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Law101 > Legal Institutions 1 > Flashcards

Legal Institutions 1 Flashcards

1
Q

Common traits of a professional (Millerson in Lamb & Littrich)

A

Millerson
- Skills based on body of theoretical knowledge
- provision of training and education
- testing competence prior to entrance
- organisation
- code of ethics
- ethos of altruistic service

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2
Q

Dal Ponts common attributes of a profession

A

Dal pont’s
-Special skill and learning
-Public service – differentiates from other occupations
-Self regulation and autonomy
-Special jargon/language and collegiality

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3
Q

Four Main key behaviours that public service employees should demonstrate

A
  • Fairness - “be professional and responsive”
  • Impartiality
  • Responsibility
  • Trustworthiness
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4
Q

S 17 (1) Public Service Act 2020:
The commissioner may set minimum standards of integrity and conduct, including standards relating to -
`

A

A) the public service values
B) the public service principles
- code of conduct for state services
- covers 100 public service departments, crown entities and crown entity subsidiaries

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5
Q

The code of conduct for state services is based on the

A

“Spirit of service to the community”

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6
Q

Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 - includes: Whatever legal services your lawyer is providing, they must

A

Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 - includes: Whatever legal services your lawyer is providing, they must

  • act competently, in a timely way
  • protect and promote your [the client’s] interests and act free from compromising influences or loyalties:
  • give you clear information and advice:
    protect your privacy and ensure appropriate confidentiality:
  • treat you fairly, respectfully, and without discrimination:
  • let you know how to make a complaint and deal with any complaint promptly and fairly.
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7
Q

S 6 Lawyers and Conveyancers Act 2006
- Lawyer ____________ def

A

Means a person who holds a current practising certificate as a barrister or as a barrister and solicitor

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8
Q

S 6 Lawyers and Covenanters Act 2006
- Barrister _________

A

means a person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act and practising as a barrister, whether or not he or she also practises as a solicitor

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9
Q

S 6 Lawyers and Conveyancers Act 2006
- solicitor ____________

A

means a person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act and practising as a barrister, whether or not he or she also practises as a solicitor

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10
Q

A lawyer who “works mainly in the courts and tribunals” is a ___

A

Barrister

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11
Q

A lawyer who

May be involved in:
- general advisory work;
- drafting legal documents;
- property and land transactions;
- administering estates – distributing property according to a will;
- forming companies;
- raising or securing loans – borrowing money;
- preparatory work for __________.

A

Solicitor

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12
Q

A Lawyer who

  • Specialist in court and tribunal work only – litigation advocates.
  • An independent bar as a separate group within the legal profession.
  • Generally cannot take instructions directly from the public, this occurs through a solicitor.
  • Their fee is paid by their instructing _______.
A

Barrister sole

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13
Q

Minimum time spent as a practising lawyer to be able to apply for judge position (general)

A

7 years

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14
Q

Under the _________________ 2006 and ________________ 2008

Generally, to practise law a person must:

A

Under the Lawyers and Conveyances Act 2006 and Lawyers and Conveyances Act Rules 2008:

Generally, to practise law a person must:

  • Complete a LAW DEGREE at one of the 6 universities
  • Complete the PROFESSIONAL LEGAL STUDIES course - “profs”
  • Be admitted by the HIGH COURT of New Zealand to the roll of barristers and solicitors
  • Obtain/hold a CURRENT PRACTISING CERTIFICATE issued annually by the New Zealand Law Society
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15
Q

Inquires as to determine whether an applicant is_______:

  • Person’s good character
  • Any history of being declared bankrupt or been a director of a company that has been put into receivership or liquidation
  • Any convictions
  • Has the person engaged in legal practice in New Zealand when not admitted
  • Any complaints pending in respect to other professions or occupations
  • Any contraventions of the rules of a profession in a foreign country or and breaches of trust in relation to the handling of money
  • Any mental or physical infirmity that means the persons cannot perform the functions of a practitioner
A

Fit and Proper

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16
Q

Criminal Record (___________) Act 2004 (NZ) applies if:

A

Criminal Record (Clean Slate) Act 2004 (NZ) applies if:
(i) seven years elapsed since last offending; and (ii) no imprisonment; and
(iii) not convicted of any of a list of specified offences

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17
Q

Lawyers and Conveyancers Act 2006 purpose of the act includes:

A

Lawyers and Conveyancers Act 2006 purpose of the act includes:

(a)to maintain public confidence in the provision of legal services and conveyancing services;
(b)to protect the consumers of legal services and conveyancing services;
(c)to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.

