Law Practitioners Act 1982

1: Short Title and commencement
1: This Act may be cited as the Law Practitioners Act 1982.
2: This Act shall come into force on the 1st day of April 1983.
2: Interpretation
In this Act, unless the context otherwise requires,— Bank means a person carrying on in New Zealand the business of banking Bank: the reference to the Banking Act 1982 substituted 16 December 1982 Banking Act 1908 Banking Act 1982 Bank: this definition was substituted 22 May 1998 22(1) Private Savings Banks (Transfer of Undertakings) Act 1992 See clause 2 Transfer of Undertakings Act Commencement Order 1998 The Banking Act 1982, referred to in the new definition, was repealed 30 June 1995 2(1) Banking Act Repeal Act 1995 Banker Barrister Candidate Commonwealth country Council
a: Except in Part 2
b: In Part 2 Course of study Court District District Council District Disciplinary Tribunal District Law Society New Zealand Disciplinary Tribunal Practising certificate section 57 current practising certificate Practitioner Prescribed Registrar Roll Solicitor Tribunal Trust account 1955 No 101 ss 2, 70 1961 No 47 ss 15, 32(a), 40 1968 No 51 s 2
1: The Law Societies
The New Zealand Law Society
3: Constitution of New Zealand Law Society
1: There shall continue to be a Society called the New Zealand Law Society (hereinafter referred to as the Society), being the Society constituted under the Law Practitioners Act 1955
2: The Society shall consist of all practitioners who for the time being are members of any District Law Society and hold current practising certificates as barristers or as solicitors or as both.
3: The Society shall be a body corporate, with perpetual succession and a common seal, and shall be capable of holding real and personal property and of doing and suffering all that bodies corporate may do and suffer. 1955 No 101 s 113 1967 No 128 s 9
4: General functions of Society
1: The general functions of the Society shall be—
a: To promote the interests of the legal profession and the interests of the public in relation to legal matters:
b: To promote and encourage proper conduct among the members of the legal profession:
c: To suppress illegal, dishonourable, or improper practices by members of the legal profession:
d: To preserve and maintain the integrity and status of the legal profession:
e: To promote opportunities for the acquisition and diffusion of legal knowledge and skills relating to the practice of law
f: To assist in and promote the reform of the law:
g: To provide means for the amicable settlement of professional differences between members of the legal profession.
2: The Society shall have such other functions as are conferred on it by this or any other Act. 1955 No 101 s 114(1) Subsection (1)(e) amended 30 March 1987 Law Practitioners Amendment Act 1987 by inserting the words and skills relating to the practice of law
5: Powers of Society
1: The Society shall have all such powers, rights, and authorities as are reasonably necessary or expedient for or conducive to the exercise of any of its functions.
2: Without prejudice to subsection (1)
a: To provide or arrange for the provision of services and facilities for practitioners, including seminars and educational and training services and facilities:
b: To publish or arrange for the publication of such periodicals, pamphlets, or other publications as it may consider of benefit to the public or to practitioners in relation to the practice of the law and the activities of the Society or of District Law Societies:
c: To oppose any application made for admission as a barrister and solicitor, or any other application made under this Act:
d: To institute prosecutions against practitioners or other persons for the breach of any statute, rules, or regulations relating to the practice of the law:
e: To appoint any practitioner to perform any work or services for the Society, or to appear before any court, tribunal, or other body in any of the foregoing matters or in any other matters in which the Society is concerned or interested:
f: To pay all costs, witnesses' expenses, and other payments incidental to or connected with any application or proceedings to which the Society is a party or at the hearing of which it is entitled to appear:
g: To pay the whole or any part of the expenses incurred by members in attending meetings of the Council of the Society or meetings of any committee appointed by the Council:
h: To establish or join in establishing any body, whether incorporated or not and whether in New Zealand or elsewhere, for the purpose of the exercise of any of the Society's functions or powers:
i: To act in combination or association with, or otherwise co-operate with, any person or body, whether incorporated or not, and whether in New Zealand or elsewhere, for the purpose of the exercise of any of the Society's functions or powers.
3: Without limiting paragraphs (h) (i) paragraphs (a) (e) (f) 1955 No 101 s 114(2)(d)-(h)
6: Law offices and legal advice bureaux
1: The Society may provide, whether by way of financial assistance or otherwise, for the establishment, in such localities as it may from time to time think fit, of law offices or legal advice bureaux, whether it is intended that such offices or bureaux shall be operated by a practitioner or practitioners employed by the Society, or a practitioner or firm of practitioners on his or their own account, or by members of the Society on a voluntary or rostered basis, or otherwise.
2: The Society may from time to time, as circumstances require and as it may consider necessary or desirable, maintain and operate or subsidise the maintenance and operation of such offices or bureaux to the intent that as full and proper a legal service as may be practicable shall be provided for members of the public in any such locality.
3: The Council may from time to time, in writing, grant to any body of persons operating or intending to operate a law office or legal advice bureau in any locality in which there is or (but for the office or bureau) would be an unmet legal need, or to any solicitor employed by any such body in any such office or bureau, exemption from all or any of the provisions of sections 64 66 67(1)
4: The Society may, after consultation with the body of persons concerned, impose in respect of any such exemption such conditions as the Society thinks fit, including any condition designed to ensure that, in general, the law office or legal advice bureau does not undertake any class of legal work in respect of which there is no unmet legal need in that locality.
5: The Society may at any time—
a: Revoke any exemption granted under subsection (3)
b: Revoke or vary any condition imposed under subsection (4)
6: In this section the expression unmet legal need 1955 No 101 s 114(2)(i) 1975 No 35 s 7 1981 No 54 s 2
7: Application of Act to law offices and legal advice bureaux
1: For the purposes of subsections (1)(b) (2) section 6
2: For the purposes of section 67(2)
3: Every person, not being a practitioner but being an operator or one of the operators of any such office or bureau, commits an offence against this Act who, without the sanction of the Court or of the New Zealand Disciplinary Tribunal, employs or permits to act as a clerk or otherwise in or about the business of the office or bureau any other person whom he knows to be under suspension from practice as a barrister or solicitor or to have had his name struck off the roll otherwise than at his own request.
4: Part 6 , sections 91I to 91N section 17(2)(e)
5: A District Council, a complaints committee, and the New Zealand Disciplinary Tribunal shall have jurisdiction under Part 7
6: For the purposes of subsection (5) subsection (2) (6) subsection (2)
7: Part 9 Subsection (4) amended 1 October 1991 Law Practitioners Amendment Act 1991 by inserting the words , sections 91I to 91N of this Act
8: Benevolent fund
1: The Society may establish a fund for the purpose of providing pecuniary and other assistance to persons in need of such assistance who are or have at any time been members or employees of the Society, or to the dependants of any such person, or to the dependants of any such member or employee who is deceased.
2: The fund shall consist of—
a: Such part of its income as the Society decides from time to time to set aside for the purpose:
b: Any donations, gifts, or bequests made to the Society for the purposes of the fund:
c: The interest from time to time accruing from the investment of the fund:
d: Any other money that may be lawfully paid into the fund.
3: The fund shall be administered by the Council on behalf of the Society.
4: All money in the fund may be invested in any manner in which trustees are for the time being authorised to invest trust funds.
5: All money that, immediately before the commencement of this Act, was standing to the credit of, or was invested on behalf of, the fund established under section 115 of the Law Practitioners Act 1955 1955 No 101 s 115
9: Levy on members
1: The Society, if authorised by its rules to do so, may by resolution of the Council impose on its members a levy or levies not exceeding in the aggregate in any year an amount equal to one-quarter of the practising fee payable for that year under section 60
2: Subject to subsection (1)
a: For payment of the levy by all members, or by any specified class or classes of members, or by members practising in any specified part or parts of New Zealand:
b: For the payment of different amounts by different classes of members, or by members practising in different parts of New Zealand.
3: The amount of any such levy shall be payable in such manner as the Society's rules may prescribe or authorise, and shall be recoverable on behalf of the Society as a debt due to it. 1975 No 35 s 8
10: President and other officers of Society
1: The Society shall have—
a: A President:
b: Such number of Vice-Presidents as is prescribed by the Society's rules:
c: In such circumstances as are prescribed by the Society's rules, a President-elect:
d: A Treasurer.
2: The President and the other officers referred to in subsection (1) 1955 No 101 s 117(1) 1967 No 128 s 10(3) 1970 No 74 s 2(2), (3)
11: Council
1: There shall be a Council of the Society, consisting of—
a: The President, the Vice-Presidents, the President-elect (if any), and the Treasurer:
b: Such number of other members, elected by District Law Societies from their own members, as is prescribed by the Society's rules.
2: Every member elected by a District Law Society shall be elected annually in such manner as is prescribed by that society's rules and shall, unless he sooner vacates office otherwise than by effluxion of time, hold office until his successor is elected.
3: Every elected member shall be eligible for re-election.
4: If at any time a District Law Society fails to elect a member, the District Council may do so in its stead, and the fact that the District Council at any time so elects shall be sufficient evidence of its authority to do so.
5: Any member of the Council who is unable to attend a meeting of the Council may by writing under his hand appoint, from among members of the District Law Society that he represents, a practitioner to act in his stead at that meeting.
6: The powers of the Council shall not be affected by any vacancy in its membership, or by any failure to elect, or any irregularity in the election of, any member of the Council. 1955 No 101 s 116 1961 No 47 s 33 1962 No 121 s 7 1963 No 95 s 2 1967 No 128 s 10(1), (2) 1970 No 74 s 2(1)
12: Management of Society by Council
Subject to section 15 1955 No 101 s 119(1)
13: Powers of Council to deal with property and to invest money
1: The Council may purchase, take on lease, or otherwise acquire, sell, lease, or otherwise dispose of, and improve, manage, develop, exchange, turn to account, or otherwise deal with any real or personal property on behalf of the Society, if authorised to do so by the rules of the Society, or by a resolution passed at a general meeting of the Society.
2: The Council may invest any money of the Society in any manner in which trustees are for the time being authorised to invest trust funds. 1955 No 101 s 120 Section 13 substituted 30 March 1987 Law Practitioners Amendment Act 1987
14: Power of Council to borrow money
The Council may borrow money required for the purposes of the Society; and, for the purposes of securing any money so borrowed, may mortgage, charge, or pledge any right, title, estate, or interest in any real or personal property vested in the Society. 1955 No 101 s 120A 1961 No 47 s 34
15: Committees and other bodies
1: The Council may from time to time appoint an executive committee consisting of members of the Council.
2: The Council may also from time to time appoint any standing or special committee, or any other body, with such name as the Council may determine; and any person may be appointed to any such committee or body, whether or not he is a practitioner.
3: The Council, or the President or a Vice-President of the Society acting on behalf of the Council, may from time to time refer any matter to any committee or body appointed under this section for consideration or inquiry or management.
4: The Council may from time to time delegate to any such committee or body any of the Council's powers and functions other than the power to borrow money, the power to make rules, and this power of delegation.
5: A committee or body to which any delegation is made under this section may, without confirmation by the Council but subject to any general or special directions of the Council, exercise or perform the delegated powers or functions in like manner and with the same effect as the Council could itself have exercised or performed them.
6: Any delegation under this section may at any time be revoked or varied by the Council; and no such delegation shall prevent the exercise of any power or function by the Council.
7: Until any such delegation is revoked, it shall continue in force according to its tenor. 1955 No 101 s 119(2)
16: Power of Council to elect honorary or associate members
1: The Council may from time to time elect any person to be an honorary member or an associate member of the Society in accordance with the Society's rules.
2: No honorary member or associate member shall be eligible for election as an officer of the Society or a member of the Council, or entitled to vote at any meeting of the Society.
17: Council may make rules
1: The Council may from time to time make rules providing for the regulation and good government of the Society and its members and its affairs, and also making any provision that may be necessary or desirable for the effective exercise of the Society's functions and powers.
2: Without prejudice to subsection (1)
a: Prescribing the number of Vice-Presidents of the Society; prescribing the circumstances in which a President-elect shall be elected and shall take office as President; prescribing the number of members of the Council to be elected by District Law Societies; and prescribing the manner and times of electing the President, Vice-Presidents, President-elect, Treasurer, and other members of the Council, the period or periods of their continuance in office, the manner in which any member of the Council may vacate office, and the manner and time in which any vacancy, however occurring, shall be filled:
b: Providing for and regulating the holding of meetings of the Council, and prescribing the quorum and the procedure at meetings:
c: Providing for the convening of general meetings of the Society and prescribing the procedure at such meetings:
d: Regulating in respect of any matters the professional practice, conduct, and discipline of practitioners:
e: Regulating the keeping of trust accounts by solicitors, and the receipt, banking, payment, investment, and recording of money entrusted to solicitors; and requiring the keeping of registers of property, authorities, and appointments held by solicitors:
ea: Requiring that a solicitor who intends to set up on his or her own account, or who manages or administers trust accounts, must undertake training in trust account management and in the obligations of solicitors in relation to trust accounts. Such rules may, without limitation,—
i: Provide that the training must be undertaken at specified times or frequencies, or in specified circumstances:
ii: Require that a particular course or courses be undertaken, or (in addition, or as an alternative) require that the training comply with specified requirements or be provided by a particular agency or agencies:
iii: Provide that satisfactory results from assessment or examination be required as part of the training:
iv: Exempt, or provide for the exemption of, any solicitor or class of solicitor from all or any rules made under this paragraph:
v: Provide that fees may be charged to any person applying for or undertaking the training required by rules made under this paragraph:
f: Prescribing the duties of persons appointed to conduct examinations of solicitors' accounts under section 85
fa: Requiring that holders of practising certificates, or any class of holders of practising certificates, undertake ongoing legal education relating to the law or the practice of law. Such rules may, without limitation,—
i: Provide for the times or frequencies at which the legal education must be undertaken, and the topics to be addressed:
ii: Require that particular legal education be undertaken, or (in addition, or as an alternative) require that the legal education comply with specified requirements:
iii: Exempt, or provide for the exemption of, any holder or class of holder of a practising certificate, from all or any rules made under this paragraph:
iv: Provide that fees may be charged to any person applying for or receiving legal education required by rules made under this paragraph:
g: Regulating the formation, operation, management, and winding up of solicitors' nominee companies for the investment of money in contributory mortgages or other securities on behalf of clients:
h: Empowering the Council to give rulings in respect of the application of any rules under this section and requiring the observance of such rulings by practitioners:
i: Prescribing offences in respect of the contravention of or non-compliance with any rules made under this section, and the amounts of the fines that may be imposed by the Society in respect of any such offences, not exceeding,—
i: In respect of any offence against a rule made under any of the provisions of paragraphs (d) to (h)
ii: In respect of any offence against a rule made under any provision of this section (other than a provision of paragraphs (d) to (h)
j: Providing for the recovery, as a debt due to the Society, of any fine imposed by the Society under a rule made under this section.
3: The Council may also make rules—
a: Requiring practitioners or any class of practitioners to arrange, in such manner and for such minimum amounts as may be prescribed in the rules, indemnity against liability to pay claims made against them in respect of anything done or omitted to be done by them as practitioners:
b: For the purpose of providing such indemnity, authorising or requiring the Council to do either or both of the following things:
i: To establish and maintain such fund or funds that may be disbursed in such manner as may be provided in the rules:
ii: To take out and maintain insurance with authorised insurers as agents for practitioners.
4: Without prejudice to the generality of subsection (3)
a: Specify the terms and conditions on which indemnity is to be available, and any circumstances in which the right to it is to be excluded or modified:
b: Provide for the management, administration, and protection of any fund maintained by virtue of paragraph (b)(i)
c: Require practitioners or any class of practitioners to make payments by way of premium on any insurance policy maintained by the Council by virtue of paragraph (b)(ii)
d: Authorise the Council to determine the amount of any payments required by the rules, subject to such limits or in accordance with such provisions as may be prescribed by the rules:
e: Require practitioners to supply to the Council from time to time such information and statistics as may be necessary for the purposes of that subsection:
f: Authorise the Council to enter into contracts of reinsurance for the purposes of any scheme under that subsection:
g: Specify circumstances in which, where a practitioner for whom indemnity is provided has failed to comply with the rules, the Council or insurers may take proceedings against him in respect of sums paid by way of indemnity in connection with a matter in relation to which he has so failed to comply:
h: Specify circumstances in which practitioners or any class of practitioners are exempt from the rules or any provision of them:
i: Empower the Council to take such reasonable steps as it considers necessary or desirable to ascertain whether or not the rules are being complied with:
j: Make such incidental, procedural, or supplementary provisions as are necessary to give full effect to that subsection.
5: No rule made under this section in respect of any matter shall be held to be invalid on the ground that power is conferred by some other provision of this Act to make a regulation in respect of that matter; but so far as any such rule conflicts with any regulation so made it shall be read subject to that regulation. 1955 No 101 ss 100(1)(d), 118, 121 Subsection (2)(e) substituted 1 July 1994 2(1) Law Practitioners Amendment Act 1994 Subsection (2)(ea) inserted 7 May 1999 2(1) Law Practitioners Amendment Act 1999 Subsection (2)(fa) inserted 7 May 1999 2(2) Law Practitioners Amendment Act 1999 Subsection (2)(i) substituted (2)(j) inserted 1 July 1994 2(2) Law Practitioners Amendment Act 1994 District Law Societies
18: Constitution of existing District Law Societies
1: All District Law Societies constituted under the Law Practitioners Act 1955
2: Any such society may at any time, by resolution passed at a general meeting, change its name from The Law Society of the District of [ Name of District The [ Name of District 1955 No 101 s 101
19: Formation of new District Law Societies
1: The practitioners who have their places of business, or, if they are practising in more than one district, their principal places of business, within any proposed district (not comprising the whole of any then existing district) and who are present at a meeting duly convened in accordance with subsection (4) The [ Name of District
2: Every such resolution shall be published in the Gazette
3: On the publication of the resolution, the District Law Society shall be deemed to be constituted; and all practitioners then having their places of business, or, if they are practising in more than one district, their principal places of business, within the new district, and all practitioners thereafter becoming members pursuant to section 23
4: For the purposes of subsection (1)
a: A circular signed by any 2 or more practitioners entitled to attend the meeting, stating the purpose for which it is to be held and the time and place for holding it, is delivered or sent by post to every such practitioner at least 7 clear days before the day named in the circular as the day of the meeting; and
b: Notice of the meeting is also given by advertisement in a newspaper circulating in the proposed district.
5: The accidental omission to deliver or send the circular to any one or more of the practitioners shall not render the proceedings at any such meeting invalid.
6: No business of any kind shall be transacted at any such meeting or at any adjournment of it unless at least one-third of all practitioners entitled to attend are present or are represented by proxies appointed in writing under their hands.
7: The practitioners present at any such meeting or at any adjournment of it may elect a President, a Vice-President, and members of a Council of the society of the new district, and such other officers as are considered expedient; and may also make rules for the new society, which shall have effect as if they had been made by the society under section 27
8: The persons so elected shall assume office, and the rules so made shall come into force, as soon as the society is deemed to be constituted. 1955 No 101 s 102
20: Alteration of districts
1: Subject to subsection (2)
2: No such agreement shall come into force until—
a: Every District Law Society having the boundaries of its district affected by the agreement has ratified it by a resolution passed at a general meeting of the society; and
b: A copy of the agreement, together with notice of every such ratification, has been published in the Gazette
3: On such publication, the agreement shall have effect to alter the boundaries between the districts according to its tenor as from the date of publication or such later date as may be specified in the agreement. 1955 No 101 s 103
21: Amalgamation of districts
1: Subject to subsections (2) (3)
2: No such agreement shall come into force until—
a: Every participating society has ratified it by resolution passed at a general meeting of the society; and
b: A copy of the agreement, together with notice of every such ratification, has been published in the Gazette
3: Every such agreement shall make provision for—
a: The transfer to one of the participating societies (in this section referred to as the continuing society) of the property and liabilities of the other or others of the participating societies; and
b: The dissolution, without any further formal act, of each of the participating societies, other than the continuing society; and
c: The continuation or alteration, as the case may be, of the name of the continuing society; and
d: Such alterations (if any) of the rules of the continuing society as are necessary or desirable to ensure that the amalgamation shall be fully and effectively carried out and as may be lawfully made under section 27
e: All such incidental, consequential, and supplementary matters as are necessary or desirable to ensure that the amalgamation shall be fully and effectively carried out.
4: In this section the term property liabilities
5: On publication in accordance with subsection (2)(b) section 23 1955 No 101 s 103A 1975 No 35 s 6
21A: Change of name of District Law Society
1: A District Law Society may, with the prior consent of the Council of the New Zealand Law Society, change its name by passing a resolution at a general meeting changing the society's name to such new name as is specified in the resolution.
2: Where a resolution to which subsection (1)
3: On such publication, the resolution shall have effect to change the name of the District Law Society as from the date of publication or such later date as may be specified in the resolution.
4: A change of name by a District Law Society under this section shall not affect any rights or obligations of the society or any of its members, or render defective any legal proceedings by or against the society, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name. Section 21A inserted 29 April 1993 Law Practitioners Amendment Act 1993
22: District Law Societies to be bodies corporate
1: Every District Law Society shall be a body corporate, with perpetual succession and a common seal, and shall be capable of holding real and personal property and of doing and suffering all that bodies corporate may do and suffer.
