Providing opportunities in the legal profession: a fourth practicing certificate

I am passionate about the law and its ability to help people. However, I am also aware of the challenges facing our profession. The increasing cost of legal representation and the dwindling availability of legal aid have made it difficult for many people to access justice.

In 2021 the New Zealand Law Society found that more than 20,000 people were turned away by legal aid lawyers in one year, and this has undoubtedly resulted in more self-represented litigants: in fact, the number of people representing themselves in Family Court in New Zealand has more than doubled in the past decade.

In 2019, it was reported that self-represented litigants make up the majority of civil cases, with more than 13,000 people per year opting to represent themselves. In 2018, 56% of civil cases involved a self-represented litigant, comparing with 51% in 2017 and 47% in 2016.

These trends have sparked discussion about the need for change in the legal profession, and in my view, this discussion should extend to the creation a new type of practicing certificate.

There are essentially three types of practicing certificates: one as a supervised employee lawyer, one as an unsupervised lawyer (partner or self-employed), and one as an unsupervised self-employed barrister. Understandably, the purpose of this tiered approach is to ensure that lawyers have had the requisite experience under a supervised lawyer, before providing unsupervised services to the public.

While I appreciate the Law Society’s commitment to safeguarding consumer interests, when considering the dire state of the legal profession, one wonders if it’s possible to create a fourth category, which allows lawyers to move into self-employment, but under supervision of a senior lawyer. This new classification would empower lawyers to practice independently but under the mentorship and guidance of a seasoned legal practitioner.

There are several benefits to this approach. When considering the application to barristers, a fourth category could allow junior barristers to contract their services to senior barristers. We know that many senior barristers cannot justify the cost and liability of employing a junior barrister, however, they may be able to justify assistance on a case-by-case basis. This would not only provide opportunities for up-and-coming barristers to learn from a diverse range of senior barristers, but it could also address the legal aid crisis, by providing for a separate fee category for senior barristers to outsource lower-rate work to a contract junior barrister, while being paid a reasonable fee for their supervision on the matter.

When considering the application to barristers and solicitors, it is worthwhile noting that the Rules currently allow law firms to contract other lawyers solely for supervision purposes, and this is a practice that does happen. If a firm can contract lawyers to provide supervision, surely a self-employed lawyer could similarly contract a lawyer for the purposes of supervision. The flow-on effect of this is that it would create a new market for retiring senior lawyers, and provide for a less demanding pathway to retirement.

In my own personal experience, I was offered a role as a part-time employee in a law firm while I was starting out as “Ashleigh the Advocate.” However, after talking to the Law Society at the time, I decided instead to contract to this law firm, because if I were to hold the practicing certificate as a supervised employee lawyer, the work I completed as “Ashleigh the Advocate” would be in breach of that practicing certificate because it was unsupervised. The outcome of this was that I continued as an unregulated and unsupervised advocate for all my work, including the contracted work for the law firm.

While safeguarding consumer interests remains paramount, we cannot ignore the harsh realities facing our profession. The increasing cost of legal representation and the dwindling availability of legal aid have forced more individuals into representing themselves. We must seriously consider the prospect that there will be no consumer left to protect. ?

If we were to think outside the box, and move away from traditional norms, we could find solutions which respect the concerns of the society, the profession, and the public. ?

... What do you think?