Direct Briefing of Barristers

Following an extensive consultation and review process, on 1 July 2015 the long-awaited changes to the intervention rule came into effect. Barristers can apply to the Law Society for approval to take direct instructions in certain situations. This change recognises that in particular areas of work – principally family and criminal – there is less need for an instructing solicitor.

Barristers will need to ask themselves two questions before accepting direct instructions. The first is whether the instruction falls within one of the exceptions to the intervention rule. If the answer to this is no, a solicitor will need to be instructed.

If the answer is that the instruction does some within one of the exceptions, a further question to be asked is whether direct instructions should be accepted? This is a more complex issue and involves a judgment call.

A discussion about the categories for direct briefing can be found in the NZBA Newsletter, At the Bar, July 2015, at pp 3-4.

Rule 14.5.2 provides for new categories for direct instructions. These are defined by reference to the ‘type of work’ and ‘forum’. There are, however, some important limitations, as identified in the table below.

Direct Instructions categoriesLimitations - instructing solicitor required
Criminal - Representing a person charged with any offence – r 14.5.2(d)Prosecutions by the Serious Fraud Office, the Financial Markets Authority or the Commerce Commission
Legal Aid – representing any person who has been granted or has a pending application for civil and family legal aid under the Legal Services Act 2011 – r 14.5.2(e). This includes prosecutions by the Serious Fraud Office, the Financial Markets Authority or the Commerce Commission. 
 
 
Family law matters that are capable or were initially capable of being brought within the Family Court jurisdiction – r 14.5.2(f)

If the matter involves complex property issues.

Transfers or assignment of any interests in land cannot be carried out by a barrister sole: see r 14.5.2(b)

Employment law matters before the Employment Relations Authority and matters that progress from the ERA to the Employment Court – r 14.5.2(g)

Matters that involve proceedings in the Employment Court in the first instance.

Appeals to the Higher Courts. 

Civil matters (excluding family and employment matters) which are not proceeding before the Supreme Court, the Court of Appeal, the High court or a District court. The rule therefore now does not apply to proceedings before (for example) the Land Valuation Tribunal, Waitangi Tribunal, Accident Compensation Appeals Authority; the Environment Court, Maori Land Court

Proceedings in the District or High Courts, Court of Appeal or Supreme Court.

Under – r 14.5.2(h) while a barrister can act in civil matters up to the time they are filed in the District or High Courts, Court of Appeal or Supreme Court, an instructing solicitor is required from the point proceedings are initiated in these courts.