The Lawyers & Conveyancers Act
Changing The Law Profession – The Lawyers & Conveyancers
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The Government’s impending Lawyers and Conveyancers Act 2006 was more than simply a continuation of previous legislative history, “it is also a change in direction,” says a discussion paper issued by the Public Issues Committee of Auckland District Law Society.
The Act, which is expected to come into force on July 1, 2008, “may have gone too far towards generalities, while in effect, compelling district law societies to submit to the New Zealand Law Society,” the discussion paper says. This, it suggests, is in contrast to over 100 years of legislation regulating the profession which has been as general as possible, with the professional bodies free to determine what actions infringe professional conduct.
The discussion paper entitled The Changing Legal Profession, notes that the current Law Practitioners Act 1982 is a consolidation of legislation dating originally from 1841, when the first ordinance was passed governing the admission of barristers and solicitors in New Zealand.
The Law Practitioners Act authorises the considerable powers of the New Zealand Law Society and the district societies and contains much of the law relating to practitioners’ relations with clients and with each other.
“A return to the less complex model typified by the Law Practitioners Act 1955, or even that of Law Practitioners Act 1982 would be desirable,”states the ADLS Public Issues Committee.
In its discussion paper the committee acknowledges “that in the final analysis Parliament must ensure public confidence is maintained in what is a major element of the legal system”.
There had been accusations of a decline in standards, of a lack of commitment on the part of lawyers, of high fees, vested interests in prolonging litigation, and of a reluctance to extend pro bono service to public causes or to participate in legal aid schemes.
The legal profession had long laid claim to being an honourable profession, with the judiciary, the litigants, and the public expecting and demanding from its members a much higher standard than those applicable to other professions.
However, a major problem with the impending 2006 Act was that it increased “centralisation” under a one national law society model, the committee said.
Those societies which decided not to incorporate and remain independent would effectively be “nationalised” by having their assets and functions taken over by the New Zealand Law Society.
In the case of Auckland District Law Society this amounted to the loss of some $14 million of assets, with a higher valuation as a going concern.
The members of ADLS approved the “one society” model on the basis that ADLS would provide the majority of NZLS member services. It remains uncertain whether this will occur. “Hence the prospect remains that this is a takeover rather than a merger,” the Auckland society’s discussion paper states.
“The management of the profession could become a mess if all the societies decide to remain fully separate unless the proposed constitution is amended to provide for that, but neither is centralisation good for the profession,” says the Public Issues Committee.
“And what is good for the profession is good for the public, and vice versa.” Membership of the district law societies would also cease to be compulsory under the current “one society” model.
“This could have significant implications for the independence of the legal profession,” the Public Issues Committee warned. “Centralisation, and the reduction of the independence of the districts, may be seen as potentially weakening the independence of the legal profession and are therefore a matter of public interest.
“Centralisation is a threat to the independence of the legal profession because it removes an element of localised democracy. The districts provide a counterweight to the national society,which is necessary to adequately represent lawyers interests.”
The Public Issues Committee said a further development was the structure of the profession itself.
There had recently been some discussion as to whether the continued division of the New Zealand legal profession into barristers and solicitors ought to be maintained. It had further been suggested that legal practitioners should all be styled “lawyers”.
The Lawyers and Conveyancers Act 2006, in its name and in the use of the term “lawyer” in preference to barrister and solicitor, suggested that this perception was being acted upon.
However, there was not an effectively fused legal profession in New Zealand because the rights and duties of barristers and of solicitors were still quite distinct.
The discussion paper also noted that the abolition of the appointment of Queen’s Counsel, and its replacement with that of Senior Counsel – now open to partners in law firms, “also serves to further blur the distinction between barrister and solicitor”.