Lawyers and Conveyancers Bill

Part 4 makes provisions for the New Zealand Law Society. It significantly changes the society’s structure and sets out its regulatory responsibilities. Those regulatory responsibilities include overseeing the enforcement of the legislation, the admission and enrolment of law practitioners, and the implementation and enforcement of complaints and disciplinary procedures. The New Zealand Law Society will have to carry out a range of governance and constitutional tasks to bring this legislation into force. Until the New Zealand Society of Conveyancers is established when Part 5 comes into force, the New Zealand Law Society will regulate conveyancers.

As the previous speaker has commented, it is probably Part 4 of the Lawyers and Conveyancers Bill that represents the area of significant change and substantive lawmaking. Part 4 is headed “New Zealand Law Society”, and two subheadings identify the content of the part: first, the heading “Functions”, and, second, the heading “Powers”. Under both those headings, regulatory functions, representative functions, regulatory powers, and representative powers are described.

The part is far-reaching because the structure of the legal profession in New Zealand has the central role occupied by the New Zealand Law Society, but nevertheless a pivotal role, in substantive terms, occupied by a number of district law societies. Based on the make-up in part of the old provincial districts, some are strong—and I say that in terms of membership, as distinct from commitment—and others are less strong. First, if I take as an example the Auckland District Law Society, quite clearly the impacts of this bill on that society will be significant—I am not saying that they will be bad, but that they will be significant—because the society as presently constituted will dissolve. Second, district law societies will lose their statutory power to regulate practising lawyers within their districts, and, finally, district law societies will lose their compulsory membership rights.

It is a tribute to the executive director of the New Zealand Law Society, Mr Alan Ritchie, that he has been able, without any apparent effort, to lead district law societies to an easy recognition of the substantial gains that will accrue to them from surrendering their rights and responsibilities.

That said, it is thought that the district law societies in some form may continue to exist, and I express the hope that district law societies such as the Auckland District Law Society will still have a vital role to play in maintaining cohesion and a sense of professional commitment to the profession. I would say it is vital for the well-being of the profession as a whole that the districts remain active and strong.

My understanding is that the Auckland District Law Society has approximately 3,800 lawyer members. It certainly has substantial assets. When I last looked at the statement of financial position of the Auckland District Law Society, its assets exceeded $4 million, including a building known as Chancery Chambers in the Auckland central business district; law libraries in the Auckland and Whangarei High Courts, and 10 district courts throughout the district; and copyright in a number of Auckland District Law Society forms. There were substantial numbers of staff engaged in a professional standards department; a continuing legal education department; a library that managed not only the physical aspects of library work but also was involved in a major way in the production of databases; a commercial department and associated support and marketing facilities, such as a weekly newsletter, a website, a range of special interest committees; and a variety of other support and collegial activities. So we are talking about—certainly as it touches the Auckland District Law Society—a substantial enterprise in business terms.

It is also appropriate to record, as we look at those aspects of structure, an unsuccessful attempt by the New Zealand Institute of Legal Executives to gain some form of recognition in this legislation. There is a New Zealand Institute of Legal Executives; it has approximately 665 legal executives ranked in various categories, and it is administered by an elected council. It is a well-organised body with a code of ethics, procedures for disciplinary matters, paid staff, and a raft of tasks carried out within law firms throughout New Zealand that certainly enhance the efficiency and administration of the activities of those law firms. The New Zealand Institute of Legal Executives came to the Justice and Electoral Committee seeking recognition.

As both Dr Worth and the Minister in the chair, Mark Burton, have said, the Lawyers and Conveyancers Bill represents a major change from the Law Practitioners Act 1982. Under Part I of the 1982 Act both the New Zealand Law Society and the district law societies had a statutory basis. Under this bill the New Zealand Law Society continues, but it is “hail and farewell” to the provincial law societies as they existed, or have existed, from the time of the Law Practitioners Acts—both the 1982 one and its 1955 precursor, and other ones. From my point of view the move to have the New Zealand Law Society and to move away from a statutory basis for the provincial law societies is a good thing, because many of the problems with the 1982 Act centred on the fact that there were district law societies trying to do different types of jobs and provide different services for members of the public, and those services were provided in a very variegated way because of the different sizes of the law societies.

