Bill to restore Queens Counsel title passes first reading
A bill to restore the title of Queen’s Counsel for outstanding lawyers has passed its first reading in Parliament tonight.
“The Lawyers and Conveyancers Amendment Bill is an important step in re-instating the status and independence of the rank in New Zealand,” says Associate Justice Minister Nathan Guy.
“This is in response to concerns from the legal profession that the title of ‘Senior Counsel’, created in 2008, doesn’t adequately reflect the nature and status of the rank.
"The title of Queen's Counsel is instantly recognised as providing a certain standard of legal advice among the New Zealand public and internationally.”
The bill also restricts eligibility, in most cases, to barristers sole rather than lawyers in partnerships or firms.
"Queen's Counsel should be able to advise and represent both law firms and clients who engage them fearlessly and independently, without the potential conflicts of working in a partnership or incorporated firm.
"However there will be provision to appoint lawyers in firms as Queen's Counsel where that recognises exceptional legal practice. This is consistent with the established practice of occasionally appointing exceptional lawyers in government and parliamentary counsel as Queen's Counsel, although they are not members of the independent bar."
The title of Senior Counsel, which was introduced by the previous government in 2008 and was open to lawyers in firms and barristers, will no longer be available.
The eight Senior Counsel appointed in 2008 will have the option of adopting the title of Queen's Counsel or remaining Senior Counsel.
Questions and Answers on the Lawyers and Conveyancers Amendment Bill
Why is the rank of Queen’s Counsel being re-instated?
The rank of Queen’s Counsel was changed to Senior Counsel under the Lawyers and Conveyancers Act 2006 by the previous Labour Government.
The Lawyers and Conveyancers Amendment Bill replaces the Act’s provisions relating to Senior Counsel and restores the title of Queen’s Counsel to that office. The purpose of the change to the rank’s title is to ensure that it better reflects better the rank’s public purpose and status. The rank will continue to be a mark of excellence in advocacy.
Will the appointments process change as well?
Yes. Amendments to the Lawyers and Conveyancers Act (Lawyers: Senior Counsel and Queen's Counsel) Regulations 2008 will simplify the selection process, while providing for consultation with the New Zealand Law Society and the New Zealand Bar Association on proposed appointments.
How will the Bill affect the status of Senior Counsel appointed under the Lawyers and Conveyancers Act 2006?
Lawyers appointed as Senior Counsel will have the option of retaining their title or adopting the title of Queen’s Counsel.
Any practice arrangements entered into by Senior Counsel appointed between 1 August 2008 and 30 June 2010 will remain unaffected by the new provisions. This means that Senior Counsel will be able to continue to practice in partnerships, be actively involved in incorporated law firms, and be able to continue to be an employee or statutory officer.
How will the amendments affect any practice arrangements entered into by barristers’ sole under the Lawyers and Conveyancers Act 2006?
Eligibility to the rank of Queen’s Counsel will be restricted to barristers who practise on their own account. Barristers sole who have entered into partnership arrangements, or are members of an incorporated law firm, or employees will be ineligible for the rank.
Will Queen’s Counsel appointed under the new regime have any practice restrictions?
Yes. Queen’s Counsel, once appointed, will be required to continue to practise independently. Queen’s Counsel will be restricted from practising in partnership with any other lawyer, be a member of an incorporated law firm (other than where he or she is the sole voting share-holder), or an employee.
The standard eligibility category and practice restrictions are to protect the independence of Queen’s Counsel, enhancing their ability to accept instructions and to provide frank, independent, and objective legal advice.
How will the Bill affect practice arrangements entered into under the Lawyers and Conveyancers Act 2006, by Queen’s Counsel appointed prior to 2008?
Queen’s Counsel who were appointed prior to 2008, and who have before 1 April 2010 joined law firms or otherwise changed their form of practice as allowed under the Lawyers and Conveyancers Act 2006, will be able to continue to practice under their current arrangements.
Does the Bill propose any amendments in relation to incorporated law firms and incorporated conveyancing firms?
Yes. The Bill will allow a qualifying trust to be a non-voting shareholder in an incorporated law firm or incorporated conveyancing firm. A qualifying trust means a trust in which –
• each beneficiary is a relative of one or more of the trustees; and
• each trustee is (for an incorporated conveyancing firm) a conveyancing practitioner, or (for an incorporated law firm) a lawyer, who is actively involved in the practice.
The Act is quite specific as to who may be a shareholder of an incorporated law firm or conveyancing firm. This ensures lawyer or conveyancer control of an incorporated firm which is important to maintain professional standards.
The use of a qualifying trust as a vehicle for shareholding will avoid the need for a proliferation of relatives holding shares in their own right. It will also enable children and grandchildren who are minors to benefit from income through distributions from the trust.
Why are the power of attorney provisions being extended to include bankruptcy?
Under the Lawyers and Conveyancers Act 2006, lawyers and conveyancers who practise on their own account are required to give a power of attorney to another practitioner to ensure the orderly conduct of business, should the lawyer or conveyancer become unable to do so.
Currently, the power of attorney provisions in the Act enable the continuation of the practice in a range of circumstances including periods of whole or partial incapacity, absence, death, and suspension from practice. However, they do not automatically come into effect on bankruptcy.
By extending the application of a power of attorney to the circumstance where a lawyer becomes a discharged bankrupt, the Bill provides a more streamlined process for ensuring that the lawyer’s practice can continue running smoothly, and there is minimum disruption to clients’ business and interests.