CHAND v NEW ZEALAND LAW SOCIETY [2015] NZHC 1456

CHAND v NEW ZEALAND LAW SOCIETY [2015] NZHC 1456 [26 June 2015]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2015-485-230[2015] NZHC 1456UNDER the Lawyers and Conveyancers Act 2006and Part 19 of the High Court RulesIN THE MATTER OF an application pursuant to s 30(1)(b) of theLawyers and Conveyancers Act 2006BETWEEN ARITI LATA CHANDApplicantAND NEW ZEALAND LAW SOCIETYRespondentTeleconference: 23 June 2015Counsel: K B Johnston for applicantT J Gilbert for respondentJudgment: 26 June 2015JUDGMENT OF DOBSON J[1] In this proceeding, brought as an originating application, the applicant (Ms Chand) seeks the leave of the Court to practise on her own account as a barrister and solicitor. Ms Chand first applied to the New Zealand Law Society (the Society) for its consent in November 2014. That application was declined, necessitating this proceeding. The Society has adopted the position of contradictor, advancing the grounds cited originally in declining Ms Chand's application.[2] The Society has re-assessed its stance as a contradictor in light of further consideration of the conditions that Ms Chand would accept, if consent to practise on her own account was granted. That has led to an indication on behalf of the Society that it would no longer mount argument in opposition, provided leave to practise was subject to the conditions that Ms Chand has herself proposed.[3] Once that position was conveyed, I convened a telephone conference with counsel to briefly review the relevant considerations. The outcome was that I was satisfied that it would be appropriate to grant Ms Chand's application, subject toappropriate conditions. Accordingly I dispensed with the hearing that had been allocated for fuller argument on her application.[4] I now set out the considerations relevant to granting the leave sought.[5] The relevant statutory provision is in s 30(1) of the Lawyers and Conveyancers Act 2006, which provides as follows:30 Practice by lawyer on his or her own account(1) No lawyer may commence practice on his or her own account, whether in partnership or otherwise, unless—(a) he or she—(i) meets the requirements with regard to both practical legal experience and suitability that are imposed by rules made under this Act; and(ii) meets any other criteria that are prescribed by rules made under this Act; or(b) he or she is granted by the High Court, on grounds set out in rules made under this Act, leave to practise on his or her own account.[6] Those criteria for eligibility to practise on her own account are set out in rr 12 and 13 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008 (the Rules). Rule 13 sets out the relevant criteria where a lawyer applies to the High Court for leave to practise on his or her own account, as follows:13 High Court's leave to practise on own account(1) For the purposes of section 30(1)(b) of the Act, subclauses (3) to (6) set out the grounds on which the High Court may grant a lawyer who applies for it on or after 1 October 2012 leave to practise on his or her own account.(2) Those grounds apply, without limitation, to a lawyer who before 1 October 2012 commenced practice on his or her own account as a barrister sole, and who on or after 1 October 2012 applies to theHigh Court for leave to practise on his or her own account as a barrister and solicitor.(3) The lawyer must either—(a) have had at least the required minimum amount of recent legal experience in New Zealand; or(b) have satisfied the Law Society that he or she is a suitable person to practise on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation, those in regulation 12(5)(a) to (d).(4) During the 2 years immediately before the date of commencing practice on his or her own account, the lawyer must have completed, and passed all mandatory assessments in, a course that, when the lawyer began it, was approved by the Law Society as providing adequate instruction and assessment on the required subjects (which may be or include all or any of business management, professional conduct and client care, and trust account management and lawyers' or, as the case may require, incorporated firms', obligations inrelation to trust accounts).(5) The lawyer must have satisfied the High Court that he or she is a suitable person to practise on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation,—(a) the nature and extent of his or her experience practising in law, whether in or outside New Zealand; and(b) if he or she intends to practise as a barrister and solicitor, how (whether in sole practice, as a partner in a firm, or otherwise) he or she intends to practise on his or her own account; and(c) if he or she intends to practise as a barrister, how (whether with or without other barristers, employees, or both, or otherwise) he or she intends to practise on his or her own account; and(d) the areas of law in which he or she intends to practise.(6) The lawyer must have paid any levy imposed by the Council of the Law Society under section 74(1) of the Act and payable by the lawyer under section 74(2) of the Act in respect of his or her intended practice on his or her own account.