For barristers practising criminal law the 1 July 2015 amendment to the intervention rule has the advantage of rationalising a situation that has made little sense to many clients, says Wellington barrister Noel Sainsbury.

“Individuals charged with criminal offences normally want to engage a criminal law specialist and will approach that person directly. To then have a barrister explain to them that they need to engage another type of lawyer to ask the barrister they have already chosen to represent them typically leaves the client somewhat bewildered.

“For barristers being able to accept direct instructions will have the advantage of cutting through that seemingly bizarre process,” Mr Sainsbury says. “However, there are disadvantages and fishhooks in the new process.

“The amendment to the intervention rule does not do away with instructing solicitors, but gives the option in appropriate cases for a barrister to be instructed directly without the need for an instructing solicitor.

“Broadly speaking, it is anticipated that there will be three situations where a barrister will still wish to, or should, have an instructing solicitor. These are:

• Cases where the solicitors are actively involved in the preparation for the case; eg, a case of complex commercial fraud where the solicitors are already actively engaged in the case. In that instance, the barrister is likely to be involved as counsel in the classic sense of conducting the case in court supported by the work of the instructing solicitors.
• Where the instructing solicitor has a pre-existing relationship with a client, but lacks expertise in criminal law and has instructed the barrister as an expert in that field. In many of these cases, the instructing solicitor may wish to keep a general oversight of the case, even if all of the work is undertaken by the barrister.

The new intervention rule still requires an instructing solicitor if the there is no legal aid granted (or pending) and the instructions relate to prosecutions brought by the Serious Fraud Office, Financial Markets Authority or the Commerce Commission.

“The amendments have not changed the underlying position that a barrister cannot take fees in advance or hold money on trust. Accordingly, the principle disadvantage of taking direct instructions is the risk that the barrister may not be paid at the conclusion of the work.

“This risk can be alleviated in two ways,” Mr Sainsbury says. “First, by interim billing in order to reduce exposure to unpaid fees. Second, the new rules provide for there to be a stakeholder (who might be a lawyer through the lawyer’s trust account) who can hold money subject to an appropriate agreement between the stakeholder and the client so that funds can be paid once the work is done and invoiced. It is contemplated that such an agreement may also involve the barrister as a party.

“A further consequence of direct instructions is that the barrister must provide the client care information to the client as he or she can no longer rely on the instructing solicitor to have undertaken that as the person having the primary relationship with the client. Barristers who are approved to receive assignments of criminal legal aid will be familiar with this process. Of course it will be necessary to adjust the client care information prepared for legal aid clients to reflect the different relationship in terms of direct instructions.

“At the time of printing, the Law Society was still waiting adoption by the NZLS Council relating to legal aid criminal proceedings. The amendment would mean that legal aid providers would not need to undertake the prescribed training or seek Law Society approval in relation to criminal proceedings where legal aid was granted (or pending).

“Criminal barristers working on private briefs cannot accept direct access instructions unless they have completed the prescribed training and been granted approval,” Mr Sainsbury says.

A specialist in criminal litigation and tribunal work, Mr Sainsbury is one of the presenters of the NZLS CLE Ltd webinar The New Intervention Rule – What You Must Know.