A significant development with the new rule is that it now opens up a whole series of situations where barristers can take instructions directly on civil matters where they could not do so before, Miriam Dean QC says.
Essentially, barristers can now practise without the rule applying where:
- the civil matter relates to a matter before a tribunal or specialist court. Examples of the former include the Land Valuation Tribunal, Waitangi Tribunal, Accident Compensation Appeals Authority; examples of the latter include the Environment Court, Māori Land Court and Coronial inquests;
- in all other civil matters up to the point when a proceeding is initiated in the District or High Courts, Court of Appeal or Supreme Court. From that point the barrister will be required to have an instructing solicitor recognising, Ms Dean says, the separation of functions between barristers and solicitors; the independence that barristers offer; and the importance of specialist advocacy skills to be maintained.
The ability to take instructions directly is not, however, unfettered she says. Importantly, and recognising that at all times the best interests of the client and of justice must prevail, a barrister will not be able to accept instructions if he/she considers that those interests require an instructing solicitor to be retained.
It will be a matter of “judgement”, when the best interests test is triggered. At the very least, the barrister must be able to discharge his/her obligations under various of the other rules including those of “competence”; the ability to act in a “diligent and timely way”; and that the fees will be “reasonable”. Get the judgement wrong, and there has to be the risk that a disgruntled client may add to a list of complaints, that the best interests test should have dictated retention of an instructing solicitor.
As Ms Dean observes, time will tell how many barristers will take advantage of the new rule in the civil area. If they do, they must, in short, ensure the work falls within the permitted exceptions to the rule; the necessary training and Law Society approval is in place; and the information required to be given to clients is complete and accurate. Her last note of warning “… don’t oversell your experience and skill and risk claims of misleading clients – hardly helpful to a barrister’s practice or reputation”.
Ms Deans is one of the presenters of the upcoming NZLS CLE Ltd webinar The New Intervention Rule – What you Must Know.