New Zealand Law Society - Entering sole practice as a barrister and solicitor

Entering sole practice as a barrister and solicitor

Power of attorney

You must, within three months of starting practice, give a power of attorney to an agent (attorney) and an alternate to conduct your sole practice (use this form), or to act as the board of your incorporated firm (use this form), if you are not able to conduct the practice yourself. You must then give notice to the Law Society of the fact you have given the power of attorney, the date of it, and the name and business address of the donee.

The requirements are set out at ss44-45 and Schedule 1 of the LCA.

If you already have a power of attorney in place under s70 of the Law Practitioners Act 1982, it will be deemed to have been given under the new act – as long as it conforms with clauses 2 and 6-9 (other than cl.7(c)) of Schedule 1. Those clauses require, among other things, prior written consent by the intended donee, the appointment of an alternate, and that the power of attorney provides for the donee to exercise particular powers and duties in given circumstances and for given periods.

Read the Guidelines to assist donors and donees in relation to sole practitioner powers of attorney.

Why do you need an agent (attorney) and an alternate?

Firstly, it is a requirement under the Lawyers and Conveyancers Act 2006. Secondly if, for instance, you are incapacitated, take a holiday, disappear or are struck off the roll, you need someone to step in to run or wind up your practice. That person is your agent or, if he or she is not available, the alternate.

For more detail about when an agent might need to step in, see clauses 7 and 8 of Schedule 1 and s163 of the LCA.

Who can be your agent (attorney) or alternate?

Both need to be a barrister and solicitor entitled to practise on own account so that either can step into your shoes at short notice if necessary. This means that if the lawyer is an employee, they cannot be your attorney or alternate.

If you are a trust account supervisor (TAS) your agent (attorney) and alternate also need to be TAS-qualified and have practised in that role within the last 10 years. For ease of transition, they will, ideally, be in a local practice. For peace of mind, they will be people you trust.

Given that it is a responsibility not to be taken lightly, why would someone agree to act as an agent or alternate? They (and you) may see it as a quid pro quo; they might meet your need for an agent/alternate and you meet theirs – or someone else’s.

It is an offence to fail to give a power of attorney, or to revoke one, other than in accordance with the provisions of Schedule 1, or to fail to give the required notice to the Law Society. These offences are punishable by significant fines – up to $50,000 in the case of an individual and up to $100,000 in the case of a corporation.