2: The seal of each District Law Society shall be such as its Council from time to time determines, and shall not be affixed to any document except in the presence of 3 members of that Council, who shall attest the execution of the document accordingly. 1955 No 101 s 104
23: Membership of District Law Societies
1: Subject to section 24
2: For the purposes of subsection (1)
3: Every member of a District Law Society who ceases to be the holder of a current practising certificate shall thereupon cease to be a member of that society, unless he retains his membership in accordance with subsection (4)
4: Any person who, not being the holder of a current practising certificate, is for the time being enrolled as a barrister and solicitor may, in accordance with the rules of any District Law Society, be retained or admitted as a member of that society.
5: If a member of a District Law Society is suspended from practice as both a barrister and a solicitor, he shall thereupon cease to be a member of that society during the period of his suspension.
6: If a member of a District Law Society has his name struck off or removed from the roll, he shall forthwith cease to be a member of that society. 1955 No 101 ss 105, 106 1967 No 128 s 7(1)
24: District Council may exempt person from membership on conscientious grounds
1: In this section the expression conscientious belief
2: If any person objects on the grounds of conscientious belief to being a member of a District Law Society, he may apply to the District Council for exemption from membership of the society.
3: If, after giving the applicant a reasonable opportunity to be heard or to make representations, the District Council is satisfied that the applicant's conscientious belief is genuine, it may exempt him from membership of the society subject to such conditions, whether as to the observance of any of the society's rules or otherwise, as the District Council thinks fit; and, while any such exemption continues and all conditions governing it are complied with, the person to whom it is granted shall not be a member of the District Law Society.
4: The granting of any such exemption shall not relieve the person exempted from—
a: Liability to pay any levy under this Part or Part 9 10
b: Liability to any penalty for a breach of the rules of the society of which he would, but for the exemption, be a member, so far as those rules are not excluded by the conditions of the exemption; and any such rules not so excluded shall apply to him as if he were a member.
5: Nothing in this section shall affect Part 7 1955 No 101 s 105(1)
25: Annual levy on members
1: Any District Law Society, if authorised by its rules to do so, may by resolution impose on its members a levy or levies not exceeding in the aggregate in any year such sum as it may from time to time determine in accordance with its rules for each member.
2: Any resolution under this section may provide—
a: For payment of the levy by all members, or by any specified class or classes of members, or by members practising in any specified part or parts of the society's district:
b: For the payment of different amounts by different classes of members or by members practising in different parts of the society's district.
3: The amount of any such levy shall be payable in such manner as the society's rules may prescribe or authorise, and shall be recoverable on behalf of the District Law Society as a debt due to it. 1955 No 101 s 107 1964 No 97 s 2
26: Functions and powers of District Law Societies
1: Subject to this Act and to the rules of the New Zealand Law Society, every District Law Society shall have within its district the same functions and powers as the New Zealand Law Society has under this Part of this Act, except the power to impose levies under section 9
2: Every District Law Society shall also have the function of providing and maintaining law libraries in such towns in its district as the District Council directs.
3: Every such library shall be for the use of the High Court and such other Courts as the District Council directs, and of practitioners, and shall be managed as the District Council directs. 1955 No 101 s 108(1), (2)
27: Rules
1: Subject to the rules of the New Zealand Law Society, every District Law Society may from time to time make rules for that District Law Society for any of the purposes for which rules can be made for the New Zealand Law Society under section 17 paragraphs (d) to (g) subsection (3)
2: All rules made under this section shall, subject to the rules of the New Zealand Law Society, have effect according to their tenor in respect of that District Law Society. 1955 No 101 s 109
28: Officers and Council
1: Every District Law Society shall have a Council consisting of a President of the society, a Vice-President of the society, and such number of other members as is prescribed by the society's rules.
2: Every District Law Society may also have such other officers, whether members of the Council or not, as may be so prescribed.
3: The President, Vice-President, members of the Council, and other officers shall be elected or appointed in such manner as is so prescribed. 1955 No 101 s 110 1967 No 128 s 8
29: Powers of District Council
The Council of every District Law Society shall, subject to this Act and to the society's rules, have in respect of that society the same powers (except the powers to impose levies and to make rules) as the Council of the New Zealand Law Society has in respect of the Society under this Part of this Act. 1955 No 101 s 111
30: Appeals from District Law Societies
1: Any member of a District Law Society who is aggrieved by the decision of that society or of the District Council in any matter affecting himself may appeal from that decision to the Council of the New Zealand Law Society.
2: The Council of the New Zealand Law Society shall hear and consider the appeal in such manner as it directs, and may, after giving the appellant a reasonable opportunity to be heard or to make representations, confirm, reverse, or modify the decision appealed against.
3: The decision of the Council of the New Zealand Law Society shall be final and conclusive.
4: Nothing in this section shall apply to any decision of a District Law Society or District Council under Part 7 1955 No 101 s 112
2: The Council of Legal Education
31: Constitution of Council of Legal Education
1: There shall continue to be a Council of Legal Education.
2: The Council shall comprise—
a: Two Judges of the High Court, nominated by the Chief Justice:
b: A District Court Judge, nominated by the Chief District Court Judge:
c: Five members nominated by the New Zealand Law Society:
d: The Dean of the Faculty or School of Law of each of the following Universities, namely, the University of Auckland, the University of Waikato, Victoria University of Wellington, the University of Canterbury, and the University of Otago:
e: Two members nominated by the Council of the New Zealand Law Students' Association Incorporated:
f: One member (not being a practitioner or a law student) nominated by the Minister of Justice:
g: Not more than one member nominated by the Council.
3: All members of the Council other than those referred to in subsection (2)(d) This section was substituted 31A 31B inserted 23 July 1990 50(1) Education Amendment Act 1990
31A: Council to have powers of natural person
1: The Council is a body corporate, with perpetual succession and a common seal, and, except as provided in this Act, has—
a: All the rights, powers, and privileges of a natural person; and
b: The power to do any other thing it is authorised to do by—
i: This Act; or
ii: Any other enactment; or
iii: Any rule of law.
2: The Council shall not exercise any of its rights, powers, or privileges except for the purpose of performing its functions.
3: Sections 153 to 156 Crown Entities Act 2004 Section 31 substituted 31A 31B inserted 23 July 1990 50(1) Education Amendment Act 1990 Subsection (3) substituted 21 December 1992 42 Public Finance Amendment Act 1992 Subsection (3) substituted 25 January 2005 37(1) Public Finance Amendment Act 2004
31B: Personal liability
No member of the Council is personally liable for any act done or omitted by the member, or the Council,—
a: In good faith; and
b: In pursuance or intended pursuance of the Council's functions. Section 31 substituted 31A 31B inserted 23 July 1990 50(1) Education Amendment Act 1990
32: Terms of office
1: Every appointed member of the Council shall hold office for a term of not more than
2: Notwithstanding anything in subsection (1) section 31(2)(e)
3: Unless he sooner vacates his office under section 33 section 31(3) 1961 No 47 s 4 Subsection (1) amended 23 July 1990 50(1) Education Amendment Act 1990 by substituting the words term of not more than term of
33: Casual vacancies
1: Any appointed member of the Council may at any time resign his office by writing addressed to the Chairman or Secretary of the Council.
2: If any appointed member dies or resigns, his office shall become vacant and the vacancy shall be deemed to be a casual vacancy.
3: Every casual vacancy in the office of an appointed member, other than a member nominated under section 31(3) 1961 No 47 s 5 Subsection (3) amended 23 July 1990 50(1) Education Amendment Act 1990 by omitting the words ; and the member so appointed shall hold office for the residue of the term for which his predecessor was appointed
34: Proceedings not affected by vacancies, etc
No act or proceeding of the Council, or of any committee of the Council, or of any person acting as a member of the Council or any such committee, shall be invalidated merely because of a vacancy in the number of the Council or committee at the time of the act or proceeding, or of the subsequent discovery that there was some defect in the appointment of any person so acting, or that he was incapable of being or had ceased to be such a member. 1961 No 47 s 6
35: Appointment of Chairman
1: Subject to subsection (2)
2: If the Chief Justice is a member, he shall be the Chairman unless he otherwise determines.
3: If the Chairman is an appointed member (other than the Chief Justice), he shall hold the office of Chairman while he remains in office as an appointed member, unless he sooner resigns the office of Chairman.
4: If the Chief Justice is the Chairman, he shall vacate that office if he ceases to be a member of the Council or determines that he shall cease to be the Chairman.
5: If the Chairman is not an appointed member, he shall hold that office for such period as the Council shall determine or until he sooner ceases to be a member or resigns the office of Chairman. 1961 No 47 s 7
36: Meetings
1: Meetings of the Council shall be held at least once in each year and at such times and places as the Chairman or the Council determines.
2: At any meeting of the Council, a quorum shall consist of any 8
3: Any member who is unable to be present at a meeting of the Council or any committee of the Council may appoint some other person to attend in his place.
4: The fact that any person so attends shall be sufficient evidence of his authority to do so; and, while attending, he shall be deemed to be a member of the Council.
5: The Chairman shall preside at every meeting of the Council at which he is present.
6: If at any meeting the Chairman is not present or there is no Chairman, the Council may appoint some member present to act as Chairman for that meeting; and the person so appointed shall in respect of that meeting have all the powers of the Chairman.
7: At any meeting of the Council, the person presiding shall have a deliberative vote, and, in the case of an equality of votes, shall also have a casting vote.
8: Every question before the Council shall be decided by a majority of the valid votes recorded on the question.
9: A resolution signed by all the members of the Council for the time being present in New Zealand and not incapacitated by disability from attending a meeting shall be as valid and effectual as if it had been passed at a duly constituted meeting of the Council; but the Chairman shall report to the Council every resolution so signed since its previous meeting, and lay before it a copy of every such resolution.
10: Except as expressly provided in this Act, the Council may determine its own procedure. 1961 No 47 s 8 Subsection (2) amended 23 July 1990 50(1) Education Amendment Act 1990 by substituting the expression 8 7
37: Special meetings
1: The Chairman of the Council shall call a special meeting of the Council on the requisition in writing of any 3 members.
2: Notice of the meeting shall be posted to each member at his usual address at least 7 clear days before the date of the meeting. 1961 No 47 s 9
38: Functions and powers
1: The functions and powers of the Council shall be—
a: Subject to this Act, to define and prescribe, from time to time and as it thinks fit, the courses of study for—
i: The examinations in general knowledge and law, and the other qualifications (if any), additional to those prescribed by this Act, required by candidates for admission as barristers and solicitors of the Court (including qualifications as to practical training and experience); and
ii: The examinations, and the other qualifications (if any), required by people who want recognised legal training otherwise than as a barrister or solicitor (including qualifications as to practical training and experience):
b: To arrange the provision of those courses of study:
c: Subject to this Act, to grant to any candidate for admission as a barrister and solicitor such credits (whether ad eundem
d: To encourage, and where the Council thinks it necessary or appropriate, to arrange provision for, research and post-graduate study:
e: To tender advice to the Council of any University on any matter relating to legal education:
f: To inquire into, consider, and report to the Minister of Justice on any matter relating to legal education as the Minister may from time to time require:
g: Subject to this Act and any other Act, to do whatever it considers necessary or expedient in order that it may best accomplish the purposes for which it exists.
2: Without limiting subsection (1) paragraph (c)
3: The Council may charge any person or organisation any reasonable fees it thinks fit in respect of—
a: Any matter the person or organisation submits to the Council for its consideration:
b: Any work or services the Council has done or performed for the person or organisation:
c: Enrolling for or sitting any examination conducted or proposed to be conducted by or on behalf of the Council. 1961 No 47 s 10 1970 No 74 s 3 Subsection (1)(a) substituted 23 July 1990 50(1) Education Amendment Act 1990 Subsection (3) inserted 23 July 1990 50(1) Education Amendment Act 1990
39: Regulations
1: Subject to this Act, the Council may from time to time make such regulations as may be necessary or expedient in respect of—
a: Any course of study and the practical training and experience of candidates for admission as barristers and solicitors of the Court:
b: Any matters which by this Act are required or permitted to be prescribed, or with respect to which regulations are necessary or expedient for giving effect to the provisions of this Act, in relation to legal education.
2: Without limiting subsection (1)
3: All such regulations shall have effect according to their tenor, and shall be published by the Council.
4: A copy of any such regulation certified by the Chairman of the Council shall be sufficient evidence of it in all courts.
5: For the purposes of this section, notice shall be taken judicially, without further proof, of the appointment or right to the office of the Chairman and his signature. 1961 No 47 s 11
40: Power to appoint committees
1: The Council may from time to time appoint standing or special committees, and may refer to any such committee any matters for consideration or inquiry or management.
2: The Council may from time to time delegate any of its powers and functions (including any powers and functions which it has by delegation from any other body or person, but not including this power of delegation, and not including the power to make regulations) to any such committee or to any person.
3: A committee to which or a person to whom any delegation is made under this section may, without confirmation by the Council, exercise or perform the delegated powers or functions in the same manner and with the same effect as the Council could itself have exercised or performed them.
4: It shall not be necessary for any person who is appointed to be a member of any such committee or to whom any delegation is made to be a member of the Council.
5: The Council may, with the consent of the Council of any University in New Zealand, delegate to the Council of that University any of the powers and functions of the Council, other than the power to make regulations, together with power to subdelegate the same.
6: Every delegation under this section shall be revocable at will; and no such delegation shall prevent the exercise of any power or function by the maker of the delegation.
7: Until any such delegation is revoked, it shall continue in force according to its tenor. 1961 No 47 s 12
41: Remuneration and travelling allowances
The members of the Council, and the members of any committee appointed by the Council, shall be paid such fees, salaries, and allowances, and such travelling allowances and expenses, as the Council from time to time determines with the approval of the Minister. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42: Employees
1: The Council may appoint any employees it thinks necessary for the efficient performance of its functions.
2: Subject to the employee's terms and conditions of employment, the Council may at any time terminate or suspend the employment of any employee.
3: Employees appointed under subsection (1)
4: Any determination under subsection (3)
5: If no day is specified, the determination shall take effect on the date it is made. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42A: Personnel policy
1: The Council shall operate a personnel policy that complies with the principle of being a good employer.
2: For the purposes of this clause, a 'good employer' is an employer that operates a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring—
a: Good and safe working conditions; and
b: An equal employment opportunities programme; and
c: The impartial selection of suitably qualified people for appointment; and
d: Recognition of—
i: The aims and aspirations of Maori; and
ii: The employment requirements of Maori; and
iii: The need for greater involvement of Maori as employees of the employer operating the policy; and
e: Opportunities for the enhancement of the abilities of individual employees; and
f: Recognition of the aims and aspirations, and the cultural differences, of ethnic or minority groups; and
g: Recognition of the employment requirements of women; and
h: Recognition of the employment requirements of people with disabilities. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42B: Equal employment opportunities programme
1: The Council—
a: Shall each year develop and publish an equal employment opportunities programme:
b: Shall each year ensure that the equal employment opportunities programme for that year is complied with.
2: For the purposes of this section and section 42A
3: The Council shall include in every annual report a statement of the extent to which its equal employment opportunities programme for the year to which the report relates was complied with. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42C: Superannuation or retiring allowances
1: For the purpose of providing a superannuation fund or retiring allowance for any of the employees of the Council, sums by way of subsidy may from time to time be paid into any scheme under the National Provident Fund Act 1950
2: Notwithstanding anything in this Act, any person who, immediately before becoming an employee of the Council, was a contributor to the Government Superannuation Fund under Part 2 2A Government Superannuation Fund Act 1956 Government Superannuation Fund Act 1956
3: Subject to the Government Superannuation Fund Act 1956 subsection (2)
4: For the purposes of applying the Government Superannuation Fund Act 1956 subsection (2) controlling authority Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42D: Crown may provide services for Council
The Crown, acting through any department of State, may from time to time, at the request of the Council, execute any work or enter into any arrangements for the execution or provision by the department for the Council of any work or service, or for the supply to the Council of any goods, stores, or equipment, on and subject to any terms and conditions agreed between the Council and the department's chief executive. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42E: Application of certain Acts to members and employees
No person shall be deemed to be employed in the service of the Crown for the purposes of the State Sector Act 1988 Government Superannuation Fund Act 1956 section 42 Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42F: Funds of Council
The Council's funds comprise—
a: All money appropriated by Parliament for the purposes of the Council and paid to the Council for the purposes of the Council:
b: All other money lawfully received by the Council for the purposes of the Council:
c: All accumulations of income derived from any such money. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42G: Bank accounts
1: The Council shall open at any bank or banks all accounts necessary for the performance of its functions.
2: All money received by the Council, or by any employee of the Council, shall, as soon as practicable after it has been received, be paid into bank accounts of the Council from time to time determined by the Council.
3: The withdrawal or payment of money from any such account shall be authorised in any manner the Council thinks fit. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42H: Investment of money
Any money that belongs to the Council and that is not immediately required for expenditure by the Council may be invested subject to the restrictions in section 161 Crown Entities Act 2004 Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990 Section 42H amended 25 January 2005 37(1) Public Finance Amendment Act 2004 by substituting the words subject to the restrictions in section 161 of the Crown Entities Act 2004 pursuant to section 25 of the Public Finance Act 1989
42I: Seal
The common seal of the Council shall be judicially noticed in all Courts for all purposes. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42J: Exemption from income tax
The income of the Council is exempt from income tax. Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990
42K: Annual report
1: The Council shall in each year give the Minister a report on the operation of this Part of this Act.
2: The Council shall include in every annual report the financial statements prepared by the Council, in accordance with Part 4 Crown Entities Act 2004
3: A copy of every annual report of the Council shall be tabled in the House of Representatives in accordance with section 150(3) Crown Entities Act 2004 Sections 41 42 substituted 42A to 42K inserted 23 July 1990 50(1) Education Amendment Act 1990 Subsection (2) amended 25 January 2005 37(1) Public Finance Amendment Act 2004 by substituting the words Part 4 of the Crown Entities Act 2004 Part 5 of the Public Finance Act 1989 Subsection (3) amended 25 January 2005 37(1) Public Finance Amendment Act 2004 by substituting the words section 150(3) of the Crown Entities Act 2004 section 44 of the Public Finance Act 1989
3: Admission and Enrolment
Admission of Practitioners
43: Admission as barrister and solicitor
1: Every person admitted by the Court or a Judge under this Act shall be admitted as a barrister and solicitor of the Court; and no person shall be admitted as a barrister or solicitor only.
2: Every practitioner admitted only as a barrister of the Court before the commencement of this Act shall be deemed on that commencement to have been admitted as a barrister and solicitor and, subject to this Act and to any order made under it, shall in addition to his right to practise as a barrister be entitled to practise as a solicitor.
3: Every practitioner admitted only as a solicitor of the Court before the commencement of this Act shall be deemed on that commencement to have been admitted as a barrister and solicitor and, subject to this Act and to any order made under it, shall in addition to his right to practise as a solicitor be entitled to practise as a barrister and, in his capacity as such, to all the rights, powers, and privileges of a barrister.
4: Subject to this Act and to any order made under it, and to the express provisions of any other enactment, every practitioner shall be entitled while his qualification continues to practise in or before any court or tribunal.
44: Qualifications
1: A person is qualified for admission as a barrister and solicitor if he or she is in at least 1 of the categories in this section.
2: The first category is persons who—
a: Are at least 20 years old; and
b: Have passed, or been credited with passing, the examination in general knowledge and law prescribed by the Council of Legal Education; and
c: Have all the other qualifications for admission (if any) prescribed by the Council of Legal Education.
3: The second category is persons who—
a: Are at least 20 years old; and
b: Have been admitted as a barrister, solicitor, advocate, or attorney by a superior court in any other country; and
c: Comply with the conditions, hold the qualifications, and pass the examinations required by the Council of the New Zealand Law Society in consultation with the Council of Legal Education.
4: The third category is persons who have been issued with a certificate by a Registrar stating that the candidate has given notice under section 19 Trans-Tasman Mutual Recognition Act 1997 Section 44 substituted 1 May 1998 88(1) Trans-Tasman Mutual Recognition Act 1997 See clause 2 Trans-Tasman Mutual Recognition Act Commencement Order 1998
45: Evidence of examinations
1: A certificate signed by the Registrar, Deputy Registrar, or Assistant Registrar of any University in New Zealand, or by the Secretary of the Council of Legal Education, that a candidate has passed or been credited with passing the appropriate prescribed examination shall be sufficient evidence of that fact.
2: For the purposes of this section, notice shall be taken judicially, without further proof, of the appointment and signature of every such Registrar, Deputy Registrar, Assistant Registrar, and Secretary. 1955 No 101 s 8 1961 No 47 s 17
46: Admission
1: A candidate seeking admission on the ground that he or she is qualified under section 44(2) 44(3)
2: The Court or a Judge must make an order admitting the candidate as a barrister and solicitor of the Court if—
a: The Court or Judge is satisfied that the candidate—
i: Is qualified for admission under section 44(2) 44(3)
ii: Is of good character and a fit and proper person to be admitted; and
b: The candidate has taken the following oath: I, AB, swear that I will truly and honestly conduct myself in the practice of a barrister and solicitor according to the best of my knowledge and ability.