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18
Q

Lawyers and Conveyancers Act 2006 purpose of the act ALSO includes:

A

Lawyers and Conveyancers Act 2006 purpose of the act ALSO includes:

(a)reforming the law relating to lawyers;
(b)providing for a more responsive regulatory regime in relation to lawyers and conveyancers;
(d)stating the fundamental obligations with which, in the public interest, all lawyers and all conveyancing practitioners must comply in providing regulated services.

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19
Q

The Lawyers and Conveyances act 2006 acted to “change professional regulation” resulting in:

A
  • significant reduction in the lawyers monopoly
  • reduction of law society dominance
  • separates law society’s regulatory and representative functions
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20
Q

The Lawyers and Conveyancers Act 2006 acted to “Focus on consumer/client protection” resulting in:

A
  • Poor service becomes a ground for complaint - “Conduct and Client Care Rules” – lower threshold than “professional misconduct”
  • Ministerial approval of Rules
  • Independent Complaints Review Officer
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21
Q

In the Lawyers and Conveyancers Act 2006, “Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations” being:

A

In the Lawyers and Conveyancers Act 2006, “Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations” being:

(a)the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:
(b)the obligation to be independent in providing regulated services to his or her clients:
(c)the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:
(d)the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

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22
Q

All lawyers are now regulated by the ____ but not necessarily represented by it as membership is voluntary

A

New Zealand Law Society

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23
Q

New Zealand Law Society Representative functions include:

A

New Zealand Law Society Representative functions include:

  • Promoting collegiality between members of the profession
  • Practitioner support
  • Provision of libraries
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24
Q

It is an offence to act as a barrister or solicitor in NZ without holding a current practising certificate. True or False:

A) False, because the Lawyers and Conveyancers Act 2006 abolished the monopoly lawyers previously enjoyed.

B) True, because the Lawyers and Conveyancers Act 2006 abolished the monopoly lawyers previously enjoyed.

C) False, because s 21 Lawyers and Conveyancers Act 2006 does not make it an offence to provide legal services if you are not a lawyer.

D) True, because s 21 Lawyers and Conveyancers Act 2006 makes it an offence to provide legal services if you are not a lawyer.

A

D) True, because s 21 Lawyers and Conveyancers Act 2006 makes it an offence to provide legal services if you are not a lawyer.

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25
Q

New Zealand Law Society s 65 - regulatory functions include:

A

to control and regulate the profession of the law

to uphold the fundamental obligations imposed on lawyers in NZ

to monitor and enforce the Act

to assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in NZ, the reform of the law.

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26
Q

What is the purpose of the annual practising certificate fee to be paid by all lawyers

A

This income is to be used solely for funding New Zealand Law Society regulatory functions

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27
Q

Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
Description of the rules

A

“The rules not an exhaustive statement of the conduct expected of lawyers.”

“They set the minimum standards that lawyers must observe and are a reference point for discipline.”

“…each lawyer needs to be guided by his or her own sense of professional responsibility.”

“The preservation of the integrity and reputation of the profession is the responsibility of every lawyer

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28
Q

NZLS changed rules so that “Firms must designate a lawyer to report annually to the New Zealand Law Society on conduct issues” as a response to _____

A

Harassment and discrimination on the basis of gender in the workplace

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29
Q

Reporting misconduct:

Pre-2021:
“A lawyer who has reasonable grounds to suspect that another lawyer has been guilty of misconduct must…….”

Now:
_____________

A

A lawyer who has reasonable grounds to suspect that another lawyer may have engaged in misconduct must…

“Has been guilty” was also changed to “may have engaged” in the reporting of unsatisfactory conduct

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30
Q

Misconduct:
- _____
- ______

A
  • “disgraceful or dishonourable” conduct
  • Wilful or reckless breaches of Rules
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31
Q

Unsatisfactory conduct:

—-

A
  • conduct of the lawyer…that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer
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32
Q

Law office procedure:

A

For early/lower level complaints - Lawyer/Client can try resolve together

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33
Q

Law Complaints Service (Law Society)

A

Early/Lower level complaints - Client lodges complaints in the law society

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34
Q

ERS - Early resolution service

A

Early/Lower level complaints - facilitated attempt to negotiate outcome

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35
Q

Tier 1 Complaints - Standards committee (standard track)

  • two distinct functions:___________________
  • Standard Committee usually run as __________________
  • Orders include refund or reduction in fees, apology, censure, dismissal of complaint, fines up to ___
  • If client satisfied with Standard Committee outcome ___________
A

Tier 1 - STANDARDS COMMITTEE (SC) (“Standard track”)

  • Two distinct functions: (i) resolution of complaints and (ii) traditional ‘discipline’ of the profession
  • SC’s usually two lawyers and one lay-person
  • Orders include refund or reductions in fees, apology, censure, dismissal of complaint, fines up to $15k
  • If client satisfied with SC outcome – end of matter
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36
Q

