Documente Academic
Documente Profesional
Documente Cultură
Profession?
LEGAL PROFESSION (SOCIOLOGISTS 1930-50S)
1. Expectation of high educational attainment and relatively lengthy
training
2. Its use of specialised knowledge on behalf of clients
3. Self-regulation through a professional association
4. Its commitment to public service
ISSUES: this theory is problematic because it means taking the
professions claims about itself at face value
THEORIES OF PROFESSIONALISM
Functionalist
or structural
functional
theory:
1. Identify the basis
upon which we
can identify a
group as distinct
2. Question the
group:
1.
2.
Its purpose?
How does it fit
Interactionist
Theory
(opposite of
functionalist)
1. Saw Functionalists
as too narrow and
rigid
2. Focuses on
individual
relationships and
activities
1. 1980s
2. Focus: power of the
profession and its
relationship with the
development of market
economy and the modern
state
a. - What
3. It reveals how many
lawyers do,
characteristics of the
rather than
profession (lengthy training,
3.
the profession
self-regulation, monopoly
as a social
over certain areas of work)
3. Torcott
institution
also serve to hand control
Parsons: saw
3. Concerned with
over their markets to the
lawyers as an
lawyer to lawyer,
profession. It gives them
important
and lawyer to
control over the market
social group,
client relationships.
seeking that service
contributing to
Exploring the way
4. Even if not the deliberate
the social
in which legal
intent of the profession,
operations of
training and
professionalism in fact
social control,
worked
operates a set of strategies
and consensus
relationships
for restricting the supply of
building,
socialise. It
lawyers
having the
5.
It challenges public interests
constructs
potential to
arguments for
professionalism as
transform
professionalism which are put
an expression or of
citizens
forward by the profession
individualism and
relationship
themselves
group identity
with political
4. Looks at distance
Sees Key to profession as
society.
between reality of
consumer protection
Emphasis on
daily legal practice
function
and legal ideology
Problem: lawyers get large
4. This approach
of the profession
control over sectors of society
lasted until late 5. Stresses diversity,
and are the only people who can
1960s
complexity and
carry out these functions
Criticism: a too
conflict in
having qualifications leads to a
narrow and rigid
professional work
monopoly over the market and
definition of the
then the cost and expense to the
profession
public is high
with other
parts of
society?
Ultimately
what is its
function?
MORE SOPHISTICATED APPROACH HOW POWER AND STATUS BOTH SHAPE AND
REFLECT THE NATURE OF THE PROFESSION INCORPORATING ALL 3
THEORIES
How can one appeal meaningfully to the function and role of the law
when it has so many functions?
Issue of legal pluralism - Different people have different conceptions
on what is common good and what rules in society ought to be
achieving
Concludes: the different conceptions on what is good across
society, cannot be expected to settle on one conception of good.
But they can agree on the form of procedures that will give them, if
not what they want, what they need.
Although the fundamental substance of conceptions of good, what
constitutes human flourishing, which basic goals are worthy of
pursuit, and which way is best for an individual to live their life,
cannot be agreed on, we can agree on procedures which respect the
diversity of views represented, and which issue decisions with which
we can live.
Dare says institutions of law are designed and intended to mediate
between the diverse range of views of what ought to be done and
particular decisions about what is to be done. That is the general
function which lies behind the specific tasks performed by the
institutions of law.
(Zabella Case
One way to act immorally, is to knowingly assist
another in acting immorally In Zabella the lawyer employed to act
for P was effectually acting for someone who the court said was a
scoundrel, and morally obnoxious but does this mean the lawyer
defending him is also morally obnoxious or condones his behaviour?
)
Dare Cases such as Zabella represent the operation of the
standard conception of the lawyers role 3 principles:
Partisanship
Neturality
Non-accountability
Partisanship:
The duty of zeal/zealous advocacy the lawyers role is only to
work within their clients interests, not to moderate their
Principle of Non-Accountability:
Lawyers cannot be held accountable for the conduct of their
clients stops 3rd parties being able to draw conclusions about
lawyers protects lawyers
70
(1)The New Zealand Law Society must have a constitution that provides for
o
(a)a Council of the New Zealand Law Society and the powers of the Council; and
(b)the ways in which persons become members of the New Zealand Law Society; and
(c)the ways in which persons cease to be members of the New Zealand Law Society; and
(d)the summoning and holding of general meetings of the New Zealand Law Society, and
the method of voting at those meetings; and
(g)the appointment by the Council of an executive director of the New Zealand Law
Society, who may be a member of the Council; and
(2)In addition to the provisions required by subsection (1), the constitution may contain any other
provisions that are not inconsistent with this Act or any other Act or any rule of law.
