Goff Speech: Lawyers and Conveyancers legislation
Hon Phil Goff Minister of Justice
22 October 2004
Lawyers and Conveyancers legislation
Address to the New Zealand Law Society Dinner, Auckland 7.30pm, 21 October 2004
President of the New Zealand Law Society, Chris Darlow, Justice Judith Potter, President of the International Bar Association, Ambassador Emilio Cardenas, my Parliamentary colleague Richard Worth, Ladies and Gentlemen.
Thank you for the invitation to join with you tonight for dinner and to speak briefly on an important piece of legislation for practitioners, the Lawyers and Conveyancers Bill.
Can I first offer a warm welcome to our international visitors and hope that you enjoy your stay. We have delegates from the International Institute of Law Association Chief Executives Conference, from the Conference of Regulatory Officers and from the International Bar Association Conference.
I am unfortunately unable to attend the International Bar Association conference but its agenda is an interesting one; reflecting the impact of globalisation on legal practice.
In looking at the conference programme as much from the perspective of being Minister of Foreign Affairs as Justice, I was particularly interested in topics that deal with how we strengthen the rule of law internationally in face of threats from terrorism, trans-national crime and the collapse of law in states ridden by conflict and corruption.
Lawyers have a key role to play in promoting human rights and good governance, and a free and independent judiciary that is essential to that.
My topic tonight, however, is the Lawyers and Conveyancers Bill, which I intend to fit into the 10 or so minutes before the entrée is served.
The Bill will replace the Law Practitioners Act 1982. It reforms the law relating to lawyers, enables conveyancing to be carried out by both lawyers and the new profession of conveyancers and sets out the fundamental obligations with which all lawyers and conveyancing practitioners must comply in providing regulated services.
The purposes of the Bill are to maintain public confidence in the provision of these services, to protect consumers and to recognise the status of the professions that provide them.
In respect to the legal profession, the Bill largely follows the model promoted by the New Zealand Law Society.
I would like to acknowledge the presence here tonight of Ian Haynes and Christine Grice, former Presidents of the New Zealand Law Society, who have worked so hard to advance reform of the law governing the profession.
It was Ian Haynes who first approached me as Labour spokesman on justice in the late 1990s with the Society’s draft legislation, which I endorsed.
The fact that it has taken this long to have the Bill drafted, introduced and dealt with by a parliamentary select committee is testament to its size, complexity and efforts to find common ground between professional groups and political parties. Over 90 submissions were received on the Bill.
We are, however, almost there with the Bill now reported back to the House, and I hope the final Supplementary Order Paper about to be circulated to members prior to its Second Reading.
Chris, I agree strongly with your introductory comment that it is time to move on, and your call to parliamentarians on all sides not to delay its passage. Labour, National – I understand from Richard – the Progressives, Greens and New Zealand First are at this stage supporting the legislation, so there appears to be a substantial majority in favour of it.
While it may not be perfect, it is, as Chris Darlow has stated, a good Bill and will provide an excellent co-regulatory regime in a spirit of cooperation between the profession and the government. Can I say how much I appreciate the role of the New Zealand Law Society in contributing not only to this piece of legislation but to legislation across the board on which you make well informed submissions.
Few non-government organisations contribute so strongly as the Law Society in this regard.
The new legislative regime will enable the profession to respond more effectively to the changing needs of consumers and suppliers in the legal services market.
Many areas of work traditionally reserved to lawyers will be opened up to other service providers, including conveyancing and the making of wills.
Consumers will have greater choice about where and from whom they purchase their legal services and suppliers will have greater choice about the range of legal services they provide.
In a more open legal market I am confident that lawyers will take up opportunities to identify and sell to consumers the advantages of employing a lawyer.
Nor will freeing up the market compromise consumer protection. Those areas of legal work requiring a level of expertise and knowledge that can only be gained by completing a law degree and obtaining a practising certificate will remain the preserve of lawyers.
Consumer protection will be further enhanced by a new complaints and disciplinary scheme. The first of its three tiers is an accessible, low level complaints service funded and operated by the profession. The second tier is a Complaints Review Body appointed by government and independent of the profession. The third tier is a disciplinary tribunal comprising professional and lay representatives.
The co-regulatory framework combines the benefits of industry self-regulation – flexibility, innovation and industry buy-in – with sufficient regulatory oversight to maintain consumer confidence.
Some changes have been made in the Bill as reported back, but the essence of the Bill is unaltered.
It sets out the fundamental obligations of lawyers and licenced conveyancers, stressing the need for independence in providing services to clients, and acting in accordance with fiduciary duties and duties of care to clients, and duties to the court.
Firms will be able to incorporate but not to participate in multi-disciplinary practices.
The terms ‘lawyer’ and ‘law practitioner’ are protected and specific areas of work such as representation before courts or tribunals, and legal advice for reward relating to conduct of Court and Tribunal proceedings are protected.
This will, however, not prevent non-legal specialists such as accountants and patent attorneys from advising clients on litigation-related matters within their areas of expertise.
The role of the New Zealand Law Society changes. While retaining its broad regulatory responsibilities over all lawyers, lawyers will no longer be required to be members for the purposes of representative functions.
The Law Society will have responsibility for practice rules on matters such as professional conduct, trust account rules and indemnity insurance, but the rules must be subject to consultation with the profession and require approval by the Minister.
The title Senior Counsel will replace Queen’s Counsel for future appointments. Eligibility for appointment by the Attorney-General will be expanded to include all litigators and the process made more transparent. Debate on whether this title should be statutory or simply recognition defined by the profession will nevertheless no doubt continue to be debated into the future.
The Select Committee has enhanced the complaints and disciplinary provisions by empowering Standards Committees and the Legal Complaints Review Officer to publish their decisions.
The Council for Legal Education continues, funded by a levy on lawyers determined by the Law Society in consultation with the Council, capped at 5% of the practising fee.
The Special Fund that finances community law centres, and the Fidelity Fund, are maintained. Law centres will now get 60 per cent of the income from interest from trust accounts and the banks 40 per cent.
Finally lawyers will be able in defined circumstances to enter into conditional fee arrangements. Lawyers will also, if they choose, be able to undertake the work of a real estate agent.
While there will be further debate on these provisions in the Committee Stages in the House, I do not anticipate any further significant changes being made. Along with you I look forward to the Bill’s further progress.
Thank you again for the invitation to be with and speak to you tonight. I hope you enjoy the evening.