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Let’s relax the ban on employed lawyers doing other work

01 December 2017

The Lawyers and Conveyancers Act 2006 bans employed lawyers from doing legal work outside their employment, other than through community law centres. Breaching the ban means a lawyer is deemed by the Act to be guilty of professional misconduct.

The ban significantly limits the scope for employed lawyers to aid access to justice and, because community law centres are ill-suited to helping with litigation and other protracted disputes, is especially detrimental to access to justice through the Courts or other tribunals.

I have suggested to the Law Society that the ban should be relaxed. In response, the Society wrote “while it is a very commendable suggestion to take this wider, the logistics could be rather problematic”, going on to cite the difficulty of amending the Act. The Society also pointed to “potential risks and unintended consequences… [f]or example, should a first year graduate in-house lawyer be able to provide legal advice to the public outside the supervision of the likes of a senior lawyer working in the area (as they get in the community law centres).”

Despite what the Law Society has said, it is impossible to imagine any risks to the public if employed lawyers could do legal work outside their employment, on the following basis:

  • The work is done for free (pro bono),
  • The lawyer has his or her employer’s permission,
  • The lawyer has done continuing professional development in areas appropriate to the type of pro bono work the lawyer does,
  • The lawyer has, say, two years of post-admission work experience.

For the legal profession not to actively promote the changes required to allow employed lawyers to provide legal work outside their employment – on something like the above basis – could look suspiciously like our profession is less interested in aiding access to justice than it is in protecting the livelihoods of fee-charging lawyers.

The September 2017 edition of the New Zealand Law Journal contains a full article by me on this subject.

John McLean
Head Counsel, Rabobank New Zealand

Comments by Mary Ollivier, NZLS General Manager Regulatory

The involvement of all lawyers in pro bono work (both legal and non-legal pro bono service) is supported by the Law Society.

Nevertheless, the consumer protection focus of the Lawyers and Conveyancers Act seeks to protect fee paying, low bono and pro bono clients to the same extent.

One of the important safeguards for vulnerable clients is the provision of client care information. This includes client engagement letters and information about when and how fees and disbursements will be charged and how services are going to be performed.

While pro bono services are generally understood to mean legal services delivered for no reward (or for a lower fee in low bono services) as part of a public service there is some confusion about what work does qualify. In some cases, a lawyer is carrying out free private work. Is pro bono work any free private legal work or is it something else?

Mr McLean makes a good point concerning the need for opportunities for employed lawyers to provide pro bono services. We agree that options should be available for employed lawyers. There are already options such as through the community law centres, citizens advice bureaux and other NGOs. There are also some more tailored options – there is for instance no reason why law firms can’t offer pro bono services using in-house lawyers, with whom they have an association, on a limited employment basis, just for that work. There are also some interesting new models of law firms based on social enterprise models which look to provide pro and low bono services funded by other fee income. It will be interesting to see if this develops further in New Zealand.

All jurisdictions require compliance with the regulatory requirements for those lawyers doing pro bono legal work. In many regions the main barrier is not the minimum regulatory standards required but rather the need for professional indemnity insurance. In some jurisdictions, this has been mitigated. In New Zealand it is not required. Having said that, it is wise to make sure anyone doing pro bono work has insurance in place. Community law centres and other advisory services usually have this in place for their volunteers.

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Last updated on the 1st December 2017