LAWTALK NEW ZEALAND LAW SOCIETY NZLS EST 1869
25 MAY 2012 / 796
FOR THE NZ LEGAL PROFESSION
www.lawfirms A website is now a communications tool that customers have come to expect.
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FEATURE: LAW FIRMS ONLINE
“One of the most important parts of your renewal is your declaration.”
“It’s your online business card and your face to the world. Any firm that doesn’t have a website is missing a key marketing opportunity.”
“The best place to hide a dead body is page two of Google search results”
The need for more regulation of mediation By Daniel Becker
Over the last two decades mediation has gained recognition and popularity as a technique of alternative dispute resolution...
05 Diverse bench can challenge prejudice The more alike judges are, the more likely that they will mistake prejudices for simple truths; the more different they are, the more likely...
06 A way forward for quake insurance In the wake of insurancerelated issues arising from the Christchurch earthquakes... Potential of coroners to save lives under spotlight An empirical and legal evaluation of whether coroners’ findings have the potential to save New Zealanders’ lives...
End of a 120-year era By Kristin Percy
You would be intrigued, but probably not surprised, to see a gentleman in a top hat and morning suit striding out from Blackstone Chambers...
12 Be online or invisible By RACHAEL BRECKON
If you didn’t get it, the humour lies in the fact that nobody ever looks on page two, and if you or your business is on page two of a Google search...
09 Otago teams wins international legal contest
The tricks of the trade – web presence By HANNAH GRANT
Whether you are a large firm with an established web presence, or small- to medium-sized firm with visions of website grandeur, it is important to...
Five things you must do to market your firm
25 Miss India NZ is a lawyer
People in the law
Letters to the Editor
Lawyers Complaints Service
nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety
LAWTALK 796 / 25 MAY 2012
FROM THE LAW SOCIET Y ALLI STER DAVI S
ike the rest of the country, South Island practitioners are feeling the effects of the introduction of fixed fees with legal aid, the Public Defence Service and the changes to the assignment process. Family practitioners across the island await the coming changes with some trepidation. In Otago, the biggest issue for litigators is the closure of the courts. Trials are still proceeding out of town and will continue to do so until the strengthening of the tower hopefully by the end of this year. Temporary arrangements are taking place with the Family Court due to move on 14 May in Dunedin. This will allow for the opening of more public spaces including waiting areas, toilets and interview rooms. In Oamaru, all services are up and running in temporary venues. There has been no decision on the work required to the courthouse. The Balclutha Family Court has returned to an alternative venue but the remainder of services are still outside of the town. This is causing significant issues for all involved and Otago branch representatives
LAWTALK 796 / 25 MAY 2012
have met with the Minister for Courts to discuss this further. In Marlborough, conveyancing work has increased, partially buoyed by people relocating from Christchurch. Resource management work is also on the up and the increase in confidence can be seen with firms which are starting to recruit graduates again. There is a very high standard of applicants. Litigation work continues to be an area of uncertainty as there is a lot of concern about the progression of civil files at both District and High Court in the area. In neighbouring Nelson it is pretty much business as usual. The region may cope with legal aid changes by a number of senior counsel stopping or reducing the amount of legal aid work they do, leaving the work to be done by the younger practitioners. Christchurch practitioners are still generally working out of less than satisfactory accommodation and have their courts spread to the four winds. While there has been an upsurge in conveyancing work, Christchurch is running out of space and this is annoying. Southland reports a slow but steady increase in work over the past six months. Allister Davis New Zealand Law Society South Island Vice-President
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Coming up … Ways forward post earthquake Insurance issues that have arisen following the Christchurch earthquakes and possible alternative models for dealing with earthquake losses will be the focus of two upcoming lectures. An international authority on insurance law, Professor Robert Merkin, will deliver the lectures at Otago University at 5.30pm on 16 May and Victoria University at 5.30pm on 17 May.
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See www.ibanet.org/Conferences/ conferences_home.aspx. Family law conference
Professor Merkin is the 2012 Sir Eric Hotung Visiting Fellow, and is being hosted by Canterbury University’s law faculty. He delivered a lecture at his host faculty on 9 May (see page 6) and at Auckland University on 16 April.
The Fourth LAWASIA Family Law Conference will be held in Pengang, Malaysia, on 13 and 14 July.
Professor Merkin is Research Professor of Commercial Law at Southampton University and a consultant to the law firm Norton Rose. He has published over 40 books and numerous articles on insurance, reinsurance and arbitration law, and is co-editor of the Lloyd’s Law Reports.
See http://lawasia.asn.au/ lawasia-conferences.htm.
Bar leaders get together The Seventh Annual Bar Leaders’ Conference will be held in The Hague on 30 and 31 May. This event is presented by the Bar Issues Commission of the International Bar Association in association with the Netherlands Bar. Sessions will feature expert panels and encourage the interaction of delegates in discussing topics including:
• Crossing the red line – what do
you tell, to whom and why not?
The conference theme is The New Global Family: emerging trends and challenges to family practice.
IBA annual conference Registrations are now open for this year’s International Bar Association Conference, to be held in Dublin from 30 September to 5 October. This conference is the largest gathering of the international legal community in the world – a meeting place of more than 4,000 lawyers and legal professionals. More than 180 working sessions will cover all areas of practice relevant to international legal practitioners. The conference is also an opportunity to generate new business with the leading firms in the world’s key cities. See www.int-bar.org/ Conferences/Dublin2012.
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LAWTALK 796 / 25 MAY 2012
The need for more regulation of mediation By Daniel Becker* Over the last two decades mediation has gained recognition and popularity as a technique of alternative dispute resolution. Litigious societies such as the United States and England created a need for a less stressful, more time-efficient and inexpensive way to settle disputes. As a result, mediation rose to fame as a successful alternative dispute resolution process.
parties sign, the mediated settlement becomes difficult to re-open.
Adoption of mediation
The crux of the problem is that while some level of quality should be assured, it is not, currently, because of the finality of mediated settlements. In Hildred v Strong  2 NZLR 629 at  the Court of Appeal was unwilling to re-open a mediated settlement. Justice Robertson stated that “[t]he Court is not available as a means of enabling parties who say – we wish we had gone about things differently and been more careful and insistent – to get a second bite at the cherry.”
This success is evidenced by the uptake of mediation as a mandatory process in New Zealand. Over 50 acts mandate mediation. However, no act prescribes how “mediation” should be defined or identifies the mediator’s role. It is presumed that mediators know the process and their role in it. The two professional associations, AMINZ and LEADR, help by providing education and training for mediators. However, membership and participation are not mandatory. The problem Without a Mediation Act, any individual, with or without a law degree or other training, can call themselves a mediator. This is a problem. As mediations increase and more legislation mandates mediation, it becomes particularly important for the sanctity of mediation to be upheld. This means that mediation must be associated with the principles of certainty and reliability. If any individual can call themselves a mediator, this may undermine these principles. A rogue mediator may knowingly or ignorantly depart from the principle of neutrality. A rogue mediator may not ask the right questions to explore the interests and positions of both parties. A rogue mediator may be too direct or too forceful. A rogue mediator may not test reality in situations in which a more competent mediator would. A myriad of problems could arise due to simple incompetence. These problems might mean that the mediated outcome unduly favours one party. Once both
LAWTALK 796 / 25 MAY 2012
The fact that over 50 acts mandate mediation shows a high level of trust in mediation as a process, but then we potentially turn parties over to practitioners who may have little or no idea of what they should be doing. Some level of quality should be assured.
As mediations become more frequent and more likely to be enforced by the courts, it becomes even more important to safeguard the quality and reliability of mediators. The solution If mediators were required to undergo some form of training, for example that offered by AMINZ and LEADR, or papers at a tertiary institution, then mediation would gain reliability and credibility. The specifics of new training requirements can be worked out later. There may be practising mediators who have not had any formal training, but who are nonetheless excellent. However, even these instinctual mediators would likely be helped, or at the very least not be hurt, by being required to take training. Compulsory training will not guarantee quality, but it will provide a basic assurance for consumers of mediation services and it will benefit the profession. Such training requirements could be applied to new practitioners only, allowing existing practitioners to gain the title of mediator through their
existing experience. An alternative would be to phase training in over time, allowing existing practitioners time to get trained. With over 50 acts mandating mediation, it would be a sensible step to ensure that mediation services are provided by mediators who have some foundational knowledge and understanding of the process. Mediation is difficult to define and the principle of mediator neutrality is even more complicated. There is considerable difference in opinion as to the meaning of core mediation principles. In a survey of 300 mediators, mediator neutrality was variously defined as impartiality, omnipartiality, nonpartisanship and being unbiased. Training, like that offered by AMINZ and LEADR, can help promote uniformity and thus reliability. Critics may argue that mediation is successful because it is a flexible and fluid process, which allows the mediator to adapt and mould the process as they think fit given the parties and their circumstances. That may be, but with the prevalence of mandatory mediation, the process is slowly evolving from a fluid and flexible process to one that should, at the very least, be certain and reliable. The benefits to the profession There are two advantages to compulsory training. First, the likelihood of departures from or contraventions against the principles of mediation could be decreased. Promoting common understandings by mediators of process, definitions and principles, would create greater certainty and reliability. Second, consumers of mediation services would have greater assurances of receiving a quality service. If mediators are required to undergo some form of mandatory training or tertiary education, what can be lost? * Daniel Becker is an LLM candidate in the Otago University Law Faculty.
Diverse bench can challenge prejudice The more alike judges are, the more likely that they will mistake prejudices for simple truths; the more different they are, the more likely that they will interrogate the correctness of their assumptions. Justice Kate O’Regan, a foundation member of South Africa’s Constitutional Court, stated this when she delivered the 16th annual New Zealand Law Foundation Ethel Benjamin address in Dunedin on 23 April. Extensive literature pointed to why it was appropriate for a judiciary to be diverse, Justice O’Regan said. For her, two reasons stood out. The first was that a diverse bench enhanced the legitimacy of the judiciary in the eyes of the broader community. It was important in a diverse society that the bench was not seen to be the preserve of a particular group or elite. That would damage the institution. A related, and more worrying concern, was that many people still thought that race mattered in judging. Indeed in a survey conducted in South Africa in 2005, 51% of respondents in the seven major cities of South Africa thought that race did have an influence as to how judges decided cases. In that there lurked a danger that could be described as “the siren of identity determinism”. Promoting demographic diversity on the bench may seem to endorse the conclusion that judge’s racial or gender identity determined his or her judgments. “If you are a black male judge, you will sympathise with a black male accused/complainant and your judgment will reflect this. The notion extends further: if you are a black male judge, you have an obligation to see the world in a particular way; and if you do not, you are to be criticised for that. “Such reasoning must be rejected vigorously,” Justice O’Regan said. The task of judging in a democracy demanded more of judges than that they merely gave effect to a world-view inherited from their particular background.
sense’ or ‘the ways things are’ are much more likely to be uncovered. “If judges are, as the South African oath of office requires, to ‘administer justice to all alike without fear, favour or prejudice’, we need to know where our prejudices lie.” One of the real dangers of focusing on demographic diversity as the lodestar of judicial transformation may be that it would undermine the likelihood of judges interrogating their prejudices and background because they felt the fact that they were different was all that was needed. “Our legitimacy, we might reason, arises simply from our racial or gender identity. Smugness of this sort should be avoided.” Judges, instead, should constantly assert the importance of the second reason for diversity on the bench. Its value lay in fostering judicial self-awareness in the promotion of impartial judging. Having colleagues from different backgrounds was a constant reminder not to delude oneself that one is by nature impartial and that one’s understanding of the world was the only one or the obviously correct one. “Whatever our background, we all need to acknowledge the open-minded engagement with our own prejudices that diversity affords us, even if it at times it is very hard and the temptation is to retreat into our secure corners with colleagues of our own ilk,” Justice O’Regan said. The Ethel Benjamin lecture is hosted by the Otago Women Lawyers’ Society (OWLS). LT PROFESSIONAL LEGAL STUDIES COURSE
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It demanded a self-conscious appreciation of the impact of their background on their way of thinking and a conscientious attempt at all times to be impartial. The obligation of impartiality, she said, led directly to the second important reason for diversity on the bench. In his direct and honest statement to the Truth and Reconciliation Commission, Justice O’Regan said, her former colleague Justice Ackermann remarked: “Judges who believe that they are wholly free of prejudice delude themselves. It behoves us all to seek out rigorously, painful as that might be, our own particular prejudices and of whatever nature. We need to keep these constantly in mind and to endeavour actively and persistently to counteract them. Furthermore, we all need to understand the insidious influence of institutional culture and to appreciate the powerful effects of the class, social and political environments in which we live and work, and the potential that his has for making us insensitive to the context and views of others.”
