LAWFUEL – The Legal Newswire – A proposal to permit lawyers to refuse …

LAWFUEL – The Legal Newswire – A proposal to permit lawyers to refuse instructions on the grounds of personal beliefs would erode the “cab rank” rule, said the ADLS Courts Committee in its submission on the Draft Rules of Conduct and Client Care for Lawyers.

The committee said that draft rule 3.1.1, which proposed allowing lawyers to refuse instructions on the grounds of being incapable of adequately serving the interests of a client due to the lawyer’s personal beliefs, was dangerous.

Such a rule could remove access to the law for segments of the community and might lead to employment conflict for lawyers practising within firms.

“A highly undesirable result might be the presumed association of a lawyer with a particular or unpopular cause espoused by their client, merely because of their representation of that client, thereby eroding the assumption of independence that underlies legal practice.”

The submission said that some committee members questioned the relevance of the intervention rule in today’s style of legal practice, as well as whether the individual status of a barrister still had relevance.

It was noted that a solicitor’s intervention was at times desirable to avoid situations in which a barrister’s involvement with correspondence or negotiations might require withdrawal because he or she had become a witness in the proceedings.

The committee said that 80 per cent of cases settled prior to hearing, meaning that the risk of having to step down was minimal and this suggested that the rule should be preserved. However, overall the committee was in favour of abolition of the rule.

For the protection of the public and in the best interests of the profession, though, there should be restrictions on the ability of lawyers to take out practising certificates as barristers for the first time unless they could establish satisfactory levels of prior experience.

A period of compulsory pupilage could be one means of providing safeguards. The committee submitted that draft rule 1.2, providing that a lawyer must never counsel a client to commit, or assist in the perpetration of, fraudulent or illegal behaviour, should be removed. Alternatively, there should be a means of maintaining lawyer’s obligations of privilege and confidentiality.

In relation to rule 1.3.1, the committee advocated providing for a defence.

The committee expressed concern that parts of rule 1.4.2 would impinge on freedom of speech. It suggested either that it be deleted or that it be reworded.

The Criminal Law Committee of ADLS questioned the wording of draft rule 2.6.7, which stated that a lawyer must never suggest to a potential witness that evidence ought, or ought not, to be given.

The committee said that the wording appeared to be too broad, and failed to prescribe limits as to what was or was not acceptable in briefing witnesses.

The submission said that section 117 of the Lawyers and Conveyancers Act 2006 in reference to the status of barristers was broader than the current section 61 of the Law Practitioners Act 1982.

There was accordingly now, in theory, greater scope for restrictions on barristers’ powers or competencies to be prescribed by regulation under the new act.

That heightened the need for vigilance on the part of the “watchdogs” in the profession to ensure that barristers’ powers and work were not unduly or inappropriately restricted.

The committee expressed concern about the proposed introduction of the “personal beliefs” ground for refusing instructions.

It said that such a change would reflect on the professionalism of lawyers, and would also have implications for access to justice. If such a ground was introduced, would this mean that lawyers would be expected to record their personal beliefs or prejudices for public scrutiny?

The committee said that an alternative approach should be adopted of assessing each situation to see whether it gave rise to a conflict and, if so, informing the client of that and advising that the conflict impacted on the lawyer’s ability to act.

In relation to the draft rules’ proposal that barristers be allowed to accept instructions directly, the committee noted that it had considered the letter from NZ Bar Association President Jim Farmer and the draft proposed new rules for barristers.

It said that some provisions might not be able to be implemented due to the nature of legal aid. The submission expressed concern about draft rule 8.1 A, setting out the information which must be provided to clients before commencing work on a matter.

The committee said that, in a criminal law setting when time might be of the essence and the lawyer might be meeting a client in custody for the first time, it would be time-consuming and impede the taking of instructions if the lawyer were to be required immediately to discuss professional indemnity insurance, the fidelity fund and a complaints procedure.

“At the very least, it is not conducive to positive representation and confidence. If the lawyer’s aim is to produce the best outcome in the circumstances, then discussions about these matters may impede this. Holding a practising certificate ensures a lawyer has a warrant of fitness.”

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