NEW ZEALAND LAW SOCIETY
 
 

BARRISTER ACTING WITHOUT INSTRUCTIONS
FROM A SOLICITOR

RULE 11.04 OF THE RULES OF PROFESSIONAL CONDUCT FOR BARRISTERS AND SOLICITORS
 

6th Ed 2000


 


RULE 11.04 AMENDED

The Council of the New Zealand Law Society has amended Rule 11.04 of the Rules of Professional Conduct (6th ed 2000) which deals with situations in which a barrister sole may act or advise without instructions from a solicitor.  The amendment adds a new paragraph which now permits barristers to act without instructions from a solicitor where they (the barristers) are acting in refugee status matters pursuant to the Refugee Convention.

The amended text of Rule 11.04 now provides:
 


11.04 RULE

A barrister sole may act or advise without instructions from a solicitor where the barrister sole is:

(i)    Instructed to act in a judicial or quasi-judicial capacity or is instructed by a person or body acting in such a capacity;

(ii)    Instructed by the Society or a District Society;

(iii)    Instructed by:

(a)    a registered patent attorney
(b)    a lawyer practising overseas
(c)    an Official Assignee or Official Liquidator;
(iv)    Acting as a revising barrister pursuant to any enactment;

(v)

(a)    assigned to a legally aided person
(b)    acting as a duty solicitor
(c)    providing assistance to a legal advice service operating on a non-profit basis
(d)    advising a legal aid committee
(e)    acting under a Detention Legal Assistance Scheme;
(f)     acting in a refugee status matter pursuant to the United Nations 1951 Convention;
(g)    representing a client under the provisions of the Mental Health (Compulsory Treatment and Assessment) Act 1992;
(h)    representing a prisoner in an internal disciplinary hearing;
(vi)    advised in any other case by the Ethics Committee of the Society that he or she may act.

Commentary

(1)    Because, in New Zealand, the  nature of the practice of a barrister sole may  not be readily understood by the public, it is in order in the event of a potential client approaching the barrister sole direct, for the potential client to be told that the barrister sole would be prepared to accept instructions, but that they must come through the medium of a solicitor.

(2)    It is not proper practice for a barrister sole to accept instructions from a duty solicitor.  A practitioner serving as a duty solicitor has no continuity of appointment as such, and does not have the  normal facilities of a solicitor's office available when carrying out those duties.  Where it seems necessary to the duty solicitor, a legal aid assignment can be sought or solicitor's instructions to a barrister arranged in the normal way.

[This Rule 11.04 incorporates the amendments made by the NZLS Council resolution on 4 October 2001 which came into effect on 1 December 2001]