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So requiring diversity on a collegial court enabled judges to interrogate their own prejudices or blind-spots. “If our backgrounds are the same, it is very comfortable and easy to reinforce the prejudices that such backgrounds foster. “When we are different, prejudices masquerading as ‘common
LAWTALK 796 / 25 MAY 2012
A way forward for quake insurance In the wake of insurance-related issues arising from the Christchurch earthquakes, a possible way forward might be for insurers to move away from reinsurance Professor Robert Merkin policies and to seek cover from the Alternative Risk Transfer (ART) market. This was stated by Professor Robert Merkin, consultant and Research Professor at the University of Southampton, during a series of lectures he is giving in New Zealand. Professor Merkin is the Canterbury University Law School’s 2012 Sir Eric Hotung Visiting Fellow. His lectures probed the sharp focus the Christchurch earthquakes of 2010 and 2011 have thrown on both the public and private insurance arrangements in place to protect homeowners and businesses against earthquake losses. The earthquakes have raised a series of issues, some flowing from poorly thought-out policy wordings and some flowing from uncertainties in fundamental issues in the law, notably the application of caution principles to business interruption claims where losses are the result of both insured (earthquake) and uninsured (depopulation) perils.
For New Zealand insurers, one of the most important considerations, he suggested, will be recoverability from their reinsurers, raising issues of the binding effect of settlements and whether an earthquake is an “event”. “There have been demands from consumer and business organisations, and indeed from the New Zealand government, for earthquake losses to be settled with the minimum of delay,” Professor Merkin said. “However, that is more complex that it might at first sight seem. “There are the initial practical problems of mass claims-handling. But, leaving that aside, it is clear that New Zealand policies have left plenty of room for dispute as to the scope of cover, in particular with the issues that might arise from consecutive earthquakes being either unappreciated or disregarded. “Insurers will, of course, wish to do ‘the right thing’ and make speedy payment – sometimes ex gratia – so that they can relieve at least the financial pressures on policyholders without adding to their woes. “However, if a large number of claims raise the same coverage issues, insurers are at risk of losing their reinsurance coverage unless liabilities are tested and resolved or unless reinsurers can
Potential of coroners to save lives under spotlight
including whether agencies implement coroners’ recommendations in their decision-making. It also aims to investigate the role of coroners in their capacity as public health officials and in their statutory preventative role.
An empirical and legal evaluation of whether coroners’ findings have the potential to save New Zealanders’ lives is about to take place.
It is a collaborative project between the Otago University Law Faculty and the Coronial Services of New Zealand.
This new research project, funded by a New Zealand Law Foundation research grant, will be conducted by Dr Jennifer Moore and Professor Mark Henaghan. The project aims to assess the implementation rates of coronial recommendations and investigate the relationship between coronial recommendations and morbidity and mortality prevention. The project aims to assist coroners to understand when and in what form recommendations can be helpful,
LAWTALK 796 / 25 MAY 2012
Coronial Services plays a role in highlighting where avoidable deaths occur and introducing measures to prevent recurrence. A common refrain of those who have lost family members is that they want the coronial system to ensure that losing a loved one to preventable death does not happen to others. New Zealand families believe and hope that coroners’ findings and recommendations can “make a difference to saving people’s lives”. Recent recurring recommendations
be persuaded to accept liability even though underlying coverage is disputed. “One possible way forward,” Professor Merkin said, “might be for insurers to move away from reinsurance policies in traditional form and to seek cover from the ART market. “The obvious mechanism is that of the Catastrophe Bond, a securitisation device which shifts the reinsurance risk away from traditional reinsurers to capital markets, through the issue of bonds to investors. Most Catastrophe Bonds respond to claims for indemnity, but an increasing number respond to the occurrence of a catastrophe. “Such parametric instruments provide for payment to the insurers where, for example, an earthquake occurs of given force in a given region, or where there is a constant run of adverse weather conditions for a given period. “This type of payment is not contingent upon proof of loss or liability and is triggered purely by the objective existence of the catastrophe so defined. “There is some dispute as to the nature of these arrangements, and indeed whether they are reinsurance at all but they plainly have the macro advantage of expanding capacity and the micro advantage of the removal of claimshandling regulation by reinsurers,” Professor Merkin said. LT made by coroners about the dangers of co-sleeping and quad bikes provide classic examples of the potential to prevent avoidable deaths. Coroners have voiced their concerns that agencies are failing to take their recommendations seriously. However, are all coronial recommendations necessarily deserving of implementation? Should mandatory statutory regimes for follow-up to coronial recommendations be part of New Zealand law? Any such law reform must be evidence-based, not merely anecdotal. This project will inform the debate about whether law reform is required to enable coroners to achieve their statutory public health functions. It aims to describe and analyse New Zealand coroners’ recommendations since the introduction of the Coroners Act 2006, until December 2011. LT
End of a 120-year era By Kristin Percy You would be intrigued, but probably not surprised, to see a gentleman in a top hat and morning suit striding out from Blackstone Chambers at 14 Wyndham Street. This remarkable building was the home of Thorne Thorne White & Clark-Walker for 120 years until a few weeks ago. Jim Chamley and his daughter Anne have moved their general practice to the leafy suburbs of Epsom. Clients are pleased with the move, according to Anne. “They will be able to find easy parking in the area. We look forward to seeing all of our clients in our new offices.” Jim, it must be said, found it a wrench to leave. Reflecting on his many decades of active legal practice, he says: “I would think the most important qualities are integrity and competence. I have enjoyed being at No 14 Wyndham Street, because over the years it has reminded me constantly of those values.” An historic place Each step from the entrance to the black and white tiled reception spans a decade. From the barrel-vaulted, lead-lined deeds room to the partners’ nameplates on each door, the building epitomizes another time. The New Zealand Historic Places Trust records that “Blackstone Chambers is the sole remainder of the Wyndham Street legal precinct; it has a virtually intact interior from the day of its construction.” It was named after William Blackstone (1723-1780), who published a compendium of the Laws of England.
An historic photo of Wyndham Street. Blackstone Chambers is the fourth building from the right.
files were easily to hand, with the most current in front of him on his solid oak desk. He was admitted in the 1940s by Justice Callan KC. (Mr Frank Thorne at that time lamented the practice of “mass admission” without individual attention to each solicitor.) Jim recalls: “I started work at Thorne Thorne White & ClarkWalker at 9 am on 13 January 1946.” In 1953, he became a partner, and in September 1990 was joined in partnership by his daughter Anne. Jim’s office revealed some remarkable treasures as it was packed into boxes. His “external memory” consists of all of his hundreds of files, and his own remarkable recall. He doesn’t deign to deal with computers and confirms he has absolutely no plans for retirement. One of Jim’s victories over modern development was achieved in true gentlemanly style. In the 1980s, when Fay Richwhite sought resource consent for 155 Queen Street, opposite Blackstone Chambers, Mr Chamley objected on the grounds that his firm’s premises required natural light.
Peering through the gold-lettered windows past the curved brass nameplate, you might imagine the premises to be dim and dingy inside. But they are beautifully lit by cunning light wells, casting sunlight into every corner of the building.
This led to a visit from Mr Michael Fay. Mr Fay agreed to accommodate the request. The plaza level of 155 Queen Street was redesigned to allow light and air, and a view of the trees and sky, for Blackstone Chambers.
The building boasted some unique features: ancient telephones mounted on the walls, pigeonholes and goldlettered signs.
Hopes for the future
In the upstairs library, law clerks and junior solicitors toiled near the open fireplace amid the kauri shelving and remarkable leather-bound treasures. Yellowing deeds showing land grants from the 1840s are still treasured today. A pigeon post to Great Barrier Island used to operate from the Observer Printing Works next door. Wyndham St legal precinct Mr William Thorne, a founding partner of the firm, originally had a room “over the shop” on the corner of Vulcan Lane and Queen Street. In the early 1890s, the firm moved to what had by then become the lawyers’ precinct of Wyndham Street. In the heyday of legal practice in that street, there were at least seven law firms, including Milne & Meek, Mason Lawrie & Stainton, Hesketh Richmond, Buddle Richmond, Stewart Johnson Hough & Campbell, Rudd Garland & Horrocks, Peake Kirker & Longland and Robinson & Robinson. Long career Graceful arched windows overlooking Wyndham Street lit the office that Jim Chamley first occupied in 1959. All his
“The Blackstone Chambers building is one of the oldest surviving buildings in Auckland’s Central Business District, and was built between 1870 and 1880,” says Sherry Reynolds, NZ Historic Places Trust’s General Manager Northern. “The Blackstone Chambers building has been very well cared for by Thorne Thorne White & Clark-Walker, with many of its unique and original heritage features beautifully maintained and still functional. This is a very special building, and we are hopeful that future owners and tenants will continue to care for and enjoy this very rare heritage place as this firm has been doing over the years.” The staff at Thorne Thorne White & Clark-Walker have long understood and respected Jim Chamley’s no alcohol policy (although Fred Thorne in earlier days had a bottle of brandy in his desk − for medicinal purposes). They might, however, be forgiven for seeking his special permission to open a bottle of wine now, to toast their departure after more than a century’s continuous legal practice in the remarkable Blackstone Chambers. The Law Society Auckland branch is very grateful to Anne and Jim Chamley and the staff of Thorne Thorne White & ClarkWalker for their generous access to their building at a busy time in the long life of their firm. LT
LAWTALK 796 / 25 MAY 2012
PEOPLE IN THE LAW
ON THE MOVE
Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, tel (04) 463 2982, fax (04) 463 2985, email firstname.lastname@example.org. The usual editorial discretion applies.
Gary Hughes has joined the partnership of Wilson Harle in Auckland. Gary is a litigator who represents clients in a wide range of regulatory matters and commercial disputes, with particular specialty in competition law and trade practices, insurance, antimoney laundering and fraud.
Gennise Luen has been made a senior associate. Gennise works across a range of general litigation. Her recent work includes advising a major property owner on body corporate issues, assisting on a range of construction and leaky buildings disputes, and settling a number of business and jurisdictional disputes. Gennise joined Hesketh Henry in December 2004.
Panmure firm DG Law Ltd has appointed Karyn O’Loughlin as a director. Karyn specialises in residential property transactions and she presents regular seminars and information sessions to real estate agents, lenders and first home buyers. Karyn advises on asset protection, wills and Enduring Powers of Attorney. Karyn also works with clients in the buying and selling of businesses, and is experienced in commercial leasing, advising both landlord and tenant clients. She also heads up DG Law’s mobile legal team. Hesketh Henry has promoted two of its litigation team lawyers. Helen MacFarlane has been made a special counsel. Helen works across a range of general litigation and specialises in construction, director obligations, insider trading and securities law. Helen joined Hesketh Henry in 2007 following 15 years at Shearman and Sterling in New York.
LAWTALK 796 / 25 MAY 2012
Angela Kershaw has become a director of Hamertons Lawyers Ltd. Angela joined the firm in August 2009 and practises family law and relationship property. Brenda Siaosi has joined Brookfields’ environmental and public law team where she will work with the firm’s public and corporate clients on resource management and governance matters. Brenda has previously specialised in resource management/planning, local government and transport law, policy and processes for a niche consulting firm in Auckland. Cunningham & Clere has recently promoted Simon Barr to principal. Simon is a senior Crown prosecutor who conducts criminal prosecutions and civil proceedings
for the Crown and other agencies. Karen Grau has been promoted to senior associate of the firm. Karen is a senior Crown prosecutor who has a wide range of litigation and public sector experience. Sally Carter has recently joined Luke Cunningham and Clere as a senior associate. Sally previously worked as a Crown prosecutor in the South Island. Before moving to New Zealand, Sally was a barrister in England specialising in criminal (both prosecution and defence) and family law. Tim Lester has joined Buddle Findlay’s Christchurch office as a senior solicitor in the corporate and commercial team. Tim recently returned to New Zealand after four years working for a top 30 FTSE100 company in the United Kingdom. Property law specialist Melissa McFarlane (nee Harris) has been appointed an associate of Dunedin and Wanaka firm Gallaway Cook Allan. Melissa has been with the firm since 2007 and specialises in property law, including land development and associated subdivisions, commercial law and relationship property.
PEOPLE IN THE L AW
PEOPLE Auckland barrister Miriam Dean QC has been appointed chair of NZ On Air. Ms Dean is the President of the New Zealand Bar Association, deputy chair of Auckland Council Investments, a director of Crown Fibre Holdings and a trustee of the Royal New Zealand Ballet. She succeeds Neil Walter who has completed two terms as the NZ On Air Chair. The Student Volunteer Army (SVA), founded by law student Sam Johnson, has been awarded the Royal New Zealand RSA’s Anzac of the Year Award. It is the first time the award has been given to non-military personnel or to more than one person. Established in 2010, the award is made to recognise those who exemplify the Anzac qualities of comradeship, compassion, courage and commitment. Sam Johnson founded the SVA in September 2011 to assist the Christchurch community in the wake of the earthquakes that affected the city. Former lawyer Georgina te Heuheu has been appointed to the board of Māori Television for three years from 23 April. She succeeded Garry Muriwai as the board’s chair when his term expired on 30 April. In 1972, Mrs te Heuheu became the first Māori woman called to the bar. She was a member of the Waitangi Tribunal for 10 years, a member of the Courts Consultative Committee and Minister for Courts in two governments. District Court Judge Anne Kiernan of Auckland has been appointed Acting Chief District Court Judge from 4 June to 8 July. Judge David Brown of Hamilton has been appointed Acting Principal Family Court Judge from 2 to 21 June. LT
With the trophy for the top team at this year’s international client consultation competition (from left) Alex Boock, Selene Mize and Rob Clarke. Photo: Jason Clarke.