As Dr Worth has said, the Auckland District Law Society—comprising over half of the number of practitioners in this country—has been able to provide an excellent service to the public, which is most important, and to practitioners, because of its size. But it should be borne in mind that many district law societies in this country are very small, ranging from the Westland District Law Society through to the Marlborough District Law Society and others. They are very small indeed, and have not been able to do what is required to be done for the public in their area. In fact, I think it is a fact that the three largest law firms in this country would be larger than all but a very few of the district law societies as they are currently constituted.

The New Zealand Law Society continues and, as Dr Worth has observed, Part 4 outlines the distinction that is to be made between regulatory and representative functions, and between regulatory and representative powers. I observe in clause 56 the key point that membership of the society is voluntary and does not impose any liabilities on members, but, by virtue of having a practising certificate, barristers and solicitors will subject themselves to the regulatory functions.

The regulatory functions are spelt out in clause 57, and they are the key functions that are needed to keep the Law Society going. The only one I intend to comment on is paragraph (e), which deals with the function of assisting and promoting “for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law.”, and I simply acknowledge the huge contribution to law reform made by, for example, the legislation committee of the Law Society over the years.

It is often thought, quite unfairly, that lawyers are in it only for the money, but the fact of the matter is that large numbers of practitioners over the years have made a very valuable contribution to law reform, and not just in the legislation committee. For example, last year, as a member of the High Court Rules Committee, I was involved in a rules reform project. We needed to obtain the services of around 60 practitioners in New Zealand, and we asked them to help with the reform of various parts of the High Court Rules. To a person, every practitioner approached about assisting with that law reform project actually got involved and made a very valuable contribution. That extremely important contribution to reform of the law will continue under the aegis of the continuing New Zealand Law Society body.

Clause 59 sets out the various regulatory powers, and there is no real magic in that. It can be compared to the 1982 Act. Clause 60 deals with representative powers, and, again, there is no real magic in any of those provisions. It provides for publications such as LawTalk to continue to be sent to practitioners, and for various periodicals and other things to be sent out, and there is no real problem with that, at all.

Clause 64A needs brief mention. That deals with practising fees. It is important, because the practising fee is to pay for the regulation; indeed, subclause (3) states that the sole purpose of the fee is to fund the regulatory functions and powers of the society, not the representative ones.

Clause 65 is, of course, necessary because it deals with extraordinary purposes. There may be a need for a levy to deal with an extraordinary regulatory function or power of the society. Clause 66 provides for subscriptions that deal with voluntary membership.

In summary, I think that these changes are good. We have a movement towards a 21st century structure for the legal profession in New Zealand. The provincial law societies may continue in a representative capacity as incorporated societies, but the statutory basis for them goes, although that for the New Zealand Law Society continues, and I welcome this change.

I also rise in support of Part 4 of this bill. It is fairly much a basic, common-sense provision of the bill relating to continuing with the New Zealand Law Society basically as we have known it in the past. That does not really change, but, as my learned colleague Mr Finlayson has said, what does change is the effect of abandonment, if you like, of the district law societies, of which there were 15 throughout the country. Previously barristers and solicitors belonged to both the local law society and the national one. Now they will belong to the New Zealand Law Society and, if the local law society decides to continue, they may still belong to it. Under this part of the bill the national body, the New Zealand Law Society, will be the central body to regulate practising lawyers, and also to represent them. It centralises the society, and that makes some sense.

Interestingly enough, the biggest bone of contention in relation to this part is not the governing of the lawyers and the legal profession from Wellington, nor is it the lack of, if one likes, any particular local knowledge of any one district, but it seems to be the libraries. The question of district law society libraries is the main issue of contention: who will own them on the abandonment of the local law societies, and who will maintain them. Without the libraries and ready access to them, lawyers simply cannot do their jobs properly. It is vital that lawyers have the best possible access to the best possible legal information.