Client not satisfied -> Tier 2 – LEGAL COMPLAINTS REVIEW OFFICER (LCRO)

  • LCRO can order ________________________, refer back to SC or lay charges for DT to determine
  • LCRO is completely ____________________but can give advice to it or the Minister about regulation and discipline of lawyers

But if serious SC (or LCRO) lays “_________” against ______
-> Tier 3 – __________________(DT)

A

Client not satisfied -> Tier 2 – LEGAL COMPLAINTS REVIEW OFFICER(LCRO)

  • LCRO can order CHANGE/NO CHANGE TO SC OUTCOME, refer back to SC or lay charges for DT to determine
  • LCRO is completely INDEPENDENT OF THE LAW SOCIETY but can give advice to it or the Minister about regulation and discipline of lawyers

But if serious SC (or LCRO) lays “CHARGES” against LAWYER
-> Tier 3 – DISCIPLINARY TRIBUNAL (DT)

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37
Q

Tier 3 - Lawyers and Conveyancers Disciplinary Tribunal (DT)

  • __ Lawyer members and ___ lay members (as at 30 June 2021)
  • Minimum to sit on a hearing – __
  • Chaired by Judge ____________ (Deputy chair Judge John Adams)
  • Focus is on the disciplinary – serious – ___________
A

Tier 3 - Lawyers and Conveyancers Disciplinary Tribunal (DT)

  • 15 Lawyer members and 10 lay members (as at 30 June 2021)
  • Minimum to sit on a hearing – 5
  • Chaired by Judge Dale Clarkson (Deputy chair Judge John Adams)
  • Focus is on the disciplinary – serious – misconduct
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38
Q

Tier 3 - Lawyers and Conveyancers Disciplinary Tribunal:

Can make a wide range of orders including

-__________
-__________

A
  • strike off the roll
  • suspend from practise (not exceeding 36 months)
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39
Q

Which of the following is not a fundamental obligation of a lawyer under s 4 Lawyers and Conveyancers Act 2006?

A) Upholding the rule of law
B) Being independent when advising clients
C) Protecting at all costs the interests of the client
D) Facilitating the administration of justice

A

Answer (c) – note the word “not” – read all questions carefully

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40
Q

Under which of the NZLS’s functions does the provision of training and practical advice on the running of a legal practice come?

A) Representative
B) Regulatory
C) Both representative and regulatory
D) None of the above

A

Answer: A

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41
Q

Formal remedies are seldom sought in response to harassment and discrimination on the basis of gender in the profession because of:

A) The power imbalance between victim and perpetrator
B) An arduous complaints process
C) The difficulties of proving the improper conduct
D) All of the above

A

Answer: D

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42
Q

Consider this scenario
- The following takes place during February/March 2022.
- A is a lawyer employed by the law firm B and Co.
- B is the senior partner and R11 designated person for the firm
- A is acting in a difficult commercial negotiation for a firm client
- X is a lawyer in another firm and is on the other side of the negotiation
- X complains to B that A is bullying X and that X intends to complain to the Law Society about A’s behaviour.
- A says they are just being strong in their negotiating tactics and will not change their approach.
- B is troubled by X’s information and A’s response and decides, as A’s employer, to investigate further. The investigation is started.
- Before B’s investigation is concluded, A gets a job offer from another firm and resigns to take up the new job.

In no more than three sentences, indicate whether or not B must report the matter to the Law Society.

A

Valid points could include:

B is the designated person under R 11.4
- then yes must report
- 14 days
- Incomplete investigation and
- A left within the last 12 months
- Bullying is proscribed conduct under R 10.3

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43
Q

Respect and courtesy
- R10.1 - A lawyer must, when acting In a professional capacity,________________

A

Respect and courtesy
- R10.1 - A lawyer must, when acting In a professional capacity, treat all persons with respect and courtesy

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44
Q

Bullying, discrimination, and harassment
- R10.3 - A lawyer must not engage in conduct that amount to 1 or more of the following:
A) b______
B) dis_______
C) ha______
D) r_____ harassment
E) s_______ harassment
F) v_______

A

Bullying, discrimination, and harassment
- R10.3 - A lawyer must not engage in conduct that amount to 1 or more of the following:
A) bullying
B) discrimination
C) harassment
D) racial harassment
E) sexual harassment
F) violence

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45
Q

Chapter 11: NZLS Harassment response rules

  • R11.2 - effective policies and systems in place to ________________________________ by the law practice from the effects of ______________
A

Chapter 11: NZLS Harassment response rules

  • R11.2 - effective policies and systems in place to prevent and protect all persons engaged or employed by the law practice from the effects of unacceptable conduct
46
Q

Chapter 11: NZLS Harassment response rules

  • R11.3 - must have a _______________

Firms must _________________ to report annually to the ________________

A

Chapter 11: NZLS Harassment response rules

  • R11.3 - must have a designated person

Firms must designated a lawyer to report annually to the Society on conduct issues