3: A candidate seeking admission on the ground that he or she is qualified under section 44(4)
4: The Court or a Judge must make an order admitting the candidate as a barrister and solicitor of the Court if the Court or Judge is satisfied that the candidate is qualified for admission under section 44(4) Section 46 substituted 1 May 1998 88(2) Trans-Tasman Mutual Recognition Act 1997 See clause 2 Trans-Tasman Mutual Recognition Act Commencement Order 1998
47: Reciprocal admission
1: Where the Governor-General is satisfied—
a: That the law relating to the admission of barristers or solicitors of a superior court in any Commonwealth country (other than New Zealand), or in any other common law country or state, is such as to ensure that they possess proper qualifications and competence; and
b: That by the law of that Commonwealth country or other common law country or state barristers and solicitors of the High Court of New Zealand will be entitled to admission as barristers or as solicitors of that superior court on terms as favourable as those on which barristers or solicitors of that court will under this Act be entitled to admission as barristers and solicitors of the High Court of New Zealand,— he may, by Order in Council, order that barristers or solicitors of that superior court who have been in practice before that court for not less than 3 years shall, on giving due notice and the prescribed proof of their qualifications and good character, and on payment of the prescribed fees, but subject to any exceptions, conditions, and modifications specified in the order, be admitted as barristers and solicitors of the High Court of New Zealand without examination.
2: Any such order may refer to barristers only, or to solicitors only, or to barristers and solicitors, of any such Commonwealth country or other common law country or state.
3: Every person admitted under any such order shall be deemed to have been duly admitted under this Act.
4: By the same or any subsequent order, the Governor-General may provide for all matters authorised by this section to be prescribed, and for all matters necessary to give effect to the order and to this section. 1955 No 101 s 10
48: Rules of Court as to admission
Rules, not inconsistent with this Act, may from time to time be made, in the manner prescribed by the Judicature Act 1908 1955 No 101 s 11 Roll of Practitioners
49: Registrar to keep roll of barristers and solicitors
1: Every Registrar shall keep in his office a roll of barristers and solicitors of the Court.
2: Every roll of barristers and every roll of solicitors kept by a Registrar at the date of the commencement of this Act shall at that date be deemed to be incorporated in and to form part of the roll of barristers and solicitors referred to in subsection (1) 1955 No 101 s 3
50: Enrolment
On the making by the Court or a Judge of an order admitting any person as a barrister and solicitor, and on payment of the prescribed admission fee, the Registrar shall place that person's name on the roll. 1955 No 101 s 4 1967 No 128 s 2(a)
51: Striking off and restoration of names by order of Court or Tribunal
1: On the publication in the Gazette
2: On the publication in the Gazette
3: In each case the Registrar shall make an entry in the roll of the date and effect of the order and of the fact that it was made by the Court of Appeal or the New Zealand Disciplinary Tribunal or by the High Court on appeal from that Tribunal, as the case may require. 1955 No 101 s 5
51A: Removal from roll if deemed registration ceases in some circumstances
1: The Registrar must remove from the roll the name of a practitioner who—
a: Was admitted under section 46(4)
b: Had deemed registration under the Trans-Tasman Mutual Recognition Act 1997 if the Registrar receives written notice from a Registrar acting as a local registration authority that the deemed registration has ceased for a reason set out in section 28(1)(a) 28(1)(c) to (e)
2: The Registrar must cause to be published in the Gazette
3: The expenses incurred in publishing the notice must be paid by the practitioner. Section 51A inserted 1 May 1998 88(3) Trans-Tasman Mutual Recognition Act 1997 See clause 2 Trans-Tasman Mutual Recognition Act Commencement Order 1998
52: Voluntary removal of name from roll, and restoration
1: Any practitioner may at any time, with the prior consent of the Council or executive committee of the New Zealand Law Society acting with the approval of the Council of the District Law Society of which the practitioner is a member, request the Registrar to remove his name from the roll.
2: Any person whose name has been removed from the roll under this section may at any time, with the prior consent of the Council or executive committee of the New Zealand Law Society acting with the approval of the Council of the District Law Society of which he was a member at the time of such removal, request the Registrar to restore his name to the roll.
3: On being satisfied that such consent has been given, the Registrar shall—
a: Remove the practitioner's name from the roll or, as the case may require, restore it to the roll; and
b: Forthwith cause to be published in the Gazette
4: The expenses incurred in publishing the notice shall be paid by the practitioner. 1955 No 101 ss 38, 39, 51 Fees
53: Admission and restoration fees
The Council may from time to time, with the approval of the Minister of Justice, fix fees to be paid to the Society—
a: By any candidate for admission as a barrister and solicitor:
b: By any person for the restoration of his name to the roll. 1955 No 101 ss 12, 40
4: Practice in the Legal Profession
Commencement of Practice
54: No person to act as barrister or solicitor unless enrolled
1: No person shall act as a barrister or as a solicitor in any court who is not at the time of his so acting duly enrolled as a barrister and solicitor under or by virtue of this Act.
2: Every person who acts in contravention of this section—
a: Is guilty of a contempt of the court in which he so acts; and
b: Commits an offence against this Act. 1955 No 101 ss 14, 16
55: Restriction on right of practitioner to commence private practice
1: In this section the expression legal experience experience
a: Experience of legal work in the office of a barrister or solicitor or firm of solicitors in active practice on his or their own account:
b: Experience of legal work in any of the State services (as defined in section 2 of the State Services Act 1962
c: Experience of legal work in the office of a local authority or in the employ of a company or other body whether incorporated or unincorporated:
d: Experience of full-time law teaching in a university:
e: Experience as a member of the House of Representatives;— and includes any such experience before the commencement of this Act.
2: Except with the leave of the Court given under this section, no practitioner shall commence practice as a solicitor on his own account, whether in partnership or otherwise, unless—
a: During the 8 years immediately preceding the date of his so commencing practice, he has had not less than 3 years' legal experience in New Zealand; and
b: He has satisfied the District Council that, having regard to the matters referred to in subsection (6)
c: He has received (whether before or after the commencement of this Act), during the 3 years immediately preceding the date of his so commencing practice, adequate instruction and examination to the satisfaction of the District Council in the duties of a solicitor under this Act, and under any regulations or rules for the time being in force, relating to the audit of solicitors' trust accounts or to the receipt of money.
3: A practitioner may apply to the Court for leave to commence practice on his own account in either of the following cases:
a: Where, during the 8 years immediately preceding the date of the application, he has had less than 3 years' legal experience in New Zealand but otherwise meets the requirements of subsection (2)
b: Where he has failed to satisfy the District Council that he is a suitable person to practise on his own account but otherwise meets the requirements of subsection (2)
4: A copy of any application to the Court under subsection (3)
5: If, on an application under subsection (3) subsection (6)
6: The matters to which the District Council or the Court shall have regard for the purposes of subsection (2)(b) (5)
a: The applicant's age:
b: His experience:
c: Whether or not he intends to commence practice as a member of a firm:
d: The fields in which he intends to practise:
e: Such other matters as the District Council or the Court thinks fit.
7: Notwithstanding anything in the foregoing provisions of this section, a practitioner may at any time commence practice as a solicitor on his own account, whether in partnership or otherwise, if, immediately before the commencement of this Act, he would have been entitled to do so under the Law Practitioners Act 1955 section 22 of that Act
8: This section shall not restrict the right of a practitioner—
a: To resume practice as a solicitor, if at any time previously (whether before or after the commencement of this Act) he has lawfully practised as a solicitor on his own account: Provided that if more than 10 years have elapsed since he last practised as a solicitor he shall not be entitled to resume practice as a solicitor until he has received adequate instruction and examination to the satisfaction of the District Council in the duties referred to in subsection (2)(c)
b: To act in any law office or legal advice bureau established by or with the approval of the Council of the New Zealand Law Society or a District Council pursuant to section 6
c: To act pursuant to any scheme established by a District Council for the provision of duty solicitors in respect of criminal proceedings.
9: Every practitioner who commences practice in contravention of this section commits an offence against this Act. 1955 No 101 s 22 1961 No 47 s 27 1975 No 35 s 2 Subsection (6) amended 8 March 1985 Law Practitioners Amendment Act 1985 by substituting the expression subsection 2(b) subsection 2(c) The State Services Act 1962 was repealed 1 April 1988 88(1) State Sector Act 1988 Practising Certificates
56: Practitioners not to practise without practising certificates
1: No practitioner shall act as a barrister unless he is the holder of a current practising certificate as a barrister or as a barrister and solicitor.
2: No practitioner shall act as a solicitor unless he is the holder of a current practising certificate as a solicitor or as a barrister and solicitor.
3: If a practitioner has applied for a practising certificate and has paid the prescribed fees and levies, and is otherwise entitled under this Act to the issue of the certificate, he shall until the certificate is received by him be deemed for the purposes of this Act to be the holder of a current practising certificate of the kind applied for.
4: Every practitioner who contravenes this section commits an offence against this Act.
5: No information in respect of an offence under this section shall be laid except by the President or Secretary of a District Law Society.
6: In any proceedings in respect of an offence under this section, the following shall, in the absence of proof to the contrary, be sufficient evidence that an offence has been committed:
a: A certificate signed by the Secretary of the District Law Society in whose district the defendant has his principal place of business, to the effect that at the time of the alleged offence the defendant was not, and was not deemed to be, the holder of a current practising certificate as a barrister, or as a barrister and solicitor, or as a solicitor, as the case may require:
b: A certificate signed by the President of the District Law Society for that district to the effect that the defendant was at the time of the alleged offence acting as a barrister, or as a solicitor, as the case may be, or holding himself out in any such capacity. 1955 No 101 s 23
57: Issue and currency of practising certificates
1: Subject to the payment of all the prescribed fees and all levies then payable by the applicant under this Act, the Secretary of a District Law Society, on application made to him for the purpose by any person whose name is on the roll and who intends to have his place of business or (where he intends to have more than one) his principal place of business in that society's district shall issue to him a certificate signed by the Secretary to the effect that he is duly enrolled as a barrister and solicitor of the Court and is entitled to practise as a barrister or as a solicitor or as both, as the case may require.
2: Subject to subsections (3) to (6)
a: If it is issued before the date of the expiry of the current certificate of the same kind held by the applicant, from the 31st day of January next after the date of its issue until the 31st day of January next following:
b: In any other case, on and after the date of its issue until the 31st day of January next following.
3: If the name of a practitioner is removed from or struck off the roll, every practising certificate issued to him by virtue of his being enrolled shall cease to be in force.
4: If a practitioner is suspended from practice as a barrister or as a solicitor, or as both, any practising certificate issued to him shall, so long as the suspension continues in force, be deemed to be suspended and to be not in force in respect of any capacity to which the suspension relates, unless the certificate sooner expires; and until the suspension ceases to have effect the practitioner shall not be entitled to practise in that capacity.
5: If a practitioner is adjudicated bankrupt, any practising certificate issued to him shall cease to be in force.
6: If a practising certificate is issued to a practitioner during the currency of another practising certificate of a different kind held by that practitioner, that other practising certificate shall cease to be in force when the first-mentioned practising certificate comes into force. 1955 No 101 s 24 1962 No 121 s 3
58: Withholding of practising certificate
1: Notwithstanding section 57
a: Has not at any time during the period of 2 years after his admission, or during the period of 2 years after the expiry of the last practising certificate of any kind issued to him, whichever period is the later, held a current practising certificate of any kind; or
b: Is an undischarged bankrupt; or
c: Has since the date of his admission or the date of the issue to him of the last practising certificate of any kind, whichever date is the later, been a patient in a hospital within the meaning of the Mental Health Act 1969 he shall give to the Secretary of the District Law Society not less than 2 months' notice of his intention to so apply.
2: The Secretary shall immediately refer the notice to the Council of the District Law Society, and shall not issue the certificate unless he is authorised by the District Council to do so.
3: The District Council may allow such shorter period of notice to be given to the Secretary under subsection (1)
4: Any period during which the practitioner has been rendering continuous service as a member of any of the Armed Forces of New Zealand shall not be taken into account in calculating the period of 2 years referred to in subsection (1)(a)
5: The District Council shall not authorise the issue of a certificate unless either—
a: It is satisfied that the practitioner is of good character and is a fit and proper person to practise as a barrister or as a solicitor or as both, as the case may require; or
b: It is directed by the New Zealand Disciplinary Tribunal to do so.
6: If the District Council is not satisfied as to the matters referred to in subsection (5)(a)
7: The Tribunal shall inquire into any matter so referred to it, and shall either—
a: Direct the District Council to authorise the Secretary to issue the certificate; or
b: Make an order prohibiting the Secretary from issuing a certificate to the practitioner, on the ground that the practitioner is not of good character or is not a fit and proper person to practise as a barrister or as a solicitor or as both, as the case may be.
8: Subject to any appeal under section 118
9: The Tribunal shall not make an order prohibiting the issue of a certificate without giving the practitioner concerned a reasonable opportunity of being heard, either in person or by counsel, in support of his application.
10: This section shall not limit or affect the powers of a District Council under section 59 1955 No 101 s 25 1975 No 35 s 3
59: Suspension from practice in cases of disability
1: If the Council of a District Law Society is satisfied that any practitioner who is practising within the society's district or is entitled and intends so to practise is, owing to physical or mental disability, incapable of performing his professional duties satisfactorily and that it is necessary in the public interest to prevent him from attempting to practise his profession, the District Council may if it thinks fit, instead of applying to the Court under section 94
a: That he shall not practise as a barrister or as a solicitor until he has satisfied the District Council that he is no longer incapacitated; and
b: That he shall deposit his current practising certificate (if any) with the District Council in the meantime.
2: When it makes such an order, the District Council shall cause notice of the order to be given to the Secretary of the District Law Society; and he shall not thereafter issue a fresh certificate without the consent of the District Council.
3: Any such order may be revoked—
a: By the District Council at any time; or
b: By either the Council of the New Zealand Law Society or the New Zealand Disciplinary Tribunal on an appeal by the practitioner to that Council or Tribunal made within 28 days after the date on which the District Council made the order or last refused to revoke it on an application made to it by the practitioner.
4: For the purposes of this section, a District Council may at any time, if it suspects that owing to physical or mental disability a practitioner is incapable of performing his professional duties satisfactorily, require the practitioner to undergo a medical examination by a medical practitioner nominated by the District Council, the costs of which examination shall be paid by the District Law Society.
5: If the practitioner refuses or fails to comply with the District Council's requirement under subsection (4)
6: A practitioner against whom an order is made under subsection (1)
7: In subsection (4) section 114(1)(a) Health Practitioners Competence Assurance Act 2003 1955 No 101 s 25A 1961 No 47 s 28 Subsection (7) inserted 18 September 2004 175(1) Health Practitioners Competence Assurance Act 2003 See sections 178 to 227 Practising Fees
60: Practising fees
1: The Council of the New Zealand Law Society may from time to time,—
a: With the approval of the Minister of Justice, fix practising fees to be paid for practising certificates as a barrister and as a solicitor and as both, and the fee to be paid to the Secretary of the District Law Society for the issue of every such certificate:
b: Apportion each practising fee between the District Law Society and the New Zealand Law Society, or provide for the payment of the whole fee to either of them.
2: The District Law Society and the New Zealand Law Society shall each be entitled to receive the prescribed portion (if any) of each practising fee.
3: On application by any practitioner, the Council of the District Law Society may, if it thinks it just to do so in all the circumstances of the case, refund to him, or waive payment of, the whole or any part of its portion of the fee.
4: In this section the term District Law Society 1955 No 101 ss 26, 27 Barristers
61: Status of barristers
Subject to this Act, barristers of the Court shall have all the powers, privileges, duties, and responsibilities that barristers have in England. 1955 No 101 s 13
62: Regulations as to Queen's Counsel
1: The Governor-General may from time to time, by Order in Council, make regulations prescribing—
a: The method of appointment of Queen's Counsel:
b: The fees to be paid by them:
c: Their privileges and duties:
d: The conditions on or subject to which they may be appointed or may practise their profession:
e: Such other matters as may be necessary in relation to Queen's Counsel.
2: No barrister of the rank of Queen's Counsel shall practise as a solicitor, either alone or in partnership with any other practitioner, and no practising certificate as a barrister and solicitor, or as a solicitor, shall be issued to any such barrister. 1955 No 101 s 15 Solicitors
63: Offence to practise as solicitor in contravention of order of New Zealand Disciplinary Tribunal
Every person commits an offence against this Act who practises as a solicitor on his own account, whether in partnership or otherwise, in contravention of any order of the New Zealand Disciplinary Tribunal under—
a: Section 112(2)(c)
b: Section 116(3) 1955 No 101 s 16A 1967 No 128 s 3
64: Offence for unqualified person to act as solicitor
1: Every person commits an offence against this Act who, not being duly enrolled under this Act,—
a: Acts as a solicitor; or
b: Holds himself out as being qualified to act as a solicitor; or
c: Takes or uses any name, title, addition, or description implying or likely to lead any person to believe that he is qualified to act as a solicitor; or
d: Carries on business as a solicitors' agent, or in any way advertises or holds himself out as a solicitors' agent.
2: It shall not be an offence under subsection (1)(d)
a: To carry on business as a Maori agent, or to advertise or hold himself out as a Maori agent; or
b: At the request of a solicitor, to act as his agent in searching any register or in filing, stamping, or registering any document, or in serving any legal process; or
c: To hold himself out to solicitors, but not to the public, as an agent for any of the purposes mentioned in paragraph (b) 1955 No 101 s 17
65: Qualified persons only to act as conveyancers
1: Except as provided in subsection (2)
a: Any conveyance within the meaning of the Property Law Act 1952
b: Any deed within the meaning of the Property Law Act 1952
c: Any tenancy agreement or agreement evidencing a tenancy, if—
i: The tenancy is for a term of more than 12 months; or
ii: Any right of renewal is conferred on the tenant by the agreement; or
iii: Any charge is made directly or indirectly for the drawing or preparation of the agreement or for any other service incidental to it.
2: Subsection (1)
a: Any agreement for sale and purchase of land or any interest in land or of the goodwill of a business or of chattels prepared by a real estate agent holding a licence in force under the Real Estate Agents Act 1976
b: Any transfer of shares, stocks, debentures, or chattels containing no trust or limitation thereof:
c: Any conveyance, deed, or agreement that is drawn or prepared by filling in a printed form, if—
i: The printed form was drawn or prepared by a person who, at the time when it was drawn or prepared, was the holder of a current practising certificate as a barrister or as a solicitor or as both; and
ii: It could reasonably be expected that the form could be properly completed by the persons likely to complete it, whether or not they were holders of such certificates; and
iii: No charge is made directly or indirectly for the drawing or preparation of the conveyance, deed, or agreement or for any service incidental to it.
3: Every person who contravenes this section commits an offence against this Act.
4: In this section the term printed form 1955 No 101 s 18 1962 No 121 s 2
66: Unqualified persons not to act through agency of solicitors
1: Every person commits an offence who—
a: Not being duly qualified and entitled to act as a solicitor, acts in any respect as a solicitor in any action or matter or in any court in the name or through the agency of a solicitor who is entitled to practise; or
b: Being under suspension from practice as a barrister or solicitor, or having had his name struck off the roll, acts without the sanction of the Court or of the New Zealand Disciplinary Tribunal, as a clerk or otherwise in or about the business of a solicitor.
2: Every person who commits an offence against this section is liable to imprisonment for a term not exceeding 1 year or to a fine not exceeding $1,000. 1955 No 101 s 19
67: Solicitors not to act as agents for unqualified persons
1: Every solicitor is guilty of misconduct in his professional capacity who knowingly—
a: Acts as agent in any action or matter or in any court for any person who to his knowledge is not duly qualified and entitled to act as a solicitor; or
b: Permits or suffers his name to be made use of in any action upon the account or for the profit of any such person; or
c: Except for the purposes of section 64(2)(b)
d: Does any other act to enable any such person to act in any respect as a solicitor in any action or matter in any court.
2: Every solicitor is guilty of misconduct in his professional capacity who, without the sanction of the Court or of the New Zealand Disciplinary Tribunal, knowingly employs or permits to act as a clerk or otherwise in or about his business as a solicitor any person who to his knowledge—
a: Is under suspension from practice as a barrister or as a solicitor; or
b: Has had his name struck off the roll otherwise than at his own request. 1955 No 101 s 20
68: Solicitor not to commence or defend action if
prisoner
1: No solicitor who is a prisoner within the meaning of the Corrections Act 2004 may, while the person is a prisoner
2: Every solicitor who acts in contravention of this section—
a: Is guilty of a contempt of the court in which he so acts; and
b: Shall also be incapable of maintaining, in his own name or in the name of any other solicitor, any action in any court for the recovery of any fee, reward, or disbursement in respect of any business, matter, or thing done by him in contravention of this section. 1955 No 101 s 21 The heading to section 68 amended 1 June 2005 206 Corrections Act 2004 by substituting the word prisoner inmate of penal institution See clause 2 Corrections Act Commencement Order 2005 Subsection (1) amended 1 June 2005 206 Corrections Act 2004 by substituting the words a prisoner within the meaning of the Corrections Act 2004 may, while the person is a prisoner an inmate of a penal institution within the meaning of the Penal Institutions Act 1954 shall, while he is such an inmate See clause 2 Corrections Act Commencement Order 2005 Appointment of Agent to Conduct Sole Solicitor's Practice
69: Interpretation
1: In sections 70 to 77 Donee Donor
2: In sections 71 to 77 power of attorney section 70 71
70: Agent to be appointed to conduct sole solicitor's practice
1: Every solicitor who, at the commencement of this Act or at any time thereafter, is in practice on his own account without partners shall, within 3 months after the date of the commencement of this Act or, as the case may require, the date of his commencing to be in practice without partners, give to some other solicitor or solicitors entitled to practise on his or their own account a power of attorney, in a form approved by the Council of the New Zealand Law Society, authorising him or them jointly or severally to exercise and perform in the donor's name, during the periods specified in subsection (3) subsection (4)
2: A power of attorney given under this section shall also appoint such a solicitor or solicitors as an alternate or alternates, who shall exercise the powers and duties of the donee in any case where the donee is for the time being unable or unwilling to act.