The law society in my area, Canterbury, has a very well-developed library, built up over 100 years, and I am sure that it is not alone in having done that. It has a huge value. In fact, a figure of over $3 million has been attributed as the value of the Canterbury District Law Society library. Under this part of the bill, the local law societies have 6 months to decide what to do with those libraries. Although the New Zealand Law Society may contribute to the funding of those law libraries, that is not mandatory but is discretionary, so they may be contributed to. It is vital that in the restructuring and in the bringing-in of this legislation, the library resource is not lost, never to be regained.

However, in addition to the issue of libraries, the New Zealand Law Society is vital in regulating and making the rules that bind its members and in representing members’ best interests. It sets the standard of behaviour, sets the rules, and makes sure that the rules are obeyed. For that regulation and representation, members pay their dues. They pay their levies, and that is fair. However, the counterpart in this bill to the New Zealand Law Society is the New Zealand Society of Conveyancers, and we must ensure that it sets the appropriate standards of behaviour. It is of no use to anyone if the respective rules of both professions are poles apart. Lawyers and conveyancers are being thrown together under this bill into the same barrel, whether or not they like it. If a conveyancer turns out to be a bad apple, that will taint not only all the other conveyancers but also all the other lawyers. Therefore, it is absolutely imperative that the good name of lawyers is not tainted by a bad conveyancer.

The rules and standards are crucial—they are critical. They must reflect the importance of maintaining the already good reputation of lawyers. My concern is that we must not build up the conveyancing profession by bringing down the law profession. The Law Society and the Society of Conveyancers will be critical in ensuring that standards are maintained. Again, if we go back to the purpose of the legislation, we find it is so that the consumer—the client—can have absolute confidence in his or her conveyancing professional.

Bearing that in mind, whilst we are talking about conveyancing professionals I point out that it is very easy to denigrate conveyancing and say it a form-filling exercise, and to say it is easy to tick the boxes. Conveyancing is a bit more complicated than that because, with the law becoming increasingly complex, conveyancers, whether they be lawyers or conveyancing practitioners, end up being experts on the Resource Management Act and on Building Act requirements. They even become experts on whether a gasfitters certificate is required in respect of gas appliances. Also, they are often asked for advice on business structures and on how to structure a purchase.

As we have heard, Part 4 deals with the New Zealand Law Society. I am not a lawyer, but to me as a layperson it is very important that I have confidence in the workings of the New Zealand Law Society. I do not care about the details, but I do need to know that there is a regulatory body that will provide benchmarking for good legal practice in order to control the quality of lawyers, and that I can therefore rely on the professionalism of any lawyer whom I employ. As Joe Public I support the work of the Law Society in developing professional standards and practice notes that are consistent across the whole country. I will feel more secure in my choice of a lawyer because of the Law Society’s issuing of practising certificates and a database of those who have practising certificates. My lawyer may or may not choose to belong to the Law Society; that does not concern me—although I can see the benefits of that for lawyers—but I will feel more comfortable knowing that my lawyer is subject to the regulations of the Law Society.

I rise to speak not to the bill as a whole, because I think the Green Party’s position has been stated quite clearly in previous readings, but to an amendment in my name to clause 57, introducing new clause 57A. The amendment addresses an issue that is primarily dealt with in clause 106 in Part 6, but I rise to speak to it now because these two amendments are in conjunction and I thought I should speak at the earliest opportunity.

It relates to the issue of Queen’s Counsel and Senior Counsel. It is an issue that has been contentious in previous readings of the bill, and there has been a lot of discussion about it, although now that Dail Jones has gone the conversation might calm down a little bit. The Green Party supported the move away from the language of “Queen’s Counsel” towards “Senior Counsel” because we saw that terminology as being of more relevance in Aotearoa today, in the 21st century. However, during the discussions at the select committee I began to question the value of the grade at all. We heard a number of arguments for and against the idea of having either Queen’s Counsel or Senior Counsel. Some people were of the view that being appointed as a Queen’s Counsel simply meant one could put one’s fees up. The point was made that there occasionally were honorary appointments as Queen’s Counsel, as well. But I think it is also true that, by and large, it is genuine recognition of seniority and expertise, so it does have value in that sense.