Otago teams wins international legal contest Rob Clarke and Alex Boock from Otago University have beaten the world at client consultation. This is the fifth time in the last 10 years that a New Zealand team has won the Louis M Brown and Forrest S Mosten International Client Consultation Competition. Rob and Alex lined up among the 22 countries who participated in this year’s event, held in Dublin from 18-21 April. They performed outstandingly. After receiving perfect scores during the preliminary rounds, they went on to win their semi-final and then decisively won a unanimous verdict in the final round. Three teams reached the final round, with China and Germany – who were named runners-up – joining New Zealand. The final round problem involved an emergency room nurse who became aware that a senior doctor was abusing drugs and seemed to be misdiagnosing patients, and also ducking his responsibilities. In this round, Rob and Alex discussed employment law, protection for whistleblowers, internal hospital procedures, complaints to the Medical Council and the need to preserve patient confidentiality. Formerly called a “client interviewing” contest, the Brown Mosten event is now known as a “client consultation” competition to better reflect the actual activity involved. Students must interview the client to
develop an understanding of the facts, develop rapport with the client and gain his/her trust, then give the client understandable information about the relevant law, and advice on both a practical and legal basis. Ethical issues are common. Each judging panel includes a professional counsellor, as well as legal practitioners and academics. Associate Professor Selene Mize of Otago University coached Rob and Alex and has now coached three New Zealand teams to victory in the event. In the nine years she has coached New Zealand teams, she has also notched up one second placing, two third placings and two semi-finalists. Associate Professor Mize always coaches Otago University teams that qualify for the international event and has also coached teams from other universities that have asked for her services. The New Zealand Law Foundation sponsored the team to the international competition. Russell McVeagh sponsored both the Otago and the New Zealand client interviewing competitions Rob and Alex won en route to the Brown Mosten event. Rob, who finished his law studies last year, now works for this firm. Alex is currently still studying at Otago University. As well as winning the Otago and New Zealand contests last year, Rob and Alex also won the Australian Law Students’ Association client interviewing competition. LT
LAWTALK 796 / 25 MAY 2012
The tricks of the trade – web presence By Hannah Grant Whether you are a large firm with an established web presence, or smallto medium-sized firm with visions of website grandeur, it is important to keep abreast of the best ways to set up and maintain a glowing online identity ensuring maximum traffic. A website is now a communication tool that customers have come to expect. Websites typically have a matter of moments to catch and hold someone’s attention. “It’s your online business card and your face to the world. Any firm that doesn’t have a website is missing a key marketing opportunity,” says Patrick FitzGerald, Managing Director at Squiz New Zealand (provider of enterprise web content management and search solutions). “If you think of demographics, the generations that are now in business and making decisions have been brought up with the internet. People are not reaching for the yellow pages these days; they are reaching for their phone/tablet/ computer and searching for a lawyer there.” If you are not presently under the wings of a web company, the best thing to do is look at a prospective company’s portfolio to see if they have done work of a similar scale and size to what you are envisaging for your site. Once you have found an organisation that is a good size and cultural fit, you should then approach that company with a fairly broad idea of what you want. Sigurd Magnusson, co-founder of SilverStripe (web development company) says that it is best to come in at a high level and work with the web
LAWTALK 796 / 25 MAY 2012
company for the best possible design solutions to meet your objectives. “Most good web companies will spend time with you to learn about what your business does and why they do it. Rather than having an exact 10-page document detailing every single specification you want, go in with a rough idea of what you are thinking about, what problems you face as a business and what sort of business results you hope to see stem from the website.” Mr Magnusson suggests giving a web company the challenge of solving those business problems with design/ technology, ideas and architecture. “Otherwise it’s like a client coming to a lawyer – without really understanding law – with a detailed contract for the lawyer to just check the spelling. “The challenge, of course, is to put to a web company – ‘right if we are to put all this money into a website, how do we get value out of that or return for our investment’?” He says that it is essential to agree on business goals so any money spent will result in a business outcome. Hopefully. “With web development, you should take a long-term view of setting goals and seeing how they are being achieved. The most important thing that you need to think about is the communications objectives of your firm. “If you pin everything back what you are trying to achieve as a business then it will be easier to determine how much importance to attach to different components of your website like to design, functionality and accessibility,” says Mr Magnusson.
Web strategy Whatever the size of your firm, you should have a web strategy, Mr FitzGerald says. “It can be as simple as a page but should include the overall purpose of your site (lead generation or creating business), your site objectives, like ‘I want to have five inquiries a week’, and the consistent desire to know your audience. You can then shape content to appeal to their interests and their information needs.” A web strategy comes before thinking about design and will determine how big your site should be and how you should organise it, explains Mr FitzGerald. “I assume that most law firms, small and large, have very common marketing objectives: namely their websites functioning as an online brochure to tell potential clients what they do and to attract new customers.” He says that if you already have a web presence you need to look at what results are you getting now and what results you want to achieve. “You need to put a web strategy in place as to how you are going to achieve those results. For example, the number of visitors to your site should be rising, but more significantly, are you attracting the right people and are the number of good enquiries growing?” he says. Analytics To analyse your website’s effectiveness, the best place to start is having a look at your statistics. To do this, there are various packages, but the most common is Google Analytics. It’s free, simple to set up and
L AW FIRMS ONLINE provides you with more information than you will probably ever need about your site. Google Analytics generates detailed statistics about visitors to your website. You then can determine if people are finding your website and which content is proving popular. Content If your website is not getting the traffic you think it should, you may need to review what content you have on your site and how you are presenting it. Site traffic will organically improve when you publish good content. As well as having topical, interesting content, readers need to be able to quickly sift through your content to identify and internalise information. Studies show that in a best-case scenario, we only read 28% of the text on a web page. Content is very important as it shapes how potential clients find you, Mr Magnusson says. “Writing content and promoting it somehow is a great way to get traffic. You need to look at a website as a destination that you point people towards through whatever other marketing tools you employ. It’s a porthole to your business.” When writing your web content, you often need to think about what particular search terms your clients/ potential clients would use if they were searching for a lawyer and then write your content ingrained with these terms.
Optimisation (SEO) should be no bother.
and see how you rank compared to the competition,” says Mr FitzGerald.
SEO is the process of improving the visibility of a website or a web page in search engines’ search results. Typically, the higher ranked on the search results page and more frequently a site appears in the search results list, the more visitors it will receive from the search engine’s users.
SEO considers how search engines work, what people search for, the actual search terms or keywords typed into search engines and which search engines are preferred by their targeted audience. Optimising a website may involve editing its content and HTML to increase its relevance to the specific keywords.
It’s your online business card and your face to the world. Any firm that doesn’t have a website is missing a key marketing opportunity.
“On your pages, you should use the words your customers would use, rather than using legal jargon. You need to listen to the terms people use or to ask customers how you heard about your law firm and then keep a log of this,” says Mr FitzGerald.
Using headings to break up long articles, for example, is a good idea for SEO, especially when you front-load the headings with keywords.
When developing or updating a website, Mr FitzGerald explains that the main thing to hold things up is writing the content.
Being concise and using simpler words are good for SEO because search engine users use plain words to perform search engine queries.
“This is almost always the case. People should also think about who will continually update content moving forward. Will this be from within the firm or outsourced to a writing contractor? A lot of web companies will provide a content writing service or if they don’t they will know who to suggest,” he says.
Using visuals strategically, which often translates to fewer images on the web page, improves page loading times, which is also a factor in search engine rankings.
Search Engine Optimisation If you have got the writing for your audience down pat, then Search Engine
“For SEO, you need to think about the key pages on your site, like the home page and service pages (what you do). You need to include those key words in the title, description, metadata and content of the page.
Many new website owners have the false notion of “build it and they will come”. But it takes much more than just building a website to attract visitors. An important approach for bringing traffic to your website is getting links to your site from good relevant sources. Search engines use the links into your website as a key measure of how important your site is and use this to influence what position your web pages are placed in search results. Google Maps Another good way to increase the visibility of your firm is to add your firm to Google Maps. This will help you get better rankings, and therefore be more visible, in local search results. If someone is looking for a firm in the Manawatu, for example, they might type in to Google “Manawatu Law Firm”. Google recognises that they are interested in regional results because they have qualified their search with a place name and the first thing that is usually displayed in the search results is the business listings on Google Maps. Domain name Your domain name, (your URL) is a detail that needs to be worked out early. If you haven’t nabbed one already, ideally your domain should relate as closely as possible to the name of your firm. You must register your domain name (if it has been registered by someone else, you will need to alter it accordingly) for use now or in the future. Costs Mr Magnusson explains that the price of a website varies (sometimes dramatically) depending on who you employ to do it and what the purpose of the site is. “If you get a younger, less established web company you may only be charged a couple of thousand, but if you go for a more established company it could be more like $50-100,000 for large content and functionality capabilities. “It is important to note, though, that more work will have to be done by the web companies if a firm does not have brand guidelines for the company to work within. Otherwise a web designer will have to do a branding exercise with you and then do the website.” LT
“A simple test is to use Google yourself
LAWTALK 796 / 25 MAY 2012
L AW FIRMS ONLINE
Be online or invisible By Rachael Breckon
“The best place to hide a dead body is page two of Google search results” a joke bouncing around social media forums at the moment.
If you didn’t get it, the humour lies in the fact that nobody ever looks on page two, and if you or your business is on page two of a Google search you will never be found. For New Zealand businesses this modern rhetoric is a concern, as according to business monitor MYOB’s national report in April 2012 presently only 32% of businesses have a website. Regionally Auckland leads the online market as 38% of businesses have a website. The capital lags behind with only 31% of Wellington businesses online, and in post-quake Christchurch the number of websites has declined since the earthquakes and now sits at 27%. The study indicated online businesses are more likely to have had an increase in business than those that aren’t, and those with websites are more optimistic about the future. General Manager MYOB Julian Smith says 42% of businesses with a website grew their revenue, in comparison to 29% of businesses without a website. Those with websites were also more optimistic about the future. 51% of businesses with a website expected future growth whereas only 37% of businesses without a website expected to grow. Lawyers and professional services in general have been slower to take up websites than other industries and it could be stunting their growth according to Justin Lanigan, the Managing Director of website development company 123 Online. “Without effectively marketing yourself online you’re not going to be able to
LAWTALK 796 / 25 MAY 2012
generate leads and grow. The internet is the backbone of any form of marketing whether it is online or offline,” Mr Lanigan says. “When was the last time you actually called someone from a print ad?” he asks. “You might have gone to the website from the print ad and looked around further. But you didn’t just pick up the phone and make a call. “The internet has made people researchers. People will short-list people to call from advertising, or Google results, but they won’t make the actual call until they have gone: ‘yip this has answered some of the key initial questions I had – these are the guys I want to talk to.’ “You can spend $1,000 to drive them to website A, or $1,000 to drive them to website B, but then the return on your advertisement is what people do when they get to your website. Did they pick up the phone and enquire? Did they sign up to your newsletter?” Mason Lockhart, principal at Lockhart Legal, decided his “holding page”, one page of information on the legal services he provided which he began in 2009, needed to be upgraded after prospective clients told him his website was not answering their questions. To upgrade his website adequately, he trawled online, looking at what other law firms were doing. One common flaw he observed in legal websites was they were often written for lawyers rather than clients, as they contained jargon generally not recognised or understood outside the profession.
“Remember who your audience is,” he says. “It’s not other law firms.” “It’s about the clients and supplying relevant information for clients so they go: ‘that’s exactly what I am looking for’.” Marlborough’s first law firm, Hardy Jones Clark, is one of the longest established in the country. However its solid regional and national reputations did not stop it from becoming an early website adopter. The firm has had its website up for over a decade and is currently in the middle of developing a better presence. “We are quite proactive with keeping up with technology,” Practice Manager Jim Ward says. When asked why Hardy Jones Clark commits resource into a website, Mr Ward answered: “Why would you not invest in a website when all people nowadays are very tech savvy?” Firms must have an online presence 24 hours a day, every day of the year, he says. The firm also “definitely receives” business queries from the website. “It is an easy way for clients to contact us. They don’t have to contact us in office hours. They can contact us at their convenience,” he says. “Websites nowadays for professional services are a necessity. They make it easier for clients to contact us and to research us. “The other thing about websites in today’s environment is they are affordable to most businesses. They are a much more cost-effective resource compared to what they used to be.” LT
According to Modern Legal Marketing here are five things you must do to market your firm: 1. Design a website that focuses on user experience. Google’s goal is to give search engine users the best possible experience and help them find what they are looking for. Creating a site with lots of relevant content (and coding it correctly for Google to index) is key to achieving high Google rankings and driving traffic. 2. Set up a Google Places page and ask clients to write reviews. Places pages help you get ranked for different keywords in your area. Make sure your page has images and describes accurately what you do, with ALL of your contact details. This can be the easiest and cheapest way to achieve a top-five ranking, depending on your area. Getting reviews and having images will create a good user experience and Google will reward your page for it. Send clients a newsletter that asks them to review you on the Places page. 3. Address Social Media – it’s not going away. While Facebook and Twitter may not be your favourite sites to visit, they are for millions of people and potential clients. You must manage your reputation and create a brand on these pages. If nothing else, it reminds current clients that you are there if they need your help if one of their family/friends can use your services. 4. Start using video to market. Video is a great tool and can be used a number of different ways: introductory videos, educational videos, news videos, etc. The latter two – especially educational videos – can be optimised and help you show up in search results. Set up a YouTube channel that links to your site so people can contact you. 5. Consider Pay-Per-Click paid advertising.