3: The periods for which the power of attorney shall be given are—
a: Any current or future period or periods during which the donor is wholly or partially incapacitated and unable by reason of his physical or mental condition to conduct his practice; and
b: Any current or future period or periods during which the donor is absent from his practice; and
c: The period from the date of the donor's death until his administrator (within the meaning of the Administration Act 1969
d: If the donor is suspended from practice, then, subject to the consent of the District Council being obtained at that time to the operation of the power of attorney, any period during which he is so suspended; and
e: If the donor has had his name struck off the roll, then, subject to the consent of the District Council being obtained at that time to the operation of the power of attorney, the period from the date on which the name is so struck off until the practice is lawfully disposed of.
4: Subject to section 73
a: To conduct the donor's practice; and
b: To operate the donor's trust account or accounts; and
c: If the case is one to which subsection (3)(e)
d: To do all things necessary for or incidental to the exercise of those powers— in accordance with and subject to this Act and all rules and regulations made under this Act.
5: A power of attorney given before the date of the commencement of this Act under section 19 of the Law Practitioners Amendment Act 1961
a: To have been duly given under subsection (1)
b: To extend and apply in respect of the periods specified in subsection (3) subsection (4)
6: If any solicitor to whom subsection (1) subsection (3)
7: Before a power of attorney is given under this section the written consent of the intended donee shall be obtained.
8: While the donor continues to practise on his own account without partners, neither the donor nor the President of the District Law Society (if the power of attorney was given by him) shall revoke the power of attorney unless, at the time of revocation, the donor or the President gives a power of attorney to the same or any other solicitor or solicitors in accordance with this section.
9: The powers of the donee of any power of attorney given under this section shall terminate—
a: If the power of attorney is revoked under this Act; or
b: If the donee is released under section 74(2) but shall not terminate by reason only of the death of the donor or his becoming of unsound mind.
10: The powers of the donee of any power of attorney given under this section shall not be exercised after the expiration of 1 year from the date of the grant in New Zealand of administration in the estate of the donor, except during such further period or periods as may be approved by the Council of the District Law Society of which the donor was a member.
11: Nothing in this Act shall prevent—
a: The lawful disposal of the practice of the donor; or
b: The grant by a solicitor of a power of attorney otherwise than under this Act.
12: This section shall apply notwithstanding anything to the contrary in the Property Law Act 1952 1961 No 47 s 19(1)-(3), (5), (6)
71: Powers of manager or administrator of estate of mentally disordered or deceased solicitor
1: While under the Protection of Personal and Property Rights Act 1988
2: Any such manager may at any time, with the prior consent of the Council of the District Law Society of which the donor is a member, and subject to the provisions of this Act applicable to the donor, revoke any power of attorney and give to any other solicitor or solicitors entitled to practise on his or their own account a power of attorney for the same purposes and for the same period as the donor was required to do.
3: The administrator (within the meaning of the Administration Act 1969 section 70(3)(c)
4: Sections 70 72 to 77 1961 No 47 ss 19(4), 20
72: Notice of giving of power of attorney
Whenever a power of attorney is given in respect of the practice of any solicitor, the person giving it shall forthwith give notice of the fact that it has been given, the date of it, and the name and business address of the donee, to the Secretary of the District Law Society in every district in which the solicitor is practising.
73: Conditions affecting donee of power of attorney
1: This section applies whenever a power of attorney is given under section 70 71
2: The donee shall not begin to act under the power of attorney until he has—
a: Produced it for the inspection of the Secretary of the District Law Society in every district in which the solicitor was practising; and
b: Given a certified copy of it to every such Secretary; and
c: Given notice of it to the auditor of the solicitor's trust account and to the bank where the trust account is kept.
3: All rules and regulations for the time being in force relating to solicitors' trust accounts and their audit shall apply and be observed in the name and on behalf of the solicitor as if he were personally conducting his practice.
4: 1961 No 47 s 21 Subsection (4) repealed 24 May 1999 17 Estate Duty Repeal Act 1999
74: Termination of agency
1: If a power of attorney is revoked or suspended, or if for any reason the donee of a power of attorney ceases to act under it, written notice of that fact shall forthwith be given, to the Secretary of the District Law Society in every district in which the practice was last conducted, by—
a: The donor if he is capable of doing so; and
b: The donee if he is capable of doing so; and
c: Any other person who revokes or suspends the power of attorney.
2: If the donee of any power of attorney ceases to act under it while he is capable of so acting, he shall continue to observe and comply with the requirements of the Council of the District Law Society in every district in which the practice was conducted, and shall be personally responsible for the observance of this Act and of all rules and regulations made under this Act, until the power of attorney is revoked or suspended or the donee is released by resolution passed by every such District Council.
3: When any such District Council passes any such resolution, its Secretary shall forthwith give notice of it to—
a: The auditor of the trust account of the solicitor to whose practice the power of attorney relates; and
b: The bank where the trust account is kept.
4: No such release shall be given by any such District Council until it is satisfied by such proof as it requires that it is proper in all the circumstances to do so.
5: A power of attorney shall be revoked by operation of law when the solicitor to whose practice it relates commences practice in partnership with any other solicitor or solicitors. 1961 No 47 s 22 1962 No 121 s 9
75: Bank to notify closing of trust account
Where—
a: Under section 73(2)(c)
b: That notice has not been followed by a notice under section 74(3)(b)
c: The bank is requested to close any such trust account, or any such account is closed,— the bank shall forthwith notify the Secretary of the District Law Society for the district in which the trust account is kept of the request or closure. 1961 No 47 s 23 1962 No 121 s 10
76: Agent to be authorised to appoint substitute
1: A power of attorney shall include provision authorising the donee of the power of attorney to appoint a substitute.
2: Sections 70 73 to 75 77 1961 No 47 s 24
77: Practising certificates, etc
1: A donee acting under a power of attorney shall, out of the funds of the donor available to him, pay all practising fees, all contributions and levies to the Solicitors' Fidelity Guarantee Fund, and all other amounts for which the donor would have been liable under this Act if he had continued to practise as a solicitor.
2: While the donor is alive, the donee of the power of attorney shall apply for and obtain in each year the practising certificate of the solicitor to whose practice the power of attorney relates.
3: The Secretary of the District Law Society of which the solicitor to whose practice the power of attorney relates is a member is hereby empowered, subject to this Act, to issue such a certificate with the approval of the Council of the Society.
4: No practising certificate shall be issued in respect of a solicitor who has died; but while the practising fees, contributions, levies, and amounts for which he would have been liable are being paid in respect of a solicitor who has died, this Act and all rules and regulations made under this Act shall apply in respect of him as if he were living and the holder of a current practising certificate. 1961 No 47 s 25
78: Offences
Without prejudice to any of the foregoing provisions of this Part of this Act, every solicitor for the time being practising on his own account without partners commits an offence against this Act if, without lawful justification or excuse, he—
a: Fails to give a power of attorney in accordance with section 70
b: Revokes a power of attorney otherwise than in accordance with subsection (8)
c: Fails to give a notice under section 72
79: Powers of Council or District Council not affected
Nothing in sections 70 to 78 Part 5 1961 No 47 s 26
5: Intervention in Solicitor's Practice
80: Interpretation
In this Part, unless the context otherwise requires,— Document
a: Any paper, deed, security, or instrument (including a negotiable instrument); and
b: Any postal article within the meaning of the Postal Services Act 1998
c: Any document delivered or to be delivered to a document exchange box used for the purposes of the solicitor's practice; and
d: Any reproduction or copy of a document: Document: paragraph (b) amended 1 April 1998 62(1) Postal Services Act 1998 by substituting the words the Postal Services Act 1998 section 12 of the Post Office Act 1959 See clause 2 Postal Services Act Commencement Order 1998 Record
a: Any file, register, ledger, book of account, or passbook, and any reproduction or copy thereof or of any entry therein; and
b: Any apparatus or equipment in or on which information is recorded, stored, or embodied in any form so as to be capable of being retrieved, reproduced, or processed by any means; and
c: Any material by means of which information is supplied to or derived from any such apparatus or equipment. Trust Accounts, Records, and Documents
81: Application of
sections 82 to 84 Sections 82 to 84 section 82 83
a: There is reasonable cause to believe that he has been guilty of theft or of any improper conduct in relation to the money or other property of any other person; or
b: There is reasonable cause to believe that any money or other property entrusted to him has been stolen by his employee or agent; or
c: He is, owing to physical or mental disability, unable to properly administer his trust account; or
d: He has died; or
e: He has been adjudicated a bankrupt; or
f: His name has been struck off the roll; or
g: He has been suspended from practice; or
h: He has been ordered by the New Zealand Disciplinary Tribunal not to practise as a solicitor on his own account; or
i: He has ceased to practise and has neglected to wind up his trust account. 1955 No 101 ss 73(1), 74(1), 97(1)
82: Administration of solicitor's trust account by District Council
1: In any case to which this section applies, the District Council may serve on any banker of whom the solicitor is a customer a notice, signed by 2 members of the District Council, requiring the banker to pay to the District Law Society all money held by the banker in any trust account of the solicitor.
2: On receipt of the notice, the banker shall forthwith pay to the District Law Society all money held by him in any trust account of the solicitor; and the receipt of the District Law Society shall be a complete discharge to the banker from all liability in respect of the money.
3: On receipt of the money, the District Council shall forthwith cause it to be paid into a separate account at such bank as the District Council appoints; and that account may be operated on by such 2 or more persons as the District Council appoints in that behalf.
4: Where any money that was held by the solicitor on behalf of any person is paid to the District Law Society under this section, the money shall be held by the District Law Society in trust for that person.
5: Any person claiming to be adversely affected by any payment to the District Law Society under this section, and, if the money was paid from the trust account of a deceased solicitor, the executors or administrators of the deceased solicitor or any person claiming to be entitled to a grant of probate or letters of administration of his estate, may at any time apply to the Court for an order directing the District Law Society to repay the money into the bank account from which it was paid or for such order as the Court thinks fit; and, on hearing any such application, the Court may make such order as it thinks fit.
6: Subject to subsection (7)
7: If the case is one to which paragraph (a) (b) subsection (4) 1955 No 101 ss 73(1), (2), (6), (7), 74(2)-(8)
83: Council or District Council may take possession of solicitor's records and documents
1: In any case to which this section applies, the Council of the New Zealand Law Society or a District Council may, if in its opinion it is expedient to do so, take possession of any records or documents belonging to the solicitor or held in his possession or under his control in the course of his practice.
2: For the purposes of this section, the Council or District Council may serve on any postmaster a notice signed by 2 of its members requiring the postmaster to cause to be delivered to the Society or the District Law Society all postal articles addressed to the solicitor at his office address; and it shall be the duty of the postmaster to comply with the notice.
3: The Council or District Council may apply to a Judge of the High Court or a District Court Judge for a writ or warrant to empower any member of the Council or District Council, or any other person on its behalf, to enter upon any premises, by force if necessary, and search for any records or documents of which the Council or District Council is entitled to take possession and to remove them to such place as he thinks fit.
4: Where any person is empowered by a writ or warrant issued under subsection (3)
5: Where any documents belonging to any person other than the solicitor are received by the Council or District Council under this section, they shall be held by the Council receiving them until any application made under section 84
6: Thereafter, subject to any order made by the Court on such an application, the documents shall be delivered, on demand made by the person to whom they belong, to that person or to such other person as he may direct in writing.
7: For the purpose of ascertaining the true position concerning any trust account of the solicitor, or any money or other property entrusted to him, the Council or District Council may cause such entries as may be necessary to be made in any such records, or cause any entries therein to be amended.
8: The Council or District Council may at any time apply to the Court for directions concerning any such records or documents.
9: Subject to any order of the Court made under any provision of this Part of this Act and to any lawful demand made under subsection (6)
10: While any documents are in the possession of the Council or a District Council pursuant to this section, any lien or right to a lien which, but for this section, could be exercised by the solicitor shall enure for the benefit of the Council or District Council to the exclusion of the solicitor. 1955 No 101 ss 97(2), (3A), (7), (8), 97A 1962 No 121 s 5 1967 No 128 s 6
84: Notice to be given to solicitor and his partners
1: On receipt of any money or any records or documents under section 82 83
2: The notice may be served personally on any solicitor, or may be sent to him by registered letter addressed to his last known place of business or residence.
3: Within 14 days after the notice has been so served or posted, the solicitor or any partner in the firm of solicitors of which he is a member may apply to the Court for an order directing the New Zealand Law Society or the District Law Society, as the case may require,—
a: To repay any money referred to in the notice into the bank account from which it was received; or
b: To return any records or documents referred to in the notice to the person or persons from whom they were received,— or for such other order as the Court may think fit.
4: On hearing any such application, the Court may make such order as it thinks fit. 1955 No 101 ss 73(3)-(5), 97(4)-6) Investigations
85: Investigation of solicitor's affairs
1: The Council of the New Zealand Law Society or of any District Law Society may at any time appoint any officer or member of any such society, or a chartered accountant for the time being qualified to conduct the audit of solicitors' trust accounts, to examine from time to time the accounts of solicitors or firms of solicitors, and to furnish to it confidential reports as to any irregularity in the accounts of any solicitor or firm of solicitors that may be disclosed by any such examination, or as to any other matter that in the opinion of the person so appointed should be reported upon or further investigated.
2: Every appointment made under this section shall be in writing and shall be signed on behalf of the Council of any such Law Society by the President or any 2 members of the Council.
3: Any person for the time being holding an appointment under this section may at any time, without further authority than this section, examine the accounts of any solicitor or firm of solicitors.
4: Without limiting the generality of the foregoing provisions of this section, if the Council or District Council has reasonable cause to believe—
a: That any money entrusted to a solicitor has been stolen by him or by his employee or agent; or
b: That any trust account of a solicitor or firm of solicitors is not being kept or operated in accordance with any rules or regulations made under this Act and for the time being in force relating to trust accounts and the audit of such accounts; or
c: That any solicitor is, owing to physical or mental disability, unable to properly administer his trust account,— any person for the time being holding an appointment under this section may at any time, acting under the general or special directions of the Council or District Council, examine the accounts of that solicitor or firm.
5: On production by any person so appointed of the instrument of his appointment, he may at any time—
a: Require any solicitor or firm of solicitors, or any employee, agent, or banker of any solicitor or firm of solicitors, to produce to him all records or documents relating to the business or accounts of any solicitor or firm of solicitors, and to give all information in relation thereto that may be reasonably required by him; and
b: Inspect all records and documents relating to any money received by any solicitor or firm of solicitors, or any employee, agent, or banker of any solicitor or firm of solicitors, whether the money has been paid into a private account or a trust account at a bank or has not been paid to any such account, and make copies of them or of any entries in them.
6: A person so appointed shall not communicate any matter that may come to his knowledge in the exercise of any of his powers under this section, except—
a: For the purposes of his investigation; or
b: In the course of any report to the Council that appointed him; or
c: In evidence in proceedings before a District Council or committee or a Tribunal under Part 7
d: To a member of the Police acting in the performance of his duty; or
e: In evidence in any court.
7: The Council receiving any such report shall consider it in committee and not otherwise; and it shall not be lawful for any member of that Council or any of its officers to publish to any person any information disclosed in the report except pursuant to subsection (6) (8)
8: The Council receiving any such report may in its discretion communicate the contents of it, or any part of the contents, to—
a: Any solicitor to whom the report relates, or any practitioner representing that solicitor, or, if that solicitor is a partner in a firm of solicitors, to any partner in the firm:
b: The auditor of the solicitor's trust account:
c: The President of the New Zealand Law Society:
d: A chartered accountant (within the meaning of section 19 Institute of Chartered Accountants of New Zealand Act 1996
e: Any member of the Police.
9: Nothing in this section shall prevent the Council or District Council, in its discretion, from giving to any client of a solicitor or firm of solicitors any information disclosed in any such report so far as it relates to the client's affairs and is required by the client.
10: Where the contents, or any part of the contents, of any report are disclosed to the Council of the Institute of Chartered Accountants of New Zealand under subsection (8) Institute of Chartered Accountants of New Zealand Act 1996 1955 No 101 ss 98(1), 99(1)-(3), (4), (5) 1957 No 58 s 2 Subsection (6)(c) substituted 1 October 1996 23 Institute of Chartered Accountants of New Zealand Act 1996 Subsection (8)(d) substituted 1 October 1996 23 Institute of Chartered Accountants of New Zealand Act 1996 Subsection (10) substituted 1 October 1996 23 Institute of Chartered Accountants of New Zealand Act 1996 General Provisions
86: Expenses of Council or District Council in investigating or conducting affairs of solicitor
1: The reasonable expenses of the Council or any District Council acting in the exercise of any of the powers conferred by this part of this Act in respect of any solicitor shall be recoverable from him as a debt.
2: Subject to this section, the Council or District Council may apply any money belonging to the solicitor or to which he may be entitled, being money that comes into the possession of the Council or District Council, in or towards satisfaction of those reasonable expenses; but nothing in this subsection shall affect any other remedy available to any such Council.
3: No such money shall be so applied until a notice giving particulars of the expenses claimed has been served on the solicitor or his personal representatives.
4: Any such notice may be served personally on the solicitor or any such representative, or may be forwarded to him by registered letter addressed to his last known place of business or residence.
5: Within 14 days after any such notice has been so served or posted, the solicitor or his personal representatives may apply to the Court for a review of the expenses claimed; and on hearing any such application the Court may make such order as it thinks fit.
6: In this section the term reasonable expenses 1955 No 101 s 97B 1962 No 121 s 5
87: Offences
Every person commits an offence against this Act who—
a: Having possession or control of any records or documents belonging to a solicitor or held in his possession or under his control in the course of his practice, refuses or fails without lawful justification or excuse to deliver them or cause them to be delivered to the Council or District Council forthwith on demand made by such Council for the purposes of section 83
b: Being required under section 85(5)(a) section 85
c: Having possession or control of any records or documents relating to any money received by a solicitor or firm of solicitors, or any employee, agent, or banker of any solicitor or firm of solicitors, refuses or fails without lawful justification or excuse to permit or enable the Council or a District Council or any person appointed under section 85
d: Wilfully acts in contravention of any provision of subsection (6) (7) (10) 1955 No 101 ss 97(3), 98(2), 99(3A), (6) 1962 No 121 s 6
6: Solicitors' Trust Accounts
88: Joint Audit Board
1: The Council may, after consultation with the Council of the Institute of Chartered Accountants of New Zealand
a: This Part of this Act; and
b: The regulations and rules for the time being in force under this Act relating to trust accounts and the receipt of money; and
c: Part 5
2: The Board shall consist of not less than 3 and not more than 6 members, of whom—
a: At least 2 but not more than 3 shall be members of the New Zealand Law Society appointed by the Council:
b: Not more than 3 shall be chartered accountants (within the meaning of section 19 Institute of Chartered Accountants of New Zealand Act 1996
3: Any member of either of those societies may be so appointed, whether or not he is a member of the Council of the society.
4: The Board may from time to time appoint a chairman from among those of its members who are members of the New Zealand Law Society.
5: At any meeting of the Board, a quorum shall consist of 3 members of whom at least 2 shall be members of the New Zealand Law Society.
6: The chairman shall preside at every meeting of the Board at which he is present.
7: If at any meeting the chairman is not present or there is no chairman, the Board may appoint some other member present (being a member of the New Zealand Law Society) to act as chairman in respect of that meeting; and the person so appointed shall in respect of that meeting have all the powers of the chairman.
8: At any meeting of the Board, the person presiding shall have a deliberative vote, and, in the case of an equality of votes, shall also have a casting vote.
9: The Council may from time to time by resolution delegate to the Board all or any of its powers or functions under any of the provisions referred to in subsection (1)
10: Subsections (5) to (7)
11: The Board shall report on its operations to the New Zealand Law Society and to the Institute of Chartered Accountants of New Zealand
12: A resolution in writing signed by all the members of the Board for the time being shall be as valid and effectual as if it had been passed at a meeting of the Board duly convened and held.
13: Any such resolution may be embodied in several documents in like form each signed by one or more members of the Board.
14: Subject to this section and to any resolution of the Council, the Board may determine its own procedure. Subsection (1) amended 1 October 1996 23 Institute of Chartered Accountants of New Zealand Act 1996 by substituting the words Institute of Chartered Accountants of New Zealand New Zealand Society of Accountants Subsection (2)(b) substituted 1 October 1996 23 Institute of Chartered Accountants of New Zealand Act 1996 Subsection (11) amended 1 October 1996 23 Institute of Chartered Accountants of New Zealand Act 1996 by substituting the words Institute of Chartered Accountants of New Zealand New Zealand Society of Accountants
88A: Law Society inspectorate
1: The Council may establish a Law Society inspectorate which at any time shall consist of such persons as are appointed to it from time to time under subsection (2)
2: The Council may at any time, by written notice to the person and after consultation with the Joint Audit Board and such District Councils as the Council considers appropriate,—
a: Appoint any person having such legal or accounting qualifications and experience as the Council considers necessary, to the Law Society inspectorate, as an inspector on such terms and conditions, including terms and conditions as to salary, fees, or expenses, as the Council considers appropriate; and
b: Remove any such person from such appointment.
