New Zealand Law Society - Guidance for Lawyers in Relation to Possible Industrial Action by Legal Aid Providers
1. This guidance highlights relevant professional obligations to assist criminal legal aid and duty lawyers who are considering industrial action.
2. More specifically, the purpose of this guidance is to support lawyers in their decision making about whether and how to participate in the proposed action. The guidance refers to professional obligations that a lawyer considering participating in the proposed action will want to consider in making that decision. It is also intended to help identify relevant obligations for lawyers who then choose to participate in the action.
3. This guidance does not examine legal issues relating to the taking of industrial action nor does it provide a definitive view on whether any action may or may not be a breach of any legal or professional obligation.
4. The scope of the proposed action is that lawyers (who are contracted to the Ministry of Justice to provide criminal legal aid and duty lawyer services) make themselves unavailable to accept assignments, or be rostered to provide services, for a specified period. This guidance addresses that scenario only, not the scenario where a lawyer is already rostered to provide services or has accepted an assignment.
5. The Law Society acknowledges the context of this proposed industrial action is a long-standing concern, which is publicly shared by the Law Society, regarding inadequate remuneration of legal aid providers Professional obligations.
6. The conduct of lawyers generally is regulated by the Lawyers and Conveyancers Act 2006 (LCA) and rules made under the LCA, including the Lawyers and Conveyancers (Conduct and Client Care) Rules 2008, Schedule 1 (the Rules). The Rules set the minimum standard of conduct that lawyers must observe and are a reference point for discipline. Breach of a specific rule is not required to establish a finding of unsatisfactory conduct or misconduct.1
7. A lawyer has professional obligations and duties when providing “regulated services”, as well as in respect of conduct which is unconnected with the provision of regulated services.2
8. For the purposes of this guidance, it is noted that approved legal aid providers (Providers) contract with the Secretary for Justice (Provider Contract) for specified services. Under the relevant contractual arrangements Providers have certain obligations relating to both their professional dealings and availability to provide services. These are referred to below in more detail.
9. The Secretary contracts Providers to undertake “regulated services” in the form of “legal work”. Given the contractual relationship, and context, a Provider’s dealings in general with the Secretary and Legal Aid Services, Ministry of Justice (Legal Aid), is likely to be considered conduct that falls under “regulated services” or is “connected” with the provision of “regulated services” so as to constitute professional, rather than personal conduct. This means a lawyer’s professional obligations would not only apply to when the lawyer is acting for or rostered to assist legal aid clients, but also to the lawyer’s actions when dealing with the Secretary, Legal Services Commissioner and Legal Aid.3
10. There is an overarching obligation of professionalism that rests on all lawyers.4 This encompasses the way they navigate and conduct themselves in the professional sphere. Accordingly, and in general terms, any breach of contractual obligations by a lawyer or how a lawyer conducts themselves within a contractual relationship may be relevant to whether a lawyers’ professional obligations have been met. This may include, for example, the way a lawyer communicates and interacts with other parties and/or meets professional expectations or obligations in the context of a particular relationship.
11. The extent and nature of these obligations will vary depending on individual circumstances. However, relevant professional obligations to consider may include:
12. More specifically, in the situation this guidance relates to, under the relevant contractual arrangements, Providers have certain obligations in respect of their professional dealings. These include that they will “promote and maintain proper standards of professionalism in their public dealings with the Secretary, the Commissioner, and the Ministry” and “conduct dealings with the Secretary, the Commissioner, and the Ministry with integrity, respect, and courtesy.” Providers are also required to comply with “policies relating to Legal Aid Services or Specified Legal Services issued by the Secretary and the Commissioner”.8
13. In terms of unavailability, at clause 4.9, the Provider Contract also specifies the actions a Provider must take if unavailable to provide services, including compliance with “the procedure in the relevant policy”. The Legal Aid Services Grants Handbook (as at June 2024) requires Providers, if unavailable for a period of time, to inform Legal Aid by either completing a prescribed form or detailing their unavailability in writing.9
14. Against this background, lawyers considering potential industrial action or how to undertake that action, at a minimum, should consider the general professional obligations referred to above [at para 11].
15. More particularly, any lawyer in this position will need to consider how best to ensure that:
16. Failure to provide proper notice and complete an assignment may be a breach of a lawyer’s professional obligations and terms of the Provider Contract. Once an assignment has been accepted lawyers owe duties to their clients, as officers of the court, and under the Provider Contract.
17. As the Rules express, each lawyer needs to be guided by their own sense of professional responsibility, within the bounds of conduct defined under the Rules and LCA framework.10 Where a lawyer is in doubt about their own legal obligations, it is expected that they will take necessary steps to satisfy themselves of the position. This may require seeking independent legal advice, if required in the circumstances."
1 Preface to the Rules.
2 “Regulated services”, in relation to a lawyer or incorporated law firm, means legal services, conveyancing services, and services that a lawyer provides by undertaking the work of a real estate agent: LCA, s 6. Conduct can amount to misconduct if it either occurs at a time when a lawyer is providing regulated services (LCA, s 7(1)(a)), or if it is unconnected with the provision of regulated services but reflects on the lawyer’s fitness to practice (LCA, s 7(1)(b)(ii)).
3 In Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 at [102], the High Court held that there was no “gap” between ss 7(1)(a) which deals with professional conduct and 7(1)(b)(ii) which deals with personal conduct. That is, conduct which is “connected” with the provision of regulated services, even if the lawyer is not actually providing regulated services, will be considered to be professional conduct: at [111]– [112].
4 Matthew Palmer (ed) Professional Responsibility in New Zealand (online looseleaf ed, LexisNexis) at [11.87].
5 The Rules, r.2
6 The Rules, r10.1
7 The Rules, r 10.2. The test is whether reasonable members of the public, informed of all the relevant circumstances, would view the lawyer’s conduct as tending to bring the profession into disrepute: see W v Auckland Standards Committee 3 [2012] NZCA 401, [2012] NZAR 1071 at [45].
8 Legal Aid Provider Contract clauses 3.2.1 and 3.2.2 and 3.3.4
9 At page 47.
10 Preface to the Rules.