Barristers will need to decide whether the new Intervention Rule will help them in their specialisation, says Christchurch barrister Duncan Webb.
Dr Webb says the rule that a barrister can take instructions only through a solicitor and is prohibited from having a direct relationship with a lay client, still exists.
The real developments, he says, are the exceptions to the rule.
There are three aspects to the Intervention Rule that barristers must know before the legislation comes into effect from 1 July 2015.
Dr Webb says the main question is: when can a barrister take a direct instruction?
He says the other two important aspects to consider are that barristers will now have to undergo training (through a NZLS CLE Ltd webinar: The New Intervention Rule – what you must know or the NZLS CLE learning package on the new rule), and also be approved by the Law Society to take direct instructions.
“In order to take advantage of the exception, barristers will have to complete the training requirements. Barristers will have to comply with the rules relating to client care such as the provision of information, if they take direct instruction.
“If you’re a barrister and you do the barristerial module in the NZLS CLE Ltd Stepping Up: Foundation for practising on own account course after 1 July, that will satisfy the requirement as well,” Dr Webb says.
The confusing aspects of the Intervention Rule lie in coming to grips with the exceptions, Mr Webb says.
There are two kinds of exceptions in the legislation. The first is a blanket exemption for the kinds of entities who can give instructions.
“Any barrister can accept an instruction from a judge to act as an amicus, and any barrister can accept an instruction from the New Zealand Law Society. So the focus is on who can give the instructions,” Dr Webb says.
These entities aren’t lay clients and can give direct instruction as if they were a solicitor.
However a barrister can be instructed directly by a lay person if the instruction is of a particular kind.
Dr Webb says some of these exceptions have been in the legislation for a while, such as acting in a judicial capacity or acting as a mediator.
The new ones include acting in employment, family and civil matters, although Dr Webb warns “they’re quite heavily constrained”.
“For example, you can act in any civil matter, but the exception to the exception is that you cannot [act] in a proceeding before the Supreme Court, Court of Appeal, High Court or District Court. So you’re actually constrained to acting only in tribunals and specialist courts.”
What should barristers consider before applying to the Law Society for approval?
Dr Webb says barristers will have to think “very carefully” as to whether they are willing to run the risks, undertake the training and additional work that is required before they can receive direct instructions.
“There is a relatively high threshold for a barrister to start accepting direct instructions. It’s relatively inconvenient for a barrister to accept those instructions, given the client care obligations and other risks that are being taken.
“Barristers will probably have to undertake more file management, risk management, will have greater exposure to complaints and complaints about fees. But having said that, it would suit some barristers, particularly those in specialist fields such as resource management or family,” he says.
Things you may not know about the new Intervention Rule
A barrister will have to refuse the work if it isn’t in the interest of justice or of their client for them to do so without a solicitor.
The new rules could change the way barristers operate. If barristers don’t have a solicitor, they will have file work to do. Barristers will have to decide whether they store files themselves or give them back to the client.
There is a significant question mark over how barristers will deal with fees. Dr Webb says that traditionally barristers couldn’t sue for their fees. The barristers/solicitor relationship was not contractual but based on honour. So, if a barrister has a direct relationship with a lay client, that will probably disappear, Dr Webb says.
Christchurch barrister Dr Duncan Webb is one of four presenters of the NZLS CLE Ltd webinar: The New Intervention Rule – what you must know.