District Court confirms s 21 is strict liability offence not requiring intentional act
The Auckland District Court convicted a former solicitor via the first prosecution commenced by the New Zealand Law Society under ss 21 and 46(a) of the Lawyers and Conveyancers Act 2006 (LCA), carrying the maximum penalty of a $50,000 fine.
The ex-solicitor had previously faced two suspensions from practice. As he had ceased holding a practising certificate by 30 June 2018, he was no longer a lawyer as defined in s 6 of the Lawyers and Conveyancers Act 2006.
In April 2023, the ex-solicitor visited a dying man in a hospital. While he had never met that man or his family, he prepared a will for $800 in cash. Later, the High Court of New Zealand set aside the will upon determining that the dying man had lacked capacity at the time.
The ex-solicitor was charged with regulatory offences under ss 21(1)(a) and s 46(a) of the LCA.
The New Zealand Law Society (NZLS) alleged that the ex-solicitor held himself out as a lawyer and carried out legal services by drafting the will, even though he was not then a lawyer.
The District Court of New Zealand convicted the ex-solicitor under s 21, an offence carrying a maximum fine of $50,000. The District Court found the ex-solicitor’s intentions irrelevant to its analysis because s 21 involved a strict liability offence.
Thus, the NZLS had to establish that the ex-solicitor held himself out as a lawyer and performed “legal work” without a practising certificate. The NZLS did not have to establish that he intended to hold himself out as a lawyer.
The District Court decided that the NZLS discharged the applicable burden and standard of proof to establish the charge. The ex-solicitor’s sentencing hearing was scheduled for 31 July 2026.
The NZLS issued a statement welcoming the successful prosecution. Katie Rusbatch, NZLS chief executive, noted that the ruling offered helpful guidance regarding the LCA’s regulatory offence provisions.
“The decision emphasises that holding a practising certificate as a lawyer is a clear indication to the public that the person is regulated by the Law Society, can be subject to disciplinary action for any misconduct and that users of their services have the consumer protections available under the Act,” she said.
Rusbatch explained that s 21 seeks to safeguard the public, promote confidence in the legal profession, and affirm its status.
She added that s 21 aims to ensure that only those with a current practising certificate as a barrister or as a barrister and solicitor could call themselves a lawyer while furnishing legal services.
