Chand v New Zealand Law Society

[2015] NZHC 1456

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-230 [2015] NZHC 1456

UNDER

the Lawyers and Conveyancers Act 2006

and Part 19 of the High Court Rules

IN THE MATTER OF

an application pursuant to s 30(1)(b) of the
Lawyers and Conveyancers Act 2006

BETWEEN

ARITI LATA CHAND Applicant

AND

NEW ZEALAND LAW SOCIETY Respondent

Teleconference:	23 June 2015
Counsel:	K B Johnston for applicant T J Gilbert for respondent
Judgment:	26 June 2015

JUDGMENT 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.

CHAND v NEW ZEALAND LAW SOCIETY [2015] NZHC 1456 [26 June 2015]

[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 to appropriate 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 the

High 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  in relation 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 half years’ 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’s concern 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  an

existing 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 J

Solicitors:

Crengle Shreves & Ratner, Wellington for applicant

Luke Cunningham & Clere, Wellington for respondent