A Fundamental Obligation: Lawyers, the Rule of Law and the Lawyers and Conveyancers Act 2006

Abstract

This paper explores the relationship between lawyers, the legal profession and the rule of law. It is divided into two parts. In the first, functional and substantive definitions of a lawyers role are identified, as are thin and thick definitions of the rule of law. Using Tamahana and Fuller as a guide, lawyers are identified as having a role in ensuring congruence between the law as written and as administered, which is key to ensuring public confidence in the law. Statements from international legal associations about the relationship between lawyers and the rule of law are also discussed. Arising from this, a number of issues are identified, including the impact of rule of law definitions on the role of lawyers, the risks of self interest and sabotage and the need for ‘independence’ from the state. The question is asked whether inclusion of a statutory duty could ameliorate these. The second part explores this question using the introduction of a fundamental obligation upon New Zealand lawyers by the Lawyers and Conveyancers Act 2006, to ‘uphold the rule of law’. The meaning of this is explored with particular reference to the impact of the Conduct and Client Care Rules and it is suggested that lawyers are expected to comply with a thin definition of the concept. The role of the New Zealand Law Society, and in particular its’ Rule of Law Committee, are also explored with reference to this duty. It is concluded that the inclusion of this statutory fundamental obligation adds another dimension to the problems identified in Part One but does not ameliorate them.