Compare: 1996 No 39 s 6(1)(a)(e), (k), (2)
Regulation
public confidence - protect public users - status of legal profession
establish new practices
Theories of professionalism
Consumer protection
Client care + rules of conduct for lawyers
Client care is not a term in the Law Practitioners Act 1982
nor in the professional conduct (the preceding body of rules)
Client care introduced in lawyers and conveyancers act
You can't teach someone to care for a clients, but have set in place
machinery -
Legal education
Continuing education and training
Professional legal training
Academic stage
Short period of professional training - CPD - continuing professional
development
-
1986 - the NZ Law Society invited Neil Gold to look into the question of legal
education in this jurisdiction
- Gold recommended that NZ adopt a full time block course 13 wks in length addressed to both the law society and educationers
the study
- Reviewed number of times since then - set the pattern for legal training in NZ
Criticism:
13 - 19 weeks - not long
Professional legal training in NZ should involve more - you have a 2
year period
overseas, including in an office/chambers
Here the law firms have commonly opposed extention - they argued
they themselves offered excellent training - and offered training to
the newly qualified,
Council of Legal Ed's website - Tipping has just set out legal
reccomendations
- LLB is just prerequisite academic stage - it's different than the professional legal
training stage
- unlikely to see changes in consequence of report - but read it!
NB - under lawyers practice rules, Rule 12 - before you can practice on your own account,
not as employee but as principle, you must have had 3 years experience before you can
practice under your own name, in the immediately preceding 8 years
-
Rules require:
that you must complete a minimum of 10 hours activity in each CPD
year (1-4; 31-3)
- Legal services = carrying out legal work for another person
- Conveyancing services - sales and purchases of land
- Services a lawyer provides undertaking work of a real estate
agent
- if you should complete more than 10 hrs. then you can carry
forward up to 5 hrs.
CPD Activity?
- learning which is planned and structured with a purpose and outcomes
- it provides for interaction and feedback
- it must be related to identified learning needs
- it must NOT be part of day to day work - must be beyond the
practical work you
are doing
- rules require that every law [firm] maintain a CPD plan and record
- you are required to reflect on and verify your CPD activities
examples of CPD activity
1) participating in courses, seminars, training progs, one to one coaching,
and
study groups - one to one mentoring or training must be structured and planned - must not be file specific - it's not a question of sorting out how best to sort
out a difficult file, it must be beyond that
- distance learning programmes are a part of this - verifiable and provide for interaction
2) study towards relevant degrees, diplomas, and certificates 3) lecturing, teaching instructing at tertiary level
4) writing law related books and articles,
- significant because if you are the leading lawyer in a certain area, the criticism was what they do you teach about it, you pass your knowledge on, that can be fulfilment of CPD
What
Part 7
Complaints and discipline
120Purposes
(1)The first purpose of this Part is to provide a framework in relation to complaints and discipline.
(2)The framework is, in relation to complaints, to be
o
(iii)persons who are not practitioners but who are employees or former employees of lawyers and
incorporated law firms; and
(vi)persons who are not practitioners but who are employees or former employees of conveyancing
practitioners and incorporated conveyancing firms; and
(b)one within which complaints of the kind referred to in paragraph (a) may be processed and resolved
expeditiously and, in appropriate cases, by negotiation, conciliation, or mediation.
(3)The framework is, in relation to discipline, to be one within which disciplinary charges against persons of the kinds
described in subparagraphs (i) to (vi) of subsection (2)(a) may be heard and determined expeditiously.
(4)The second purpose of this Part is to require the New Zealand Law Society to make, in relation to persons of the kinds
described in subparagraphs (i) to (iii) of subsection (2)(a), rules necessary for the purposes of the framework referred to in
this section.
(5)The third purpose of this Part is to require the New Zealand Society of Conveyancers to make, in relation to persons of
the kinds described in subparagraphs (iv) to (vi) of subsection (2)(a), rules necessary for the purposes of the framework
referred to in this section.
(6)The fourth purpose of this Part is to preserve the inherent jurisdiction of the High Court to strike off the roll and discipline
lawyers in their capacity as officers of the High Court.
Provision of information
3.4 A lawyer must, in advance,3 provide a client with information in writing on the principal aspects of client service
including the following:
(a)the basis on which the fees will be charged, when payment of fees is to be made, and whether the fee may be
deducted from funds held in trust on behalf of the client (subject to any requirement of regulation 9 or10 of
the Lawyers and Conveyancers Act (Trust Account) Regulations 2008):
(b)the professional indemnity arrangements of the lawyer's practice. This obligation is met if it is disclosed that the
practice holds indemnity insurance that meets or exceeds any minimum standards from time to time specified by the
Law Society. If a lawyer or a practice is not indemnified, this must be disclosed in writing to the client:
(c)the coverage provided by the Lawyers' Fidelity Fund and if the client's funds are to be held or utilised for purposes
not covered by the Lawyers' Fidelity Fund, the fact that this is the case:
(d)the procedures in the lawyer's practice for the handling of complaints by clients, and advice on the existence and
availability of the Law Society's complaints service and how the Law Society may be contacted in order to make a
complaint.
