New Zealand Law Society - The new Intervention Rule

The new Intervention Rule

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Changes to the Intervention Rule will come into effect on 1 July. From this date, barristers who qualify will be able to accept instructions directly from clients without an instructing solicitor for more categories of work. This will mean that two questions arise in relation to each matter. The first question is: “Can I take direct instructions?” The second question is: “Should I take direct instructions?”

Can I?

There are now a number of new categories where barristers will be able to take direct instructions from 1 July. This is provided that taking direct instructions is not precluded by the forum (for example civil matters proceeding before the District Court, High Court, The Court of Appeal and the Supreme Court) or precluded by the type of work. The new list of categories of includes:

  1. when representing a person charged with any offence other than in any prosecution by the Serious Fraud Office, the Financial Markets Authority or the Commerce Commission;
  2. for any person who has been granted or has a pending application for civil and family legal aid under the Legal Services Act 2011 or any re-enactment;
  3. in a family law matter that is capable or was initially capable of being brought within the jurisdiction of a Family Court other than in respect of any aspect of the matter which involves complex property issues [irrespective of whether there are complex property issues, implementing the transfer or assignment of any interest in land or other property pursuant to an agreement or Court order must not be carried out by a barrister sole – see Rules 14.2(b)];
  4. in an employment law matter that does not involve proceedings in the Employment Court in the first instance, or proceedings in or an appeal to the High Court, Court of Appeal, or Supreme Court; or
  5. in any civil matter (other than a family law or employment law matter as provided for under rules 14.5.2(f) and (g)) which is not a proceeding before the Supreme Court, the Court of Appeal, the High Court or a District Court; [the reference to “courts” in rule 14.5.2(h), without limitation does not extend to the Environment Court, the Māori Land Court, the Waitangi Tribunal, Coroners Courts, the Accident Compensation Appeals District Court Registry, and all other specialist courts, tribunals and authorities].

Should I?

Barristers have a variety of matters to consider when looking at the question of whether they should take direct instructions in the new areas.

Two very important matters to consider is whether taking direct instructions is in the interests of justice and also whether it is in the best interests of their client (see the new rules 14.8 and 14.9).

There are a series of other matters barristers need to consider also before they decide whether or not to accept direct instructions.

A very important factor barristers should consider is whether they have the expertise and the experience to act in a particular matter.

In a similar way to solicitors at the moment, barristers will have to meet various client care obligations, which is something that will be new to many.

Under the new rules, there is a particular client care obligation for barristers. Except in criminal proceedings where the client is legally aided or has a pending application for legal aid, a barrister must inform the prospective client in writing of his or her:

  1. capacity and experience in performing the requested service; and
  2. advocacy experience as a barrister; and
  3. any disadvantage which the barrister believes may be suffered by the prospective client if no instructing lawyer is retained.

This is in addition to the other client care obligations in the rules that apply from 1 July.

As well as meeting the various client care obligations, there are a number of other questions barristers need to consider before accepting direct instructions, says former Legal Complaints Review Officer and now Lane Neave partner Dr Duncan Webb.

One is that they will need more robust billing practices than some of them have had previously.

They will also need to employ client management skills that perhaps they haven’t had to use in their recent work.

Other matters they will need to ensure are robust include record keeping, filing notes and retention of records – “things that are all day-to-day grist for the mill for a solicitor’s firm,” Mr Webb says.

Barristers, Mr Webb says, will also need to consider the risk of taking instructions directly. “In terms of complaints, the risk of being the subject of complaints is significantly increased.

“Essentially a barrister taking direct instructions will be very similar to a solicitor’s firm. They are going to have a direct relationship with the client.” Barristers will need to take a “much more service-oriented approach” than they need take where there is an instructing solicitor, Mr Webb says.


To qualify to take direct instruction, barristers must fulfil all the following three conditions. They must:

  • be practising on own account as a barrister sole;
  • have completed the prescribed training requirements; and
  • have obtained approval from the New Zealand Law Society.

Prescribed training

There are two ways barristers can complete the required training. One is to undertake the NZLS CLE Ltd Intervention Rule Webinar on 8 June, or the NZLS CLE learning package on the intervention rule, which will incorporate material from the webinar and will be available by the end of June.

The webinar and the learning package will focus on the practical implications and the requirements of the new rules.

The webinar presenters are Auckland barrister Miriam Dean QC, Auckland barrister Antony Mahon, Wellington barrister Noel Sainsbury and Dr Duncan Webb, of Lane Neave in Christchurch.

Webinar registrations close at 3pm on 5 June and more information is at

Following the webinar, NZLS CLE will develop the intervention rule learning package and this will be available on the “Online CPD” section of the NZLS CLE website,

The webinar and the training package will cover:

  • when a barrister can act without an instructing solicitor and when that is not available;
  • how to apply to the Law Society for approval to accept instructions directly from a client;
  • applying the new Rule 14 to civil, employment, family and criminal cases;
  • what must be contained in the barrister’s letter of engagement with a client instructed directly;
  • what is required to set up and administer the taking of funds in advance, and accessing them, using a third party; and
  • how to apply the best interests of the client and interests of justice tests that might limit direct instructions.

The training package, like the webinar, will qualify for 1.5 CPD hours.

The other way is to complete the equivalent module in Stepping Up: Foundation for practising on own account. This module will be available in the Stepping Up programme from 1 July 2015.

Law Society approval

Applications for approval to take direct instructions open on 1 July. For information and an application form (application forms will be available from 30 June 2015), see the New Zealand Law Society website.

What is known as the “intervention rule” has been a requirement for most of the history of the organised legal profession in New Zealand. This rule provides that barristers may not accept instructions directly from a client. While there are exceptions to the rule, these are relatively narrow and are limited to special instances and not ordinary instructions.  

This is about to change.

Amendments to the intervention rule were unanimously approved by the New Zealand Law Society Council. The Minister of Justice, Amy Adams, has now approved the rules and the implementation date of 1 July 2015. The Council then formally adopted the approved rules at its meeting on 10 April 2015.

The Law Society Council has resolved to continue intervention rule requirements in certain areas rather than wholesale abolition. However, there are now a series of situations where qualifying barristers will be able to take direct instructions after 1 July. In addition, there is also a provision allowing for the review of the new rule.

The proposed rules to effect the new intervention rule will replace Rules 3.4 to 3.10 and 14.4 to 14.13 of the Lawyers and Conveyancers Acts (Lawyers: Conduct and Client Care) Rules 2008.

The new rules can be found on the Law Society website.

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