47
Q

Chapter 11: NZLS Harassment response rules

  • R11.4 - To report to law society matters including:
  • compliance with the 2015 Act* and R11.2
  • If any person ______________________ of a [complaint] or investigation of unacceptable conduct unless investigation concludes no grounds to report under the Rules (report must be made within _______ of departure)
A

Chapter 11: NZLS Harassment response rules

  • R11.4 - To report to law society matters including:
  • compliance with the 2015 Act* and R11.2
  • If any person leaves employment/ the profession within 12 months of a [complaint] or investigation of unacceptable conduct unless investigation concludes no grounds to report under the Rules (report must be made within 14 days of departure)
48
Q

Lawyers and Conveyancers act 2006: Misconduct
Differentiates between conduct:

  • __________________
    -_____________
A

Lawyers and Conveyancers act 2006: Misconduct
Differentiates between conduct:

  • whilst providing regulated legal services
  • conduct otherwise
49
Q

Lawyers and Conveyancers act 2006: Misconduct

The test for misconduct whilst providing regulated legal services is:
- whether the conduct would be regarded as _______________________

A

Lawyers and Conveyancers act 2006: Misconduct

The test for misconduct whilst providing regulated legal services is:
- whether the conduct would be regarded as disgraceful or dishonourable by lawyers of good standing

50
Q

Lawyers and Conveyancers act 2006: Misconduct

The test for misconduct for activity done outside providing regulated legal services is:
- whether the conduct means the person is not a __________________ to engage In practise

A

Lawyers and Conveyancers act 2006: Misconduct

The test for misconduct for activity done outside providing regulated legal services is:
- whether the conduct means the person is not a fit and proper person to engage In practise

51
Q

Section 7 Lawyers and Conveyances act 2006: Misconduct

In cases of misconduct, lawyers have a right of appeal to _______ - rehearing - _______ can confirm, reverse or modify the decision of the district tribunal

A

In cases of misconduct, lawyers have a right of appeal to High Court - rehearing - High Court can confirm, reverse or modify the decision of the disciplinary tribunal

52
Q

Section 12 Lawyers and Conveyances act 2006: Unsatisfactory Conduct

  • _______ level than misconduct
  • ……”falls short of the standard of _________ and ________ that a ______________ is entitled to expect of a reasonably competent lawyer”
  • conduct of the lawyer…. That would be regarded by lawyers of good standing as being ____________ e.g ________________ conduct
A

Section 12 Lawyers and Conveyances act 2006: Unsatisfactory Conduct

  • lower level than misconduct
  • ……”falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”
  • conduct of the lawyer…. That would be regarded by lawyers of good standing as being unacceptable e.g unprofessional conduct
53
Q

Findings of misconduct can only made by ________

A

The Disciplinary Tribunal

54
Q

Findings of unsatisfactory conduct are dealt with by

A

Standards Committee and the Legal Complaints Review Officer - unlikely to go all the way to Disciplinary Tribunal

55
Q

Misconduct or Unsatisfactory conduct?
$35k fee charged; Including charging for 7 hours at $1k/hr including 2 hours preparation and for appearance at a court hearing that lasted 3mins 20secs. Evidence $15-16k would have been reasonable.

A

High Court appeal against striking-off by DT dismissed: “The nature and gravity of the charges…require a firm response that properly protects the public from similar conduct in the future”

  • Misconduct
  • would be considered “disgraceful or dishonourable” conduct from lawyers of good standing
56
Q

Misconduct or Unsatisfactory conduct?

Two instances of forgery and two of misconduct; signed some Waitangi Tribunal applications on behalf of clients who had not authorised her to do so, signed statutory declarations on legal aid applications knowing them to be false.

A

Unanimous Disciplinary Tribunal (DT): “…the lack of integrity demonstrated…particularly when accompanied by a failure to recognise it as such, means strike-off is the only proper response in order to protect the public and the reputation of the profession.”

  • Misconduct
  • would be considered “disgraceful or dishonourable” conduct from lawyers of good standing
57
Q

Misconduct or Unsatisfactory conduct?

Lawyer drafted a flawed will for client who died 2012 and by 2016 still no effective steps in administration of the estate – delays arose due to incompetent drafting of the will.

A

Standards Committee found incompetence below standard expected of a reasonably competent lawyer and delay unacceptable conduct. $10k fine, compensation $2k to family of deceased and required at own cost to rectify errors and omissions relating to mis-handling of administration of estate.

  • Unsatisfactory conduct
  • “falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer
58
Q

Misconduct or Unsatisfactory conduct?

