Lawyers’ employees and immigration work

New Zealand Law Society – Law Talk

Lawyers who provide immigration advice to clients are exempt from licensing as immigration advisers under s11(e) of the Immigration Advisers Licensing Act 2007 (the IALA). The lawyers’ exemption also covers immigration work done by a law firm’s non-lawyer employees.

The NZLS won a long battle to have that exemption for lawyers enacted, on the basis that the Lawyers and Conveyancers Act (LCA), and the rules and regulations made under it, are comprehensive in protecting the consumers of legal services. Lawyers, the society said, should not be subjected to two different regulatory regimes for this purpose.

The NZLS consistently, from the time the IALA was a bill, also took the principled position that the exemption for lawyers covered work done by their non-lawyer employees – for which the lawyer concerned is responsible. It saw no need for lawyers’ non-lawyer employees to be licensed or separately exempted under the IALA.

This view of the position of lawyers’ employees is both principled and elementary. It lies behind many of the provisions of past and present legislation and rules including, for example:

•the concept of practice on own account

•the requirements for management and supervision of staff, and for the client to be advised who is responsible for their matter

•the practice whereby the responsible partner’s name appears on correspondence.

Accordingly, the NZLS did not expect that lawyers would see it as appropriate or necessary for any of their employees to seek licences or exemptions under the IALA.

It was, therefore, surprised to hear, in 2008, of an initiative to request an exemption, through regulations, for non-lawyer employees of law firms from licensing under the IALA. It is understood that the exemption was requested because some law firm employees had sought and been granted IALA licensing, even though they did not need it.

After some months of discussion between the NZLS, the Immigration Advisers Authority, the Department of Labour and the Ministry of Justice, the NZLS’s original position has been accepted as correct.

The Immigration Advisers Authority (IAA) now accepts that lawyers are responsible for immigration work carried out by their non-lawyer employees, and that those employees should not be licensed or separately exempted under the IALA. In the society’s view, this is the correct and principled outcome.

Three matters remain.

First, the s11(e) exemption should not operate to the disadvantage of lawyers as against licensed immigration advisers. The exemption recognises that the range of client protection measures under the LCA, and previously the Law Practitioners Act, from rules of conduct and client care and the Lawyers Complaints Service through to the financial assurance scheme and the Lawyers Fidelity Fund, are comprehensive and well established. Immigration advisers needed to be licensed: lawyers did not. That can be reflected in firms’ marketing.

Secondly, it bears reiteration that an in-house lawyer engaged by an immigration adviser or a firm of immigration advisers is covered by the s11(e) exemption but, as in-house counsel, may provide advice solely to his or her employer, and not to that employer’s clients.

Thirdly, while it is certainly open to a lawyer to instruct an immigration adviser in an independent practice to render services to a client of the lawyer, it is questionable whether a lawyer can properly engage someone on a contract for services to work within the law firm to provide the firm’s clients with immigration advice and, if so, whether the contractor can and must be licensed as an immigration adviser. The NZLS is looking into that question and will report on it shortly.

Employees of lawyers or law firms who were granted a licence last year should now surrender that licence. If you fall into this category and have not already heard from the IAA, you should contact the authority.

Immigration New Zealand (INZ) applications must continue to be signed by a practising lawyer to allow INZ to identify clearly those who are exempt from the immigration adviser licensing requirements.

This also ensures that the lawyers take overall responsibility for the work of their employees, as required by the LCA. An employee of a lawyer can still communicate with INZ directly about a client of the lawyer and can still communicate directly with clients.,_issue_734/lawyers_employees_and_immigration_work