In days gone by a newly admitted lawyer could commence practice on own account as a barrister sole immediately. This was despite having no legal experience and no supervision. Reliance was placed on instructing solicitors to brief competent barristers as a safeguard to the public and to uphold the reputation of the profession.

From 2009 the requirements have been gradually increased to improve overall competency and in anticipation of a proposed relaxation of the intervention rule which took effect from 1 July 2015.

The gap has now closed so that lawyers who practise on own account as a barrister sole must undergo the same basic training and approval process as a barrister and solicitor on own account.

Requirement

The requirement for barristers and solicitors on own account and those intending to be barristers sole is to:

• complete the NZLS CLE Limited course Stepping Up – a foundation for practising on own account;
• apply to the Law Society and pay the application fee;
• prepare a business plan;
• attend an interview (when required);
• be suitable to practise on own account;
• have demonstrable competence through references relating to the areas of law in which you intend to practise; and
• have three from the last five years legal experience. That term is defined in the Lawyers and Conveyancers (Lawyers Practice Rules) Regulations 2008. (There is an option to apply under regulation 12A if you do not meet the legal experience criteria).

Any non-straightforward applications are referred to a specialist Practice Approval Committee.

If your heart is set on being a barrister the required three years’ legal experience does not need to be gained while working as a barrister. You can practise as an employed barrister and solicitor in the meantime and then apply to become a barrister sole when you meet the requisite criteria. The experience and skills obtained are similar and positions may be easier to find.

For those law graduates who wish to gain the three years’ experience practising as a barrister the opportunities are not always readily available.

Employment

Many barristers work from established chambers and have chosen that mode of practice to avoid the stresses of being an employer and/or the pressures associated with being a partner in a large firm.

While some senior barristers appreciate and benefit from having junior barristers available to assist, they may not be as willing to enter into an employment arrangement with all the added layers of supervision, PAYE, KiwiSaver, holidays, health and safety requirements etc. Being involved in a long hearing and having to be responsible for staff is not ideal.

There seems to be some historical confusion about whether barristers are able to employ barristers. The rule is clear. Rule 14.3 of the Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008 states that:

A barrister sole may practise from a set of rooms or chambers and join with other barristers sole in sharing secretarial and support services for their practices, including the employment of another lawyer who holds a practising certificate as a barrister sole.

Supervision

A barrister employing a barrister will need to provide adequate supervision.

Supervision of a barrister is as important as supervision of an employee in a law firm but is not always as conducive in the chambers environment.

Supervision is a two-way street. While the employer barrister has prime responsibility the employee barrister should be proactive in ensuring they receive adequate supervision and raise the matter with their employer if it is not happening on a regular basis. For the perils of inadequate supervision of a junior barrister see LCRO decision 87/2014 available on the LCRO website.

Taking advantage

Anecdotally, there is talk of barristers taking advantage of the position and employing barristers for little or no pay expecting them to work long hours with very little if any supervision in order to gain the necessary experience required to apply to practise on own account.

Other anecdotes refer to junior barristers not being employees in the true sense of the word and instead entering into contracts for services on an “eat what you kill” basis. Only a lawyer who has been approved to practise on own account is permitted to enter into a contract for service. All barristers who are employed must be an employee under an Employment Agreement.

In Australia there are reported large pools of law graduates having little prospect of finding employment as a lawyer. One advertisement appearing on SEEK offered law graduates the chance to gain qualification experience for a payment of $22,000. This was removed after one day and is on hold pending a review by the South Australia Law Society as to whether what was offered would be consistent with an employment relationship.

South Australian law graduates are required to undertake two years of supervised employment before being allowed to practise independently.

It has also been reported that the Australian Law Students Association asked its Productivity Commission to address “predatory or exploitative” business practices targeting “desperate” law students. The association said it was concerned about unpaid opportunities actually ending up being quite exploitative or just a substitute for free labour.

For more information about becoming a barrister sole, being employed by a barrister, or employing a barrister, contact NZLS Registry on 0800 223 030.

Some branches of the New Zealand Law Society maintain a CV scheme for new graduates and it may be worthwhile lodging your CV in case any barristerial opportunities arise.