adopting the amendments to the Code of Conduct of the Bar Council in the United Kingdom. Mr HughesJohnson said a cautious approach should be adopted to meeting the demands of those wishing to practise outside the intervention rule but who still wished to be called barristers. “There should be a proper distinction and distance between those who wish to practise in the traditional way and those who want to practise essentially as litigation solicitors without a trust account.”

Mr Hughes-Johnson concluded that he did not support barristers being able to practise without an intervening solicitor.

“I am not in favour of creating a new class of barrister who is able to deal directly with the public and who is not otherwise to be treated as a barrister and solicitor. There is an existing machinery available to accommodate the particular needs of such practitioners. They are able to elect to practise as a barrister and solicitor without a trust account and deal directly with the public.”

The real issue, he says, is whether such practitioners should

be entitled to call themselves barristers. He did not believe that they should, as such practitioners would in reality be litigation solicitors and the most important element distinguishing barristers from the rest of the profession — taking instructions from solicitors – would be absent. Mr HughesJohnson said he was conscious that the Association represented a number of practitioners who would probably like to practise in this way and retain the appellation “barrister.” An alternative would be to call them “litigation solicitors”.

But he queried what would then stop other solicitors from wanting to be called “commercial solicitors” or “taxation solicitors.”

Mr Hughes-Johnson said he was not in favour of the suggestion that the Association provide a trust account for payment of fees in advance. The existing machinery for solicitors’ trust accounts provided the appropriate mechanism for dealing with fees in advance. Any move on the Association’s part to attempt to create a half-way house would be likely to undermine any stand it might take in relation to the desirability of maintaining the intervention rule for those barristers wishing to practise in that way.

The Council at its February meeting resolved that it will be important for it to have a major role in the rules-making process that will follow passage of the Lawyers and Conveyancers Bill, in particular as to the consequences of abolition of the rule. It proposes to canvass members’ views and ensure the interests of all members of the bar are properly represented.

The Council invites members to express their views on this issue by forwarding letters, emails or articles to the editor for inclusion in future issues of

Next newsletter publication dates: ● Late August/early September ● Late November/early December

the newsletter. Also, members are asked to complete a survey which will be sent out shortly to help the Council elicit views on this issue.

Council Members President James Farmer QC

Ph: 09 358 7090 Fx: 09 358 7091 jamesfarmer@queenscounsel.co.nz P O Box 1800 Auckland Vice President Robert Dobson QC

Ph: 04 499 3243 Fx: 04 499 2633 rad@st-andrewschambers.co.nz P O Box 5339 Wellington Treasurer Christopher Gudsell ctgudsell@xtra.co.nz

Ph: 07 839 3290 Fx: 07 834 0587 P O Box 19085 Hamilton

Secretary Gené Tibbs nzbar@xtra.co.nz

Ph: 03 544 4202 Fx: 03 544 4206 P O Box 3595 Richmond Nelson

Miriam Dean QC miriam@barrists.co.nz

Ph: 09 377 8959 Fx: 09 377 8960 P O Box 4111 Auckland

Jonathan Eaton j.eaton@xtra.co.nz

Ph: 03 372 3466 Fx: 03 365 2592 P O Box 13-868 Christchurch

Stuart Grieve QC stuart@grieve.co.nz

Ph: 09 358 1716 Fx: 09 358 1718 P O Box 4555 Auckland

Elizabeth Hall Ph: 04 939 9039 elizabeth.hall@paradise.net.nz Fx: 04 939 9269 P O Box 2557 Wellington Tony Hughes-Johnson QC achj@xtra.co.nz

Ph: 03 365 2158 Fx: 03 365 7273 P O Box 286 Christchurch

Stephen Mills

Ph: 09 307 9820 Fx: 09 309 1572 P O Box 4338 Auckland

stephen.mills@shortlandchambers.co.nz

Bill Nabney bill@tgachambers.co.nz

Ph: 07 579 0405 Fx: 07 579 0404 P O Box 13007 Tauranga

Mary Scholtens QC mts@mtscholtens.com

Ph: 04 471 0646 Fx: 04 472 0646 P O Box 5454 Wellington

Trevor Shiels

Ph: 03 477 4030 Fx: 03 477 7320 P O Box 1219 Dunedin

trevor.shiels@barristerschambers.co.nz

Terry Sissons terry.sissons@xtra.co.nz

Ph: 04 471 1380 Fx: 04 499 8795 P O Box 23063 Wellington

Bar Association Newsletter. May 2005. Page 8