NZ prepares to wind back the intervention rule

In New Zealand, a barrister is a lawyer who specialises in dealing with disputes and disagreements, including litigation. The traditional rule is that a barrister can only receive instructions from a solicitor. This is known as the intervention rule. The intervention rule is about to be radically redefined.

The New Zealand legal profession is based on the English model, which has the same rule. New Zealand is somewhat different however, because the boundaries were blurred from the very beginning (all New Zealand solicitors are also barristers) and due to the way that legal practice has evolved. For better or for worse, barristers have increasingly accepted instructions directly from clients for certain kinds of work, with either notional or non-existent involvement from a solicitor. It is certainly accurate to say that a solicitor’s involvement in litigation varies greatly.

Under the current rules of professional conduct, the starting point is that the intervention rule applies, but with numerous exceptions; employment dispute advocacy, for example.

The New Zealand Law Society has drafted rules which flip this around. Once the rules have been made into law, the starting point will be that there will be no intervention rule, subject to several exceptions, the most notable being the conduct of litigation. This sounds like a fairly significant exception, but in fact much of a barrister’s work these days is devoted to non-litigation work such as dispensing general legal advice and providing legal opinions on specific topics. Work of this kind will not need to involve a solicitor at all, in terms of the regulations.

This is a welcome change, because it essentially ratifies what is already occurring in practice. Where a client wishes to instruct a barrister directly, it may do so, without the barrister fearing a technical breach of the professional rules.

It is understood that the rules were due to be signed of by the then Minister of Justice, Judith Collins. Unfortunately, the minister experienced a number of distractions and then resigned. The acting Minister of Justice is Chris Finlayson QC, also the Attorney-General. It seems optimistic to think that Mr Finlayson QC will, in his capacity as a member of the profession, give some priority to putting through this desirable law change. In all likelihood it will occur after the imminent New Zealand General Election, and when a new full time Minister of Justice is appointed.

 

Steve Keall
12 September 2014

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