Who regulates lawyers in New Zealand?
All lawyers in New Zealand, irrespective of whether they are barristers, Queen's Counsel, solicitors, or in-house lawyers, are under the control of the New Zealand Law Society. They are required to follow rules of conduct which are set out in a legislative instrument called the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. In addition, there is a range of other legislation that covers lawyers' conduct from how they administer their client funds through to a requirement that they complete at least 10 hours of professional development each year.
The Lawyers and Conveyancers Act 2006 reserves certain types of activities for lawyers. This includes appearing before the court (with some minor exceptions). Only those who hold a current practising certificate are entitled to call themselves lawyers and it is an offence for others to do so.
There are two types of lawyers in New Zealand: those who hold a practising certificate as barristers and solicitors (usually in law firms), and those who hold a practising certificate only as barristers (sometimes called barristers sole) and who practise at what is referred to as the "independent bar" (which is a way of referring to the collection of lawyers who practice as barristers).
It is important to note that the first and overriding duty of all lawyers, no matter their certificate, is to the Court (Rule 2.1 of the Conduct and Client Care Rules). When they become lawyers, they become "officers of the court." This requirement overrides even their duty to clients. Further, the Rules state that a lawyer must be independent and free from compromising influences or loyalties when providing services to his or her clients. The lawyer must give objective advice to the client based on the lawyer’s understanding of the law.
Lawyers who are barristers and solicitors often (but not always) work in a law firm. The owners of the firm are called partners or directors (if it is incorporated). They owe duties not just to their own clients, but to the other partners and the firm as a whole. They must consider the well-being of the firm and its client base as part of their practice.
Barristers are specialist litigators or experienced lawyers who give advice/opinions on specific or tricky legal questions. They usually specialise in litigation or a particular specialist area of law. Barristers practise on their own. They are not allowed to be members of a law firm and do not have trust accounts. They owe no loyalty duties to partners. While some share offices (known as Chambers) with other barristers, this is for administrative convenience. The members of a Chambers are independent of each other and do not owe loyalty duties to each other or to each other’s clients. Sometimes barristers use junior barristers to assist them. Junior barristers may be employed by other barristers or self-employed.
In many (but not all) cases, a barrister must be instructed (engaged) by a solicitor and cannot be instructed directly by the client. For more information see “How do I hire a barrister?” below.
Some barristers become Queen's Counsel or QCs. A QC is a lawyer that is considered to be the best in the legal profession. They have outstanding skills, knowledge and leadership. QCs cost more than other types of lawyers because of their expertise. QCs are often briefed on serious matters.
How do I hire a barrister and what do I need to tell them?
In many areas of the law, barristers can only be engaged by a solicitor on behalf of a client, and not directly by members of the public. The solicitor is said to "instruct" or "brief" the barrister. Solicitors frequently instruct barristers because of the barrister's expertise in particular areas of the law.
In practice, the amount of involvement of the instructing solicitor varies from file to file (e.g. from having a largely administrative role to appearing as co-counsel in court).
Barristers can apply to take direct instructions in some areas of law (e.g. certain areas of criminal law and family law, employment and civil disputes), when providing an opinion and in some other situations.
If you aren't sure how to go about hiring a barrister, contact their office and they will give you information on whether you will need a solicitor or you can instruct them directly.
There are several ways to find a barrister. You can check online directories such as the NZBA's Find a Barrister listings. If you are sure what kind of barrister you need ( i.e. what are they specialise in), call the Citizens' Advice Bureau or Community Law and ask them for some advice about what kind of lawyer you need. Remember, a barrister can usually arrange for you to contact a solicitor to instruct them.
How much does it cost to hire a barrister?
The cost depends on the level of expertise and experience of the barrister as well as their area of practice. The range of fees from the most junior barristers up to the most senior QCs is very large.
Most barristers charge an hourly rate for their time, plus GST and disbursements (e.g. Court filing fees, travel expenses, photocopying costs).
It is a good idea to ask a barrister what their hourly rate is and for an estimate of their likely costs before engaging them (but be aware that it is often very difficult to estimate the likely costs of litigation due to the large number of variables involved).
What should I tell the barrister?
If you have an instructing solicitor, the solicitor will brief (instruct) the barrister about your case and provide details. If you don't have an instructing solicitor or your instructing solicitor is playing a smaller role in your case, you may want to prepare some material so that your barrister can quickly get up to speed with your case.
Before your initial meeting:
Sometimes you will be seeing a lawyer about a difficult matter which causes you embarrassment, humiliation or deep distress. Remember that it is your lawyer's job to ask questions and to find out about the facts. But a lawyer owes you a duty of confidentiality, so don't be upset if they ask the difficult questions.
If you have financial issues and can't afford to pay for a lawyer, there are some options that you can think about.
How do I complain about a lawyer?
All complaints about lawyers must be sent to the Law Society's Lawyers Complaints Service. The service handles complaints about:
Please note that the New Zealand Bar Association cannot receive complaints against barristers.