These five things you can do to market your firm are taken from a blog on Modern Legal Marketing’s (MLM) website. MLM is experienced in design, custom programming and marketing and has been in the industry for almost eight years. See www.modernlegalmarketing.com.
Setting up a simple campaign and running it can be very affordable, and it allows you to compete with larger firms. Depending on what you do, that can bring in over 100 visitors to your site, which generally means about 2-3 leads if you have a good, well-converting legal website design.
LAWTALK 796 / 25 MAY 2012
EFFECTIVE PRACTICE Managing the risk of a PI insurance claim It has been estimated that around 90 to 95% of the New Zealand legal profession has some sort of professional indemnity insurance cover. What is not known is how many firms have a well-established risk management process to guard against the likelihood of a claim. LawTalk asked two professional indemnity insurance experts the following question: “What are the most important things a law practice should do to manage the risk of a claim on their professional indemnity insurance?”
Their replies: Damian Schade is Principal, Assistant Vice-President & Solicitors Practice Leader at Marsh. Damian advises professional firms on all areas of risk management and liability insurance. There are a number of steps that a practice can take to manage the risk of a professional indemnity insurance claim. Everyone in your practice can take an active role in risk management, whether they are senior partners, legal executives or administration staff. The first of these steps is to know your limit as a solicitor and ensure that you
do not advise clients outside of your specific area of expertise. Professional indemnity claims can often arise when advice is provided by a solicitor who tries to go the extra mile for a client but doesn’t necessarily have the relevant experience or knowledge to do so. Managing your time and workload carefully is equally important. We regularly find that professional indemnity claims arise from solicitors who take on too much work and make basic administration errors from not taking due care. Significant claims can arise from small administration errors such as missing deadlines and filing dates. Finally, you need to ensure that you have good referral procedures in place and that your staff feel comfortable raising any potential liability claim issues that they become aware of. It is much easier from an insurance perspective to deal with these situations when you first become aware of them. It can become dangerous and expensive later on if these potential issues get hidden or filed in the too hard basket. Taking an active role in these steps can help you reduce the possibility of a professional indemnity insurance claim impacting your firm. Mark Jones has over 25 years’ experience in professional indemnity insurance. He was an executive director of one of New Zealand’s
When opening a file it is important to ensure that client and lawyer are on the same page and that the instructions and scope of work are clearly communicated and, most importantly, well documented, thus starting a paper trail which could prove to be an invaluable tool down the line. During the life of a file there will be numerous client-lawyer conversations, both in person and over the phone. Written file notes of these discussions should be attached to the client’s file and, where possible and practical, the intent of the conversation should be confirmed to the client via email or letter. We have seen a number of claims where a problem has arisen some years after the work was undertaken, the acting lawyer has left the firm and may not
The latest evolution in legal online research Find out more today
LAWTALK 796 / 25 MAY 2012
Murphy’s Law tells us “anything that can go wrong will go wrong” and using this as an accepted principle is a reasonable starting point in both how to avoid a claim and mitigate your exposure if you do end up facing one.
Meet Westlaw NZ Call 0800 10 60 60 Visit www.thomsonreuters.co.nz/westlawNZ
international insurance brokers before establishing FMR Professions in 2006, focusing in the liability market sector. FMR Professions has brokers around the country and is now part of Crombie Lockwood NZ.
EFFECTIVE PR ACTICE be contactable, and the file does not contain clear notes which would assist to counteract the allegations now being made by the client (usually based on their verbal recollection that “I was told by……” etc). Unfortunately, history shows us that Murphy is quite often proven right and the importance of good, legible, written file notes cannot be over-emphasised so this is a timely reminder to all partners and staff to focus on this area. How good are your file notes at present?
Conveyancing income on the rise? Information on residential dwelling sales from the Real Estate Institute of New Zealand (REINZ) shows that the first quarter of 2012 was the best first quarter since 2007. Looking back to 2007, estimated residential conveyancing fees in that year were a staggering $36 million ahead of the best year since (2009). That is a lot of money to take out of the conveyancing industry. The diagram shows the dip (and hopefully the start of the rise) in the value of residential conveyancing since the last of the boom years. Estimated fees below have been calculated on the assumption that the average net conveyancing fee is $800 per side. Estimated residential conveyancing fees $160.00
Ohakune-based practice management expert Simon Tupman (of the Law Management Group) is involved in an interesting project this month. At 4:00pm New Zealand Time on 16 May, Mr Tupman will be presenting a free one-hour webinar to… the world! Organised by the Law Council of Australia for LAWASIA, the webinar is entitled The Innovation Factor – why every law firm needs to innovate to thrive in the new economy. Anyone who registers beforehand will be able to listen, watch and participate in a subject which is becoming increasingly important in the highly competitive business of selling legal services. To register, visit www.lawcouncil. asn.au/sections/legal-practice/ events/webinar.cfm.
Are blogs becoming a normal website feature? American legal social media expert Adrian Dayton has provided data (on his blog, of course) which shows that 75% of the AmLaw 100 firms now have at least one blog. The AmLaw 100 is compiled annually by The American Lawyer magazine and ranks US law firms by number of attorneys, profits per partner and total revenue. Dayton says that between them the top 100 firms have 390 blogs. Of these, 165 have been added over the past year. Checking out what most people would agree is the “NZ 10” of the biggest firms (all the usual suspects), our provisional blog total is 0.5 (Minter Ellison Rudd Watts provides access to its posts to the CCH-managed Talk Tax Blog) and another possible (a broken link to a “Procurement Infrastructure and Construction Blog” on DLA Philips Fox’s website). While all the biggest 10 firms in New Zealand are prolific producers of hardcopy and digital newsletters and backgrounders, blogging (at least in public) doesn’t seem to be something our largest firms do.
Webinar shows the power of the internet
$80.00 $60.00 $40.00 $20.00 $0.00 ‘12
2012 2011 2010 2009 2008 2007
NA $98.03 $90.09 $111.41 $89.69 $147.36
$28.11 $21.76 $23.77 $25.01 $26.67 $44.66
This is not to say that blogging and New Zealand law firms don’t go together. The internet is littered with the bodies of blogs begun in hope and inspiration and then abandoned, but some local law firms are finding it a very useful means of communicating instantly and informally. Leaving aside the “unattached legal bloggers” (such as Steven Price, Andrew Geddis, John
Bowie and Dean Knight), a growing number of smaller law firms feature a blog on their website. Those practices which promote access to a blog (updated within the last year) include Franks & Ogilvie, Family Law Results, John Edwards barrister, Laurent Law, Lowndes Jordan, Property Law, Quay Law, Sharp Tudhope and Webb Ross. Newsletters still hold sway, but it appears the day of the blog is coming.
Recording client attendance information Privacy issues arising from the keeping of a diary by a barrister to record client contact were considered by the High Court recently. In Grupen v The Director of Human Rights Proceedings, 29 March 2012, Peters J, HC Auckland CIV-2010-404-8332, the barrister appealed against a finding that she had interfered with the privacy of a client by refusing a request for access to personal information without having a proper basis to do so. The barrister’s practice was to record her attendances on a particular matter by handwriting in her diary the time spent and the nature of the attendance (eg, “Telecon Bernie Lee. Peruse procedural order and note timetable of events”). Following a dispute over the fees charged by the barrister, she refused to allow the client to access the relevant diary entries. Her argument was that the information was personal information about her, being a record of the matters on which she had spent time on any given day. The High Court disagreed. All that was required by the Privacy Act 1993 to meet the definition of “personal information” was that the information was “about” an identifiable individual. Another provision in the Act also anticipated that personal information may relate to more than one individual.
Legal Salary Survey 2012 Following the very successful 2011 survey, the New Zealand Law Society/ Momentum Legal Salary Survey will be carried out again in 2012. This year’s survey is planned for June, several months earlier than last year. As with 2011, information resulting from the survey will be made publicly available. LT
CONTACT FRANK NEILL editor @lawsociety.org.nz
LAWTALK 796 / 25 MAY 2012
LE T TERS TO THE EDITOR
Pro bono and legal aid I am writing to respond to Dr Rodney Harrison QC’s letter, and (to my surprise, and no doubt hers) agree, in part, with Alison Hill of the Ministry of Justice (MoJ). The MoJ is obliged to actively oppose work on legal aid files by anyone who lacks provider approval, because the Legal Services Act 2011 requires all providers of legal services on legal aid files to be approved providers. Nothing in the Act’s definition of “legal services” restricts this to “invoiced” or “paid” services. As Dr Harrison correctly states, s75 does not impose a ban on the giving of pro bono assistance by a non-approved legal practitioner. However, it does impose a ban on a lead provider’s acceptance of such assistance on a legal aid file. It is a matter of complying with the legislation. (Perhaps the legislation needs amending, or at least clarification. There are policy arguments for and against allowing lead providers to delegate work to unapproved providers – especially under fixed fees. More problematic is the notion that senior counsel who have chosen not to renew their own status as approved legal aid providers are unable informally to assist their junior colleagues on legal aid files on a pro bono basis.) A junior lawyer who seeks to gain experience on a particular category of legal aid work can seek approval as a “supervised provider”. This is the appropriate course for a junior lawyer seeking to gain experience. Under the previous scheme, they were approved as “secondary providers”. Their work has to be supervised by the lead provider, and has to be invoiced at a lower hourly rate. (The Legal Services Agency had an unusual and unfounded view of what
constituted “supervision” and took drastic action against at least one lead provider – this one – for failing to agree and comply with the agency’s unilateral interpretation.) Where the MoJ’s policy falls short is that – contrary to its previous policy, and without this being a requirement of the legislation – it has opted to exclude non-lawyers from being approved as providers, except in employment matters. Previously it allowed law clerks, legal executives and paralegals to provide legal services, as long as the work was supervised by a lead provider of at least two years’ experience. (At least, its written policy, contract, legislation and regional offices allowed this. In 2009, the Legal Services Agency’s head office disagreed, insisted on its alleged right to impose its own interpretation unilaterally, and took action against providers – including this one – who attempted to uphold the policy and contract.) In fairness to the MoJ, I note that its current stance against non-lawyer providers is consistent with NZLS’s position in the past, which was to assert that non-lawyers could not be approved under the Legal Services Act as listed providers. Such assertions were made in the NZLS submissions on the Lawyers and Conveyancers Bill, and no doubt elsewhere also. These assertions were inaccurate (and were identified by MoJ officials as being inaccurate) but may nonetheless have influenced the legal aid officials in their own erroneous beliefs on the subject. As to the work that can lawfully be done by non-lawyers (especially if employed by lawyers), and to the requirements of supervision (including of non-lawyers), I draw practitioners’ attention to a recent decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal: Canterbury Westland
Standards Committee v Simes  NZLCDT 4. The tribunal found there was no evidence to support charges of mismanagement and failure to supervise (relating to 2009, from a complaint by the Legal Services Agency), no evidence to support charges that work by nonlawyer employees had breached the Lawyers and Conveyancers Act, and accepted my counsel’s submissions as to the correct interpretation of s24 of the Lawyers and Conveyancers Act 2006. (In short, I was vindicated – more than two years after the complaint was laid, and nearly three years after the issue was first raised, at huge personal, professional and financial cost. As at 16 April, this has not yet been acknowledged by the MoJ.) Cheryl Simes Barrister, Hamilton
The case of the ‘Cuban five’ “September 11” holds a central place in the lexicon of talk on global terrorism. Not many talk about September 12, but on that date in 1998 five Cuban nationals, Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez and Rene Gonzalez were taken into custody by the FBI where they remain today in US prisons serving life sentences (plus cumulative finite terms) and sentences of 19 years and 15 years in the case of Fernando and Rene Gonzalez respectively. Their “crime” was to enter the US and obtain information on Cuban exile groups in Miami, which had been responsible for a series of terrorist attacks on Cuba causing many civilian deaths. Given the solid support that the US provides to this terrorism, the “Cuban Five” as they are known, were certainly guilty of the most extreme naivety
LawTalk seeks letters to the editor, particularly on issues of relevance and interest to the profession. Letters should be up to 400 words and include the name, firm or practice and location of the writer. Letters will not normally be accepted if they have the same wording as a letter submitted to the editor of a different publication, or if they breach requirements or standards under New Zealand legislation or generally accepted publishing ethics (as exemplified in decisions of the Press Council and Broadcastings Standards Authority, for example). The Editor reserves the right to publish an edited version of a letter, or not to publish at all. Letters can be emailed to email@example.com. We ask that the letter be sent in a form that does not require retyping (as a scanned PDF does, for example).
LAWTALK 796 / 25 MAY 2012
LE T TERS TO THE EDITOR when they shared the information they obtained with US investigators in the hope that the US government would act to prevent cross-border terrorism emanating from its own territory. The subsequent legal proceedings against the five may be of interest to lawyers in New Zealand. The United Nations Human Rights Commission reported on the trial of the Cuban Five in 2005 (Opinion 19/2005, 27/5/05.) It concluded: “The deprivation of liberty of (the named five) is arbitrary, being in contravention of article 14 of the International Covenant on Civil and Political Rights.” In reaching its conclusion, the commission’s working group identified three instances where the US criminal justice system failed to meet the basic standards of a western democracy in the case. Firstly, it allowed the solitary confinement of the defendants for 17 months before trial during which period access to lawyers and the opportunity to prepare a defence were inadequate.