3: The Law Society inspectorate shall have such functions, duties, rights, and powers as may be prescribed from time to time by regulations made under section 91
4: Subject to any resolution of the Council, the Law Society inspectorate may determine its own procedure.
5: Except as otherwise expressly provided in regulations made under section 91 subsection (2)
6: A certificate signed by the Secretary to the Council to the effect that a person is an inspector of the Law Society inspectorate shall, unless the contrary is proved, be sufficient evidence that the person is such an inspector.
7: Every solicitor who is in practice on the solicitor's own account or who is employed by a solicitor who is in practice on his or her own account, on making application in any year for a practising certificate, shall, in addition to all other fees payable by the solicitor, pay such fee as may from time to time be fixed by resolution of the Council, after consultation with the Joint Audit Board, for the purposes of the Law Society inspectorate.
8: The Law Society inspectorate shall report on its operations to the Joint Audit Board at such times and in such form as may be required from time to time by the Council. This section was inserted 1 July 1994 3 Law Practitioners Amendment Act 1994
89: Solicitor to pay client's money into trust account at bank
1: All money received for or on behalf of any person by a solicitor shall be held by him exclusively for that person, to be paid to that person or as he directs, and until so paid all such money shall be paid into a bank in New Zealand to a general or separate trust account of that solicitor.
2: No such money shall be available for the payment of the debts of any other creditor of the solicitor; nor shall any such money be liable to be attached or taken in execution under the order or process of any court at the instance of any such creditor.
3: Every solicitor who knowingly acts in contravention of this section commits an offence against this Act.
4: Nothing in this section shall be construed to take away or affect any just claim or lien that any solicitor may have against any money so received by him. 1955 No 101 s 71 1961 No 47 s 32(b)
89A: Solicitor's duty to ensure that client's funds earn interest
It shall be the duty of a solicitor to ensure that, wherever practicable, all money held on behalf of any person by that solicitor earns interest for the benefit of that person, unless—
a: That person instructs otherwise; or
b: It is not reasonable or practicable (whether because of the smallness of the amount, the shortness of the period for which the solicitor is to hold the money, or for any other reason) for the solicitor to invest the money, at the direction of that person, so that interest is payable on it for the benefit of that person. Section 89A inserted 1 October 1991 Law Practitioners Amendment Act 1991
90: Unclaimed money in trust account
1: Where the person on whose behalf any money is held in a trust account of any solicitor cannot be found and has no known agent with authority to receive the money, the solicitor may, if he thinks fit, pay the money to the Commissioner of Inland Revenue and send to the Commissioner particulars of the payment and of the person on whose behalf the money was held; and the solicitor shall thereupon be relieved from all further liability in respect of the money so paid.
2: All money paid to the Commissioner under this section shall be deemed to have been so paid as unclaimed money, and section 11 Unclaimed Money Act 1971
3: Where a solicitor has paid any money to the Commissioner of Inland Revenue under this section, the Commissioner may at any time require the solicitor or any other person to give to the Commissioner all such information as he may require in relation to the ownership of the money, including information as to the steps taken to trace the person on whose behalf the money was held.
4: Every person commits an offence against this Act who refuses or wilfully neglects to give any such information that is in his possession or control when so required, or wilfully gives any false information in answer to any such requisition. 1955 No 101 s 72 1971 No 28 14(3) (4)
91: Regulations relating to trust accounts
1: The Governor-General may from time to time by Order in Council make regulations for all or any of the following purposes:
a: Regulating the use and audit of trust accounts of solicitors, and prescribing duties of solicitors in regard to trust accounts:
b: Prohibiting or regulating the collection of money of a client by a solicitor or class of person connected with a solicitor:
c: Regulating the lending of money of a client by a solicitor or class of person connected with a solicitor:
d: Prohibiting or regulating the borrowing of money of a client by a solicitor or class of person connected with a solicitor:
e: Providing for the auditing by chartered accountants or firms of chartered accountants of the trust accounts of solicitors, or (instead of such audits) the review of the controls and procedures of firms of solicitors by the Law Society inspectorate, and for reports of the results of such audits or reviews, and prescribing the principal matters to be contained in reports of the results of such audits or reviews:
f: Requiring the production by a solicitor or any other person to the auditor and the Law Society inspectorate of books, documents, papers, accounts, and records (including lists of assets and liabilities of a solicitor or class of person connected with a solicitor):
g: Authorising the Joint Audit Board to establish and maintain a list specifying which chartered accountants or firms of chartered accountants are permitted to audit trust accounts of solicitors and specifying any conditions and restrictions on the appointment of any chartered accountant or firm of chartered accountants named on the list; and providing for their appointment and the termination of their appointment as such auditors by Councils of District Law Societies as agents for the New Zealand Law Society:
h: Providing circumstances in which chartered accountants shall be disqualified from acting as auditors of the trust accounts of solicitors; providing that the conditions of the appointment of any such auditor may include the maintenance by the auditor of adequate professional indemnity insurance; and prescribing the duties of such auditors:
i: Prescribing functions, duties, rights, and powers of the Law Society inspectorate, authorising any inspector appointed to the Law Society inspectorate to delegate any function, duty, right, or power conferred on that inspector in his or her capacity as a member of the Law Society inspectorate (other than the power of delegation), and providing for payment by solicitors of fees and costs of the inspectorate:
j: Authorising any auditor or the Law Society inspectorate to communicate directly with clients of solicitors and other persons for the purpose of establishing whether the regulations have been complied with:
k: Prescribing the persons to whom the reports of auditors shall be sent for inspection, information, or record:
l: Prescribing the persons to whom written communications between the auditor and the solicitor may be disclosed:
m: Providing that a solicitor, an auditor, and the Law Society inspectorate shall be subject to an obligation not to divulge, otherwise than as prescribed, any matter of which the solicitor or the auditor or the Law Society inspectorate shall be informed in the course of an audit, review, or inspection, and shall also be subject to the like liability in damages to a client of the solicitor as the solicitor would be if the solicitor divulged any such matter:
n: Prescribing fees or costs or a scale of fees or costs to be paid to auditors, or the Law Society inspectorate, or providing for the determination of the amounts of such fees or costs in such manner as may be prescribed; and providing that the Law Society inspectorate may charge fees for performing any of its functions:
o: Providing that, in the absence of any agreement in writing with a client to the contrary, an auditor's fees or costs shall be paid by the solicitor:
p: Providing for appeals to the Joint Audit Board in respect of fees, costs, and requirements of auditors and the Law Society inspectorate in relation to trust accounts:
q: Prescribing the circumstances (if any) and the conditions subject to which, any trust account may be kept in a name other than that by which the client is usually known; and requiring trust accounts to be kept in all other circumstances in the names by which the clients are usually known:
r: Requiring solicitors to keep registers of documents and information:
s: Requiring solicitors, banks, and other persons to supply (either at specified times or upon request) to auditors, the Law Society inspectorate, the New Zealand Law Society, or a District Law Society such information and returns as may be necessary to ensure compliance with the regulations:
t: Prescribing the powers of Councils of District Law Societies to examine persons and records in relation to trust accounts of solicitors:
u: Authorising the Council (or the Joint Audit Board or any other person, with the approval of the Council) to exercise or perform any function, duty, right, or power of a District Council under any regulations made under this section or under any rules made under section 17
v: Prescribing offences in respect of the contravention of or non-compliance with any regulations made under this section, and the amounts of the fines that may be imposed in respect of any such offences, not exceeding $10,000 in respect of any offence and, where the offence is a continuing one, a further amount not exceeding $1,000 for every day on which the offence has continued:
w: Generally by all such means as may be prescribed to ensure that trust accounts shall be duly kept, and that persons beneficially entitled to money and securities held by solicitors on trust shall be informed thereof and of the investment thereof.
2: In subsection (1)
a: The term client
b: The term class of person connected with a solicitor
i: A spouse or child of the solicitor; and
ii: Any nominee of the solicitor; and
iii: Any company registered under the Companies Act 1955
iv: Any other incorporated or unincorporated body of which the principal financial benefit or effective control is directly or indirectly vested in the solicitor or any spouse or child or children or nominee of the solicitor.
3: In subsection (2)(b) spouse
4: Regulations made under this section shall not limit or derogate from the disciplinary powers of a Tribunal under this Act or of the Appeals Council under the Institute of Chartered Accountants of New Zealand Act 1996
5: Without prejudice to subsection (4) 1955 No 101 s 75 Subsection (1)(ia) inserted 13 March 1985 Law Practitioners Amendment (No 2) Act 1985 This section was substituted 1 July 1994 4 Law Practitioners Amendment Act 1994 Subsection (4) substituted 1 October 1996 23 Institute of Chartered Accountants of New Zealand Act 1996
6A: Interest on Solicitors' Trust Accounts
Part 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991 New Zealand Law Society Special Fund
91A: Interpretation
In this Part of this Act, unless the context otherwise requires,— Board Legal Services Act 2000 Board: this definition was inserted 1 February 2001 128 Legal Services Act 2000 Fund Legal Services Board Board Legal Services Board or Board: this definition was repealed 1 February 2001 128 Legal Services Act 2000 Management Committee Committee New Zealand Law Foundation Foundation Nominated trust account section 91J PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91B: New Zealand Law Society Special Fund
1: There is hereby established a Fund to be known as the New Zealand Law Society Special Fund.
2: The Fund shall be the property of the New Zealand Law Society and shall be held in trust for the purposes specified in this Part of this Act. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91C: Fund to be kept in separate bank account
All money belonging to the Fund shall, pending its application or investment in accordance with this Part of this Act, be paid into a bank to the credit of a separate account to be called the New Zealand Law Society Special Fund Account. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91D: Money payable into Fund
The Fund shall consist of—
a: All sums paid to or on account of the Fund by banks in accordance with section 91M
b: Any interest earned on any such money pending its application in accordance with this Part of this Act. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91E: Investment of money
Any money belonging to the Fund may, pending its application in accordance with this Part of this Act, be kept in an interest-bearing account at a bank, but may not otherwise be invested. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91F: Distribution of Fund
1: Not later than 1 month before the end of each financial year of the Board, the Board shall, by notice in writing to the Council, advise the Council of the amount (in this section referred to as the specified amount to fund community law centres
2: In each financial year of the Board, on the last working day of every month, all money standing to the credit of the Fund at the close of the previous day (other than any money required to meet the costs of administering the Fund) shall be applied by the Council in accordance with the following provisions:
a: The first priority of the Council, in relation to the money to which this subsection applies, shall be to pay to the Board, in that financial year, the specified amount relating to that financial year:
b: any surplus money remaining after the specified amount (if any) has been paid to the Board in accordance with paragraph (a)
i: for the purposes of funding law libraries, legal research, and providing practical legal training for practitioners and law students; and
ii: for the purposes of funding the Council of Legal Education; and
iii: for funding such other matters as are referred to in clause 12 of the deed of trust referred to in section 91A
3: The expenses involved in the administration of the Fund, including the costs of auditing the accounts of the Fund, and also including allowances to members of the Council or the Management Committee in respect of their services and their reasonable travelling expenses incurred in connection with the management of the Fund, may be paid by the Council out of the Fund.
4:
5:
6:
7: PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991 Subsection (1) amended 1 February 2001 128 Legal Services Act 2000 by substituting the words to fund community law centres for the purposes specified in section 95(1)(e)(i) of the Legal Services Act 1991 Subsection (2)(b) substituted 1 February 2001 128 Legal Services Act 2000 Subsections (4) (7) repealed 1 February 2001 128 Legal Services Act 2000
91G: Audit of accounts
1: The accounts of the Fund shall be audited annually by a chartered accountant appointed for the purpose by the Council.
2: No person shall be so appointed unless he or she is a person authorised to audit solicitors' trust accounts in accordance with the regulations for the time being in force relating to the audit of those accounts. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91H: Council to administer Fund
Subject to section 91I PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91I: Management Committee
1: The Council may from time to time appoint a Management Committee of the New Zealand Law Society Special Fund, consisting of 3 persons, being members of the New Zealand Law Society.
2: Any member of the New Zealand Law Society may be appointed a member of the Management Committee, notwithstanding that he or she may not be a member of the Council.
3: The Council may from time to time by resolution delegate to the Committee all or any of its powers in relation to the Fund.
4: Any such resolution may at any time in like manner be rescinded or varied. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991 Nominated Trust Accounts
91J: Nominated trust accounts
1: The trust accounts of every solicitor shall include at least 1 account nominated for the purposes of this Part of this Act, which account shall be known as a nominated trust account.
2: Every solicitor shall nominate one or more of that solicitor's trust accounts as a nominated trust account, and shall give notice in writing of each such nomination to the bank at which each such account is kept.
3: All the provisions of this Act, and all rules and regulations for the time being in force, relating to trust accounts and their audit shall apply to nominated trust accounts. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91K: Money required to be held in nominated trust account
1: Where—
a: Any money held on behalf of any person by a solicitor is required to be held in a trust account; and
b: It is not reasonable or practicable, for any of the reasons referred to in section 89A(b) that money shall be held by that solicitor in a nominated trust account.
2: Nothing in subsection (1) PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91L: Interest to be payable on nominated trust account
1: Every bank at which a nominated trust account is kept shall pay interest on the sums held in that account at the rate determined in accordance with subsection (2)
2: The rate of interest payable under subsection (1)
a: The rate of interest paid by that bank, during the month immediately preceding the date on which the interest payable on that nominated trust account is to be calculated, in respect of funds deposited, at call, with that bank, on behalf of that solicitor's clients, in an interest-bearing deposit account in that solicitor's name; or
b: If that bank has held no such interest-bearing deposit account in that solicitor's name during that month, the rate of interest that would have been paid by that bank, during that month, in respect of the money in that nominated trust account if that money had been deposited, at call, in an interest-bearing deposit account at that bank.
3: Interest payable on a nominated trust account shall be payable on the daily balance of that account (as that balance stands at the close of business of each day or, where the bank is not open for business on any day, at the close of that day), and shall be calculated monthly.
4: Where the rate of interest required to be applied for the purposes of subsection (1) subsection (2)
5: In lieu of all banking charges and fees that would otherwise be payable to it in respect of any nominated trust account, a bank shall be entitled to retain for its own use 50 percent of all interest payable by it on a nominated trust account. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91M: Banks to pay interest on nominated trust accounts to Fund
1: Subject to section 91L(5)
2: Where any bank makes any payment into the New Zealand Law Society Special Fund Account in accordance with subsection (1)
a: The amount of the payment; and
b: In respect of each nominated trust account on which any interest comprised in that payment has been calculated,—
i: The amount of the money in that account on which that interest has been calculated; and
ii: The amount of the interest so calculated; and
iii: The method by which that interest was calculated, including the rate of interest used. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
91N: Solicitors and banks not liable to account to client for interest payable on nominated trust account
No solicitor who deposits in a nominated trust account of that solicitor any money received for or on behalf of any person, and no bank that holds any such money in any nominated trust account kept at that bank, shall be liable to account to any person other than the New Zealand Law Society for any interest payable in respect of that money while it is held in any such account. PART 6A inserted 1 October 1991 Law Practitioners Amendment Act 1991
7: Discipline Within the Legal Profession
Jurisdiction of the High Court and Court of Appeal
92: Practitioner's name may be struck off roll on application to Court
On application made to the High Court in that behalf, the name of a practitioner may be struck off the roll for reasonable cause, whenever and wherever it arises, in accordance with section 93 1955 No 101 s 28
93: Court may dismiss application, or reserve case for Court of Appeal
1: When an application is made to the Court for an order that the name of a practitioner be struck off the roll,—
a: The Court may if it thinks fit dismiss the application; or
b: If the Court is of the opinion that the application ought to be granted, or that it is doubtful whether the application ought to be dismissed or granted, the Court shall reserve the case for the consideration of the Court of Appeal.
2: If the Court reserves the case under subsection (1)(b)
a: Shall cause the application and all affidavits made in support of the application, and all other proceedings, to be sent forthwith to the Registrar of the Court of Appeal; and
b: May order that the practitioner be suspended from practice as a barrister or as a solicitor or as both until the decision of the Court of Appeal on the application is given.
3: When a case is reserved for the consideration of the Court of Appeal, that Court shall, as soon as practicable, consider the application and grant or dismiss it, and may make such other order in respect of the application as it thinks fit. 1955 No 101 ss 29, 30
94: Summary suspension from practice
1: Except as provided in sections 92 93
2: The Court in its discretion may reserve any question arising on any application for the exercise of its summary jurisdiction on a practitioner for the decision of the Court of Appeal on a case stated; and the Court of Appeal shall have full power and authority to decide the question and make such order as it thinks fit. 1955 No 101 s 31
95: Notice of order for striking off or suspension to be published in
Gazette Where the Court of Appeal or the High Court orders that the name of a practitioner be struck off the roll, or that a practitioner be suspended from practice, the Registrar of the Court in which the order is made shall forthwith cause a notice stating the date and effect of the order to be published in the Gazette 1955 No 101 s 32 Lay Observers
96: Lay Observers
1: There shall be appointed in accordance with this section and section 120
2: No practitioner shall be appointed to be a Lay Observer.
3: Every Lay Observer shall be appointed by the Governor-General, on the recommendation of the Minister of Justice.
4: A Lay Observer may be appointed to exercise his functions in respect of all districts or any specified district or districts.
5: The Department for Courts Subsection (5) amended 1 July 1995 10(1) Department of Justice (Restructuring) Act 1995 by substituting the words Department for Courts Department of Justice
97: Functions of Lay Observers
1: The principal function of a Lay Observer shall be to examine any written allegation made by or on behalf of a member of the public (in this section called the complainant) concerning any District Law Society's treatment of a complaint about the conduct of a practitioner, or an employee of a practitioner, made to the District Law Society by or on behalf of the complainant.
2: A Lay Observer may also from time to time recommend to the New Zealand Law Society or a District Law Society that it inquire into any matters relating to legal practice generally or in any district that have come to his notice and in his opinion should be investigated.
3: A Lay Observer may also attend any hearing held by a District Disciplinary Tribunal under this Act, but he shall not be entitled to take any part in the proceedings or deliberations of the Tribunal.
4: A Lay Observer shall not be required to re-examine an allegation, or examine a fresh allegation relating to the same complaint, unless he is satisfied that he has received relevant information that could not reasonably have been provided in relation to the allegation, or original allegation, when he examined it.
5: A Lay Observer shall seek from the complainant and from the District Law Society, and from the practitioner or employee to whom the complaint related, whatever information he considers necessary for the purpose of examining an allegation; and it shall be the duty of the District Law Society and of the practitioner or employee to supply to him such information as he may reasonably require.
6: When a Lay Observer has examined an allegation, he shall send a written report of the results of his examination to the complainant and to the District Law Society and to the person about whom the complaint was made.
7: Every Lay Observer shall send to the Minister of Justice an annual report on the discharge of his functions, and may from time to time send to the Minister such other reports relating to those functions as he thinks fit; but no report made under this subsection shall identify any individual or firm.
8: A Lay Observer may include in any report made under subsection (6) (7)
9: The District Law Society shall consider any report or recommendation that it receives from a Lay Observer, and shall notify him of any action that it has taken in consequence.
10: Every report made to the Minister of Justice under subsection (7)
11: Subject to this section, a Lay Observer shall follow such procedure for examining allegations as he thinks fit.
97A: Power of complainant to request review by New Zealand Law Society
1: Where a Lay Observer has made to a District Law Society a report or recommendation that it is required by section 97(9)
a: The District Law Society has refused to take any action in consequence of it; or
b: In the Lay Observer's opinion, the District Law Society has failed to take any action in consequence of it within a reasonable time of considering it; or
c: The Lay Observer is not satisfied with the actions the District Law Society has taken in consequence of it,— the Lay Observer may request the District Law Society to refer the report or recommendation to the New Zealand Law Society for review; and in that case the District Law Society shall refer it to the New Zealand Law Society.
2: Where a report or recommendation of a Lay Observer is referred to the New Zealand Law Society for review under subsection (1)
3: Where the New Zealand Law Society does not agree with—
a: The refusal or failure of the District Law Society to take any action; or
b: The action taken by the District Law Society— in consequence of the report or recommendation, the New Zealand Law Society shall refer the report or recommendation back to the District Law Society for further consideration.
4: The New Zealand Law Society shall notify the Lay Observer, the complainant, and the District Law Society of its decision under subsection (3)
5: In this section, the term complainant section 97 This section was inserted 30 March 1995 Law Practitioners Amendment Act 1995 Complaints
98: Complaints by members of the public
1: Any complaint by a member of the public about the conduct of a practitioner or an employee of a practitioner may be made to the District Law Society of which the practitioner was a member at the material time.
2: If any such complaint is received by any other District Law Society or by the New Zealand Law Society, it shall be referred forthwith to the District Law Society of which the practitioner was a member at the material time.
99: Investigation by District Council of its own motion
Whenever the Council of a District Law Society has reasonable cause to suspect—
a: That a practitioner who is or was a member of the society has been guilty of conduct of a kind specified in any of paragraphs (a) to (c)
b: That a person, while employed by any such practitioner, has been guilty of conduct that would in the case of a practitioner render him liable to have his name struck off the roll under this Part of this Act,— it may of its own motion cause an investigation to be made into the matter.
