FAQs - About Barristers

There are two types of lawyers in New Zealand: those who hold a practising certificate as barristers and solicitors (usually in law firms), and those who hold a practising certificate only as barristers (sometimes called barristers sole) and who practise at what is referred to as the "independent bar" (which is a way of referring to the collection of lawyers who practice as barristers).

It is important to note that the first and overriding duty of all lawyers, no matter their certificate, is to the Court (Rule 2.1 of the Conduct and Client Care Rules). When they become lawyers, they become "officers of the court." This requirement overrides even their duty to clients. Further, the Rules state that a lawyer must be independent and free from compromising influences or loyalties when providing services to his or her clients. The lawyer must give objective advice to the client based on the lawyer’s understanding of the law.

Lawyers who are barristers and solicitors often (but not always) work in a law firm. The owners of the firm are called partners or directors (if it is incorporated). They owe duties not just to their own clients, but to the other partners and the firm as a whole. They must consider the well-being of the firm and its client base as part of their practice. 

Barristers are specialist litigators or experienced lawyers who give advice/opinions on specific or tricky legal questions. They usually specialise in litigation or a particular specialist area of law. Barristers practise on their own. They are not allowed to be members of a law firm and do not have trust accounts.  They owe no loyalty duties to partners. While some share offices (known as Chambers) with other barristers, this is for administrative convenience. The members of a Chambers are independent of each other and do not owe loyalty duties to each other or to each other’s clients. Sometimes barristers use junior barristers to assist them.  Junior barristers may be employed by other barristers or self-employed. 

In many (but not all) cases, a barrister must be instructed (engaged) by a solicitor and cannot be instructed directly by the client.  For more information see “How do I hire a barrister?” below.

Some barristers become King's Counsel or KCs. A KC is a lawyer that is considered to be the best in the legal profession. They have outstanding skills, knowledge and leadership. KCs cost more than other types of lawyers because of their expertise.  KCs are often briefed on serious matters.

In many areas of the law, barristers can only be engaged by a solicitor on behalf of a client, and not directly by members of the public. The solicitor is said to "instruct" or "brief" the barrister.  Solicitors frequently instruct barristers because of the barrister's expertise in particular areas of the law. 

In practice, the amount of involvement of the instructing solicitor varies from file to file (e.g. from having a largely administrative role to appearing as co-counsel in court).

Barristers can apply to take direct instructions in some areas of law (e.g. certain areas of criminal law and family law, employment and civil disputes), when providing an opinion and in some other situations.

If you aren't sure how to go about hiring a barrister, contact their office and they will give you information on whether you will need a solicitor or you can instruct them directly.

There are several ways to find a barrister. You can check online directories such as the NZBA's Find a Barrister listings. If you are sure what kind of barrister you need ( i.e. what are they specialise in), call the Citizens' Advice Bureau or Community Law and ask them for some advice about what kind of lawyer you need. Remember, a barrister can usually arrange for you to contact a solicitor to instruct them.

The cost depends on the level of expertise and experience of the barrister as well as their area of practice.  The range of fees from the most junior barristers up to the most senior KCs is very large.  

Most barristers charge an hourly rate for their time, plus GST and disbursements (e.g. Court filing fees, travel expenses, photocopying costs).

It is a good idea to ask a barrister what their hourly rate is and for an estimate of their likely costs before engaging them (but be aware that it is often very difficult to estimate the likely costs of litigation due to the large number of variables involved).

If you have an instructing solicitor, the solicitor will brief (instruct) the barrister about your case and provide details. If you don't have an instructing solicitor or your instructing solicitor is playing a smaller role in your case, you may want to prepare some material so that your barrister can quickly get up to speed with your case.

Before your initial meeting:

• Prepare a timeline of the facts in your case as you know them. If you are relying on what the third party has said, clearly marked that this is what you have been told and by whom.
• Prepare a list of all the people involved, including their full names and contact details. Describe how each person is involved in the case. 
• If you have any documentation (invoices, letters, emails), prepare copies for your lawyer.

