New Zealand Law Society - Family law

Family law

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The new intervention rule for family lawyers provides a “much more realistic and transparent way to engage with clients, who often struggle to understand why you need to have an instructing solicitor in a family case,” says Antony Mahon.

“I think it also provides a much greater ability to maintain standards, and this is something I am passionate about.”

If one looked back 20 years, there would have been about 200 barristers in New Zealand. Now there are more than 1,500, the former Family Law Section Chair says.

Twenty years ago, the barrister went to the bar as a senior member of the profession and had a close relationship with solicitors.

“In the last 20 years, that has changed significantly, particularly for family lawyers. Especially in the last 10 years there has often been no specific reason for an instructing solicitor.”

The need for an instructing solicitor is something that clients can find difficult to understand also. They often come to you as a barrister directly, because you are a specialist in the family law area. And when you talk about the need to have a solicitor involved, they can’t see why.

“I think the new rule is a much more transparent way to engage with clients.”

In contrast, the old rule did not reflect the reality of practice “and anything that doesn’t reflect the reality of practice has major problems – the major one of which is that it becomes a rule in name only.

“I really passionately believe in standards and maintaining standards and my worry has been that the standards have not been maintained with the intervention rule in the way that they once were.

“I think the new intervention rule provides a much greater ability to maintain standards.”

One of the important ways it does this is that it provides direct accountability to clients.

It means lawyers will need to consciously ask themselves whether they have the expertise and experience to represent the client on each matter that comes before them.

As well as considering whether they have the expertise and experience, they will also have to communicate to the client the fact that they do. This is because the new rules state that barristers must not accept instructions unless they communicate in advance with the client that they have the capacity and experience in performing the requested service; and advocacy experience as a barrister.

In any event, it would be negligent to appear in court or to act on a matter where one lacked the capacity and experience to do so.

Mr Mahon says that as well as being an obligation, he considers it beneficial that when acting on complex property matters that barristers must have an instructing solicitor.

“There is a really important role for solicitors. On any complex matter or any other matter that may involve complex issues, particularly relationship property, trust disputes and estate claims – an instructing solicitor is not only advantageous but is often essential. Barristers still can’t conduct transactional aspects of conveyancing so a solicitor will always be required if there is property changing hands.

“I think the new intervention rule is a good compromise,” Mr Mahon says. “It has been a fantastic achievement for the whole profession to come to this compromise.”

Mr Mahon is one of the presenters of the upcoming NZLS CLE Ltd webinar The New Intervention Rule – What you Must Know.

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