100: Complaints committee
A District Council may from time to time appoint one or more complaints committees under section 15 section 29 section 98 99
101: Inquiry by District Council or committee
1: Every such complaint or matter (in this section referred to as the complaint) shall be inquired into as soon as practicable by the District Council or, if it is referred to a complaints committee, by that committee.
2: If in the opinion of the District Council or committee the case is of sufficient gravity to warrant the making of a charge, the District Council or committee shall—
a: Where the complaint is against a practitioner, make a charge against him before either the District Disciplinary Tribunal or the New Zealand Disciplinary Tribunal:
b: Where the complaint is against a person employed by a practitioner, make a charge against him before the New Zealand Disciplinary Tribunal.
3: In the investigation of the complaint the District Council or, as the case may be, the complaints committee—
a: Shall send particulars of the complaint to the person complained against, and invite him to make a written explanation in answer to the complaint:
b: May require or permit the person complained against to appear before it to make an explanation in answer to the complaint:
c: May make, or on behalf of the District Law Society employ any person to make, such inquiries relevant to the complaint as the District Council or committee considers necessary:
d: May require the production for inspection by the District Council or committee or any person so employed by it of any books, documents, papers, accounts, or records that are in the possession or under the control of the person complained against or, as the case may require, his employer and that relate to the subject-matter of the inquiry:
e: May require the person complained against and, if the case so requires, his employer to give all information in relation to any such books, documents, papers, accounts, or records that may be reasonably necessary for the purposes of the inquiry.
4: Subject to this section, the District Council or committee may follow such procedure in inquiring into the complaint as it thinks fit.
5: On completion of the inquiry, the District Council or committee shall—
a: Notify the complainant and the person complained against of its conclusions and of any action taken or to be taken by it as a result of the inquiry; and
b: Where the complaint relates to the operation of a solicitor's trust account or to the audit of any such account, notify the Joint Audit Board of the complaint, its conclusions, and of any action taken or to be taken by it as a result of the inquiry.
5A: Where the Joint Audit Board is notified of a complaint and other information under subsection (5)(b) section 88A
6: Every practitioner shall be guilty of misconduct in his professional capacity who, without lawful justification or excuse, refuses or fails to comply with any lawful requirement of a District Council or committee under this section. Subsection (5) substituted (5A) inserted 1 July 1994 5 Law Practitioners Amendment Act 1994
102: Costs of investigation where no charge made before Tribunal
1: If on any such inquiry the District Council or committee is of the opinion that the case is not of sufficient gravity to warrant the making of a charge against the practitioner or employee to whom the complaint relates, it may nevertheless, if it considers that the inquiry was justified and that it is just to do so, order him to pay to the District Law Society such sum as the District Council or committee thinks fit in respect of the expenses of and incidental to the inquiry and any investigation of his conduct or affairs made for the purposes of the inquiry.
2: In subsection (1) expenses
3: Any person against whom an order is made under this section may appeal to the District Disciplinary Tribunal against the order.
4: Every such appeal shall be made within such time and in such form as may be prescribed by rules made under this Part of this Act.
5: On hearing any such appeal the Tribunal may confirm, reverse, or modify the order appealed against. District Disciplinary Tribunals
103: District Disciplinary Tribunals
1: For each district there shall be a tribunal to be called the [ Name of district
2: The Tribunal shall consist of—
a: Not less than 5 nor more than 8 practitioners, as the District Council may determine:
b: Two persons, not being practitioners, who shall be appointed as lay members of the Tribunal by the Governor-General on the recommendation of the Minister of Justice made after consultation with the District Council.
3: The practitioners to be appointed to the Tribunal may, if the District Council thinks fit, include any member of a District Law Society other than that of the district for which the Tribunal is constituted.
4: The members of the Tribunal shall, at its first meeting in each year, elect one of their number to be the chairman of the Tribunal for that year.
5: If an extraordinary vacancy arises in the office of chairman during the year for which any member was elected, the members of the Tribunal shall, at its first meeting thereafter, elect one of their number to be the chairman of the Tribunal for the remainder of that year.
6: Three members of the Tribunal, including at least 1 of the lay members, shall form a quorum.
7: Except as otherwise provided by this Act or by rules made under this Act, the Tribunal may determine its own procedure.
104: Practitioner members of District Disciplinary Tribunal
1: The practitioners to be appointed as members of the District Disciplinary Tribunal shall be appointed by the District Council.
2: Subject to section 103(2)(a)
3: No member of the District Law Society who has taken part in the investigation of a complaint against any practitioner under section 101
105: Two or more District Law Societies may combine to establish Tribunal
1: Any 2 or more District Law Societies may at any time, by written agreement, combine to establish one Disciplinary Tribunal to have jurisdiction in respect of their districts, instead of a Tribunal for each such district.
2: Any Tribunal established pursuant to this section shall be called the [ Names of districts
3: No such agreement shall have effect until every District Law Society affected by it has ratified it by a resolution passed at a general meeting of the society.
4: For the purpose of section 103(2)(a)
5: For the purposes of this section, the reference in section 103(2)(b)
6: Subject to subsections (4) (5)
7: Where any 2 or more District Law Societies have combined to establish one Disciplinary Tribunal under this section, they may at any time revoke the agreement; and the provisions of subsection (3)
106: Powers of District Disciplinary Tribunal
1: The District Disciplinary Tribunal shall inquire into any charge made before it by the District Council or a complaints committee against a practitioner.
2: If after inquiring into the charge the Tribunal is of the opinion that the case is of sufficient gravity to warrant its referral to the New Zealand Law Practitioners Disciplinary Tribunal, it shall forthwith refer the case accordingly.
3: If the case is not so referred, and the Tribunal—
a: Is of the opinion that the practitioner has been guilty of misconduct in his professional capacity; or
b: Is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor; or
c: Is of the opinion that the practitioner has been guilty of negligence or incompetence in his professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute; or
d: Is satisfied that the practitioner has been convicted of an offence punishable by imprisonment, and is of the opinion that his conviction reflects on his fitness to practise as a barrister or solicitor, or tends to bring the profession into disrepute,— it may if it thinks fit make an order under this section.
4: By any such order, the Tribunal may do one or more of the following things:
a: Order the practitioner to pay to the District Law Society in respect of any charge against him such sum by way of penalty, not exceeding $2,000, as the Tribunal thinks fit:
b: Censure the practitioner:
c: Order that the practitioner shall cease to accept work, or to hold himself out as competent, in such fields of practice, and for such period or periods, as are specified in the order:
d: Order the practitioner to do for any specified person such work, within such time, and for a fee not exceeding such sum, as are specified in the order:
e: Where it appears to the Tribunal that any person has suffered loss by reason of any act or omission of the practitioner, order the practitioner to pay to that person such sum by way of compensation as is specified in the order, being a sum not exceeding such amount as may from time to time be fixed for the purposes of this paragraph by resolution of the Council of the New Zealand Law Society:
f: Order the practitioner to reduce his fees for any work done by him that is the subject of the proceedings before the Tribunal by such amount as is specified in the order, and, for the purpose of giving effect to the order, to refund any specified sum already paid to him:
g: Order the practitioner to make his practice available for inspection at such times and by such persons as are specified in the order:
h: Order the practitioner to make reports on his practice in such manner and at such times and to such persons as are specified in the order:
i: Order the practitioner to take advice in relation to the management of his practice from such persons as are specified in the order:
j: Order the practitioner to pay to the District Law Society such sum as the Tribunal thinks fit in respect of the costs and expenses of and incidental to the inquiry by the Tribunal and the inquiry by the District Council or complaints committee.
5: If the case is not one to which subsection (2) (3) paragraph (e) (f) to (i)
6: Without prejudice to the foregoing provisions of this section, if any case before it arises wholly or partly out of a complaint of overcharging by a practitioner, and the Tribunal considers that the practitioner's bill of costs in respect of any matter to which the case relates is unfair or unreasonable, it may, whether or not it makes any other order under this section, order that the bill be referred to the District Law Society for revision under Part 8
7: In paragraphs (g) to (i) specified
8: An order under this section may be made on and subject to such terms and conditions as the Tribunal thinks fit.
9: The making of an order under this section for the payment of compensation to any person shall not affect the right (if any) of that person to recover damages in respect of the same loss; but any sum ordered to be paid under this section shall be taken into account in assessing any such damages. 1955 No 101 s 108(3) 1968 No 51 s 9
107: Appeal from decision of District Disciplinary Tribunal
1: An appeal against any order or decision of a District Disciplinary Tribunal made under this Part of this Act, not being a decision to refer a case to the New Zealand Law Practitioners Disciplinary Tribunal, shall lie to the last-mentioned Tribunal at the instance of—
a: The practitioner to whom the order or decision relates:
b: The District Council or complaints committee by which the charge against the practitioner was made.
2: Every such appeal shall be by way of rehearing, and shall be made within such time and in such form as may be prescribed by rules made under this Part of this Act.
3: On hearing any such appeal, the New Zealand Disciplinary Tribunal may confirm, reverse, or modify the order or decision appealed against. 1955 No 101 s 112 New Zealand Law Practitioners Disciplinary Tribunal
108: New Zealand Law Practitioners Disciplinary Tribunal
1: There shall be a tribunal to be called the New Zealand Law Practitioners Disciplinary Tribunal.
2: The Tribunal shall consist of—
a: Not less than 5 nor more than 12 members of the New Zealand Law Society, as the Council may from time to time determine on the recommendation of the Tribunal:
b: Three
3: The members of the Tribunal shall, at its first meeting in each year, elect one of their number to be the chairman of the Tribunal for that year.
4: If an extraordinary vacancy arises in the office of chairman during the year for which any member was elected, the members of the Tribunal shall, at its first meeting thereafter, elect one of their number to be the chairman of the Tribunal for the remainder of that year.
5: Except as otherwise provided by this Act, 5 members of the Tribunal, including at least 1 of the lay members, shall form a quorum.
6: Except as otherwise provided by this Act or by rules made under this Act, the Tribunal may determine its own procedure. 1955 No 101 s 33(1), (2), (4), (5) Subsection (2)(b) amended 8 March 1985 Law Practitioners Amendment Act 1985 by substituting the word Three Two
109: Practitioner members of New Zealand Disciplinary Tribunal
1: The members of the New Zealand Law Society to be appointed to the New Zealand Disciplinary Tribunal shall be appointed by the Council.
2: Subject to section 108(2)(a)
3: A practitioner who is a member of a District Disciplinary Tribunal or of a District Council or a complaints committee of any district shall not by reason of such membership be disqualified for membership of the New Zealand Disciplinary Tribunal; but he shall not be eligible to sit as a member of the New Zealand Disciplinary Tribunal on the hearing or determination of any proceedings before it in respect of a practitioner, or any employee of a practitioner, who practises in the district in which the District Disciplinary Tribunal or District Council or committee of which he is a member has jurisdiction. 1955 No 101 s 33(2), (3)
110: Functions of New Zealand Disciplinary Tribunal
1: The principal function of the New Zealand Law Practitioners Disciplinary Tribunal shall be to hear and determine—
a: Any charge against a practitioner that is referred to it by a District Disciplinary Tribunal:
b: Any charge against a practitioner or an employee of a practitioner that is made to it by a District Council or a complaints committee:
c: Any appeal against a decision of a District Disciplinary Tribunal.
2: The Tribunal shall have such other functions as are conferred on it by this Act. 1955 No 101 s 34(1)
111: Hearings to be in public
1: Except as provided in this section, every hearing of the New Zealand Disciplinary Tribunal shall be held in public.
2: If the Tribunal is of the opinion that it is proper to do so, having regard to the interests of any person and to the public interest, it may—
a: Hold a hearing or any part of a hearing in private:
b: Make an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:
c: Make an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
d: Make an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.
3: Unless it is reversed or modified in respect of its currency by the Court on an appeal under section 118 subsection (2)
4: The Tribunal may in any case deliberate in private as to its decision or as to any question arising in the course of the hearing.
5: Every person commits an offence against this Act who, without lawful excuse, acts in contravention of any order made by the Tribunal under any of paragraphs (b) to (d)
6: Subsection (2)(d) Gazette section 119
112: Powers of New Zealand Disciplinary Tribunal in respect of charge against practitioner
1: Subject to this Part of this Act, if after inquiring into any charge against a practitioner the New Zealand Disciplinary Tribunal—
a: Is of the opinion that the practitioner has been guilty of misconduct in his professional capacity; or
b: Is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor; or
c: Is of the opinion that the practitioner has been guilty of negligence or incompetence in his professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute; or
d: Is satisfied that the practitioner has been convicted of an offence punishable by imprisonment, and is of the opinion that the conviction reflects on his fitness to practise as a barrister or solicitor, or tends to bring the profession into disrepute,— it may if it thinks fit make an order under this section.
2: Subject to section 113
a: Order that the practitioner's name be struck off the roll:
b: Order that the practitioner be suspended from practice as a barrister or as a solicitor, or as both, for such period, not exceeding 3 years, as the Tribunal thinks fit:
c: Order that the practitioner shall not practise as a solicitor on his own account, whether in partnership or otherwise, until authorised by the Tribunal to do so:
d: Order the practitioner to pay to the New Zealand Law Society in respect of any charge against him such sum by way of penalty, not exceeding $5,000, as the Tribunal thinks fit:
e: Censure the practitioner:
f: Make any order that could be made under any one or more of the provisions of paragraphs (e) to (i)
g: Order the practitioner to pay to the New Zealand Law Society or to any District Law Society, or to both, such sums as the Tribunal may at any time think fit in respect of the costs and expenses of and incidental to the inquiry by the Tribunal, and all or any part of the costs and expenses of or incidental to the inquiry by the District Council or a complaints committee, and all or any part of the expenses of any investigation or conduct of the practitioner's affairs or trust account incurred by the Council or any District Council acting in the exercise of the powers conferred by Part 5
3: If the case is not one to which subsection (1) paragraph (e) (f) to (i)
4: Without prejudice to the foregoing provisions of this section, if any case before it arises wholly or partly out of a complaint of overcharging by a practitioner, and the Tribunal considers that the practitioner's bill of costs in respect of any matter to which the case relates is unfair or unreasonable, it may, whether or not it makes any other order under this section, order that the bill be referred to the District Law Society for revision under Part 8
5: For the purposes of this section, subsections (7) to (9) 1955 No 101 ss 34(2), (3) 1961 No 47 s 29(a) 1967 No 128 s 4 1968 No 51 s 3
113: Making of order for striking off roll or for suspension from practice
1: Where the Tribunal finds a charge against a practitioner under any of the provisions of section 112(1)
2: Except by consent, no order shall be made by the Tribunal either striking the name of a practitioner off the roll or suspending a practitioner from practice unless at least 5 members of the Tribunal are present and vote in favour of the order. 1955 No 101 s 35(1), (3) 1961 No 43 411(1) 1962 No 121 s 4
114: Disqualification for employment by practitioner
1: Where a charge has been made by a District Council or a complaints committee against any person that he, while employed by a practitioner, has been guilty of conduct that would in the case of a practitioner render him liable to have his name struck off the roll, the New Zealand Disciplinary Tribunal shall have power to inquire into the charge.
2: If after inquiring into the charge the Tribunal is of the opinion that the person charged has been guilty of such conduct, it may if it thinks fit do one or more of the following things:
a: Order that his present employment by any practitioner be terminated:
b: Order that no practitioner shall employ him in connection with the practitioner's practice so long as the order remains in force:
c: Order that no practitioner shall employ him in connection with the practitioner's practice, otherwise than with the written consent of the Tribunal and subject to such conditions as may be imposed by the Tribunal, so long as the order remains in force.
3: Every practitioner who knowingly acts in contravention of any order made by the Tribunal under this section shall be guilty of misconduct in his professional capacity.
4: Any person in respect of whom an order has been made under this section may apply to the Tribunal for the revocation of the order.
5: Any rules made for the purposes of this Part of this Act shall apply to the application as if it were an application under section 116
6: If, on hearing any such application, the Tribunal is satisfied that the applicant is a fit and proper person to be employed by a practitioner, it may revoke the order. 1955 No 101 s 36A 1961 No 47 s 30(1)
115: Interim suspension from practice
1: At any time after a charge against a practitioner has been made or referred to it, the New Zealand Disciplinary Tribunal may, on the application of the District Law Society concerned or of its own motion, and without any prior notice to the practitioner, make an order that he be suspended from practice as a barrister or as a solicitor or as both, until the charge has been heard and disposed of.
2: The practitioner in respect of whom an interim suspension order is made under this section may at any time apply to the Tribunal for the revocation of the order.
3: An application under subsection (2)
4: For the purposes of this section, 3 members of the Tribunal shall form a quorum. 1955 No 101 s 37
116: Restoration of name to roll
1: Any practitioner whose name has been struck off the roll under the foregoing provisions of this Part of this Act or before the commencement of this Act may, in accordance with rules made for the purposes of this Part, apply to the New Zealand Disciplinary Tribunal for the restoration of his name to the roll.
2: On hearing the application, the Tribunal, if satisfied that the applicant is a fit and proper person to practise as a barrister or as a solicitor or as both, may order that the practitioner's name be restored to the roll.
3: Without limiting subsection (2)
4: No application by a practitioner for the restoration of his name to the roll shall be made except under section 52 1955 No 101 s 39 1967 No 128 s 5
117: Order for striking off, restoration, or suspension to be filed in Court
1: Where by any order of the New Zealand Disciplinary Tribunal it is ordered that a practitioner's name be struck off or restored to the roll, or that a practitioner be suspended from practice otherwise than by an interim order made under section 115(1)
2: Subject to subsection (3)
3: Where by any such order it is ordered that a practitioner's name be struck off the roll, the order shall, until the expiry of the time allowed for appeal under section 118
4: An order filed in the Court under this section may be inspected by any person during office hours without payment of any fee. 1955 No 101 s 49 1961 No 47 s 31
118: Appeal from decision of New Zealand Disciplinary Tribunal
1: An appeal against any order or decision of the New Zealand Law Practitioners Disciplinary Tribunal made under this Part of this Act or under section 58
a: The practitioner or person to whom the order or decision relates:
b: The District Council or a complaints committee of a district, where the proceedings before the Tribunal were—
i: Brought by that Council or committee; or
ii: Commenced by the referral of a charge to the Tribunal by the District Disciplinary Tribunal; or
iii: By way of appeal against an order or decision of the District Disciplinary Tribunal:
c: The District Council, where the proceedings before the Tribunal were commenced by the referral to the Tribunal of a matter relating to the issue of a practising certificate under section 58
2: Every such appeal shall be by way of rehearing, and shall be made within such time and in such form, and shall be heard by at least 3 Judges in such manner, as may be prescribed by rules of Court.
3: On hearing any such appeal, the Court may confirm, reverse, or modify the order or decision appealed against. 1955 No 101 s 50 1961 No 47 s 30(2)
119: Notice of orders for striking off, restoration, or suspension to be published in
Gazette
1: Where an order has been filed in the office of the Court at Wellington under section 117 Gazette
2: Where an appeal against any such order results in the name of a practitioner being ordered to be struck off or restored to the roll, or in a practitioner being suspended from practice, the Registrar shall forthwith cause a notice stating the date and effect of the determination to be published in the Gazette
3: The expenses incurred in publishing any such notice shall be paid out of money to be provided in that behalf by the New Zealand Law Society. 1955 No 101 s 51 General Provisions
120: Terms of office of Lay Observers and lay members
1: This section applies to—
a: Every Lay Observer appointed under this Part of this Act; and
b: Every lay member of a Tribunal appointed under this Part,— each of whom is referred to in this section as the appointee.
2: The appointee shall be appointed for a term of 3 years, but shall be eligible for reappointment from time to time.
3: Unless he sooner vacates his office under subsection (4)
4: The appointee may at any time be removed from office for disability, bankruptcy, neglect of duty, or misconduct proved to the satisfaction of the Governor-General, or may at any time resign his office by writing addressed to the Minister of Justice.
5: If a vacancy occurs in the office held by the appointee, the Governor-General shall appoint a qualified person to fill the vacancy, in the manner in which the original appointment was made; and the person so appointed shall hold office for the residue of the term for which his predecessor was appointed.
121: Remuneration of Lay Observers and lay members
There shall be paid to every Lay Observer and also to every lay member of a Tribunal, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951
122: Lay Observers and lay members not in service of Crown
No person holding office as a Lay Observer, or as a lay member of a Tribunal, shall be deemed by reason of his holding that office to be employed in the Government service for the purposes of the Government Superannuation Fund Act 1956 State Sector Act 1988 The State Services Act 1962 and the State Services Conditions of Employment Act 1977 were repealed 1 April 1988 88(1) State Sector Act 1988
123: Secretaries to Tribunals
1: The Council or executive committee of the New Zealand Law Society may from time to time appoint a secretary to the New Zealand Law Practitioners Disciplinary Tribunal.
2: A District Council, or 2 or more District Councils by agreement where their societies have combined to establish one Tribunal for their districts, may appoint a secretary to the District Law Practitioners Disciplinary Tribunal for the district or districts.
124: Right of person charged to be heard
1: No Tribunal shall exercise in respect of any person any of the disciplinary functions conferred on it by this Part of this Act without giving him a reasonable opportunity of being heard in his own defence, either in person or by counsel.
