Reviewed by Mary Ollivier
This new edition has been long awaited. As a legal regulator it is essential for me to have access to up-to-date texts about the various obligations and standards of the legal profession.
The second edition was published in 2006 before implementation of the Lawyers and Conveyancers Act on 1 August 2008, but nevertheless it has remained in constant demand due to the generic commentary on principles of ethics and conduct. As is the Australian Lawyers’ Professional Responsibility, by GE Dal Pont, of which an updated edition is expected later this year.
How does it compare to the second edition? It is shorter, at 441 pages compared to 543 in the last edition.
The 15 chapter titles named in the second edition remain the same. And the book remains a blend of academic, philosophical and the practical – making it suitable for students and for practising lawyers, including the profession’s regulators.
There is commentary on some of the rules of conduct and client care. This is useful as the rules are now expressed more as broad principles and the commentary which accompanied the former rules of professional conduct has gone.
As Mr Webb says, “problems in practice rarely fit neatly into any textbook analysis”. The philosophical chapters hopefully will lead practitioners down the right path to make a principled decision.
The first chapters discuss the role of lawyers in society and justification for their privileged position. They refer to the sometimes complex unbalanced lawyer client relationship: “Lawyers act in ways which would be unacceptable were they not acting as lawyers: the ethical demands placed on lawyers are different from those placed on people in their everyday lives.” There is discussion of the difficulties with lawyers adopting an ethics-of-care approach, which seems more prevalent in women than men. “Lawyers will gravitate towards accepting cases with which they are more likely to agree.”
Another chapter is devoted to the New Zealand Law Society and its roles and why a law society is inevitable, as lawyers move together to regulate themselves.
The discussion around the conduct and client care rules is useful. I particularly liked the succinct rationale for the prohibition on collateral rewards even with the client’s consent (rule 5.9):
“It extends to any kind of profit or benefit flowing from the lawyer-client relationship other than the agreed fees… The lawyer is prohibited from taking advantage of any situation where but for the lawyer-client relationship the opportunity would not exist … it serves to ensure the legal profession is seen to apply the highest professional standards to its members.”
The chapter on fees has some good commentary on conditional fees and potential conflict issues emanating from them.
With the growing numbers of LCRO and Disciplinary Tribunal decisions and other judgments issuing from the Courts, a textbook including commentary on the rules can become out of date quickly – not in relation to principles which are enshrined, but to more recent consideration. The newly available LexisNexis Professional Responsibility in New Zealand – online commentary – which takes a more practical approach – will be a good adjunct to this book and should be readily updated.
It is not obvious which chapters were written by the new authors Kathryn Dalziel and Kerry Cook. The preface indicates that their input was in respect of litigation duties and confidence and privacy.
The legal profession in New Zealand is fortunate to have an academic such as Duncan Webb whose unique understanding of the legal profession, the lawyer-client relationship and the ability to provide a sometimes brutal view of what it means to be a lawyer while practising himself is refreshingly honest, compelling and thought provoking.
Ethics, Professional Responsibility and the Lawyer, 3rd edition, 978-1-927227-82-4, March 2016, 441 pages, paperback and e-book, $130 (GST included, p&h not included).
Mary Ollivier is the General Manager, Regulatory of the New Zealand Law Society.