The Chief Justice has written to the President of the New Zealand Law Society to ask for practitioners to be reminded of their responsibilities under the Lawyers and Conveyancers Act 2006 to ensure that junior counsel hold current practising certificates or else to seek appropriate dispensation.
Dame Sian Elias says the Court of Appeal became aware recently that junior counsel appearing in a case did not hold a practising certificate. The court had not been advised, and the leading counsel later advised that an opportunity was being provided to a young, recently admitted lawyer to obtain court experience in a non-speaking role.
"It is not known how widespread this practice may be. Unless judges are alerted to the possibility and make enquiry, any such appearance is likely to be undetected. The Chief Judge of the High Court and the Chief Judge of the District Court are not aware of any examples but would also be concerned if this is a developing practice," she says.
"Under the Lawyers and Conveyancers Act 2006 it is possible for the court to give dispensation from the requirement that a lawyer appearing has a current practising certificate. Such dispensation should always be sought. Unless dispensation is given, it is not appropriate for senior counsel to appear with someone who does not hold a practising certificate.
"I should be grateful if practitioners appearing in courts could be reminded of their responsibilities under the Lawyers and Conveyancers Act to ensure that junior counsel hold current practising certificates or else to seek dispensation where the circumstances warrant it.
"In addition where it is necessary and appropriate leave may be sought for an admitted lawyer who does not hold a current practising certificate to sit at counsel's table while not appearing as counsel."
Section 27(1)(b)(ii) of the Lawyers and Conveyancers Act 2006 allows the court to allow an exemption to the requirement for a practising certificate. Information on how to apply for an exemption is provided in the New Zealand Law Society Practice Briefing Counsel Moving Admission of Barristers and Solicitors to the High Court. While the practice briefing focuses on the admission appearance, the information is relevant to any application for an exemption.