Sometimes you will be seeing a lawyer about a difficult matter which causes you embarrassment, humiliation or deep distress. Remember that it is your lawyer's job to ask questions and to find out about the facts. But a lawyer owes you a duty of confidentiality, so don't be upset if they ask the difficult questions.

If you have financial issues and can't afford to pay for a lawyer, there are some options that you can think about.

• You can approach your local Community Law Centre.
• The Citizens Advice Bureau will often give you preliminary advice.
• You may qualify for legal aid. This is something you will need to talk to a lawyer about first so that an application can be made on your behalf for funding.
• There are law schools at Auckland, AUT, Canterbury, Otago, Victoria and Waikato Universities. Sometimes they offer free legal advice clinics and can be a very good place to start.
• Community Law Aotearoa also provides an excellent online Law Manual  that will answer some of your preliminary concerns.

All complaints about lawyers must be sent to the Law Society's Lawyers Complaints Service. The service handles complaints about:

• Lawyers or former lawyers;
• Incorporated law firms or former incorporated law firms; and
• People who are not lawyers but who are or were an employee of a lawyer or an incorporated law firm.

Please note that the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture cannot receive complaints against barristers.

Judges are not civil servants, they are an independent branch of Government. This is important because it maintains the separation of powers between the executive (usually referred to as the Government) and the judiciary.

The appointment process differs depending on the court or tribunal. The basic rule is that a person must usually have held a New Zealand practising certificate for at least seven years. This is to ensure that judges are experienced in and know the law. However, specialist tribunals (such as the Waitangi Tribunal) may require specialist skills and the appointment process is designed to consider that.

The Chief Justice is our leading judge. She was appointed by the Governor-General on the recommendation of the Prime Minister. She presides over our most senior court, the Supreme Court.

The judges of the Māori Land Court are appointed by the Governor-General on the recommendation of the Minister for Māori Development. 

The Attorney-General, the Chief Justice and the Solicitor-General recommend other judges for appointment to the Governor-General.

Judicial appointments are non-political. Unlike some jurisdictions, judges are not voted into office, nor are they selected for their political affiliations. This is important because it ensures that judges remain independent of the government and the executive.

Judges are selected on the basis of their qualifications, personal qualities and relevant experience. Under the Senior Courts Act, there is a protocol for choosing High Court Judges. The Chief Justice and the Attorney-General then agree on a shortlist of three possible candidates from which the Attorney-General will appoint one person after conferring with the Chief Justice and the President of the Court of Appeal. The Attorney-General may be looking to fill a gap in the court with someone with specialist knowledge, such as experience in international law. But generally, candidates must have good all-round experience.

Most litigators are familiar with court processes and rules. They are experienced lawyers when they are appointed but the Institute of Judicial Studies provides ongoing training for all judges. There is a range of programs for judges throughout their career and the curriculum covers everything from judgment writing, dealing with vulnerable witnesses and defendants through to Tikanga and Te Reo.

The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 sets out procedures for investigating complaints about judicial misconduct. There are two classes of complaint:

1. allegations of inappropriate conduct;
2. allegations of serious misconduct potentially leading to the judge's removal.

The process begins with a preliminary investigation as to whether the complaint has substance. The Judicial Conduct Commissioner can do one of four things:

1. dismiss the complaint;
2. take no further action;
3. refer the complaint to the head of the bench; or
4. recommend that a judicial conduct panel investigate whether the judge should be removed.

The most common procedure is to refer the complaint to the head of bench who will deal with behaviour. A judge who has acted inappropriately would normally apologise to the complainant. If there were to be an investigation that recommended a judges removal, the ultimate decision would rest with the Attorney-General who has a discretion as to whether the judge should be removed.

The Attorney-General can initiate removal procedures without referral to the Judicial Conduct Panel when a judge who is convicted of an offence punishable by imprisonment for two years or more.

Details on how to make a complaint can be found on the website for the Office of the Judicial Conduct Commissioner.