Secondly, a fair trial was denied by the reliance of the US government on “national security” to prevent equal access by the defence to important evidence. Thirdly, it was not possible for the five to have received a fair trial in Miami where the prosecution successfully insisted that it be held.
Hopefully, the legal profession here will prove itself more robust in this regard and join the concerned voices raised against this serious injustice by the US. The fact that the injustice springs from a kindred legal system should not matter. Denunciations of countries like Fiji will then gain moral force.
(It was subsequently revealed by official information requests that before the trial, publicity hostile to the five was fermented by journalists paid by the US State Department.)
Likewise, the work of members of our profession in high institutions such as the International Criminal Court will be enhanced. This is because it will be a little easier to see that we do not necessarily subscribe to some shabby “victor’s justice” whereby the usual suspects – African warlords, South-East Asian dictators and assorted enemies of NATO – are held to account while the US stands aloof from that court.
The manifest injustices suffered by the Cuban Five, including the refusal of the US government to allow the wives of two of the five to visit their husbands, have attracted growing international condemnation. Attempts by Cuba Friendship Societies in Auckland and Christchurch to stimulate interest in the case on the part of NZ politicians have so far fallen on stony ground reflecting a pusillanimous approach by our politicians to human rights violations committed by a powerful country, ally and trading partner.
Anyone interested in obtaining further information about the case of the Cuban Five can obtain this from the webpage of the Cuba Friendship Society, http:// cubasolidarity.blogspot.com/. Michael Knowles Barrister, Christchurch (abridged)
Default judgments By Andrew Beck* Following a number of cases identifying the lack of any proper procedure for formal proof hearings in the High Court, the Rules Committee developed a proposal to clarify and update the rules relating to obtaining judgment by default. The default judgment rules had not been overhauled when the High Court Rules were introduced in 1986 or when the rules were revised in 2009. While the rules regarding liquidated demands had given little difficulty over the years, there was almost no guidance regarding default judgments in other situations. It was to a large extent left to individual judges to decide how to proceed, and the extent to which the court would become involved in ensuring that default judgment would be appropriate in the circumstances. The initial proposal by the Rules Committee was to have one track for liquidated demands and another for all other applications for default judgments. The matter would be required to be heard before a judge, and the plaintiff
would be required to have all its witnesses available for questioning by the court. Substantial submissions were made to the Rules Committee by the New Zealand Law Society, with assistance from its Civil Litigation and Tribunals Committee. As a result of these submissions, a number of changes were made to the proposed rules. In particular, the default position will be that the plaintiff’s witnesses will not be required to attend as a matter of course. The ability to obtain default judgment without a hearing has been retained in relation to undefended claims for delivery of land or chattels. The new regime will only come into effect when the next High Court Amendment Rules are brought into force. It will provide for judgment in respect of liquidated demands to be granted by the Registrar as at present. “Liquidated demand” is now defined in the rules, in essentially the same terms as in Paterson v Wellington Free
Kindergarten Association Inc  NZLR 75 (CA). The Registrar will also be able to grant judgment for delivery of land or chattels. In all other cases – where the claim is unliquidated or seeks other forms of relief – the matter will be listed for a formal proof hearing before the court. The plaintiff will then have to file affidavit evidence to support its claim. Either before or at the formal proof hearing, the court may advise the plaintiff that some or all of its witnesses will have to attend for questioning by the court. Once the matter has been listed for formal proof, no statement of defence may be filed without the leave of the court. If a defendant wishes to contest the claim on any basis, either as to liability or quantum, it will be necessary to obtain leave to defend on the grounds that there would otherwise be a substantial miscarriage of justice. * Andrew Beck is the convenor of the New Zealand Law Society’s Civil Litigation and Tribunals Committee.
LAWTALK 796 / 25 MAY 2012
THE BOOKSHELF BOOK OF THE MONTH
KENNEDYGRANT ON CONSTRUCTION LAW, 2ND EDITION By Tómas Kennedy-Grant The book is organised around the premise that every construction contract is entered into within a framework of the applicable general law relating to contract and tort along with relevant legislation. Divided into nine parts, it provides a comprehensive but practical analysis of construction law in New Zealand and further afield. The law is stated as at 31 December 2011. The first edition was published in 1999. (LexisNexis, April 2012, 978-0408717-86-1, 958 pages, paperback and e-book, $184 GST incl, p&h excl). THE LEAKY BUILDINGS CRISIS: UNDERSTANDING THE ISSUES By Steve Alexander et al Reviewed by Matthew Smith* This book is both important and timely. It concerns the “systemic failure, occurring at all levels within the building industry” (Sunset Terraces  3 NZLR 486 at  per Arnold J), which contributed to the leaky building crisis Sir David Baragwanath describes in his Foreword as an “epidemic” that continues to afflict thousands of New Zealanders’ homes, health, and financial security (page v). Reflecting the scale of leaky building problems, the cost of fixing them is said to range from $11 to $33 billion (pages 4, 38); a range whose breadth is explained by the fact that much
LAWTALK 796 / 25 MAY 2012
remains unknown about the full extent of our leaky building problems because many remain concealed by building elements, like internal wall linings, and failure has typically not occurred yet (page 24). What is certain is that the $11 billion costs “low point” is likely to far exceed any gains anticipated by those who successfully advocated for the light-handed regulatory regime; a regime that is at least partly responsible for the problems now evident (pages 89-90, 305-6, 314). This is the context for the important contribution this book makes to the leaky building literature, as well as to regulatory theory and practice more generally. That contribution is the product of two things. The first is the book’s interdisciplinary contributors, trained in law, in public health, in sociology, in economics, and in building design and construction. They bring different perspectives to bear on the leaky building problem, and many contributors offer suggestions on what might be solutions to the problems. The contributors, in grounding that analysis in a range of different but complementary perspectives, also offer both practical and theoretical insights. This helps the book to succeed in being both interesting and accessible. The second great strength of the book is its content. The interdisciplinary group of contributors address in 17 chapters the legal/regulatory/social environments, how they contributed to the leaky building crisis, and what lessons we can learn from the crisis as it has unfolded to date – so as to prevent future crises in the building industry, or, more generally, so as to prevent crises in other areas (to be) governed by light-handed regulation (pages 35-8, 43, 92, 279). At the latter and more general level, two “lessons learned” come through especially clearly in the book: the benefits in taking time to develop evidence-based policy, and the need to grapple when designing a regulatory framework with what should happen if the regulation fails. The benefits in taking time to develop evidence-based policy is underscored in
the book by the references to our leaky building crisis having mirrored a similar “condos crisis” that occurred half a decade before in Vancouver (page 6). Our building problems also had parallels with weather-tightness problems evident by the 1990s in North Carolina and in Seattle, Washington (page 88). Yet despite important similarities between our leaky building crisis and Vancouver’s welldocumented condo crisis, in particular, it seems that the building industry and responsible rule-makers/enforcers paid little heed to this international experience in implementing the lighthanded regulatory regime they did (pages 6, 88-89). This has been to our disadvantage, and is an obvious lesson to learn from what has happened. A second obvious lesson to learn from the leaky building crisis is that it is critical for those entrusted with designing regulatory frameworks to grapple with undesirable complexities, and in particular with what will happen if their regulation fails (pages 314-5, 326). A theme which runs through the book is that both certainty and justice would have been much better served by (legislative) engagement with regulatory failure at the front-end, or policy-formulation stage, rather than by leaving it to affected property owners to have to bring complicated and expensive court proceedings (pages 16-7, 158, 238-9, 318). It is emphasised in the book that one of the long-term lessons of the leaky building crisis ought to be a much more express legislative/rule-making process, not only grappling with what happens if regulation fails, but expressly considering who ought to bear the loss of a failure (pages 17, 43). In the breadth of the analysis of these topics, the mixing of general and specific insights, and the interdisciplinary contributions that are made, the book overall is a “must read” both for those interested in the building industry and for those interested in better regulation. It is, to return to Sir David Baragwanath’s Foreword, a
THE BOOKSHELF collection of insights that “transcend the specific topic of leaky buildings” (page v). The Leaky Buildings Crisis – Understanding the Issues by Steve Alexander and 18 others, Thomson Reuters, December 2011, 978-0-864727-41-1, 348 pages, $40 (GST and p&h excl). Available in paperback. *Matthew Smith is a barrister at Thorndon Chambers in Wellington specialising in public and administrative law. LAW OF CONTRACT IN NEW ZEALAND, 4TH EDITION By John Burrows, Jeremy Finn and Stephen Todd Reviewed by Matthew Barber* The contract text of Professors Burrows, Finn and Todd is well-established in the New Zealand legal canon. It is the only text on the general principles and rules of contract law in New Zealand intended for a practitioner and student audience – excepting the online/looseleaf works available from the legal publishers – and provides a broad and yet detailed account of the subject. Since developing out of the New Zealand edition of Cheshire & Fifoot’s Law of Contract, it has been updated on a five-yearly cycle. The fourth edition thus covers developments in the law since 2007. Its increased heft, however – the new edition is almost 200 pages longer and half an inch thicker than its predecessor – seems as much a result of a larger font size and line spacing as an overall increase in content. Contract law in New Zealand has evolved in a number of areas since 2007. Very little of this has come from the enactment of statutes. The Limitation Act 2010 overhauls the rules on the limitation of actions, and its operation is explored in the text. The Property Law Act 2007 now contains the writing requirements previously set out in the Contracts Enforcement Act 1956, but since these only apply to a couple of types of transaction – and do not have the general application that was historically the case – they warrant little focus in a general contract text anyway. Of far more interest is the role of the Supreme Court in the development of New Zealand contract law. Since 2007 the Court has delivered a number of
important decisions, including those in Neilson v Dysart Timbers, Vector Gas v Bay of Plenty Energy and Mana Property Trustees v James Development. The text offers pithy descriptions of the court’s approach in these, dealing effectively with multiple judgments – even when these are difficult to reconcile – and with the scope for future clarification that such cases leave. Also of interest are some recent and potentially groundbreaking decisions of the English Supreme Court that we have yet to adopt or reject conclusively, most notably Attorney-General of Belize v Belize Telecom (actually the Privy Council) and Transfield Shipping v Mercator Shipping. These decisions – and the changes their adoption would bring to terms implied in particular contracts and the rules of remoteness of damage respectively – are dealt with in some length and very effectively in the text. The fourth edition has incorporated some new material on internet sales as part of the chapter on agreement. This notwithstanding, the overall coverage of electronic transactions is not large. The chapter on “Some Factors Affecting Modern Contract Law” not only does not consider their increasing importance, but does not mention any technology-related issues. This area is better served by the older text Electronic Transactions. In fact, although still the only general and rigorous text in its area, Law of Contract in New Zealand now overlaps with a number of specialist texts. As well as electronic transactions, there are works on civil remedies, consumer law, the sale of land, commercial law and others. These tend to either expand on particular areas of contract law or discuss particular types of transactions, and are able to consider the relevant issues in much greater depth. But any criticism of the contract text for being unable to match these texts is unfair. There is a need for a general, comprehensive and yet detailed account of New Zealand contract law for both practitioners and students. A text that satisfies this need will often be the first point of reference in researching an issue and is not intended to always be the last. We have been well served in this regard for a very long time by the text from Professors Burrows, Finn and Todd. And on these terms, the fourth edition of this text is irresistible. Law of Contract in New Zealand, 4th edition by John Burrows, Jeremy Finn and Stephen Todd, LexisNexis,
February 2012, 978-1-927149-546, 960 pages, $178.25 (GST incl, p&h excl). Available in e-book and paperback. *Matthew Barber is a senior lecturer of law at the Auckland University of Technology, teaching contract law and contractual interpretation. Getting copies of books and products mentioned in The Bookshelf Information provided in The Bookshelf is intended to assist New Zealand lawyers by giving details of new sources of legal information which may help them in their work. It does not constitute an endorsement by the New Zealand Law Society. For further information relating to content or purchase of the book, you should contact the publisher directly. Most books and information sources may also be accessed at one of the Law Society’s libraries in Auckland, Christchurch and Wellington. LT
Opening the Toolbox Mai Chen’s Public Law Toolbox is selling extremely well, according to LexisNexis’ New Zealand head Rachael Travers. LexisNexis was a happy bystander at the May Day launch of the book at Parliament. The actual launch was preceded by a half-day conference in the Legislative Chamber. This was the most impressive example of Ms Chen’s ability to connect with a very wide range of people and organisations involved in running New Zealand. Cabinet ministers, Supreme Court justices, chief executives and organisation heads from both government and the private sector all spoke openly. Mai Chen says her book is aimed at solving problems between citizens and organisations with Government. Speakers at the conference were asked to avoid theory and share their wisdom and experience. “There are lots of books about theory; the gap is about the practice. How does one do this; how does it work?” Ms Chen asked. The lessons and insights will be shared. A video recording of the whole conference will be made available on the Chen Palmer website. Law Commissioner Wayne Mapp wondered if Mai Chen was “giving away her IP” by publishing the book, but concluded that it takes time to learn to use the tools “and she has all the contacts as well as the years of experience”. LT
LAWTALK 796 / 25 MAY 2012
Practice Area Leaders – Expressions of Interest
The College of Law is seeking expressions of interest from experienced practitioners wishing to contribute to the development of its new post-graduate applied law programmes, which will provide New Zealand lawyers with a qualificationsbased approach to their Continuing Professional Development. We are seeking expert practitioners to assume responsibility, on a consultancy basis, for the practice leadership role of each specialist practice area taught in our existing and future applied law programmes. Practice area leadership roles are required in:
Administrative Law Banking and Finance Law Civil Litigation Commercial and Corporate Law Commercial Litigation Consumer Law Criminal Law Employment Law Family Law In-House Legal Intellectual Property Law Mergers and Acquisitions Law
As a College practice area leader, you will be responsible within your specialist field for:
Professional Responsibility Professional Skills Property Law Resource Management Law Torts/ACC Law Trust and Office Accounting Wills and Estates Law
It is the largest provider of pre-admission practical legal training in Australia and New Zealand and is a leading provider in Australia of Continuing Professional Development (CPD), including masterslevel applied law programs.
