Financial Barrier

• Reporting misconduct

  R 2.8 - Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer may have engaged in misconduct must make a confidential report to the Law Society
• Reporting unsatisfactory conduct

  R 2.9 - Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer may have engaged in unsatisfactory conduct may make a confidential report to the Law Society
• Exceptions to reporting misconduct


  • A lawyer who is a victim of the suspected misconduct
  • Where a lawyer reasonably believes the disclosure would pose a serious risk to the health (including mental health) or safety of a victim
• Legal representation is essential to render the right to access justice effective
• Causes/factors for failure to access justice

  • Cultural inflexibility
  • Eurocentricity is alienating
  • Individualistic/blame rather than cultural preferences for community and family involvement
  • Mysterious and unfriendly
  • Hard to get even basic information
  • Geographic
  • Language barriers
  • Jargon
  • Legal ignorance
  • Physical barriers for those with disabilities
  • Cost of legal services
• Rights of persons charged under NZBORA s24

  • Shall be informed promptly and in detail of the nature and cause of the charge
  • Shall have the right to consult and instruct a lawyer
  • Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance
• Trio of responses to the financial barrier

  • Taxpayer - Legal Services Act 2011
  • Lawyers - Conditional/contingency fees
  • Lawyers - Pro bono work
• R9


  A lawyer must not charge a client more than a fee that is fair and reasonable having regard to the interests of both client and lawyer and to the factors set out in rule 9.1
• Factors in R9.1 for determining a fair and reasonable fee

  • Time spent and results achieved
  • Importance of matter to client
  • Value of property involved
  • Going rate in the market
  • Urgency and time limits imposed
• Legal Services Act 2011 Purpose


  To promote access to justice by establishing a system that provides legal services to people of insufficient means and delivers those services in the most effective and efficient manner
• Examples of legal services under the LSA 2011

  • Legal Aid
  • Community Law Centres
  • Public Defence Service (PDS)
  • Duty Lawyers Scheme
  • Police Detention Legal Assistance Scheme
  • Victim Support
  • Family Law Services
  • Youth Law Services
• Legal Aid Scheme


  Government (tax-payer) funded programme to pay a lawyer's fee if the client cannot afford a lawyer
• Criteria for granting legal aid for criminal offences

  Applicant must establish they are a natural person, have insufficient means, and either they are charged with or convicted of a criminal offence punishable by 6 months imprisonment or more or it is in the interests of justice to grant legal aid
• Criteria for granting civil legal aid

  Applicant must establish they are a natural person, their income and disposable capital does not exceed the prescribed thresholds, and they have reasonable grounds for taking or defending the proceedings
• Civil legal aid coverage

  • Family and domestic disputes dealt with by the Family Court
  • Taking a case (Plaintiff) or defending a case (Defendant) in DC or HC
  • Some disputes before tribunals and specialist courts
• Civil legal aid not covered

  • Disputes Tribunal matters
  • Lawyer's work not involving court
  • Disputes involving schools, universities and other educational institutions
  • Election petitions
• Community Law Centres


  Bodies whose function includes the provision of community legal services
• Community Law Centres give advice and assistance
• Services provided by Community Law Centres

  • Free legal information/advice
  • Representation to people with insufficient means to pay
  • Law-related education and information
  • Law reform submissions
  • Pro bono clearing house
• Public Defence Service (PDS)

  A government funded agency of salaried defence lawyers who defend people on criminal charges who are eligible for legal aid
• PDS is the "Largest criminal law practice in NZ"
• PDS


  1. Started as a pilot scheme in 2004

  2. Greatly expanded
• Duty Lawyers scheme


  Ensures there is a sufficient number of lawyers available in each District Court to assist, advise, and represent unrepresented defendants charged with an offence
• The Duty Lawyers scheme does not operate for civil proceedings
• Duty Lawyers scheme


  1. Assists unrepresented defendants on their first day in criminal court

  2. Advise on plea / bail / legal aid / remand / sentence

  3. Ensures smooth operation of the courts
• Police Detention Legal Assistance Scheme (PDLA)


  Ensures a sufficient lawyers available to provide legal advice or legal assistance to any person questioned by police, whether arrested or not, or whom the police want to question in relation to an offence that they are suspected of committing
• Conditional/Contingency Fees


  An agreement pursuant to which the payment of a lawyer's fee is contingent on a specified event, usually the success of the litigation - no win, no fee
• Different types of conditional/contingency fees

  • Speculative - normal fee only if successful
  • Bare percentage - fixed % of winnings
  • Sliding percentage - % gets higher as case progresses
  • Fee premium - normal fee plus a premium
• In NZ, only speculative and fee premium conditional fees are acceptable under the Legal Complaints Act</b>
• Conditional fees are not permitted in Family Court cases, immigration cases or criminal cases
• Requirements for conditional fees in NZ

  • Advise client about legal aid possibilities
  • 5 working day 'cooling off' period for client
  • Total fee must be fair and reasonable
  • Must be in writing, define "success" and detail how expenses will be charged
  • At end of the work lawyer must give the client a bill which discloses the normal fee and the premium
• Arguments against conditional/contingency fees

  • Divergence of interests in some cases
  • Compromises ethical conduct
  • Loss of objectivity
  • Fee chasing / stirring up litigation
  • Increase in cost of litigation services overtime
  • Legal aid more appropriate funding method
• Arguments in favour of conditional/contingency fees

  • Access to justice
  • Work more effectively and efficiently
  • Particularly effective for class actions
  • Freedom of contract
• Pro bono


  Services "in the public good"/for the good of the state/community, provided by lawyers without fee or at a reduced fee to clients who have no other access to the courts/legal system or whose cases raise wide public interest issues
• Pro bono should be limited to giving legal assistance for free to people who have legal problems and whose incomes places them in the justice gap - i.e. don't qualify for legal aid
• Motivations for Pro bono

  • Duty
  • Compulsion
  • Altruism
  • Colleagues' approbation
  • Client expectations
  • Future employee expectations
  • Spin-offs
• Duty

  The obligation to uphold the rule of law and to facilitate the admin of justice
• Pros of compulsory pro bono in Aotearoa|NZ

  • Duty arguments - cost of monopoly, commitment to justice system/rule of law, specially situated/suited to assist
  • Egoistic argument - prestige/publicity/flow of paid work
  • Good for students and early career lawyers - experience/educational, sets pattern for future practice
• Cons of compulsory pro bono in Aotearoa|NZ

  • Definition issues - what is/isn't pro bono, who is "in need"
  • No comparable duty in other professions/trades
  • No duty to be charitable, libertarian argument - lawyers should be free to choose
  • Illegitimate tax, government avoids responsibility
  • Demand exceeds supply, second rate service, demotivating/won't give full effort
• Conduct and Care Rules apply whether lawyer's work is paid or not