Lawyer admitted misappropriating $237k of client funds and overcharging a client $42k. Voluntarily surrendered practising cert in 2015; District Court (DC) sentence 12 months home detention and 150 hours community service. Lawyer sold house and all monies repaid.

A

Struck-off by consent at DT – Lawyer “truly remorseful” and “needed to face the consequences”. Note double sanction DC and DT.

  • Misconduct
  • would be considered “disgraceful or dishonourable” conduct from lawyers of good standing
59
Q

Civil Law
- Of or relating to ________ and _______ that sought by __________, as distinct from criminal proceedings

A

Of or relating to private rights and remedies that sought by action or suit, as distinct from criminal proceedings

60
Q

Criminal Law:
The body of law defining ___________________ at large, regulating how suspects are _____________ and establishing _____________

A

Criminal Law:
The body of law defining offences against the community at large, regulating how suspects are investigated, charged, and tried and establishing punishments…

61
Q

Examples of _______:
Family, contract, negligence, insurance, claims at the Waitangi tribunal, etc

A

Civil Law

62
Q

Examples of _______
Murder, theft, assault, bribery, piracy, arson, etc

A

Criminal Law

63
Q

Access to Justice: Limiting factors

A

Access to Justice: Limiting factors
- Cultural inflexibility
- Geographic
- Language barriers
- Legal ignorance (doesn’t know the law)
- Physical barriers for those with disabilities
- cost of legal services

64
Q

New Zealand Bill of Rights Act 1990: Everyone charged with an offence

A

New Zealand Bill of Rights Act 1990: Everyone charged with an offence

  • Shall be informed promptly and in detail of the nature and cause of the charge
  • Shall have the right to consult and instruct a lawyer
  • shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance
65
Q

Financial barrier - Paying the lawyer’s bill

  • R9
A

Financial barrier - Paying the lawyer’s bill

  • R9 - A lawyer must not charge a client more than a fee that is fair and reasonable.. having regard to the interests of both client and lawyer and … to the factors set out in rule 9.1
66
Q

Financial barrier - Paying the lawyer’s bill - conduct and client care rules 2008

R9.1 - factors include:

A

Financial barrier - Paying the lawyer’s bill

R9.1 - factors include:
- the time and labour expended
- The skill, specialised knowledge, and responsibility required to perform the services properly,
- the importance of the matter to the client and the results achieved
- the urgency and circumstances in which the matter is undertaken and any limitations imposed, including those imposed by the client
- the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved
- the complexity of the matter and the difficulty or novelty of the questions involved
- the experience, reputation, and ability of the lawyer
- the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients
- whether the fee is fixed or conditional
- any quote or estimate of fees given by the lawyer

67
Q

Taxpayer funded mechanisms - Legal Services Act 2011

Purpose: (s3)
to promote ______________ by establishing a system that:
- Provides legal services to people of ______________; and
- delivers those services in the most ________ and _______ manner

A

Taxpayer funded mechanisms - Legal Services Act 2011

Purpose: (s3)
to promote access to justice by establishing a system that:
- Provides legal services to people of insufficient means; and
- delivers those services in the most effective and efficient manner

68
Q

Taxpayer funded mechanisms - Legal Services Act 2011

Legal Services: (s4)
- includes _____ plus also ________ and ____________ and the provision of legal information and ____________

A

Taxpayer funded mechanisms - Legal Services Act 2011

Legal Services: (s4)
- includes legal aid plus also legal advice and representation and the provision of legal information and law-related education

69
Q

Legal Aid: describe

A

Legal Aid
- government funded programme which pays a lawyers fees if the client cannot afford a lawyer
- Both Civil and Criminal matters are covered but different thresholds of eligibility apply

70
Q

Legal Services Act 2011
Criterial for legal aid: Criminal Offences

  • They are a ____________ (not a company)
  • They have ___________________________; and
  • either charged with or convicted of a criminal offence punishable by ____________________ (with some exceptions) or it is in the ____________ to grant legal aid.
A

Legal Services Act 2011
Criterial for legal aid: Criminal Offences

  • They are a natural person (not a company)
  • They have insufficient means to obtain legal assistance (having regard to income and disposable capital); and
  • either charged with or convicted of a criminal offence punishable by 6 months imprisonment or more (with some exceptions) or it is in the interests of justice to grant legal aid.
71
Q

Legal Services Act 2011
Criteria for granting legal aid for civil cases

Applicant must establish that
- ____________ (or _______ of a trustee corporation), need not be a ______________;
- ___________ and ______________ does not exceed the thresholds prescribed
- ________________ for taking or defending the proceedings

A

Legal Services Act 2011
Criteria for granting legal aid for civil cases

Applicant must establish that
- natural person (or trustee of a trustee corporation), need not be a New Zealand resident;
- Income and disposable capital does not exceed the thresholds prescribed
- Reasonable grounds for taking or defending the proceedings