2: Subsection (1) section 115(1) 1955 No 101 ss 36, 36A(1), 108(3)
125: Representation of District Council or complaints committee in proceedings
In any proceedings under this Part of this Act to which a District Council or a complaints committee of a district is a party, that Council or committee may be represented by counsel employed in that behalf by the District Council.
126: Evidence
1: A Tribunal, by notice in writing signed by a member or by the secretary of the Tribunal, may require any person to attend and give evidence before it at the hearing of any proceedings under this Part of this Act, and to produce all books, documents, papers, and records in that person's custody or under his control relating to the subject-matter of the proceedings.
2: The Tribunal may require evidence to be given on oath, and either orally or in writing; and for that purpose the chairman of the Tribunal may administer an oath.
3: Any party to the proceedings may apply to the Tribunal to require any person whose evidence has been given by affidavit to attend at the hearing for the purposes of cross-examination; and the Tribunal may make an order accordingly.
4: For the purposes of this Part of this Act, a certificate setting out the substance of a conviction of an offence punishable by imprisonment, and signed by the Registrar of the court or other officer having the custody of the records of the court by which the offender was convicted, shall be sufficient evidence of that conviction without proof of the signature or official character of the person appearing to have signed the certificate.
5: Every person commits an offence against this Act who, without lawful justification or excuse, refuses or fails—
a: To attend and give evidence when required to do so by a Tribunal; or
b: To answer truly and fully any question put to him by a member of the Tribunal; or
c: To produce to the Tribunal any book, document, paper, or record required of him. 1955 No 101 ss 35(2), 44
127: Immunity of witnesses and counsel
Witnesses and counsel shall have the same privileges and immunities in relation to proceedings under this Part of this Act as if they were proceedings in a Court of law. 1955 No 101 s 45 1965 No 92 s 3(1) 1968 No 51 s 4
128: Witnesses' expenses
1: Every witness giving evidence or attending to give evidence at the hearing of any proceedings under this Part of this Act shall be entitled in the discretion of the Tribunal to such sum for his expenses and loss of time as the Tribunal may determine.
2: Subject to any order made by the Tribunal as to the payment of costs and expenses, all such witnesses' expenses shall be paid by the New Zealand Law Society in the case of proceedings before the New Zealand Disciplinary Tribunal, and by the District Law Society in the case of a District Disciplinary Tribunal. 1955 No 101 s 46
129: Tribunal may order payment of costs
1: After the hearing of any proceedings under this Part of this Act, a Tribunal may make such order as to the payment of costs and expenses as it thinks fit, and, in particular,—
a: May order that costs be awarded to any person to whom the proceedings relate, and that those costs be paid by any District Law Society in the case of proceedings before a District Disciplinary Tribunal, or by the New Zealand Law Society or any District Law Society in the case of proceedings before the New Zealand Disciplinary Tribunal:
b: Without finding the person charged to be guilty, may nevertheless, if the Tribunal considers that the proceedings were justified and that it is just to do so, order him to pay to the New Zealand Law Society or to any District Law Society, or to both, such sums as the Tribunal thinks fit in respect of the expenses of and incidental to the proceedings and any investigation of his conduct or of his affairs or trust account carried out by or for the New Zealand Law Society or any District Law Society.
2: In subsection (1)(b) expenses 1955 No 101 s 41
130: Rules of procedure
The New Zealand Law Practitioners Disciplinary Tribunal may from time to time make rules, not inconsistent with this Act, in respect of the making, hearing, and determination of applications, inquiries, appeals, and other proceedings before it or before any District Law Practitioners Disciplinary Tribunal. 1955 No 101 s 47
131: Form and proof of order of Tribunal
1: Every order made by a Tribunal under this Part of this Act shall be signed by the person acting as chairman of the Tribunal at the meeting when the order was made or, if he is not available, by some other member of the Tribunal present at the meeting when the order was made.
2: Every such order, other than an interim suspension order made under section 115(1)
3: Every document purporting to be an order of a Tribunal and to be signed by the chairman or any other member of the Tribunal shall, in the absence of proof to the contrary, be taken to be an order of the Tribunal duly made, without proof of its making, or proof of signature, or proof that the person signing the order was in fact the chairman or a member of the Tribunal entitled to sign the order. 1955 No 101 s 48
132: Enforcement of order of Tribunal
1: When a Tribunal makes an order under this Part of this Act, not being an order to which section 117
2: On the filing of the order, it shall take effect as if it were an order of the Court to the like effect made within the jurisdiction of the Court. 1955 No 101 ss 42, 108(4) 1968 No 51 s 9
133: Power of High Court or Court of Appeal to prohibit publication of person's name or affairs
1: In any proceedings before it under this Part of this Act, including any appeal, the High Court or the Court of Appeal may, if in its opinion it is proper to do so having regard to the interests of any person and to the public interest, make an order prohibiting the publication of the name or any particulars of the affairs of any practitioner or any other person.
2: Any breach of any such order, or any evasion or attempted evasion of it, may be dealt with as contempt of Court.
3: This section shall not apply to the publication in the Gazette section 119
134: Tribunals may make recommendations to Councils as to publication of names
On making any order under this Part of this Act in respect of any person, a Tribunal may recommend to the Council of the New Zealand Law Society or, as the case may require, any District Council that the name of that person should, or should not, be published under section 135
135: Publication by Councils of reports of decisions of Tribunals
1: Subject to subsection (4) section 115(1)
2: Subject to subsection (4) section 114
3: Subject to subsection (4)
4: In determining whether to exercise its powers under this section, the Council or District Council shall have regard to any recommendation of a Tribunal under section 134
5: The Council or any District Council may from time to time publish such statements as it thinks fit in respect of charges made before Tribunals, the numbers of charges proved, and the penalties imposed, in respect of any specified period.
6: Except as otherwise provided in this section, no statement published or made under this section shall specify the name of any person or firm or any particulars by which any person or firm may be identified.
7: This section shall be read subject to any order made by the New Zealand Disciplinary Tribunal under section 111(2) section 133
136: Trusteeships held by practitioner suspended or struck off
1: If under this Part of this Act a practitioner is suspended from practice or his name is struck off the roll, the District Council may serve on him, or on any of his partners or employees, or on any person conducting his practice, a notice signed by 2 members of the District Council requiring the person on whom the notice is served to supply to the District Council, so far as it is practicable to do so,—
a: A list of all wills in which the practitioner is appointed as a trustee, and the names and addresses of the testators:
b: A list of all other trusteeships that are held by the practitioner under any trust or are to be held by him on the occurrence of any event:
c: Such other particulars as may be necessary to enable the District Council to exercise its powers under subsection (2)
2: Notwithstanding anything in this Act, on receipt of any list referred to in subsection (1)
3: In this section the term trust trustee trusteeship
4: Every person commits an offence against this Act who, without lawful justification or excuse, fails to comply with any requirement of a District Council in any notice given under subsection (1)
137: Protection of Law Societies and other persons
The New Zealand Law Society, a District Law Society, a Tribunal, and a member, officer, or employee of any of those bodies, shall not be under any criminal or civil liability in respect of anything done or omitted to be done, or in respect of words spoken or written,—
a: At or for the purposes of any inquiry or the hearing of or otherwise dealing with any proceedings under this Part of this Act; or
b: In connection with any investigation of a practitioner's conduct or affairs or accounts for the purposes of this Part of this Act; or
c: In the publication of any report or statement relating to any proceedings before a Tribunal under this Part of this Act, in the exercise or purported exercise of any power conferred by this Act to publish any such report or statement,— unless it is proved to the satisfaction of the Court before which any proceedings are taken that the defendant in those proceedings has acted in bad faith. 1955 No 101 s 52 1965 No 92 s 3(2) 1968 No 51 s 5
138: Jurisdiction of Court not limited
Except as expressly provided in this Part of this Act, nothing in this Part shall limit the jurisdiction of the Court. 1955 No 101 s 53
8: Practitioners' Costs
139: Interpretation
In this part of this Act, unless the context otherwise requires,— Bill of costs bill Costs Disbursements Party chargeable Practitioner 1955 No 101 s 54 1968 No 51 s 6
140: Recovery of barrister's fees by solicitor
A solicitor may sue for and recover from the party chargeable any fees paid or payable by the solicitor to a barrister for work done or to be done on the instructions of the solicitor in relation to the client's affairs, if those fees are shown as a disbursement in a bill of costs rendered by the solicitor to the party chargeable.
141: Order for practitioner to render bill and to deliver deeds, etc
1: Where a practitioner has transacted any business for any person, whether in any court or not, or has or may have a claim for costs against any person, the Court may make an order for the delivery by the practitioner of a bill of costs and for the delivery of, or otherwise in relation to, any deeds, documents, or papers in his possession, custody, or power.
2: An order for the delivery of a copy of a bill to any person may, if the Court thinks fit, be conditional on the payment of the costs of the copy by that person, if the person is neither the party primarily chargeable with the bill nor a District Law Society. 1955 No 101 s 55
142: Bill subject to revision notwithstanding agreement as to costs
1: This Part of this Act shall apply to every bill of costs rendered on or after the date of the commencement of this Act, notwithstanding any agreement made between the practitioner and the client, whether before or after that date, as to the amount or manner of payment of costs for the whole or any part of any past or future services, either by a gross sum or by commission, percentage, salary, or otherwise.
2: Any such agreement may be taken into account in any proceedings for the revision of a bill under this Part of this Act, for the purpose of determining whether the costs are fair and reasonable. 1955 No 101 s 56 Revision of Bill by District Council
143: Revision of bill by District Council
A District Council may revise a practitioner's bill of costs—
a: Of its own motion under section 144
b: On the reference of the party chargeable under section 145
c: By order of a Court under section 146 147
d:
e: Pursuant to any provision in that behalf in this or any other Act or any regulation or rule for the time being in force. Paragraph (d) substituted 1 February 1992 Law Practitioners Amendment Act 1991 Paragraph (d) repealed 1 February 2001 128 Legal Services Act 2000
144: Revision without request
1: Subject to sections 150 151
2: No revision under this section shall take place until at least 7 clear days' written notice of the intention to revise the bill has been given to the practitioner concerned. 1955 No 101 s 61(1), (2)
145: Reference of bill by party chargeable
1: Subject to sections 150 151
2: Unless the parties otherwise agree, every reference under this section shall be made within 6 months after the date of the delivery of the bill.
3: On the making of the reference, the Secretary of the District Law Society shall forthwith—
a: Give written notice of it to the practitioner concerned; and
b: Refer the bill to the District Council for revision. 1955 No 101 s 60(1), (2) 1968 No 51 s 7(1) Revision by Order of Court
146: Order of Court for reference of bill for revision
1: Subject to sections 150 151
2: An order under this section may be made either on the application of the practitioner or on the application of the party chargeable.
3: Any such order may be made with such directions and subject to such conditions as the Court thinks fit.
4: In this section the term Court
a: The High Court; or
b: A District Court in any case where that Court would have jurisdiction if the application were a claim for the amount of the bill. 1955 No 101 s 62
147: Revision on application of beneficiary under trust, etc
1: Subject to sections 150 151
a: May make an order for reference of the bill to the appropriate District Law Society, for revision by the District Council, with such directions and subject to such conditions as the Court thinks fit; and
b: May make such order as the Court thinks fit for the payment of the amount that may be found due, and of the costs of the order for reference and of the revision, to or by the practitioner by or to the person making the application,— having regard to the provisions of this Part of this Act relating to applications for the like purpose by a party chargeable, so far as those provisions are applicable to the case.
2: In exercising its discretion under this section, the Court may take into consideration the extent and nature of the interest of the person making the application.
3: Where any money is ordered to be paid by the practitioner, the Court may if it thinks fit order that the money or any part of it be paid to the trustee, executor, or administrator chargeable with the bill, instead of being paid to the person applying for the order; and where the applicant pays any money to the practitioner in respect of the bill, he shall have the same right to be paid by the trustee, executor, or administrator chargeable with the bill as the practitioner had.
4: In this section the term Court section 146 1955 No 101 s 64 Appeals
148: Appeal to Registrar
1: If either party in any proceedings before a District Council for the revision of a bill of costs is dissatisfied with the decision of the District Council as to the amount of the bill or as to the costs of the reference (if any) and the revision, he may appeal against it to a Registrar having jurisdiction in the district.
2: Every such appeal shall be commenced by notice in writing lodged with the Registrar within 14 days after the date of the decision appealed against , or within such further time as the Registrar may allow
3: At the hearing of the appeal, the Registrar may in his discretion permit any practitioner appointed for the purpose by the Council of the New Zealand Law Society to attend and assist him.
4: The Registrar, after giving each party a reasonable opportunity to be heard, may make such order by way of confirmation, variation, or reversal of the decision or any part of it as he thinks fair and reasonable.
5: Subject to this Act, the Registrar may follow such procedure as he thinks fit. 1955 No 101 s 68(2) Subsection (2) amended 17 December 1985 Law Practitioners Amendment Act (No 3) 1985 by inserting the words , or within such further time as the Registrar may allow
149: Review by High Court
1: If either party is dissatisfied with any decision of a Registrar under section 148 , or within such further time as a Judge of the High Court may allow
2: On hearing the application, the Court may—
a: Make such order by way of confirmation, variation, or reversal of the decision or any part of it as the Court thinks fair and reasonable:
b: In the case of a revision by order of the Court, make such other order in relation to the revision as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the amount found to be due with costs. 1955 No 101 s 68(2), (4) Subsection (1) amended 17 December 1985 Law Practitioners Amendment Act (No 3) 1985 by inserting the words , or within such further time as a Judge of the High Court may allow General Provisions as to Revision
150: No revision after 1 year from payment of bill by deduction or set-off
Where a bill of costs has been paid by deduction or set-off, the bill shall not be referred for revision under this Part of this Act, whether by order of a Court or otherwise, or revised by a District Council of its own motion, after the expiration of 1 year from the date of the payment of the bill, unless the Court or the District Council, as the case may be, in its discretion otherwise allows, having regard to the circumstances of the case. 1955 No 101 s 65
151: Where revision allowed only in special circumstances
1: In any case to which this section applies,—
a: A bill of costs shall not be revised by a District Council of its own motion, or referred for revision except by order of a Court; and
b: The Court shall not make an order for the reference of a bill for revision except in special circumstances.
2: This section applies in every case (not being a case to which section 150
a: The bill has been previously revised under this Part of this Act or taxed before the commencement of this Act under Part 4 of the Law Practitioners Act 1955
b: A verdict or judgment has been obtained in an action for the recovery of the amount of the bill; or
c: The bill has been paid otherwise than by deduction or set-off; or
d: One year has elapsed since the date of the delivery of the bill. 1955 No 101 s 66
152: Procedure on revision by District Council
1: Where a bill of costs to be revised by a District Council is not itemised, the District Council may, by notice in writing, require the practitioner to file with the District Council within such period as may be specified in the notice, not being less than 14 days or more than 30 days from the date of the notice, an itemised bill of costs.
2: If an itemised bill is not so filed within the time so specified, the District Council may proceed with the revision.
3: Nothing in the foregoing provisions of this section shall prevent the District Council from proceeding to revise a bill of costs in its original form.
4: Before revising a bill, the District Council shall give each party a reasonable opportunity to be heard.
5: If either the practitioner or the other party, having due notice, refuses or neglects to attend the revision proceedings, the District Council may proceed to revise the bill in his absence. 1955 No 101 ss 60(4), (5), 67 1968 No 51 s 7(2)
153: Costs of reference and of revision
1: Where a bill of costs is revised by a District Council of its own motion under section 144
2: Where on the application of the party chargeable or on the application of the practitioner a Court orders that a bill of costs be referred to a District Law Society for revision, the costs of the order for reference and the costs of the revision shall, except as provided in subsection (3)
3: Where an order for reference is made by a Court in special circumstances, in a case to which section 151
4: On every revision of a bill, the District Council shall revise the costs (if any) payable in respect of the reference and the revision of the bill in accordance with this Part of this Act.
5: Subject to this Part of this Act and to any order of a Court under this Part,—
a: A District Council on the revision of a bill referred to it under this Act; and
b: A Registrar on an appeal; and
c: The High Court on a review of any decision of a Registrar on appeal— may award to either party such costs of the reference and of the revision, appeal, or review, as the case may require, as it or he thinks reasonable. 1955 No 101 ss 60(3), 61(5), 63, 68(1)
154: Secretary to certify amount due
1: On every revision of a bill, the Secretary of the District Law Society shall certify what is found by the District Council to be due to or from the practitioner in respect of the bill and in respect of the costs of the reference and the revision.
2: The certificate of the Secretary or, as the case may be, an order of the Registrar on an appeal or an order of the Court on a review of the Registrar's decision, shall be final and conclusive as to the amount due. 1955 No 101 s 68(1), (3)
155: Stay of action for costs pending completion of revision proceedings
1: Where under section 144
2: Where a bill of costs has been referred for revision under this Part of this Act, whether by order of a Court or otherwise, the Court may, on such terms as it thinks fit, restrain the practitioner from commencing or proceeding with any action for the recovery of the amount of the bill until after the revision has been completed and the time allowed for appeal has expired or, if an appeal is made, until the determination of the appeal and of any application for review following the appeal. 1955 No 101 ss 61(3), 69
9: The Solicitors' Fidelity Guarantee Fund
156: Interpretation
In this Part of this Act, unless the context otherwise requires,— Fund Management Committee Committee Prescribed 1955 No 101 s 76
157: Application of this Part
1: This Part of this Act applies to every solicitor who is for the time being engaged in the practice of his profession on his own account, whether in partnership or otherwise; but, except as provided in subsection (2)
2: Every solicitor who—
a: Is held out as a consultant partner of a solicitor or firm of solicitors; or
b: Being in fact employed by a solicitor or firm of solicitors, is held out as a partner of the solicitor or as a partner in the firm— shall for the purposes of this Part of this Act be deemed to be practising on his own account as a partner of the solicitor or as a partner in the firm, as the case may require.
3: For the purposes of this Part of this Act, a solicitor shall not be treated as being engaged in the practice of his profession on his own account merely because of his—
a: Acting in any law office or legal advice bureau established by or with the approval of the Council of the New Zealand Law Society or a District Council under section 6
b: acting under either the duty solicitor or police detention legal assistance scheme administered by the Legal Services Agency under the Legal Services Act 2000 1955 No 101 s 77 Subsection (3)(b) substituted 1 February 1992 Law Practitioners Amendment Act 1991 Subsection (3)(b) substituted 1 February 2001 128 Legal Services Act 2000
158: Solicitors' Fidelity Guarantee Fund
1: There shall continue to be a Solicitors' Fidelity Guarantee Fund, being the fund established under Part 6 of the Law Practitioners Act 1955
2: The fund shall be the property of the New Zealand Law Society and shall be held in trust for the purposes specified in this Part of this Act. 1955 No 101 s 78
159: Fund to be kept in separate bank account
All money belonging to the fund shall, pending its investment or application in accordance with this Part of this Act, be paid into a bank to the credit of a separate account to be called the Solicitors' Fidelity Guarantee Fund Account. 1955 No 101 s 79
160: Money payable into fund
The fund shall consist of—
a: All sums paid to or on account of the fund by solicitors, either as annual contributions or as levies, in accordance with this part of this Act:
aa: All fees paid by solicitors under section 88A(7)
b: The interest from time to time accruing from the investment of the fund:
c: All money recovered by or on behalf of the New Zealand Law Society in the exercise of any right of action conferred by this Part of this Act:
d: Any other money that may be lawfully paid into the fund. 1955 No 101 s 80 Subsection (1)(aa) inserted 1 July 1994 6 Law Practitioners Amendment Act 1994
161: Expenditure from fund
There shall from time to time be paid out of the fund, as required,—
a: The amount of all claims, including costs, allowed or established against the fund in accordance with this Part of this Act:
b: All legal expenses incurred in defending claims made against the fund, or otherwise incurred in relation to the fund:
c: All premiums payable in respect of contracts of insurance entered into by the Council under this Part of this Act:
d: The expenses involved in the administration of the fund, including allowances to members of the Council or the Management Committee in respect of their services and their reasonable travelling expenses incurred in connection with the management of the fund:
da: From money paid into the fund under section 160(aa) section 88A
e: All other money payable in respect of any matter for which payment is required or considered necessary by the Council for the purposes of this part of this Act or the rules made under it, including the cost of investigations directed by the Management Committee or a District Law Society. 1955 No 101 s 81 Subsection (1)(da) inserted 1 July 1994 Law Practitioners Amendment Act 1994
162: Audit of accounts
1: The accounts of the fund shall be audited annually by a chartered accountant appointed for the purpose by the Council.
2: No person shall be so appointed unless he is a person authorised to audit solicitors' trust accounts in accordance with the regulations for the time being in force relating to the audit of those accounts. 1955 No 101 s 82
163: Council to administer fund
Subject to section 164 1955 No 101 s 83
164: Management Committee
1: The Council may from time to time appoint a Management Committee of the Solicitors' Fidelity Guarantee Fund, consisting of not less than 3 nor more than 6 persons being members of the New Zealand Law Society.
2: Any member of the New Zealand Law Society may be appointed a member of the Management Committee, notwithstanding that he may not be a member of the Council.
3: The Council may from time to time by resolution delegate to the committee all or any of its powers in relation to the fund.
