The history of the legal profession in New Zealand dates from the Supreme Court Ordinance of 1841, which provided for the admission to practice of barristers and solicitors. The one person was entitled to practise both as barrister and as solicitor. This departure from the English system was forced by pioneer conditions and was intended to be temporary. Like many other expedients, it took root and has continued to the present. While Queen's Counsel must practise solely as barristers, and a few others practise as barristers or solicitors only, the great majority of lawyers in New Zealand are both barristers and solicitors.
For many years most lawyers in practice had qualified in Great Britain or Ireland. In the early days professional rivalry seems to have been less restrained than it now is, and we read of a fatal duel at Wellington in 1844 between two barristers after a difference in Court. The first regular provision for legal training in the colony was made in 1861. The qualifications for admission were examination, together with three years' pupilage in the case of barristers and the serving of articles in the case of solicitors. Examinations were in the hands of the Judges, who prescribed the syllabus.
The New Zealand Law Society was established by statute in 1869. Control of the profession by a single national body proved unsatisfactory and, in 1878, provision was also made for the incorporation of district law societies. Shortly afterwards the growth of Jacksonian democracy led to the abolition of articles and pupilage as prerequisites of admission. Many would have gone further and the House of Representatives twice passed a Bill allowing anyone, lawyer or not, by whom a party wished to be represented, to appear in Court. In 1898 anyone who had practised as a solicitor for five years could become a barrister without passing the ordinary examination.
These changes had the laudable object of opening the practice of law to the less well-to-do. The effect on standards does not seem to have been good. The quality of legal education, which had in practice been taken over by the university, seems likewise to have been indifferent. The 1925 Commission on University Education had some harsh things to say about it, remarking that the phrase “learned counsel” was in danger of becoming a sarcasm. In 1931 teaching and examination became formally the province of the university, but the subjects of the law course are virtually determined by the Council of Legal Education, which comprises representatives of the Judges, the Law Society, and the universities. As a result, the standard of legal education has been greatly raised.
Apart from the general requirements of British nationality and good character, admission as a barrister requires the completion of the LL.B. course of a New Zealand university, and admission as a solicitor, the passing of most units of that course. Persons with Commonwealth qualifications may be admitted in certain cases. Since 1935 no one has been permitted, save with the leave of the Supreme Court, to practise as a solicitor without three years' experience in a legal office or in the legal branch of a Government Department.
The discipline of lawyers in New Zealand is in the hands of the profession itself. The Attorney-General, a member of Cabinet, is titular head of the legal profession, but the Government has no control over barristers or solicitors. The Disciplinary Committee of the New Zealand Law Society has power to strike a practitioner off the roll or fine or suspend him, with an appeal to the Supreme Court and a further appeal to the Court of Appeal. The grounds are conviction of an offence involving dishonesty, professional misconduct rendering the lawyer unfit to practise, and grave impropriety or infamous conduct.
Protection of the public in its dealings with solicitors is secured by compulsory auditing of trust accounts and by the existence since 1929 of a statutory Fidelity Guarantee Fund operated by the New Zealand Law Society. Solicitors' costs may be taxed – that is, investigated by a Registrar of the Supreme Court (with a right of review by a Judge) to determine whether they are reasonable and in accordance with scales. The public are also protected by the ethical standards accepted or imposed by the profession and by the ordinary contractual obligation of a solicitor to exercise reasonable skill and care. Barristers, however, cannot be sued for professional negligence. The exact application of this rule in New Zealand, where the one practitioner performs both functions, is not clear.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.