72
Q

Regarding legal aid - the _____________ can require a person granted legal aid to pay some or all of it back

A

commissioner

The Commissioner has a number of functions which must be carried out independently of the Ministry, including:

  • granting legal aid
  • determining legal aid repayments
  • assigning legal aid providers or services
  • allocating legal aid cases to salaried lawyers, overseeing their conduct and managing their performance.
73
Q

Civil matters covered under civil legal aid

Family and domestic disputes dealt with by the Family Court, e.g. –

  • ___________________ but not dissolution of marriage (divorce)
  • ___________ or ___________ in domestic/family ______ context
A

Civil matters covered under civil legal aid

Family and domestic disputes dealt with by the Family Court, e.g. –

  • Matrimonial and relationship property but not dissolution of marriage (divorce)
  • Protection orders or other orders in domestic/family violence context
74
Q

Civil matters covered under civil legal aid:
Taking a case (________) or defending a case (________) in DC or HC, e.g.

  • ________ on a breach of _________
  • Defending ____________ ___________
A

Civil matters covered under civil legal aid:
Taking a case (Plaintiff) or defending a case (Defendant) in DC or HC, e.g.

  • Suing on a breach of contract
  • Defending bankruptcy proceedings
75
Q

Civil matters covered under civil legal aid:
Some disputes before T_______ and S________ C____, e.g.

  • Employment ___________ Authority
  • Maori _____________ |Te Kōti Whenua Māori
  • Tribunals such as S______ S________ A_______ A_______
  • Refugee matters before I________ and P_________ Tribunal
A

Civil matters covered under civil legal aid:
Some disputes before tribunals and specialist courts, e.g.

  • Employment Relations Authority
  • Maori Land Court |Te Kōti Whenua Māori
  • Tribunals such as Social Security Appeal Authority
  • Refugee matters before Immigration and Protection Tribunal
76
Q

Civil matters NOT covered under civil legal aid:

  • ________ ________ matters (some small civil claims up to ____)
  • Lawyer’s work ____________________ (e.g. drafting a will)
  • Disputes involving ______, __________ and other _________ institutions
  • _________ petitions
A

Civil matters NOT covered under civil legal aid:

  • Disputes tribunal matters (some small civil claims up to $30k)
  • Lawyer’s work not involving court (e.g. drafting a will)
  • Disputes involving schools, universities and other educational institutions
  • election petitions
77
Q

What is the test under s 7 LCA 2006 for “misconduct” by a lawyer when providing legal services?

A) Whether the conduct means the person is not a fit and proper person to engage in practice.

B) Whether the conduct would be regarded as disgraceful or dishonourable by lawyers of good standing.

C) Whether the Legal Complaints Review Officer determines there has been a breach of the Rules.

D) Whether a Standards Committee has decided to investigate the conduct complained about.

A

Answer: B

78
Q

In no more than three sentences comment on whether you consider the following would be regarded as misconduct or unsatisfactory conduct:

The lawyer was found by the LCRO to have failed to forward a copy of a letter having “promised” the client that she would do so immediately the letter arrived. The delay was seven working days. The client complained because the delay meant he had only 14 working days in which to formulate a response to the letter when the letter stipulated a 21 working day timeframe was allowed for a reply. When asked, the lawyer said she knew there was a time limit in the letter but was simply too busy to send it on any sooner. The client was put under some pressure to complete his reply but did so within time.

A

Valid points could include:
- More likely unsatisfactory conduct under s 12.
- Doesn’t appear to reach seriousness threshold for misconduct under s 7
- No grossly incompetent or dishonourable element here.
- May counter argue there is some wilfulness in knowing there was a time limit and failing to act promptly especially when a “promise” had been given to the client and task of forwarding a letter hardly difficult or time consuming
- Client was entitled to expect lawyer would act promptly/as “promised’/with the diligence of a reasonably competent lawyer but (based on the facts we have) the client was placed under only a little time pressure and still was able to comply with the letter’s requirements.

79
Q

Community Law Centre: describe

A

A body whose function includes the provision of community legal services including:

80
Q

Community Law Centres: what services do they provide?

  • free l____ i__________/a________
  • r______________ to people with insufficient means to pay
  • law-related e___________ and i_________
  • law r_______ submissions
  • P____ b______ clearing house
A
  • free legal information/advice
  • representation to people with insufficient means to pay
  • law-related education and information
  • law reform submissions
  • Pro bono clearing house
81
Q

Public Defence Service (PDS): describe

A

A government funded agency of salaried defence lawyers

82
Q

A Public Defence Service Lawyer _______________

A

Defends people on criminal charges who are eligible for legal aid

83
Q

What is the purpose of the Duty Lawyers scheme?

