SOLICITORS' RIGHTS

Evening Post, Volume LXXXVI, Issue 93, 16 October 1913, Page 8

SOLICITORS' RIGHTS

ADMITTANCE AS BARRISTERS AN APPLICATION OPPOSED. INTERESTING LITIGATION. An important case of considerable interest to the legal profession was heard before the Full Bench of the Supreme Court to-day, when Arthur Daniel Lynch, of Wairoa, solicitor, applied for admission to the Supreme Court of New Zealand as a barrister. The application was opposed by the New Zealand Law Society. The case hinged round the interpretation to be placed on the words "in active practice as a solicitor." This involved the question whether a solicitor's clerk, v being a duly qualified solicitor, was entitled to consider himself "in active practice as a solicitor" for the purpose of being admitted as a barrister at the end of five years' practice. As the law reads, any solicitor who has been in active practice as a solicitor for five years, or who has been managing clerk to a solicitor for that period, is entitled to become enrolled as a barrister. Mr. C P. Skerrett, K.C., and with him Mr. F. Kelly, appeared for the applicant, while the Law Society was represented by Mr. A. Gray, and with him Mr. Hoggard. The grounds on which the application for an order of admission were ii.ade were: — (1) That proper notice of the applicant's intention to be so admitted has been given to the Registrar of the Supreme Court at Wellington ; (2) that the applicant has complied with the provisions of the Law Practitioners Act, 1908,' section 5, enabling and entitling him to be so admitted. In an affidavit filed in support of his application, Mr. Lynch stated that he was admitted as a solicitor of the Supreme Court on 16th March, 1906, and was duly enrolled. He had ever since, up to the present time, annually taken out a practising certificate entitling him to practice as a. solicitor. From the date of his admissiou until April, 1910, he acted as common law clerk for the firm of Messrs. Skerrett and Wylie, of Messrs. Chapman, Skerrett, Wylie, and Tripp/of Wellington. During his engagement with these firms he regularly appeared and' practised as a solicitor in all Courts. He was also in charge of Court of Appeal work, Supreme Court work generally, including divorce proceedings, and waß engaged in the preparation of briefs for counsel, and opinion work. He also had experience of conveyancing during his engagement with the above-named firm. Since August, 1910, the applicant has been a partner in the firm of Messrs. Sandman and Lynch, solicitors, of Wairoa, Hawkes Bay. Since his admission as a solicitor he had kept first and second years' terms at Victoria College, and had passed the examination prescribed for the degree of LL.B., in all subjects except Latin. For five years continuously next preceding the date of his application for admission as a barrister, he had been in active practice as a solicitor. On behalf of the applicant, Mr. Skerrett submitted that there was no practical reason why a solicitor who had been in active practice to a solicitor for five years should not be admitted to,the Supreme Court as well as a solicitor 'who had been practising on his own account. Mr. Lynch had done work that could only be performed by a solicitor. There was no attempt on the part of the statute to discriminate as to- the quality or nature of the solicitor's experience. He might have been a solicitor with little or no practice, or on the other hand, he might have been a solicitor engaged in a large practice. Mr. Justice Denniston : He must be engaged in nothing else. Mr. Skerrett : The words _ " active practice" meau no more than in actual practice. Continuing, Mr. Skerrett said it was clear that Mr. Lynch had Tegularly practised as a solicitor in the ordinary sense and had regularly taken out his practising certificate. He had doae work which could only be done by an enrolled solicitor, and which he could 1 not have' done had ho not taken out his annual certificate. What Mr. Lynch had done could only have been performed by a practising solicitor. The work he had been engaged in constituted practice as a solicitor, unless the Court read into the Act the words: "On his own account." This, he submitted, the Court was not entitled to .do. Counsel also pointed out that the Act did not require a managing clerk to be in active practice as a solicitor. On behalf of the New Zealand Law Society, Mr. Gray opposed the application on two grounds : — (1) That the applicant had not been in active practice as a solicitor; (2) that his practice, such as it was, in any capacity, had not been continuous. In elaborating his case, Mr. Gray said that there had been a break of four, months in the applicant's continuity of service before he was in business on his own account. The fact that this was due to illness did not dispose of the objection. Mr. Justice Chapman pointed out that in a case of articles an employee who had broken the continuity of his service could extend his period of service so as to make up the shortage. Mr. Skerrett : Mr. Lynch, has done more than that. Mr. Gray : During that gap Mr. Lynch was not attached to any office or any firm. The Act says the practice must be continuous. Counsel' added that he contended that in any case the time previous to his illness could not count, as he was not actively engaged in practice as a solicitor. There were two classes of persons who could ,be admitted as barristers :—(1): — (1) A person, who had been engaged in business on his own account in active practice for five years as a solicitor; (2) a person who had been actively engaged as managing clerk to a solicitor during the same period. Mr. ' Lynch did not come within the scope of ether of these two conditions. He had been appearing in Court as an employee of the solicitor retained by the client. He was acting for his principal, not for the client, and did not even receive the fees. Mr. Lynch could not be said to have been in practice at all until he went into business on bis own, account at Wairoa. Mr. Gray submitted that the fact that the applicant had taken out a practising certificate did not mean that he was actually in active practice. It merely allowed him to go into active practice if he was competent to do so. If Mr. Skerrett's contention was right, then a person doing occasional solicitor's work, and qualified by examination, as a solicitor, was in at least as good a position as a managing clerk. The Court reserved its decision. CENTRAL PARK CEREMONY The Work of forming Central Park will be commenced officially a£ 11 a.m. on 27th October (Labour Day), when the Mayor (Mr. J. P. Luke) will perform the ceiemony of turning the first sod. The public will be invited to attend, and members of the rouncil, with citizens who interested themselves in the Citizens' Carnival, will be asked to take part in the function