See the website for further information 20 LAWTALK 796 / 25 MAY 2012 www.collaw.ac.nz/jobs
Reviewing and updating existing course materials and practice papers Creating or reviewing the development of new course materials and practice papers Ideally, you will also be able to assist in the online and/or onsite delivery of instruction within your specialist field. The College of Law of Australia and New Zealand is the school of professional practice for Australasian lawyers.
For further information and to apply online go to: www.collaw.ac.nz/jobs
There’s the firm you work for, and then there’s you By Christopher Bray* Here’s an interesting thing. Whenever a new technology comes along, we adopt it as a metaphor for the world around us. The invention of the clock, for example, brought with it the idea of systems “running like clockwork” and astronomers went on to develop an entire “clockwork theory” of the universe. Then came the industrial age, bringing its mechanical metaphors. Le Corbusier imagined houses as “machines for living” and management theory became dominated by concepts of efficiency. It became common for employees to be thought of (or at least think of themselves) as “cogs in the wheel.” Now, the internet is our new technology, changing not only the way we work, but also the way we think about work. We’ve moved from the enterprise as a machine to the enterprise as an ecosystem: a web within a web. Perhaps no surprises then, that what was once called “meeting people” is now called “networking”. When we understand this double impact of the internet we can see why it is upending many long-established norms. We can understand why John Hagel III and John Seely Brown (www.edgeperspectives.com) say that “sources of economic value are moving from ‘stocks’ of knowledge, to ‘flows’ of new knowledge.” “Stocks” of knowledge is an old-world, bricks-and-mortar description of a law firm − experts in a tower − whereas “flows” of knowledge is a new-world, ecological concept of co-creation. So it is that the relationship is changing between the firm and the people who work there. In the old world, where the firm was a repository of knowledge, the brand on the box was what mattered. But today the enterprise is more organic, more porous, and the brands of the individuals who comprise it have assumed much greater significance. In fact, it is helpful to think of the firm not as corporate entity − a box − at all, but rather as a platform, or operating system, on which its community of professionals collaborates, creating new knowledge for, and with, their clients.
What we realise, therefore, is that today the corporate brand delivers only half of the value to the client: the personal brands delivers the other half. And we can see the increasing importance of the personal brand… Corporate brand
It’s not that the idea of the personal brand is new: the reputations of the firm’s key individuals have always been emphasised. Rather, what’s new is the idea that the individuals no longer work within, or for, the firm (“cogs in the wheel”) but rather, they operate on the firm (“Have you met our latest app from litigation?”). The firm is no longer a branded box, but a branded platform, creating the right operating environment for its people to do their best work. Conversely, of course, this new paradigm increases the responsibility on the individuals to consciously nurture their personal brands. Not because the stronger their personal brands, the stronger their employment prospects (although that is unquestionably true) but because potential clients will give at least as much weight to the personal brands as they do to the corporate brand when considering who they want to work with. It means that individuals have to do a better job of “marketing” themselves than they might in the past. It is no longer a task that can be “outsourced” to the corporate marketing team. As one social
media expert complained: “Clients have to understand that companies don’t Tweet; people do.” But, more to the point, trusted relationships are always going to be built between individuals as much as between enterprises. Equally, the firm has to be willing to give the space to the individuals to develop their personal brands. In particular, perhaps, to move beyond the corporate uniformity of the machine age and embrace and celebrate the biodiversity of the ecological age. How about, for example, every individual having their own personal website, running on the corporate platform, rather than the cookie cutter personal profiles of today? What about individuals publishing their own thought pieces, quite explicitly labeled “not necessarily the opinion of the firm”? You may well respond by saying that the best people have always understood the need to build their personal reputations or brands and of course that is true. Nevertheless, it remains worth noticing that the internet is changing not only the nature of work, but the nature of enterprises. And it remains worth considering discarding the metaphor of the firm as a closed box where the brand on the label is what matters most, and adopting instead the paradigm of the firm as a platform, with the primary function of creating an abundant ecosystem where individually branded knowledge workers can gravitate, collaborate and flourish. *Christopher Bray helps professional services firms develop growth strategies. His clients include 2011 Mid Sized Law Firm of the Year, Cooney Lees Morgan. See www.omg.co.nz.
Independent Resource Management Specialist Advice, strategy, advocacy, dispute resolution for your clients Waterfront Chambers Wellington
Philip Milne Barrister
021 803 327 or PA 04 499 6653 firstname.lastname@example.org milnelaw.co.nz
LAWTALK 796 / 25 MAY 2012
LAW REFORM REPORT Recent Submissions The Law Society recently filed submissions on: • • • • •
Consumer Law Reform Bill; Electronic Identity Verification Bill; Medicines Amendment Bill; Corrections Amendment Bill; Social Security (Youth Support and Work Focus) Amendment Bill; • IRD draft interpretation statements: • INS0121 – Tax avoidance and the interpretation of sections BG1 and GA1 of the Income Tax Act 2007; • INS0108 – Income tax: Timing of share transfers; • INS0110 – GST on Immigration Services; • INS0111 – Beneficiary income; • review of the Crown Minerals Act 1991 regime; and • draft amendments to Legal Services (Quality Assurance) Regulations 2011 and Legal Services Regulations 2011. The submissions are available at www. lawsociety.org.nz/publications_ and_submissions/submissions.
Social Security Amendment Bill The Law Society, represented by Andrew Butler (convenor of the NZLS Human Rights & Privacy Committee), addressed the Social Services Select Committee on 19 April, in relation to NZ Bill of Rights Act issues and proposed information sharing provisions in the Social Security (Youth Support and Work Focus) Amendment Bill.
Tax avoidance and the interpretation of sections BG1 and GA1 The Law Society made a submission on a draft statement on the Commissioner of Inland Revenue’s approach to tax avoidance following the Supreme Court decisions in Ben Nevis and Penny and Hooper.
LAWTALK 796 / 25 MAY 2012
The submission queries IRD’s interpretation of the case law and seeks greater clarity for taxpayers. The Law Society believes the draft statement has incorrectly characterised the result in Ben Nevis, and says that the Supreme Court did not intend the Parliamentary contemplation test to be a substitute for the words of the statute. The Law Society acknowledges that the general anti-avoidance rule inherently creates uncertainty in the application of New Zealand’s tax laws and the IRD can provide no more clarity than cases decided on the matter are prepared to allow. However, it believes the draft statement does not improve certainty in the application of New Zealand’s tax laws. In many respects it makes the law and its application less certain. While the draft sets out a procedure for applying the general anti-avoidance rule, it specifies no boundaries. The draft does not assist taxpayers or IRD officials to determine whether a particular transaction or type of transaction is on one side of the line or the other.
Consumer Law Reform Bill The Law Society believes a clause in the Consumer Law Reform Bill which creates a strict liability offence of making an unsubstantiated representation creates a number of problems. The Law Society’s submission on the Bill noted that the clause defines an unsubstantiated representation as a representation made by a person who does not, at the time of making it, have reasonable grounds for the representation, irrespective of whether or not the representation is, in fact, false or misleading. This would mean someone could be guilty of a criminal offence through making an unsubstantiated but true statement in trade, in which case there would be no detriment to consumers or other traders. There was also no guideline for “reasonable grounds” and no provision other than general defences in the Fair
Trading Act to protect downstream suppliers in the retail trade who could be targeted. The Law Society is concerned that the clause could be detrimental to New Zealand traders and, in particular, place them at a disadvantage with respect to Australian traders. Australian traders would also be forced to comply with a different substantiation standard if supplying goods or services into New Zealand, in that correct representations could lead to criminal prosecution. In Australia, however, they merely risked being asked to substantiate their claims. The scope of the clause is too broad and the Law Society recommends that it be reconsidered, and aligned with the Australian provisions. The Law Society does support a provision in the clause which entitles only the Commerce Commission to bring actions relating to unsubstantiated claims, thus removing the scope for competitor harassment.
Medicines Amendment Bill The Law Society submission on the Medicines Amendment Bill says the absence of a definition for “combination product” in the Bill means there is no clarity about how an important group of medical products will be regulated. Examples of “combination products” include combination nanomedicines and ‘cosmeceuticals’ (cosmetics which claim to have medicinal benefits). Many medical products that will enter the market in the next decade are likely to be combination products. Combination products are defined in legislation in other jurisdictions. The NZLS recommends that a definition modelled on the equivalent United States provision be added to the Bill.
Income tax: timing of share transfers The Law Society is concerned that a conclusion in an IRD draft statement on the timing of share transfers for the purposes of the continuity provisions is legally incorrect.
L AW REFORM REPORT
Duty to declare The practising certificate renewal round is under way. All current practising certificates expire on 30 June. By now you should have received a guide for renewal. (If you have not, please contact the New Zealand Law Society Registry, email@example.com or 0800 22 30 30.) Apart from making payment, there is a range of other matters that you are required to inform the Law Society about. Declaration One of the most important parts of your renewal is your declaration. This is in three parts. The first is an undertaking to comply with the fundamental obligations of lawyers as set out in s4 of the Lawyers and Conveyancers Act 2006. In essence you are declaring that you are aware of these and complying with them. Section 4 reads: “Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations: (a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand;
The Law Society says that there is no authority for the conclusion that an unpaid vendor of shares under an unconditional agreement for sale and purchase holds the shares on trust, not being a bare trust, for the purchaser. The Law Society also says the draft statement doesn’t consider the implications of such a conclusion, which could be to create two changes of ownership in the ordinary course of the sale of shares. The Law Society recommends that the interpretation statement be amended to reflect that, while the purchaser has equitable rights in respect of the shares, the relationship between the vendor and purchaser is not one of trustee and beneficiary. No change of ownership will therefore arise under an agreement for sale and purchase before settlement, unless the agreement expressly provides for ownership to pass before settlement.
(b) the obligation to be independent in providing regulated services to his or her clients; (c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients; (d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.” The second part relates to any matter that does or might affect your fitness to be issued with a practising certificate. Some of the matters that you must declare include: a criminal conviction (if not previously brought to the Law Society’s attention). This includes an excess breath alcohol conviction and any traffic offence that resulted in a conviction; any pending criminal charges; any mental health or physical health issues that might affect your ability to practise; and any significant financial issues, such as bankruptcy. Thirdly, you must declare whether you are complying with any orders of a Lawyers Standards Committee, the Legal Complaints Review Officer or the Lawyers and Conveyancers Disciplinary Tribunal.
Legal aid update Fixed fees proposal – family The Ministry of Justice has released its final decisions on the proposed fixed fee framework for family legal aid providers, in response to submissions from the Law Society and others. Changes made to the original proposal include raising the fee for additional factors and assigning full fees for most repeatable activities; streamlining the case management levels to Fixed Fee and Fixed Fee Plus; increasing the fees for preparation for a mediation conference; and introducing a fee for round table conferences. Fixed fees for family legal aid will be implemented in July and reviewed in late 2012. Fixed fees proposal – ACC The ministry has released its final decisions on the proposed fixed fee framework for ACC legal aid. NZLS made a strong submission that fixed fees were not appropriate in the ACC
Do you owe any outstanding costs or fines resulting from a disciplinary matter or have not complied with any order? If you have entered into a time payment arrangement and payments are up to date, there is no need to include this. What will happen if I declare something? Most matters will probably not be significant enough to prevent you renewing your certificate. If any matter needs investigation it may be referred to the Law Society’s Fitness for Practice Committee. This process can take some time to complete so the earlier a matter is advised the less likely it is to hold up the reissuing of your practising certificate. It is better to be safe than sorry. If in doubt, please include. Remember there is no need to wait for the practising certificate renewal round if you have matters of concern to report. Online declaration The Registry staff are hopeful that this year more lawyers will complete their renewal declaration electronically via the lawyer login on the NZLS website www. lawsociety.org.nz. This is faster, easier and more efficient for both the lawyer and the Law Society. If you have a problem logging in, call the Registry on 0800 22 30 30 for helpful guidance and assistance. LT
context and that the proposed fees were too low. In response the ministry has increased the level of fees under the new regime. Fixed fees for ACC legal aid will be implemented in July and reviewed in 2013.