(7) If a lawyer applies to the High Court for leave to practise on his or her own account (whether as a barrister and solicitor, or as a barrister sole),—(a) a copy of the application must be served on the Law Society; and(b) the Law Society is entitled to be heard on the application.Ms Chand's experience[7] Ms Chand completed Bachelor of Laws and Bachelor of Commerce and Administration degrees at Victoria University by 2002. She thereafter worked as a tax solicitor for Inland Revenue between 2003 and 2005, as a tax consultant with one accountancy practice in Wellington from 2005 to 2006, and as an assistant manager in a larger accountancy practice where she focused on tax consulting opinion advice between 2006 and 2009. Thereafter, between May 2009 and June 2014, she worked as an associate director with a private wealth management and tax advisory service. By the time of her application to the Society, Ms Chand had almost 11 and a halfyears' post-qualification experience, but none of it in a law firm.[8] Ms Chand supported her application with references that attested to her competence and judgement in the area of providing tax advice, including from a senior practitioner who is a partner in the small Wellington firm of solicitors who is prepared to mentor Ms Chand. Her proposal is also to share office facilities with that firm.[9] The Society's principal concern was the absence of experience in a law firm environment. The Society adopted a cautious approach, for which there was precedent, that it was premature for Ms Chand to be permitted to practise on her own account when she had no experience in conducting a relationship with clients, and observing the requirements imposed on solicitors.1 The essence of the Society'sconcern was that it was not suitable for Ms Chand to run her own law firm as a sole practitioner.[10] To meet these concerns, Ms Chand and the senior practitioner who has volunteered to mentor her, Mr Peter Ratner, filed proofs of evidence as to the extent of supervision and monitoring that Mr Ratner and Ms Chand would commit to.1 The Society's concern in this regard cited the decisions in Re Goulding HC Auckland M284/81, 19 March 1981 and Re Morahan HC Auckland M1969/92, 22 March 1993.[11] In his proof of evidence, Mr Ratner records his undertaking (and that of the others of his three partner firm, to the extent he might be unavailable) to provide support and supervision for Ms Chand until at least 30 April 2016 in the following respects:(a) Review all of Ms Chand's new client engagements and the terms of those engagements as they arise including ensuring that steps are in place to ensure that no conflicts of interest arise or, if any potential conflicts are identified, to assist in putting in place appropriate procedures for managing those conflicts (which might, of course, involve declining to act);(b) Meet with Ms Chand at least weekly to review all her current engagements and, where we considered it necessary or appropriate, to review current files with her;(c) Whenever any file is completed, review the file to ensure that the necessary steps have been taken to close the file, including steps to report to the client and to preserve all required documents and records;(d) Review and supervise Ms Chand's continuing professional development with an emphasis on developing areas relating to professional practice to supplement her acknowledged expertise in tax law;(e) Be available to provide the same support and additional expertise concerning her practice to the same extent as we would if she were a partner of this firm; and(f) Provide a formal written report to the Society at least quarterly as to the actions we had taken during the preceding three months.[12] In offering those mentoring services, Mr Ratner acknowledges that he has already had relatively extensive opportunities to observe Ms Chand's competence,and her approach to providing taxation advice to clients. He expresses confidence in her abilities to comply with requisite professional standards.[13] For her part, Ms Chand has indicated her commitment to participate in the mentoring arrangements offered by Mr Ratner, and to conform with directions that he might offer in the course of that mentoring.[14] In applying the criteria in the Rules, there are grounds for concern when a solicitor in a specialist area such as provision of taxation advice commences sole practice, without having received mentoring and support whilst working in anexisting law firm. This is not a case in which there appear to be any grounds for concern at Ms Chand's technical competence to provide advice on tax law. However, the Society's responsibilities extend to ensuring practitioners in practice on their own account also have the requisite experience to conduct appropriate professional relationships with clients and deal with the diverse aspects of client care that are likely to arise.[15] In Ms Chand's case, I am satisfied that the mentoring provided by Mr Ratner and his partners will be more than adequate to provide her with guidance and understanding of the ethos of a law firm and its obligations to its clients.[16] Accordingly, I grant the application for her to practise on her own account, which is subject to conditions in the terms of the mentoring arrangements proposed by Mr Ratner and agreed to by her, as set out in [11] above.[17] There is no issue as to costs on the application and I am grateful to counsel for their helpful submissions in enabling the matter to be determined as it has.Dobson JSolicitors:Crengle Shreves & Ratner, Wellington for applicantLuke Cunningham & Clere, Wellington for respondent