2) ERS - will process the matter and will determine whether its a
matter suitable to go through the service
ERS is voluntary and if either party (lawyers or client) decline, then normal
procedure applies
- Law society says that protection of the public is the key factor a consumer protection measure
- Procedures in the law office - if its a minor matter can go to ERS
whatever it decides the complainant is informed of the decision and reasons for it
the standards committee is the body to deal with this matter, there
is no jurisdiction for an officer of the service to deal with them
there is no power just to reject complaints - under 132, the
complaint must be referred to the committee and under 135 (1) and determined by the committee under s 137
ORLOV C NZ LAW SOCIETY [2013] NZCA 230 HC: 2013 1 NZLR 390
READ
- CA decision of Stevens and French JJ series of cases climaxed in CA
decision
- O was a practicing lawyer subject to several complaints related to his
competence as a lawyer
- The case itself involved application by O and cross application against
society by O
In HC, justice Heath found there was a threshold test for referrring a
matter to a lawyers and conveyancers tribunal under s152 2(a)
under preceding act 1982 - there was under that act a threshold test, but
not this was not repeated
Under s152(2)(a) - French said there should be a similar test as contained
in the 1982 Act - 'is there a real risk the practitioner might be
suspended or struck off? - if that threshold is met its' sufficient to go to
the tribunal
- s101 (2) - of old act - 'if in the opinion of the district council or
committee, the case was of sufficient gravity to warrant the
making of a charge' - - Justice Heath said a test such as the old one,
would focus the minds of the committee on the likely outcomes of
considering a charge and would act as a disincentive to anyone on the
committee motivated by ill will towards a practitioner -
He did not enforce the ... - did contend a high threshold encompassing
seriousness of the charge and sufficiency of evidence - to protect
practitioners from arbitrary action
Page 19- Para 54 - CA addresses the issue of a threshold test and reverses
the HC Heath's test - said no threshold FACTORS TELLING AGAINST A
THRESHOLD TEST:
1) section in the act does not have an express threshold
test referred to
2) there are express threshold tests - in s 138 - s244(1),
the striking off by tribunal, there is an express threshold test other provisions do, so parliament didn't seem to intend one
3) Parliament deliberately disregarded the threshold test
by disregarding the regional one in the new act
4) the fact that any complaint can be referred, told
against a threshold test
4) the absence of requirement under the act to give
reasons to refer the matter to a tribunal (telling against
threshold)
5) has all the powers of a standards committee
6) the purpose of consumer protection, maintenance in
public education, made it
important that the tribunal have ability to determine complaints,
even if not striking off...??
S158(2)
makes the point that the ability of the standards committee to refer
to the disciplinary committee is subject to judicial review
it tells us also that the standards committee is not required to
obtain corroborating evidence of a complaint, and can
consider evidence in related complaints
also that the standards committee may revert a complaint into an
investigation motivated by it's own motion
M v Wellington Standards Committee 2
Interestingly on 9th May 2013 (and the Orlov was June 2013)
Justice Panhusrt in case of M v Wellington Standards Committee 2,
disagreed with Heath's decision in Orlov
Justice Pankhurst didn't follow Heath J
had a different view
Orlov was struck off 2013 -
SUBSEQUENT CASE - ORLOV V NATIONAL STANDARDS COMMITTEE NO 1 -- O is appealing against striking off, wanted to have Deliu represent him
as council
- National Standards Commitee 1 brought action that Deliu be
debarred from appearing as O's council, on grounds that D faces
similar charges and may as a result be struck off himself - READ - para 19, 20, 21 - Justice Foggherty in HC debarred Deliu from appearing for O as
council - interesting because it talks of everyone's right to council and
question of what it means
- solicitor N launched complaint against Z, holding certificate as barristersole -N said although Z only held barrister-sole cert, he was acting as solicitor
- N was not satisfied and applied to review officer for review
- Z posted on the skykiwi website, setting out his services offered, and
that they extended to conveyancing (solicitors work)
- in terms of that posting, N translated that herself and had a professional
translation made( dates 26th Nov 2010, and that date was after the
Standards Commitee considered the compliant
- The review officer said the committee shouldve considered that
translation, but that was a mistake of fact (??)
- in this case the matter was referred back to the standards
commitee and Z made an application for judicial review of that decision
- prima facie, Z had been mucked around
(Lec3)
Right of
Review
HC
CA
NB- the tribunal is administered, not by the law society but by the
Ministry of Justice, so it is INDEPENDANT of the Law society
think of the market control theory and criticism that what lawyers say
is self-serving - and this is trying to combat this view - dealt with
separately within ministry of justice
It's there to assess charges agaisnt the legal profession
The Tribunal
Comprised of: Chair, dept. Chair, 12 lay members (significant in terms of
consumer protection), 14 lawyer members, 3 conveyancing members
the chair, dept. chair and lay people, are appointed by Governor Gen, by ministry
of justice
Lawyers from appointed by NZ law society
Conveyancers - NZ conveyancers ...
