RULES OF PROFESSIONAL CONDUCT FOR

BARRISTERS AND SOLICITORS

7^th EDITION

With effect from 1 March 1990
(Adopted by the New Zealand Law Society on 28 July 1989)
7th Edition published in 2006,
includes all amendments
up to and including April 2006

The purpose of this publication is to provide guidance for practitioners in the practice of law in New Zealand. This is not to be considered an exhaustive code or treatise. It is rather a definition of the bounds within which a practitioner can practise the profession. Observance of those bounds, and managing all aspects of practice within them involves the acceptance of the basic principle of professional responsibility.

The Council of the New Zealand Law Society has approved and adopted this publication of a set of rules and commentaries on those rules under the rule-making powers in section 17 Law Practitioners Act 1982. There is a professional obligation on every practitioner to observe and comply with the rules that follow in the course of practice in New Zealand. There is a corresponding duty on the council of each District Law Society to enforce those rules.

The provision of guidelines is more complex in New Zealand than in a number of other countries including most of the "common law" countries. In many other jurisdictions one is either a barrister or a solicitor and the functions of each branch of the profession are clearly defined. We therefore find in places such as England and New South Wales that the Bar on the one hand, and the solicitors' branch of the profession on the other are subject to different codes of conduct and their members are members of different professional organisations.

By contrast with such jurisdictions the profession in New Zealand has sometimes been referred to as "fused". This is a misconception. A practitioner in New Zealand is enrolled as a barrister and solicitor. From that starting point there is flexibility in our modes of practice. By far the greater number of our members take out practising certificates as both barrister and solicitor and practise as such either alone or in partnership, or in employment with other practitioners or in commerce or government. As holders of such certificates they are entitled to engage in the practice of any type of law including court and tribunal work. It is quite usual to find law firms that cover the whole scope of legal service to their clients. Many members who prefer to practise in the courts remain as partners in their firms and are able to take instructions direct from members of the public or, if the occasion arises, from another practitioner.

Other members of the profession, referred to in this publication as "barristers sole", prefer to take out practising certificates as barristers only. Having done this they have become subject to the constraints of what have been called the "Barristers' Rules". These constraints require a mode of practice somewhat similar to those of barristers in New South Wales and other places, particularly in as much as with certain exceptions, the barrister is not able to accept work direct from the public. The client must normally come to the barrister through a practising solicitor. Far from being an anomaly in a jurisdiction where a practitioner is on the Roll as both barrister and solicitor, the preference shown by those who wish to practise as barristers sole serves to demonstrate the flexibility of our modes of practice when compared with those in other countries.

The differing modes of practice in New Zealand inevitably affect any attempt to enunciate the principles of professional responsibility. Guidance in this field must have regard to the different types of practice. The Society has long recognised that while the general rules of practice must apply to all members of the profession, there are some that apply to those who practise as barristers and solicitors on the one hand, and others that apply to those who practise as barristers sole on the other hand. While this publication will of necessity include rules and commentaries for those who practise as barristers sole, some of those principles will apply equally to barristers and solicitors who do barristers' work in a firm. In like manner, much of the general area of the publication applying to practitioners generally will apply to those who practise as barristers sole.

The sanctions for infringements in the field of professional responsibility are set out fully in Part VII, Law Practitioners Act 1982, which deals with the complaints and disciplinary processes both at national and district level. There are concepts in Part VII that find no definition in the Act or in this publication. These include "misconduct in his or her professional capacity" and "conduct unbecoming a barrister or solicitor". Several sections of the Act deem a practitioner in particular circumstances to be guilty of misconduct in a professional capacity. Otherwise, the assessment of whether there has been a breach of acceptable conduct by a practitioner is one for a district society complaints committee, a district disciplinary tribunal, the NZ Law Practitioners Disciplinary Tribunal or the Court.

Any attempt to compile an exhaustive code purporting to define exclusively the rules for a breach of which a person could be subject to the disciplinary processes of the Act would be self-defeating. The proceedings of the New Zealand Law Practitioners Disciplinary Tribunal and the Disciplinary Committee that preceded it, have demonstrated clearly that a charge of misconduct in one's professional capacity need not be tied to any specific rule of ethics or to the Solicitors Trust Account Regulations or Rules. First the Committee, and later the Tribunal, have had the task of deciding whether any particular act or omission forming the basis of a charge of misconduct comes within the concepts of Part VII of the Act. In each case it is a question of fact having regard to the circumstances of that case.

Practitioners must, however, be aware that a breach of a rule as elaborated by a commentary in this publication, could well put the practitioner in jeopardy.

It is reiterated therefore that this publication, to the extent possible, defines the bounds within which a practitioner may practise the profession. Within those bounds the prime responsibility of a practitioner is his or her own sense of professional responsibility. The preservation of the integrity and reputation of the profession is very much a matter for individual members.

Many practitioners are not in private practice either as barristers or solicitors. They practise their profession in salaried employment in commerce, the state service or elsewhere. Some of these practitioners, although salaried, have a right, by agreement with the employer, to conduct a private practice as well. To the extent that an employed practitioner conducts a private practice, that practitioner is bound by the provisions of the Solicitors' Trust Account Regulations 1998, the Solicitors Trust Account Rules 1996, and other obligations in the same way as any other private practitioner. No matter which branch of legal work the salaried practitioner engages in, and whether or not private practice is combined with the salaried occupation, the contents of this publication apply to every practitioner.

Additional guidance can be obtained from overseas publications such as:

• The Guide to the Professional Conduct of Solicitors - The Law Society of England and Wales
• Model Rules of Professional Conduct - American Bar Association
• The International Code of Ethics - International Bar Association (See APPENDIX II to these Rules)

Rulings and Opinions on the Meaning and Effect of the Rules and Commentaries

Section 17(2)(h) empowers the Council of the New Zealand Law Society to give rulings in respect of the application of these rules and to require the observance of such rulings by practitioners. On 29 August 1997 the Council passed a resolution delegating, without prejudice to its delegation to the New Zealand Law Society Board, its power to make rulings to the New Zealand Law Society Ethics Committee, and requiring that rulings be observed by practitioners.

The procedures for obtaining rulings and opinions are set out at APPENDIX III to these Rules which also contains the terms of rulings given to date.

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This publication is administered in the Directorate of Regulatory Services of the New Zealand Law Society.

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DEFINITIONS

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In this publication:

"the Act" means the Law Practitioners Act 1982.

"the Society" means the New Zealand Law Society.

"the District Society" means the District Law Society in which the Act, these Rules or any other Rules under the Act vest jurisdiction in the particular matter.

"Barrister sole" means a practitioner who holds a practising certificate as a barrister only, and practises on his or her own account as a barrister.

"Counsel" is used where appropriate to refer to a Practitioner carrying out the functions of counsel.

"Practitioner" means any person enrolled as a barrister and solicitor of the Court, as defined by the Act; and unless the context requires otherwise in the case of a practitioner practising on his or her own account or employed by a practitioner so practising, includes any partner, employee or employer of the practitioner.