The other point we heard is that it is not necessarily a fair measure in that although only very good lawyers become Queen’s Counsel or, if this bill passes in its current form, Senior—

💬 Dr Richard Worth: I raise a point of order, Mr Chairperson. This particular member is speaking about Part 6, and in particular the provisions relating to Senior Counsel and Queen’s Counsel in that part, but we are currently working our way diligently through Part 4.

The CHAIRPERSON (Hon Clem Simich): Dr Worth is quite right. The member did signal when he opened that he was going to go a bit wide, but we are going through the bill in parts, and we should be confining ourselves to each part.

Speaking to the point of order, Mr Chairperson, I point out that if Mr Worth had read my proposed amendment, he would understand that it is an amendment to this part but it relates to the issue of Queen’s Counsel—

💬 Dr Richard Worth: It’s the wrong part.

—as the member would understand if he either read the amendment or did me the courtesy of listening to my speech.

The CHAIRPERSON (Hon Clem Simich): I call Nandor Tanczos to continue. As you were.

Although only good lawyers become Queen’s Counsel, the point has been made that some people who would be very deserving of that status do not get recognition, for various political reasons. The strongest argument I heard for having the status at all is that it is a protection for the independent Bar, and that while it is available only to barristers sole, it gives a status that is sought after and valued, and lawyers will leave firms in order to make themselves available for that status. The argument is that to extend it to lawyers practising in firms would weaken the independent Bar. So maybe this bill actually gives us the worst of both worlds in a sense.

It seems to me that there is value in recognising seniority and expertise, but that that is not the role of the State. So I have proposed new clause 57A, which makes it clear that it should be one of the regulatory functions of the New Zealand Law Society, and an amendment to delete clause 106, which has it as a function of the Governor-General. The point is that it should be up to the profession to determine status in its own profession and to recognise seniority and expertise, and it should not be the role of the State to confer State patronage on lawyers. I mean no disrespect whatsoever to those lawyers who have already received that grade, but it seems to me inappropriate that it should be a function of State patronage to award that status when it is a matter for the profession. It is the profession that is in the best position to evaluate candidates, to make such recommendations, and, through its own regulatory function—the New Zealand Law Society—to decide on those matters.

I have brought this matter up in the debate on this part, because it relates to proposed new clause 57A. I hope the Committee will support the amendment.

The question was put that the following amendment in the name of Nandor Tanczos to Part 4 be agreed to:

to add the following new clause:

57A Power to prescribe guidelines in relation to Senior Counsel and Queen’s Counsel

(1) As from the commencement of this section, the New Zealand Law Society is responsible for prescribing—

(a) The process by which candidates may be recommended for appointment as Senior Counsel:

(b) The fees to be paid by candidates for appointment as Senior Counsel:

(c) The privileges and duties of Senior Counsel and Queen’s Counsel:

(d) The conditions on or subject to which Senior Counsel and Queen’s Counsel may practice their profession:

(e) The precedence that Senior Counsel are to have in the courts of New Zealand:

(f) Such other matters as may be necessary in relation to Senior Counsel and Queen’s Counsel:

(g) Such other matters as may be necessary in relation to Senior Counsel and Queen’s Counsel.

(2) The New Zealand Law Society may also issue guidelines in relation to both the qualifications and experience that should be possessed by candidates for appointment as Senior Counsel and the process by which such candidates may be recommended for appointment.

(3) A person who holds the rank of Senior Counsel or Queen’s Counsel ceases to hold that rank if—

(a) he or she is suspended from practice as a barrister; or

(b) his or her name is struck off the roll.

(4) If the Sovereign for the time being is a King, every reference in this section, or in any guidelines made under subsection (1), to “Queen’s Counsel” is, unless the context otherwise requires, to be read as a reference to “King’s Counsel”.