By: Sarah Harris
The recent case of Burcher v Auckland Standards Committee No 5 [2020] NZHC 43 raises again the question: when is a lawyer not a lawyer?

People often represent themselves as having legal training.  A layperson may consider that a lawyer is a person who has a law degree, and that any lawyer can represent anyone in court.  However, the reality is not so straightforward.  There are many rules and nuances dictating who can call themselves a lawyer and what they can do.

The amount of case law on this point is testament to the number of people eager to describe themselves as a lawyer.

Lawyers generally

As a starting point, it is useful to look at what a lawyer is and what they can do.

A lawyer is a person who holds a current practicing certificate issued by the Law Society, either as a barrister, or as a barrister and solicitor.  Any person who does not meet this criterion cannot call themselves a ‘lawyer’ or variations of the term such as ‘legal practitioner’, ‘barrister’, ‘solicitor’, or ‘counsel’.

There is also specific work that can only be undertaken by lawyers. These regulated services include:
  • “reserved areas of work” – representing or advocating for any other person (except in specific circumstances), or providing legal advice about any New Zealand court proceedings; or
  • providing legal advice about legal or equitable rights or obligations; or legal or equitable rights relating to land/property.
How do the rules apply?

The practical implications of these restrictions are explored below.
Law graduates
A person is not a lawyer merely because they have completed a law degree.  They must complete additional practical legal studies, be admitted to the bar and then obtain a current practising certificate before they can practise.  Without completing these extra steps, a law graduate cannot hold themselves out to be a lawyer or provide legal services (including, for example, representing anyone in court).

In-house counsel
In-house counsel are lawyers who provide legal services, but only to their employers or entities related to their employing organisation.  They cannot provide legal services to their organisation’s employees, members or customers (with limited exceptions).

An in-house lawyer who does not hold a practising certificate can still undertake legal services, just not in the reserved areas of work. It is important to note that any advice provided in-house to the employer under these circumstances is not legally privileged.

Foreign-qualified lawyers
A lawyer who has qualified in a country other than New Zealand may call themselves a lawyer but there are some restrictions on the work they can undertake.  They are usually noted as being “foreign qualified”.

They may provide legal services, but not in the reserved areas of work.  They do not automatically have the right to represent clients in New Zealand courts, unless it is essential that a person needs knowledge of the law in the country where they qualified.  Foreign lawyers may also do work in New Zealand that concerns the law of the country they qualified in, or international law.

As an example, in PBI v GA FC Hamilton FAM-2011-019-1331, 10 November 2011 a German-qualified lawyer was prohibited from representing a party in court, as this was a reserved area of work for which knowledge of German law was not essential.  However, had the proceeding been in German and involved proceedings to be filed in the German Courts, an exception might have be made.

When is a lawyer acting as a lawyer?

Though it is relatively clear who can call themselves a lawyer, it can be much more difficult to determine where to draw the line of what constitutes regulated services or legal work for others (and therefore, to determine when someone is acting in their capacity as a lawyer).  Burcher v Auckland Standards Committee No 5 [2020] NZHC 43 provides some guidance on this.

Mr Burcher’s practising certificate had been suspended, so he could not practice as a lawyer.   Among the issues to be determined was whether Mr Burcher had undertaken legal work “for any other person” when he was trustee of a client trust.

The Court found that a lawyer undertaking legal work as a trustee is providing a regulated service for another person.  To hold otherwise would enable practising lawyers to avoid sanctions for incompetence by simply invoking the status of trustee, even though such lawyers regularly charge for their time.

It also found that a lawyer cannot claim they had a fiduciary duty to use their professional expertise, to say that he or she was not carrying out legal services.

The Court further determined that a lawyer drafting a letter containing comments that would be expected from an experienced solicitor is legal work for others regardless of who sends the letter. Similarly, dictating a draft brief of evidence is at least incidental to a reserved area of work and so can only be carried out by those with a current practising certificate.  However, merely recording the position of a client is not legal work.

Burcher illustrates that it is not always clear cut about when a lawyer is acting as a lawyer.  However, what is clear is that courts will look to the purpose of the Lawyers and Conveyancers Act to maintain public confidence and protect consumers of legal services when determining where the line is drawn.

What happens if a person is caught pretending to be a lawyer?

Generally, it is an offence under the Lawyers and Conveyancers Act 2006 to hold yourself out to be a lawyer or imply that you are one (or any variations of the term) if you are not.

The penalty for such an offence is a fine of up to $50,000 for an individual or a fine of up to $150,000 for a corporation.

Depending on the circumstances of the offending, it may also raise criminal issues (for example, theft or dishonesty offences) for which penalties can range from a fine to imprisonment.

Concluding comments

If you have any uncertainty about whether you can call yourself a lawyer, you probably can’t.   There are nuances and exceptions, but unless you have a current practising certificate issued by the New Zealand Law Society, you can not hold yourself out as a lawyer or legal adviser.  Even those familiar with legal work – like Mr Burcher – can be tripped up when providing advice on legal matters.  It is important for any legal professional to be familiar with the rules and scope of the services they can provide to ensure they do not find themselves in breach of them.
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