The chair sits, and there must be not less than 4 others, and those others
must make up an even number, with an uneven number overall - half must
be lay members, half lawyers
S 227 of Act - where a lawyer has been struck off they can be
reinstated
S240 - Can place restrictions on publication S241 - IMPORTANT - a practitioner can be charged with
1) misconduct
2) conduct unsatisfactory - not so gross, wilful or reckless as to amount to
misconduct - something less than misconduct
3) A practitioner can be charged with being guilty of negligence or
incompetence in a professional capacity, where it has been of such a
degree or so frequent as to reflect on their fitness to practice, or
such as to bring the profession into disrepute
4) Practitioner can be charged where they have been convicted of an
offence punishable by imprisonment, then if the conviction reflects on that
persons fitness to practice, or tends to bring the profession into disrepute,
then that person can be convicted by the tribunal
-> Charges to be brought against practitioners in disciplinary tribunal
- 1935 - the first committee was constituted under the law practitioners
act - that committee under the act had rights to strike off a
practitioner, a practitioner and other sanctions - that
NOTWITHSTANDING it was statutory, the courts maintained
jurisdiction to strike off a practitioner
- Rights of appeal to HC and CA from Disciplinary Tribunal - but
apart from that, under the Lawyers and conveyancers act, there is
jurisdiction, expressly conferring powers on superior courts to strike off
UTILITARIANISM
Jeremy Bentham 1748- 1832
-
TELEOLOGY /CONSEQUENTIALISM
what the utilitarians tell us is that the action that engenders the greatest
amount of favourable consequences (aka that which maximizes utility)
should govern the outcome of any ethical dilemma
Issue - it justifies action which may be unethical, by the consequences
that flow from that action which are themselves positive -
Categories
Act utilitarianism - requires you to choose the behaviour in a particular
situation that leads to the greatest good for the greatest number
- Sub category which is unique to lawyers - DECISION UTILITARIANISM
the court of law deciding the question of how the public welfare in a
case will be affect for the good, over and above what is best for the
parties to the case - like public policy rationale
to act morally is to act according to what you accept as truths without taking into consideration the effects produced by the action
the opposite of utilitarianism, you don't judge the rightness by
consequences
C ATEGORICAL IMPERATIVE -
o
o
o
Institutionalism
- there can be unified or unifying account of our moral obligations
because they are plural, the only general moral principles this theory will
recognise are prima facie principles
-
VIRTUE ETHICS
- Virtue ethicists - believe that right and wrong cannot be captured
by independently or basically valid moral rules or principles:
situational sensitivity - it is a matter of situational sensitivity - it is
fundamentally good or admirable inner motives or states
Issue of VE's is proving what is right in a situation/referred to for
guidance without principles
UTILITARIANISM
-
Need to advise the client of the pros and cons of each action - what
is negative - this all leads to informed consent
Informed consent - consent to an act after being given
formal adequate disclosure
o you must make sure that the client is aware of everything all the pros and cons likely to be a factor in decision
o potentially problematic based on who you are dealing with
The lawyer control model - where the lawyer gets on with it 'they
know best' - NOT GOOD, the client becomes separated from
procedures
Med example - the dr telling the patient the truth about their
decision may be detrimental to the patients health in itself - it
doesn't assist their autonomy as it will be info they can use in their
decisions, but if in the end, improving and maintaining health is
given precedence in society then you may have to veto other
concerns - - - - - Relativist view - different moral codes which will
apply
- S7 - Lawyers and
Conveyancers Act
misconduct (broad
categories)
- applies to employees
It's misconduct if an employee offers services outside of that firm you can't go and practice on your own account
People who are not practitioners but working in law firms can also
be guilty of misconduct
equivalent of conduct unbecoming Misconduct is a broad term - and it must be defined relative to the
circumstances of the individual case
it's conduct which reflects on the professional character of the
practitioner - that person's adherence to proper standards
-
- seize goods -
Exam:
- divide the paper up to answer 3 questions - aim to cover the whole
course
- know enough for alarm bells to go up if a problem situation arises
- Ethicalproblems arise internally,
- Subtle things - Aim of the course is to put everybody in the position for bells to go off to try and
spread the entire paper across everything we've done
4 parts to it - Smith practicing on own account - series of things - 35 marks all up - haven't allotted them to each section
- s242 - and point that it is up to the law society to act of its own notion
Q2 - 3 distinct matters
- a) market control theory b) Kantian Moral philosophy c)
CLOSED BOOK