A

The object of the duty lawyers scheme is to ensure that there is available in each district court a sufficient number of lawyers for the purpose of assisting, advising and representing unrepresented defendants charged with an offence

84
Q

Police Detention Legal Assistance Scheme: Purpose

A

To ensure a sufficient number of lawyers available to provide legal advice, or legal assistance, or both, to any person questioned by police
- whether arrested or not
- or whom the police want to question in relation to an offence that they are suspected of committing
- may take place at police station or elsewhere

85
Q

What are conditional/contingency fees?

A

An agreement pursuant to which the payment of a lawyer’s fee is contingent on a specified event e.g. success of the litigation - no win, no fee.

86
Q

Contingent upon success: Speculative

A

Normal fee only if successful

87
Q

Contingent upon success: Bare percentage

A

Fixed % of winnings

88
Q

Contingent upon success: sliding percentage

A

% gets higher as case progresses through stages - pre-trial settlement, trial, appeal

89
Q

Contingent upon success: Fee premium

A

Normal fee plus a premium

90
Q

-

A
  • Speculative
  • Fee premium, providing the premium is not a percentage
91
Q

Condition fees are not permitted in:
- F____________
- I_________ c_______
- C__________

A
  • Family Court cases
  • Immigration cases
  • Criminal cases
92
Q

Pro Bono: define

A

Lawyer,

without fee/without expectation of a fee/at a reduced fee,

advises/represents client who has no other access to courts/legal system; and/or takes client’s case because it raises wide public interest issues

93
Q

If I do not have a lawyer of my own and I am appearing in the District Court today for the first time on a charge of theft is there any scheme under the Legal Services Act 2011 that might help me?

A) No, the Public Defence Service only works for those who have already successfully applied for legal aid.

B) Yes, the Duty Lawyers Scheme is specifically intended for people in your situation.

C) Yes, the nearest Community Law Centre has staff in 24 District Courts across the country for people in your situation.

D) No, the legal aid system is not geared to assist people with civil litigation trials in the District Court.

A

Answer: b
Note: Read the whole answer carefully i.e. the statement that follows the bald “No” or “Yes” needs to be consistent with the Yes or No and accurate as a rationale for the answer overall.

94
Q

Which of the following is a false statement?

A) A conditional fee is an illegal contract by reason only of the fact that the lawyer will receive a fee dependent upon the outcome of a case

B) A conditional fee is not an illegal contract by reason only of the fact that the lawyer will receive a premium in addition to their normal fee dependent upon the outcome of a case

C) A conditional fee is not an illegal contract by reason only of the fact that the lawyer will receive a fee dependent upon the outcome of a case

D) All of the above

A

Answer: A

95
Q

Which of the following is a purpose of the Legal Services Act 2011?

A) Promote access to justice

B) Providing legal services to people of insufficient means

C) Delivering legal aid in the most effective and efficient manner

D) All of the above

A

Answer: D

96
Q

Where will I find a statement to the effect that: ‘Its purpose is to promote access to justice by establishing a system that provides legal services to people of insufficient means and delivers those services in the most effective and efficient manner’?

A) Section 3 Legal Services Act 2011

B) Section 4 Lawyers and Conveyancers Act 2006

C) Section 15 Legal Practitioners Act 1982

D) Rule 9.1 Conduct and Client Care Rules 2008

A

Answer: A

Notes: Very few questions of this style are used. You do not need to learn off by heart the number of and what every section or rule mentioned in lectures or readings says. You can answer this question by deduction.
Some sections, e.g. s 4 LCA or Rule 9.1, are fundamentals and receive considerable attention in lectures compared to many others which are just referred to in passing. Knowing empahsised provisions is worthwhile. You need to exercise some judgment as to which.

97
Q

Conditional Fee Requirements Include:

  • Advise client about l_____ a___ possibilities
  • _ working day ‘c_______ o___’ period for client
  • Total fee must be f___ and r__________ as per Rule 9
  • Must be in writing, define “s_______” and detail how e_________ will be c_______
  • At end of the work lawyer must give the client a bill which discloses the n________ f___ and the p_______
A

Conditional Fee Requirements Include:

  • Advise client about legal aid possibilities
  • 5 working day ‘cooling off’ period for client
  • Total fee must be fair and reasonable as per Rule 9
  • Must be in writing, define “success” and detail how expenses will be charged
  • At end of the work lawyer must give the client a bill which discloses the normal fee and the premium
98
Q

Pro Bono motivations include:
- C_________
- A_________ (selfless concern for others)
- Col_________
- Individual b_______/workplace m_______
- Client e____________
- F________ e____________ expectations
- S___-o___ e.g. paid work (future work)

