LES502 Law Office Practice Flashcards
As stated eloquently by Lord Reid,
Footnote 1.
Per Lord Reid in Rhondel v Worsley (1969) 1 AC 91 (adapted).
a senior English judge, when referring to the duties of lawyers appearing in court (often referred to as counsel):
Every counsel has a duty to their client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which they think will help their client’s case. But, as an officer of the Court concerned in the administration of justice, they have an overriding duty to the Court, to the standards of their profession, and to the public, which may and often does lead to a conflict of their client’s wishes or with what the client thinks are his or her personal interests.
The New Zealand Law Society has two broad divisions and functions:
representative – providing services to member lawyers, such as continuing education and library services, and representing the interests of lawyers.
regulatory – administering the practice of law including disciplinary proceedings.
all practising lawyers are subject to
the Lawyers and Conveyancers Act 2006 when carrying out their work.
The parts of the Lawyers and Conveyancers Act 2006 are:
*11 sections
-Preliminary provisions
-Restrictions on the provision of legal services and conveyancing services
-Admission and enrolment of barristers and solicitors
-New Zealand Law Society
-New Zealand Society of Conveyancers
-Conduct of practice by practitioners
-Complaints and discipline
-New Zealand Council of Legal Education
-Lawyers and Conveyancers Special Fund
-Fidelity Funds
-Miscellaneous provisions.
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008: Obligation 1
Obligation 1: rule of Law
is to uphold the rule of law and facilitate the administration of justice. The rule of law refers to a series of principles upon which the legal system and good government are ideally based to establish a fair and just relationship between people and the government.
Lawyers should always act in accordance with the rule of law. Lawyers should conduct their professional work in a way that ensures the system of law runs well and is not hampered or impeded by the actions of a lawyer.
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008: Obligation 2
Obligation 2: Independant
The second obligation is to be independent. Independence here means the lawyer should act for the client only and should not be influenced by any other interests or loyalties that may be owed to others in the same transaction.
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008: Obligation 3
Obligation 3: Duty of Care
is to act in accordance with fiduciary duties of care. Fiduciary duties are duties that arise where someone has undertaken to act for, or on behalf of, another in circumstances that give rise to a relationship of trust and confidence. Examples of people who owe a fiduciary duty are a trustee in relation to beneficiaries of a trust and a lawyer in relation to a client.
A person who owes a fiduciary duty must place the interests of the person to whom the duty is owed before his or her own interests and cannot benefit personally from information obtained in the course of the relationship.
Duties of care are duties owed by a lawyer to a client under the general law of contract and tort.
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008: Obligation 4
Obligation 4: Officers of the court
The fourth obligation deals with lawyers as officers of the court. As mentioned earlier, a lawyer is an officer of the court and must not, for example, mislead the court. Subject to this overriding duty, the lawyer’s duty is to do their very best for the client, disregarding their own interests and any other loyalties or influences.
The types of behaviours that constitute misconduct include:
-disgraceful or dishonourable conduct
-willful or reckless disregard of the Act or any regulations or practice rules made under the Act
-charging a grossly excessive fee
-conduct unconnected with employment indicative of bad character, or unsuitability to practise as a lawyer or be employed by a law firm.
The types of behaviours that constitute unsatisfactory conduct include:
-conduct when providing regulated services that falls short of the competence and diligence expected of a reasonably competent lawyer, or is unbecoming or unprofessional
-contravention of the Act or of any regulations or practice rules made under the Act, or of any other Act relating to the provision of regulated services.
If found guilty of misconduct
-the employee’s employment be terminated, or
- no practitioner shall employ the person for a designated period, or
-no practitioner shall employ the person except with the Tribunal’s consent, which may be subject to conditions
-that the employee pay a fine of not more than $30,000.