4: Any such resolution may at any time in like manner be rescinded or varied. 1955 No 101 s 84
165: Solicitors in practice to pay fees into fund
1: Except as provided in section 166 section 167
1A: The Council may fix separate fees for the purposes of this Part of this Act to meet expenditure authorised by section 161
2: If a solicitor to whom this Part of this Act does not apply at the time of his or her application for a practising certificate thereafter, in the year for which that certificate is issued, commences to practise as a solicitor on his or her own account, whether in partnership or otherwise, the solicitor shall thereupon become liable to pay to the fund the fee fixed under subsection (1)
3: If a solicitor who for any year has paid the fee so fixed remains in practice on his or her own account for less than 3 months of that year, the Council may, out of the money received by it under subsection (1)
4: If a solicitor commences practice on his or her own account during the last 3 months of any year for which the fee fixed under subsection (1)
5: All fees payable under this section shall be paid in the same manner as practising fees are paid; and the person receiving them shall forthwith pay them into the fund. Section 165 substituted 5 September 1988 2(1) Law Practitioners Amendment Act 1988 See section 2(2) Subsection (1A) inserted 29 April 1993 Law Practitioners Amendment Act 1993
166: Reduced fees while fund exceeds a determined amount
If at the beginning of any year the amount of the fund, including any investments of it, and after deducting the amount of all unpaid claims and other liabilities outstanding against the fund, is not less than the Council may for the time being by resolution determine (being not less than $500,000), the amount of the fee payable under section 165(1) 1955 No 101 s 86 1968 No 51 s 8 1975 No 35 s 4(2)
167: Solicitors may be required to pay levy
1: If at any time—
a: The fund is not sufficient, or, in the opinion of the Council having regard to any prospective claims or liabilities likely to be received or incurred, may not be sufficient, to satisfy the liabilities of the New Zealand Law Society in relation to the fund or to meet any payment authorised by section 161
b: The Minister of Justice has approved both the imposition of a levy under this section and the amount of that levy,— the Council may by resolution impose on every solicitor to whom this Part of this Act applies, for payment into the fund, a levy of that amount.
2: The amount of every such levy shall become payable on a date or dates and in a manner to be fixed by the Council.
3: In the exercise of its powers under subsection (1)
a: Any claims against the fund received before the 1st day of May 1993; and
b: Any claims against the fund received or anticipated to be received after the 30th day of April 1993 or any other matters arising after that date. Section 167 substituted 5 September 1988 3 Law Practitioners Amendment Act 1988 Section 167 substituted 167A inserted 29 April 1993 Law Practitioners Amendment Act 1993
167A: Practitioners not liable for more than $5,000 for claims incurred after 30 April 1993
Notwithstanding anything in section 165 (1A) 167 (1) section 165 (1A) Section 167 substituted 167A inserted 29 April 1993 Law Practitioners Amendment Act 1993
168: Investment of fund
Any money in the fund that is not immediately required for the purposes of the fund may be invested in any manner in which trustees are for the time being authorised to invest trust funds. 1955 No 101 s 88
169: Application of fund
1: Subject to this Part of this Act, the fund shall be held and applied for the purpose of reimbursing persons who may suffer pecuniary loss by reason of the theft by a solicitor to whom this Part applies, or by his employee or agent, of any money or other valuable property entrusted to him, or to his employee or agent, in the course of his practice as a solicitor, including any money or other valuable property entrusted to him as a solicitor-trustee.
2: No person may bring a claim against the fund unless notice of the claim is given in writing to the Council or the Management Committee within 12 months after the claimant has become aware of the theft, or within such further time as the Council or Committee may in its discretion allow. 1955 No 101 s 89
169A: No reimbursement of money instructed to be invested
1: The fund shall not be applied in reimbursing any person for any loss relating to money which a solicitor has been instructed after the 30th day of April 1993 to invest on behalf of that person.
2: Subject to subsection (3)
a: Who entrusts money to the solicitor; or
b: For whom the solicitor holds money,— instructs the solicitor to invest all or some of the money in a specified investment or in an investment of the solicitor's choice.
3: A solicitor is not instructed to invest money only because that solicitor is instructed by a person—
a: To pay the money into an account with a bank in New Zealand:
b: To apply money on behalf of that person to give effect to a loan agreement where that person, being the lender,—
i: Specifies the borrower to whom the money is to be lent; and
ii: Has not been introduced to the borrower by the solicitor for the purpose of making that loan, other than, where that person is a financial institution within the meaning of the Reserve Bank of New Zealand Act 1989
iii: The solicitor has not made or participated in the decision to approve the making of the loan other than by advising in respect of the terms and conditions of the loan agreement:
c: To apply money to give effect to any term of a conveyance to which that person is a party, other than a conveyance which is or gives effect to a loan agreement that does not come within the terms of paragraph (b)
4: Nothing in this section or in section 169B
a: The Protection of Personal and Property Rights Act 1988
b: A trust arising out of a deceased estate:
c: A trust created by a court order:
d: A trust for the benefit of one or more persons suffering from physical or mental disability.
5: In this section a reference to a solicitor includes a reference to—
a: Any partner, employee, or agent of the solicitor:
b: Any nominee of the solicitor:
c: Any company registered under the Companies Act 1955 Companies Act 1993 Companies Act 1955 Companies Act 1993
d: Any other incorporated or unincorporated body (other than a body that is a party to a listing agreement with a stock exchange) in relation to which the solicitor occupies a position comparable to that of a director within the meaning of the Companies Act 1955 or the Companies Act 1993
6: In this section conveyance
a: A deed or agreement in writing—
i: For the sale and purchase of, or relating to, any interest in land or buildings, including a company lease within the meaning of section 2 Resource Management Act 1991
ii: For the granting, in relation to any land or buildings, of a lease, tenancy, or licence to occupy, or for the sale and purchase or transfer or assignment of any such lease, tenancy, or licence:
iii: For the sale and purchase of a business (including its shares and securities) and for any leases, licences, or rights connected with the business:
iv: For the sale and purchase or lease of chattels, either separately or as part of an agreement to which subparagraph (i) (ii) (iii)
b: Any other assignment or settlement by deed. Sections 169A 169B inserted 29 April 1993 Law Practitioners Amendment Act 1993 Subsection (5)(c) substituted 1 July 1994 2 Company Law Reform (Transitional Provisions) Act 1994 Subsection (5)(d) amended 1 July 1994 2 Company Law Reform (Transitional Provisions) Act 1994 by inserting the words or the Companies Act 1993
169B: Transitional provisions relating to liability for investment
1: Where any money has been invested or should have been invested by a solicitor in an investment in accordance with instructions given before the 1st day of May 1993, and is to be repaid to the person beneficially entitled to it on one or more dates after the 30th day of April 1993 specified in any agreement, whether with the borrower or the solicitor, the fund shall not be applied in reimbursing any person for any loss relating to that money caused by the theft of a solicitor to whom this Part of this Act applies, or by his or her employee or agent, committed at any time after the expiration of 90 days after the first date on which that money is due to be wholly repaid to the person beneficially entitled thereto.
2: Where any money has been invested or should have been invested by a solicitor in accordance with instructions given before the 1st day of May 1993 in an investment under which—
a: The person beneficially entitled to repayment of the money is to be repaid on demand being made by the lender or on the occurrence of an event which will not or may not occur on a date certain; or
b: There is no due date for repayment,— the fund shall not be applied in reimbursing any person for any loss relating to that money caused by the theft of a solicitor to whom this Part of this Act applies, or by an employee or agent of a solicitor, committed after the 30th day of April 1994.
3: For the purposes of this section, money shall only be taken to be invested if it would also be taken to be invested for the purposes of section 169A Sections 169A 169B inserted 29 April 1993 Law Practitioners Amendment Act 1993
170: Advances from fund for purposes of this Part
Without limiting the generality of sections 161(e) 169
171: Claims against fund
1: The Council may receive and settle any claim against the fund at any time after the commission of the theft in respect of which the claim arose; but no person shall be entitled, without leave of the Council, to commence any action in relation to the fund until the claimant has exhausted all relevant rights of action and other legal remedies available against the defaulting solicitor or any other person in respect of the loss suffered by him.
2: No person shall be entitled to recover from the fund an amount greater than the balance of the loss suffered by him after deducting from the total amount of his loss the amount or value of all money or other benefits received or receivable by him from any source other than the fund in reduction of his loss, including any benefits received by reason of professional services rendered or disbursements paid by the defaulting solicitor.
3: No amount shall be paid or payable out of the fund as interest on the amount of any judgment obtained or of any claim admitted against the fund.
4: No right of action shall lie in relation to the fund in respect of—
a: Any loss suffered by the spouse of a solicitor by reason of any theft committed by that solicitor; or
b: Any loss suffered by a solicitor by reason of any theft committed by any partner of that solicitor, or by reason of any theft committed by an employee of the solicitor or an employee of any firm of solicitors in which the solicitor is a partner. 1955 No 101 s 90
172: Defences to claims against fund
In any action brought against the New Zealand Law Society in relation to the fund, all defences that would have been available to the defaulting solicitor shall be available to the Society. 1955 No 101 s 91
173: Subrogation of rights of action against defaulting solicitor
On payment out of the fund of any money in settlement in whole or in part of any claim under this Part of this Act, the New Zealand Law Society shall be subrogated, to the extent of that payment, to all the rights and remedies of the claimant against the solicitor in relation to whom the claim arose, or, in the event of his death or insolvency or other disability, against his personal representatives or other persons having authority to administer his estate, and to all other rights and remedies of the claimant in respect of the theft to which the claim relates. 1955 No 101 s 92
174: Provisions applicable if fund insufficient to satisfy claims
1: No money or other property belonging to the New Zealand Law Society other than the fund shall be available for the satisfaction of any judgment obtained against the Society in relation to the fund, or for the payment of any claim allowed by the Council.
2: If at any time the fund is not sufficient to provide for the satisfaction of all such judgments and claims, or for any other payments authorised by section 161
2A: Notwithstanding subsection (2) (4) section 165(1A) section 167(3) section 161
2B: Notwithstanding subsection (2) (4) section 167(3) section 161
3: The Council may in its absolute discretion, having regard to subsection (4)
4: Without limiting the discretion of the Council, in applying the fund towards the settlement of any such judgments and claims it shall have regard to the following rules:
a: It shall take into consideration the relative degrees of hardship suffered or likely to be suffered by the several claimants in the event of their claims against the fund not being satisfied in whole or in part:
b: Except in special circumstances, claims for amounts not exceeding $1,000 shall be satisfied in full before claims for amounts exceeding $1,000 are satisfied to a greater extent than $1,000:
c: Where all other considerations are equal, claimants shall have priority as between themselves according to the dates of the judgments or the dates when the claims were admitted by the Council, as the case may be. 1955 No 101 s 93 Subsection (2) substituted 29 April 1993 (2A) (2B) inserted 29 April 1993 Law Practitioners Amendment Act 1993
175: Council may enter into contracts of insurance
1: Notwithstanding anything to the contrary in the foregoing provisions of this Part of this Act, the Council may in its discretion enter into any contract or contracts of insurance with any person or company carrying on fidelity insurance business in New Zealand, whereby the New Zealand Law Society will be indemnified to the extent and in the manner provided by the contract or contracts against liability to pay claims under this Part.
2: Any such contract of insurance may be entered into in relation to solicitors generally or in relation to any solicitor or solicitors named in the contract.
3: No action shall lie against the New Zealand Law Society, or against any member or employee of the Society or of the Council, or against any member of the Management Committee, for injury alleged to have been suffered by any solicitor by reason of the publication in accordance with fact of a statement that a contract of insurance entered into under this section does or does not apply to that solicitor.
4: If any contract of insurance is entered into in respect of any specified solicitor or solicitors, the Council shall on the application of any other solicitor enter into a like contract of insurance in respect of the last-mentioned solicitor if the insurer signifies his or its willingness to enter into such a contract on like terms and conditions. 1955 No 101 s 94
176: Application of insurance money
1: No claimant against the fund shall have any right of action against any insurance company or other person with whom a contract of insurance is made under this Part of this Act in respect of that contract, or have any right to claim any money paid by the insurer in accordance with the contract.
2: All money so paid by the insurer shall be paid into the fund and shall be applied in or towards the settlement of relevant claims. 1955 No 101 s 95
177: Rules for purposes of this Part
1: For the purposes of this Part of this Act, the Council may from time to time make rules for all or any of the following purposes:
a:
b: Providing for the investment of so much of the fund as is not immediately required for the purposes of this Part of this Act:
c: Prescribing forms of notice to be given to the Council in relation to claims against the fund, and the conditions subject to which and the extent to which the Council may settle any such claims without recourse being had to legal proceedings:
d: Generally for such other matters as may be considered necessary for the purpose of protecting the fund, or for its administration, or for the purpose of giving full effect to the intent of this Part of this Act.
2: Rules made under this section shall not come into force unless they are approved by the Governor-General in Council. 1955 No 101 s 100(1)(a)-(c), (e), (2) Subsection (1)(a) repealed 5 September 1988 4 Law Practitioners Amendment Act 1988
10: The Partners Protection Fund
178: Interpretation
In this Part of this Act, unless the context otherwise requires,— Fund Management Committee Committee Part 9 Prescribed 1955 No 101 s 100A 1975 No 35 s 5
179: Application of this Part
1: This Part of this Act applies to every solicitor who is for the time being engaged in the practice of his profession in partnership with any other person or persons; but it shall not apply to any solicitor who is not so engaged.
2: Every solicitor who is held out as a consultant partner of a solicitor or firm of solicitors shall for the purposes of this Part of this Act be deemed to be practising as a partner of the solicitor or as a partner in the firm, as the case may require. 1955 No 101 s 100B 1975 No 35 s 5
180: Partners Protection Fund
1: There shall continue to be a Partners Protection Fund, being the fund established under Part 6A of the Law Practitioners Act 1955 section 5 of the Law Practitioners Amendment Act 1975
2: The fund shall be the property of the New Zealand Law Society, and shall be held in trust for the purposes specified in this Part of this Act. 1955 No 101 s 100C 1975 No 35 s 5
181: Money payable into fund
The fund shall consist of—
a: All sums paid to or on account of the fund by solicitors, either as annual contributions or as levies, in accordance with this Part of this Act:
b: The interest from time to time accruing from the investment of the fund in accordance with rules made under this Part of this Act:
c: All money recovered by or on behalf of the New Zealand Law Society in the exercise of any right of action conferred by this Part of this Act:
d: Any other money that may be lawfully paid into the fund. 1955 No 101 s 100D 1975 No 35 s 5
182: Expenditure from fund
There shall from time to time be paid out of the fund, as required,—
a: The amount of all claims, including costs, allowed or established against the fund in accordance with this Part of this Act:
b: All legal expenses incurred in defending claims made against the fund, or otherwise incurred in relation to the fund:
c: All premiums payable in respect of contracts of insurance entered into by the Council pursuant to rules made under this Part of this Act:
d: The expenses involved in the administration of the fund, including allowances to members of the Council or the Management Committee in respect of their services and their reasonable travelling expenses incurred in connection with the management of the fund:
e: All other money payable in respect of any matter for which payment is required or considered necessary by the Council for the purposes of this Part of this Act or the rules made under it, including the cost of investigations directed by the Management Committee or a District Law Society. 1955 No 101 s 100E 1975 No 35 s 5
183: Administration of fund
1: Subject to subsection (2)
2: The Council may from time to time by resolution delegate to the Management Committee all or any of its powers in relation to the fund.
3: Any such resolution may at any time in like manner be rescinded or varied. 1955 No 101 s 100F 1975 No 35 s 5
184: Solicitors practising in partnership to pay prescribed fees into fund
1: Every solicitor to whom this Part of this Act applies, on making application in any year for a practising certificate, shall, in addition to all other fees then payable by him, pay such fee as may from time to time be prescribed for the purposes of this Part of this Act, being not less than $20 nor more than $100 in any year; and no such certificate shall be issued until the prescribed fee and any levy payable under section 185
2: If a solicitor to whom this Part of this Act does not apply at the time of his application for a practising certificate thereafter, but before the 30th day of June in the year for which that certificate is issued, commences to practise as a solicitor in partnership with any other person or persons, he shall thereupon become liable to pay to the fund the fee prescribed for that year. 1955 No 101 s 100G 1975 No 35 s 5
185: Solicitors may be required to pay levy
1: If at any time the fund is not sufficient, or, in the opinion of the Council having regard to any prospective claims or liabilities likely to be received or incurred, may not be sufficient, to satisfy the liabilities of the New Zealand Law Society in relation to the fund, the Council may by resolution impose on every solicitor to whom this Part of this Act applies, for payment into the fund, a levy of such amount as it thinks fit, not exceeding the prescribed amount.
2: The amount of every such levy shall become payable on a date and in a manner to be fixed by the Council. 1955 No 101 s 100H 1975 No 35 s 5
186: Application of fund
1: Subject to this Part of this Act, the fund shall be held and applied for the purpose of reimbursing any solicitor to whom this Part applies who suffers pecuniary loss by reason of a claim brought against him arising out of the theft, by any person with whom the solicitor was, at the time of the theft, practising in partnership, of any money or other valuable property entrusted to that person in the course of his practice as a solicitor, including any money or other valuable property entrusted to him as a solicitor-trustee.
2: No person may bring a claim against the fund unless notice of the claim is given in writing to the Council or the Management Committee within 12 months after the claimant has suffered pecuniary loss, or within such further time as the Council or Committee may in its discretion allow.
3: No person shall have any claim against the fund in respect of any claim brought against him arising out of any theft committed before the 1st day of January 1976. 1955 No 101 s 100I 1975 No 35 s 5
187: Claims against fund
1: The Council may receive and settle any claim against the fund at any time after the cause of the claim has arisen; but no solicitor shall be entitled, without leave of the Council, to commence any action in relation to the fund until he has exhausted all relevant rights of action and other legal remedies available against his defaulting partner or any other person in respect of the loss suffered by him.
2: No right of action shall lie in relation to the fund in respect of any loss suffered by a solicitor by reason of any theft committed by any of his partners if the solicitor was a party to the theft.
3: No solicitor shall be entitled to recover from the fund an amount greater than the balance of the loss suffered by him after deducting from the total amount of his loss the amount or value of all money or other benefits received or receivable by him from any source other than the fund in reduction of his loss.
4: No amount shall be paid or payable out of the fund as interest on the amount of any judgment obtained or of any claim admitted against the fund.
5: Notwithstanding any of the foregoing provisions of this section, the total amount that would otherwise be payable out of the fund to the partner or partners of a defaulting solicitor shall be reduced by the sum of $5,000: Provided that in exceptional cases the Council may determine that the amount shall be reduced by such sum, being not less than $2,000, as it thinks fit.
6: Notwithstanding any other provision of this Part of this Act, the Council may set off against the sum that would otherwise be payable out of the fund to any solicitor the amount of any claim that the New Zealand Law Society may be entitled to against that solicitor in respect of the Solicitors' Fidelity Guarantee Fund. 1955 No 101 s 100J 1975 No 35 s 5
188: Rules for purposes of this Part
1: For the purposes of this Part of this Act the Council may from time to time make rules for all or any of the following purposes:
a: Applying all or any of the provisions of sections 159 162 166 168 172 to 176 Part 5
b: Prescribing the amount of the annual contributions to the fund to be paid by solicitors to whom this Part of this Act applies:
c: Providing for the investment of so much of the fund as is not immediately required for the purposes of this Part of this Act:
d: Prescribing forms of notice to be given to the Council in relation to claims against the fund, and the conditions subject to which and the extent to which the Council may settle any such claims without recourse being had to legal proceedings:
e: Generally for such other matters as may be considered necessary for the purpose of protecting the fund, or for its administration, or for the purpose of giving full effect to the intent of this Part of this Act.
2: Rules made under this section shall not come into force unless they are approved by the Governor-General in Council. 1955 No 101 s 100K 1975 No 35 s 5
11: Miscellaneous Provisions
189: Protection of Councils of New Zealand and District Law Societies
Without limiting section 137 1955 No 101 s 122
189A: This section was inserted 17 December 1985 Law Practitioners Amendment Act 1985 repealed 1 July 1994 Companies Amendment Act 1993
190: General penalty for offences
Every person who commits an offence against this Act for which no penalty is provided otherwise than in this section is liable to a fine not exceeding $1,000 and, if the offence is a continuing one, to a further fine not exceeding $100 for every day on which the offence has continued.
191: Summary conviction
1: Every offence against this Act or against any regulations made under this Act shall be punishable on summary conviction.
2: Notwithstanding anything to the contrary in section 14 Summary Proceedings Act 1957 1955 No 101 s 123
192: Transitional provisions
1: Every person who, at the commencement of this Act, holds office as President, Vice-President, President-elect, or Treasurer of the New Zealand Law Society, or as a member of the Council of the Society, shall, unless he sooner vacates office otherwise than by effluxion of time, continue to hold that office until his successor comes into office in accordance with the Society's rules.
2: Every person who, at the commencement of this Act, holds office as an appointed member of the Council of Legal Education shall, unless his office sooner becomes vacant under section 33
3: All investigations, inquiries, applications, and other proceedings of a disciplinary nature before a District Council under sections 108 and 114 of the Law Practitioners Act 1955 Part 3 or section 112 of that Act Part 4 of that Act
193: Repeals and amendments
1: The enactments specified in the Schedule to this Act are hereby repealed.
2:
3: Every reference in any other Act or in any regulation, rule, instrument, or other document to the taxation of a solicitor's costs shall, unless the context otherwise requires, be read as a reference to their revision. Subsection (2) repealed 12 December 1983 Legal Aid Amendment Act 1983