A

Pro Bono motivations include:
- Compulsion
- Altruism
- Collegiality
- Individual benefit/workplace morale
- Client expectations
- Future employee expectations
- Spin-offs

99
Q

Conditional/Contingency fees: Arguments against….
- Divergence of interests in some cases
e.g…………

A

Conditional/Contingency fees: Arguments against….
- Divergence of interests in some cases
e.g:
- Lawyers may settle a claim early - lawyers interest to maximise fee means early settlement is preferred to move onto new case
- In contrast it may be in the clients interest to litigate because potential benefit of winning in court > downside of lengthy process

100
Q

Conditional/Contingency fees: Arguments against….
- Compromises ethical conduct
e.g………

A

Conditional/Contingency fees: Arguments against….
- Compromises ethical conduct
e.g:
- Lawyers will have a financial stake in the proceedings

101
Q

Conditional/Contingency fees: Arguments against….
- Loss of objectivity
e.g……..

A

Conditional/Contingency fees: Arguments against….
- Loss of objectivity
e.g:
- The inability to dispassionately assess chances of success or the appropriateness of settlement offers etc

102
Q

Conditional/Contingency fees: Arguments against….
- Fee chasing / stirring up litigation
e.g:

  • “ambulance chasers” ………………….
  • Could encourage i___________ m___________ in breach of rules (e.g. rule __ - proper s_________/don’t seek clients in o_________, i_________ or i___________ ways and rule __ - p________ the r__________ of the profession)
A

Conditional/Contingency fees: Arguments against….
- Fee chasing / stirring up litigation
e.g:
- Lawyers will inappropriately chase prospective clients - “ambulance chasers” BUT less likely here because of ACC
- Could encourage inappropriate marketing in breach of rules (e.g. rule 10 - proper standards/don’t seek clients in offensive, intrusive or inappropriate ways and rule 11 - preserve the reputation of the profession)

103
Q

Conditional/Contingency fees: Arguments against….
- Increase in cost of litigation services overtime
e.g:

A

Conditional/Contingency fees: Arguments against….
- Increase in cost of litigation services overtime
e.g:
- Lawyers will only take cases which they are likely to win, and they take a disproportionately large share of the winnings compared to the modest degree of risk involves; lawyers best placed to judge the risk

104
Q

Conditional/Contingency fees: Arguments against….
- Legal aid more appropriate funding method
e.g:

A

Conditional/Contingency fees: Arguments against….
- Legal aid more appropriate funding method
e.g:
- Authorised conditional fees enable the state/government to avoid its obligations

105
Q

Conditional/Contingency fees: Arguments against….
- D___________ of i_________ in some cases
- Compromises e_______ c________
- Loss of o______________
- F____ c_______ / stirring up l__________
- Increase in cost of _______ _________ overtime
- _______ ____ more appropriate funding method

A

Conditional/Contingency fees: Arguments against….
- Divergence of interests in some cases
- Compromises ethical conduct
- Loss of objectivity
- Fee chasing / stirring up litigation
- Increase in cost of litigation services overtime
- Legal aid more appropriate funding method

106
Q

Conditional/Contingency fees: Arguments in favour….
- access to _______
- work more e__________ and e__________
- particularly effective for c______ a_______
- freedom of c________

A

Conditional/Contingency fees: Arguments in favour….
- access to justice
- work more effectively and efficiently
- particularly effective for class actions
- freedom of contract

107
Q

Conditional/Contingency fees: Arguments in favour….
- Access to Justice
e.g:
- prospective litigants will not need a large ____ ________ to ____ litigation

However:
- Cause must involve significant ____ being litigated
- Limits in some courts e.g. c_______, i_________, f_____, A__
- big business / wealthy will _________ more than poor

A

Conditional/Contingency fees: Arguments in favour….
- Access to Justice
e.g:
- prospective litigants will not need a large bank balance to fund litigation

However:
- Cause must involve significant fund being litigated
- Limits in some courts e.g. criminal, immigration, family, ACC
- big business / wealthy will benefit more than poor

108
Q

Conditional/Contingency fees: Arguments in favour….
- Work more effectively and efficiently
E.g:

A
  • May encourage lawyers to work more efficiently and effectively where they have an interest in maximising the benefit of the litigation - compare, time-cost method
109
Q

Conditional/Contingency fees: Arguments in favour….
- Particularly effective for class actions
E.g:

A
  • consumer complaints where many suffer but one alone cannot fund the claim
110
Q

What is a class action?

A

A procedural efficiency - where a number of claimants with cases that involve common interests, arguments, evidence and other parties combine to bring proceedings

111
Q

Conditional/Contingency fees: Arguments in favour….
- Freedom of contract
E.g:

A
  • Any prohibition on contingency fees is an unwarranted fetter on the freedom to contract

Law101 (3 decks)

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