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While the New Zealand Law Society’s regulatory functions are largely focused on practising lawyers, it also has wider regulatory roles. These include ensuring that certain legal services are only provided by lawyers, and that people providing services similar to those of a practising lawyer do not intentionally or inadvertently mislead others into believing they are in fact a practising lawyer.
The Lawyers and Conveyancers Act 2006 (LCA) defines a lawyer as someone who holds a current practising certificate as a barrister or as a barrister and solicitor.
For a number of professions, including non-lawyer advocates (such as are common in the employment and accident compensation law areas) and people with a legal background providing legal services without a practising certificate, particular care must be taken to avoid giving any impression that a person is a practising lawyer.
The circumstances will vary from case to case. The clearest way for a person to advise that they are not a practising lawyer is to say so.
The LCA contains a number of offences aimed at ensuring that members of the public are not misled about who is and is not a practising lawyer.
The full text of these offences is set out in the LCA. They include that it is an offence for a person who is not a lawyer (i.e., someone with a current New Zealand practising certificate) or incorporated law firm to provide legal services and to describe themselves or itself as a lawyer, law practitioner, barrister, solicitor, barrister and solicitor, attorney at law, or counsel (s 21).
Further offences in ss 22 and 23 make it an offence for a person to hold themselves out as a lawyer (or law practitioner, legal practitioner, barrister, solicitor, barrister and solicitor, attorney-at-law, or counsel) if it would be an offence for a person to provide legal services under that descriptor, or to use or allow to be used words, letters, or symbols that are intended or likely to cause a person to wrongly think that they are a lawyer, or hold any relevant admission, enrolment, or practising certificate.
Sections 24 and 26 contain further offences restricting particular work (including the reserved areas of work and the drafting of court documents), largely to practising lawyers. Certain exceptions to the offence provisions are set out in ss 25 and 27.
These strict requirements mean that real care must be taken in how people describe themselves and the services they offer.
It will generally be an offence for someone who does not hold a current practising certificate to describe themselves as a lawyer, including someone who trained as a lawyer, and is admitted to the roll of barristers and solicitors of the High Court of New Zealand, but who does not hold a practising certificate.
Similarly, a non-lawyer advocate such as an employment advocate must take real care that their description of their skills, experience, and the services they offer does not cause a reasonable member of the public to misunderstand that the advocate is in fact a lawyer.
The approach to take to ensure that these provisions are complied with will vary from case to case, and will depend on the surrounding circumstances.
For example, an enrolled barrister and solicitor who works as an employment advocate, who does not have a practising certificate, and who refers to their enrolment and employment law expertise in advertising their services will need to be very clear to ensure they do not mislead others into understanding they are a lawyer.
On the other hand, where they are simply confirming they are an enrolled barrister and solicitor when taking a statutory declaration, they may be able to do so quite straightforwardly.