Coming up – current law reform consultation The Law Society is currently preparing submissions on numerous bills and government discussion documents. Members are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission deadlines and information about how to participate, visit http:// my.lawsociety.org.nz/law_ reform/work_in_progress. For more information on NZLS law reform activities, contact vicky. firstname.lastname@example.org. LT
LAWTALK 796 / 25 MAY 2012
BRANCH NEWS OTAGO NEW ZEALAND LAW SOCIETY NZLS EST 1869
New Otago branch President Associate Professor Donna Buckingham is the new President of the New Zealand Law Society’s Otago branch. With her election, she became the first academic in almost 50 years to Donna Buckingham lead Law Society affairs in Otago. Frank Guest was elected the Otago District Law Society President in 1964, five years after he became Otago University’s first fulltime academic in July 1956 as Professor of Law. Associate Professor Buckingham teaches at Otago University and writes in statutory interpretation and evidence law.
to the professional conduct of lawyers; search and seizure of electronic evidence and its use in litigation; child witnesses and the giving of their evidence; free access to law and nonpublication orders; and privilege and the Evidence Act 2006
AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869
David Simcock inspires young lawyers Bell Gully partner David Simcock encouraged and motivated around 60 Auckland young lawyers to continue and develop outside interests and to set “Everest goals” during practising life. Mr Simcock spoke and presented on his successful career and interests.
David Simcock speaks to around 60 Auckland Young Lawyers.
He showed his photos from remote places around the world including the Mt Everest base camp, Nepal, Cuba, Africa and Antarctica. Mr Simcock spoke of his wide range of interests including kayaking, cycling, photography and Thai Chi, some of which he had only taken up later in life.
WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869
Also a barrister, she is the former chair of the Law Society’s Women’s Consultative Group. During her time in that role, she helped establish the NZLS Practising Well initiative. She is the founder and current Director of the New Zealand Legal Information Institute (NZLII), the largest New Zealand publisher of free online legislation, court and tribunal decisions, reports and articles. Associate Professor Buckingham recently completed her term as President of the Ako Aotearoa Academy of Tertiary Teaching Excellence, the body of national tertiary teaching award winners, providing advice on tertiary education policy and practice across all sectors. Her current research/writing interests include: regulatory regimes in relation
LAWTALK 796 / 25 MAY 2012
Heléna Cook (YLC Committee).
YLC Quiz Night 2012 The wildly popular annual Young Lawyers Committee Quiz Night took place on the evening of 24 April at Dockside in Wellington.
The competition was fierce as 130 young lawyers, along with invited guests from the Wellington branch, competed for the coveted Quiz Night trophy.
CONTINUING YOUR PROFESSIONAL DEVELOPMENT Search and surveillance The Search and Surveillance Act 2011 is a major overhaul and reform of the legislation surrounding search, surveillance and inspection powers. It impacts on a wide number of legal, government, and regulatory agencies. The new Act covers powers that were previously spread over 69 acts and removes earlier inconsistencies. It includes areas that were not previously regulated, addresses new technologies and ensures the powers available to different agencies are appropriately balanced. The Search and Surveillance Act 2011 - new powers seminar will discuss the impact of the key changes, examine the new separation between police-only and enforcement officer powers, and look at the implications of the newest search and surveillance provisions. It will be held in Dunedin on 5 June, Christchurch on 6 June, Wellington on 11 June, Hamilton on 12 June and Auckland on 13 June. A webinar for smaller centres will be held on 11 June.
WAIKATO BAY OF PLENTY
Michael Heron, litigation partner, Russell McVeagh, Auckland and Dale La Hood, partner and Crown prosecutor, Luke, Cunningham and Clere, Wellington will present the seminar. It will cover search warrants; warrantless powers; execution of searches, including of computer systems, people and vehicles; production orders and monitoring powers; interception and surveillance; privilege, confidentiality and immunity. See www.lawyerseducation.co.nz/shop/ Seminars+2012/Search+and+Surveillance+A ct+2011+-+new+powers.html. For registration enquiries, Freephone 0800 333 111.
Building Law Reform Conference New Zealand’s building and construction industry is undergoing a plethora of change as well as impending growth, given the rebuild required in Christchurch, the ongoing repairs of leaky buildings and the growing housing shortage all over the country. With a number of reforms to the Building Act 2004 coming into effect through the Building Amendment Act 2012, the building industry is facing some confusion and uncertainty as to where it is headed.
Miss India NZ is a lawyer
The Building Law Reform Conference, to be held in Wellington on 23 and 24 July, will help you understand the changes to the Building Act 2004. It will enable you to gain an update on the effectiveness of the Government’s financial assistance package; learn more about the costly problem of leaky schools and engage with experts on ways to restore trust into the building and construction industry
Waikato Bay of Plenty lawyer Anamika Singh, who featured in LawTalk 794, has been crowned Miss India New Zealand 2012.
The seminar will feature presentations on the latest issues from the Department of Building and Housing; Building Research Association of New Zealand; Certified Builders Association of New Zealand; Prendos; Home Owners & Buyers Association of New Zealand; Kensington Swan and Simpson Grierson. See www.conferenz.co.nz/conferences/ building-law-reform. LT
Born in India and raised in Rotorua, Miss Singh’s journey to the top will be featured in an episode of an upcoming TV series on immigrant kiwis called Both Worlds.
AlfaBeta Translations: Legal – Medical – Forensic General Translations – NZTIS certified – Masters and PhD level translators
NEW ZEALAND LAW SOCIETY
NZLS EST 1869
The 26-year-old Ms Singh, who works for Bogers Scott Waikato Bay of Plenty branch lawyer Anamika Singh wearing Shortland Lawyers her Miss India NZ crown. in Hamilton, will represent the country in Miss India Worldwide 2013, to be held in Malaysia next year. LT
A ccurate T ranslations ♦ C ompetitive R ates ♦ P rompt D elivery
Arabic • Greek • Chinese (Mandarin/Cantonese) • Dutch • Farsi • French German • Hausa • Hebrew • Hindi • Italian • Japanese • Korean • Lingala Malay • Portuguese • Russian • Spanish • Swedish • Swahili • Turkish Vietnamese • and over 45 other languages Email/call head translator Anna Gailani for a quote: email@example.com – 021 953 599
LAWTALK 796 / 25 MAY 2012
Online registration and payment can be made at www.lawyerseducation.co.nz
Francis Cooke QC
Construction Contract Issues for Non-litigators
Carolyn Culliney The Construction Contracts Act, now in its 10th year, is generally working well, although Howard Thompson some issues have arisen that are a cause for concern. This seminar will identify these issues and their implications. It will also consider what legislative matters you should be aware of when drafting a contract.
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 You can effectively use judicial review proceedings as a useful means of challenging Auckland decisions made by a range of public, private and voluntary organisations. If you operate in the public law area or advise decision-makers, this programme offers you a practical approach to the principles and processes of judicial review. Dunedin Christchurch Wellington Auckland Tauranga
15 May (Full)
21 May 22 May 23 May 28 May 29 May
Death and the Law Chair: Intensive Prof Nicola Peart
Most of us have a good deal of time to prepare for the inevitable – our death. Yet, too Wellington often the preparation has been inadequate and problems arise post death that can create Auckland family rifts, be costly and emotionally draining. This intensive will look at steps needed to minimize the risk of conﬂict and uncertainty post death – dealing with incapacity; testamentary advice and drafting; issues relating to the body, the validity of wills, and claims against estates.
Insurance Law – a practical guide
Lindsay Lloyd Paul Michalik
The catastrophic happenings of 2011 were a wake-up call and made us realise how it is easy to be wise after the event. Things we perhaps should have contemplated, and taken into account, hadn’t been. If you have any dealings with commercial purchases or leases, bodies corporate, residential purchases or businesses you need to be aware of the pitfalls so that you can give your clients comprehensive insurance advice. This seminar will take a practical look at insurance; what it is, and the many issues that can arise, especially in relation to property.
Lawyer as Negotiator
Building on participants’ own experience, this one and a half day workshop provides Christchurch hands-on practice and feedback, as well as a conceptual framework for preparing for and Wellington 2 undertaking negotiations. It uses cutting edge research to examine different strategies Auckland 2 and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, for addressing specific issues which participants might wish to raise and for generally enhancing skill and confidence in this vitally important aspect of practice.
29-30 May 30-31 Oct 7-8 Nov
Search & Surveillance
Michael Heron Dale La Hood
The Search and Surveillance Act 2011 brought major reform to search and surveillance powers and has subsequently had further amendments. This seminar will discuss the impact of the key changes – what are the new powers, how are they assessed, how can they be used? A live two hour webinar will be held for smaller centres.
Dunedin Christchurch Wellington Hamilton Auckland Webinar
5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 11 Jun
Lending and Securities – changes to consumer and commercial credit laws
Sarah Simmers Stuart Walker
Credit law and lending practices have come under scrutiny as a consequence of the global financial crisis, third-tier lenders practices and recent litigation involving lenders. The government has proposed amendments to the Credit Contracts and Consumer Finance Act 2003 to protect consumers including introducing new responsible lending requirements. The presenters will summarise and offer their perspectives on these changes. A live two hour webinar will be held for smaller centres.
Christchurch Dunedin Hamilton Auckland Wellington Webinar
5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 13Jun
Succession Planning for Rural Practitioners
Tim Black Frazer Weir
Presenters will discuss how practitioners who advise agricultural families can help guide Your clients through a thoughtfully managed process of communication, planning and good computer structuring to a fair and successful outcome, acceptable to all family members and Webinar avoiding unnecessary accounting and legal costs.
Property Law Conference
Chair: Andrew Logan
The biennial 2012 Property Law Conference will be held on Monday 18 and Tuesday Auckland 19 June at the Pullman (formerly the Hyatt) in Auckland. The chair is long-time PLS Executive member Andrew Logan of Mortlock McCormick Law, Christchurch. With nine plenary sessions, two lots of breakout sessions and a stellar line-up of presenters this is an event not to be missed.
Corporate Governance Intensive
Chair: Justice Paul Heath
Corporate Governance is one of the major themes in the courts at present with many Wellington corporate governance issues arising out of recent finance company collapses. The issues Auckland are both civil and criminal, and there are a lot of lessons to be learnt. This intensive will take a close look at the issues highlighted by recent cases.
21 Jun 22 Jun
Christchurch Wellington Auckland Live videoconference
Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email firstname.lastname@example.org or contact CLE information, tel 0800 333 111.
24 May 25 May
29 May 30 May 31 May 31 May
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Expert Witness Programme
Director: Terry Stapleton
This two-day day programme follows the tried and tested teaching methods pioneered Wellington by the prestigious United States National Institute for Trial Advocacy (NITA). There are the same learning-by-doing methods that have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. This course concentrates on working with expert witnesses. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.
Stepping Up – Foundation for practising on own account
Director: John Mackintosh
The new national course Stepping Up replaces the various local Flying Start courses. Christchurch 19-21 Jul All lawyers wishing to practise on their own account whether alone, in partnership, Auckland 2 6-8 Sep in an incorporated practice or as a barrister, will be required to complete the course. Wellington 8-10 Nov Developed with the support of the NZLF.
Director: Jonathan Krebs Deputy Director: Janine Bonifant
This highly regarded residential week-long course is open to applicants with at Christchurch 19-25 Aug least three years’ litigation experience. Based upon the National Institute for Trial Advocacy (NITA) teaching method, selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. Applications close 22 June 2012
21-22 Jun (Full)
TRUST ACCOUNT TRAINING PROGRAMMES Trust Account Administrator
John Hicks Steve Lewis David Littlefair
How do you keep a trust account in good order? This training is for new trust accounting Christchurch 15 May (Full) staff, legal executives, legal secretaries and office managers. Nelson 17 May Invercargill 22 May NB: Numbers are limited so be sure to register early.
Trust Account Supervisor Training Programme
Mark Anderson, John Hicks or David Littlefair. And David Chapman, Bob Eades or Lindsay Lloyd
To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments. Make sure you register in time to do the preparatory work before the assessment day as listed on the right.
Hamilton Wellington Auckland Christchurch
11 Jul 12 Sep 14 Nov 21 Nov
ENTRY LEVEL PROGRAMMES
Developed with the support of the Law Foundation Introduction to Company Law
Jeremy Blake Andrew Leete John Horner Anne McLeod Graeme Switzer Daniel Wong
This is a practical two-day workshop for practitioners in their first three years’ of practice Auckland with small, medium or large firms. It will cover issues such as acquiring a business, Wellington funding, governance, distributions, expansion, shareholder disputes, financial problems and the sale of shares. Participants will gain many practical tips to enable them to develop good practice and provide quality advice to their clients.
Introduction to Family Law Advocacy and Practice
Judge John Adams Usha Patel
This limited-number workshop is designed for practitioners in their first two or three Christchurch 23-24 May years of family law practice. It works through the sort of case that will be likely to be encountered at this stage of one’s career.
Duty Solicitor Training Programme
Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day).
Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei
14-15 May 28-29 May
1 Jun, 20 Jul, 21 Jul 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 13 Jul, 31 Aug, 1 Sep 13 Jul, 31 Aug (in Dun) 1 Sep (In Dun) 3 Aug, 14 Sep, 15 Sep 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 21 Sep, 26 Oct, 27 Oct 21 Sep, 26 Oct (in Man), 27 Oct (in Man)
Programme brochures, online registration and booket purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz
OVERSEAS Conveyancers can’t litigate The United Kingdom’s Legal Services Board (LSB) has refused the Council for Licensed Conveyancers’ (CLC) application to regulate conveyancers conducting litigation and advocacy, reports the Law Society Gazette (5 April). The LSB said it had not granted the application “on the grounds that the CLC lacks the legal power to make rules and regulations that would allow it to authorise entities for these activities and failed to demonstrate an appropriate understanding of the specific risks of the new activities”. The CLC is an approved regulator for the reserved legal activities of reserved instrument activities, probate activities and the administration of oaths. In February 2011 it applied to the LSB to extend the reach of its regulatory activities. That application was supported by the Office of Fair Trading and the Legal Services Consumer Panel, but opposed by the Law Society of England and Wales and the Lord Chief Justice.
Anti corruption The International Bar Association (IBA), in collaboration with the Organisation for Economic Co-operation and Development (OECD) and the United Nations Office on Drugs and Crime (UNODC) conducted an anti-corruption workshop in Moscow for legal professionals on 17 April. The workshop commemorated Russia becoming the 39th party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which also took place that day. Recognised as the world’s seventh
largest economy by purchasing parity power, Russia experiences high levels of corruption that hamper domestic and foreign investor confidence. Since February 2009, the OECD Working Group on Bribery has collaborated with Russian officials to improve and strengthen Russia’s legal framework against bribery of foreign officials. Russia criminalised foreign bribery in May 2011.
UK Police deny people their rights The Law Society of England and Wales has raised concerns with the Home Office about police officers denying suspects their right to consult a solicitor. Richard Atkinson, chair of the society’s criminal law committee, told the Law Society Gazette (17 April) that police were circumventing the Police and Criminal Evidence Act 1984 (PACE) by interviewing suspects at home without a solicitor present. “The police are not acting unlawfully, but exploiting a loophole in PACE to circumvent people’s rights to independent legal advice,” he said. Section 58 of PACE provides that a person “held in custody in a police station” is entitled to consult a solicitor, but it does not mention suspects interviewed elsewhere. The Law Society had written to the Home Office proposing the act be amended to provide for independent legal advice wherever an interview with a suspect takes place. Criminal Law Solicitors Association committee member Robin Murray said he had been shocked when a serving officer told him the police had “got wise” to the fact that they do not need a solicitor present if they interview
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LAWTALK 796 / 25 MAY 2012
suspects at home. “It is a naked and cynical attempt to circumvent suspects’ rights, eroding at a stroke the protections provided by PACE,” Mr Murray said.
Record pet death award An award of over $65,000 to a Denver woman whose pet dog, Ruthie, was let out of her home by a cleaning service last year and got hit by a car, may be the largest verdict ever in Colorado for the death of a pet, ABA Journal (19 April) reports. Plaintiff Robin Lohre said she offered to take Ruthie with her when she left Posh Maids in charge for a several-hour cleaning, but was told by a worker for the company that they would look after her pet. Ms Lohre came home to find the dog dead under a table. No one had taken the dog to a vet or notified Ms Lohre that there had been an accident, according to her lawyer. “The ruling sets a damages precedent that animals are worth more than their replacement value,” said attorney Jennifer Edwards of the Animal Law Center. “When we lose a pet, we do suffer emotional distress and heartache, just as we would with any other member of our families.”
Human rights added to draft law A draft amendment to the China’s Criminal Procedural Law, which came under fire for permitting detention without informing family in some cases, has added the principle of protecting human rights to its general provisions, Hong Kong Lawyer (April) reports. The draft amendment to law, which will be submitted for legislators’ review during the Fifth Plenary Session of the 11th National People’s Congress, now includes a section on respecting and protecting human rights in the second article of its general provisions, which comprise the framework for the entire law. The amendment aims to facilitate investigation in a timely manner, protect the innocent from being accused and ensure suspects’ rights of defence and appeal. LT
LAWYERS COMPLAINTS SERVICE Lawyer sent unprofessional memo to court by mistake A Lawyers Standards Committee fined a lawyer (A) $1,500 after he mistakenly sent a draft memorandum to the Family Court containing unprofessional remarks. The committee had begun an own-motion investigation after a judge referred the memo to the Law Society. A told the committee the document was a draft only. He had written it intending to show it to his client, and the draft was then mistakenly emailed to the court. He said once he realised his mistake he apologised to the court and to his client and advised his client to consider appointing a new lawyer, which the client declined to do.
the power but also the obligation to investigate. A also objected that when the memo had been sent to the Law Society, this had breached the statutory restrictions on publishing reports of Family Court proceedings (in ss11B– 11D of the Family Courts Act 1980 [FCA]). The committee disagreed. It said the FCA allowed for the court to grant leave to publish a report of proceedings, and that in any case the prohibition on publication did not apply if the matter was of a genuinely professional nature (FCA s11B(3) and (4)). LT
“… charlatans and snake oil merchants”
Lawyer fined for trust account breaches and failure to provide letters of engagement
The memo had included this comment: “What does she have to hide? Of what is she fearful? Secrecy is the refuge of charlatans and snake oil merchants.”
A lawyer (B) was fined $1,200 by a Lawyers Standards Committee for various breaches of the trust account regulations and the Conduct and Client Care Rules.
The standards committee said this comment was not “in any way constructive to the outcome of this matter, and was not of an appropriately professional standard.” It said A had been unwise to draft the memo with the intention of showing it to his client, and careless in sending it to the court. The committee found that A had breached his obligation to promote and maintain proper standards of professionalism in his dealings (Conduct and Client Care Rules, Rule 10). The rules also require a lawyer not to “make submissions or express views to a court on any material evidence or material issue in a case in terms that convey or appear to convey the lawyer’s personal opinion on the merits of that evidence or issue” (Rule 13.5.4). The committee found that not only had A’s choice of words breached those two rules, his conduct was also unacceptable when measured against the standards of “competent, ethical and responsible practitioners” (see B v Medical Council  3 NZLR 810). The committee found A guilty of unsatisfactory conduct and reprimanded him. As well as fining him $1,500, it ordered him to pay $500 costs to the Law Society. Challenge to jurisdiction
The committee had carried out an own-motion investigation after a Law Society inspection revealed a number of concerns.
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A had first queried whether the Law Society had jurisdiction to deal with a matter referred from the Family Court. The committee noted, however, that one of its statutory functions was to investigate of its own motion any act, omission, practice or other matter that appears to indicate that a lawyer may have been guilty of misconduct or unsatisfactory conduct (Lawyers and Conveyancers Act 2006, s130(c)). It said that in this instance, it had not only
LAWTALK 796 / 25 MAY 2012
Registry The following people have applied to the NZLS for certificates or approvals.
Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Auckland Branch Joseph PRASAD Vernon Ivan TAVA Hamish Ian EGLINTON Been AHN Evgeny ALILUEV Catherine Ann ANDERSON Danielle Louise BAILEY Jonathan BEHAR Rhys Walter BOYD Richard Auger BROWN Jeremy Edward CAUGHEY Cheryl Jiaxin CHAN Ping CHEN Herman Soowook CHUNG Chantelle Diane DANTZIC Nicola Marie DE WILT Carolyn Mary DAVIES Jennifer DIN Hannah El OJEILI Cameron FRASER Dylan GEDGE Odette GILLARD James GODFREY Alexander GORMACK Ana Hinemoa HAKARAIA Ashiq Ghazi HAMID Zoë Rita HAMILL Sarah Jane Emma HUNTER Sandy ISAAC Imran Avinash KHAN Wing YI Archie KAPUA Richard Bernard KEAM Jessica Hazel KEARNS Nicholas LIM Cheryl LISSINGTON Ioana MAIER
Anna MANUSON Vanessa MCGOLDRICK Daniel MEYROWITZ Lewis MILLS Katherine MITCHELL Elcel Christine Marcos NERIDA Chee Huat Jimmy NG Sarah O’GRADY Anya PARK Sophie Elizabeth PARKER Shanna Maree PARSONS Ema PIUTAU Jesse REYNOLDS Alistar VAN SCHALKWYK Mallory Adele SCHOFIELD Felicity Jane SCOTT-MILLIGAN Anmol SHANKAR Yipu SHI Fei Fei THE Jennifer Marie Ramanlal TUPOU James TURNER Peter John SYDDALL Canterbury Westland Branch Radoslaw Dawid DAJER Alana Joanne MESSENT Ceara Anne ROONEY Hawkes Bay Branch Ailie Jane SUTHERLAND Manawatu Branch Gemma Frances WHITCOMBE Ursula Anne NICHOLLS Wellington Branch Owen Andrew GIBSON Simon John Graham BIDEWELL
Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Hawkes Bay Branch Piers Duggan HUNT The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/ applications_for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 17 May 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate. Lisa Attrill, Registry Manager Email: email@example.com, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989
LAWTALK 796 / 25 MAY 2012
Before the hearing, B advised the Lawyers Complaints Service that active steps had been taken to address the concerns raised by the inspectorate. Misleading conduct B had completed a solicitor’s certificate, as required by a client’s lender. That certificate contained a statement that B held professional indemnity insurance equal to the value of the lending, but she did not have professional indemnity cover. The committee found that the issue of the solicitor’s certificate was sufficiently serious to warrant referral to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. Breaches of trust account rules B had breached three separate requirements of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008. The committee found each breach on its own amounted to unsatisfactory conduct under the Lawyers and Conveyancers Act 2006 s12(c). The regulations require trust account supervisors to certify to the Law Society, by the tenth working day of each month, that the trust ledger was correctly reconciled at the end of the previous month with the corresponding trust bank accounts (reg 17(1)(a)(i)). B had not completed any month-end reconciliations, as she had incorrectly believed this wasn’t required given the trust bank account balance was zero. The committee said that regardless of her misunderstanding her breach amounted to unsatisfactory conduct. The inspection had also revealed that B did not have a trust account journal (see reg 11). On at least one occasion she had transferred money from one matter of a client to another matter without recording this transaction in a journal. Finally, B’s client trust ledger account cards contained no reference when electronic payments had been made, breaching reg 11(3). This requires all entries in the ledger accounts to include “references that identify their source or destination and enable them to be traced backward and forward”. Failure to provide letters of engagement B also admitted she had not prepared or provided a terms of engagement letter for any of her clients. The Conduct and Client Care Rules require lawyers to provide clients, in advance, with written information on the principal aspects of client service, including the basis on which fees will be charged and other matters. The lawyer had not provided letters of engagement at any time, let alone before undertaking any legal work for a client. The committee found this breach also amounted to unsatisfactory conduct. Penalty The committee fined B $300 for each of the four breaches. It also ordered her to pay the Law Society $750 costs. LT
Christchurch City Council Independent Hearings Commissioners – Expressions of Interest The Christchurch City Council ("the Council") is seeking expressions of interest from suitably qualified and experienced commissioners to constitute a Panel of Independent Hearings Commissioners (“the Panel”) to undertake decision-making functions on behalf of the Council under the Resource Management Act 1991, Local Government Act 2002 and other relevant pieces of legislation from including, but not limited to the Dog Control Act 1996 and the Sale of Liquor Act 1989. The term of the appointment will be five years commencing from 1 July 2012. The Expression of Interest document (“EOI”) sets out the details of Council’s requirements, how to submit a response, the evaluation process and timelines. Full details of this notice are available at www.tenderlink.com/ccc For further information please contact: Paul Bakker I Procurement Specialist Phone: 03 941 8452 Email: firstname.lastname@example.org
UK Private Client Services & Estate Administration
Cobbetts is a leading UK law firm based in Birmingham, Leeds, London and Manchester. Our private capital team provides sensitive, timely and thorough advice on a wide range of personal matters, including: • Administration of UK estates • Obtaining Grants of Representation • Contentious trusts and probate • Powers of Attorney • Settlements and Taxation • Wills For further details, please contact: Jennifer Morries on +44 (121) 2229368 or email@example.com Alexia Loughran on +44 (121) 2229277 or firstname.lastname@example.org
www.cobbetts.com Cobbetts LLP is a limited liability partnership
WILLS BRUCE TIMOTHY CLARKE Would any lawyer holding a will for the above-named, late of Auckland and Great Barrier Island, company director, who died in Mombasa, Kenya on 14 March 2012, please contact lan Avison, ARL Lawyers, DX RP42002/PO Box 30 430, Lower Hutt 5040, ph 04 566 6777, fax 04 569 3354 or email email@example.com.
SANDRA GAIL BRACEFIELD (nee SCRIMSHAW) Would any lawyer holding a will for the above-named, late of 1016 Taita Drive, Lower Hutt, office manager, who died aged 47 on 12 December 2004, please contact Clare Stanley, Thomas Dewar Sziranyi Letts, Lawyers, PO Box 31240, Lower Hutt 5040, ph 04 570 0442, fax 04 569 4260 or email firstname.lastname@example.org.
George Brownlie Weir Would any lawyer holding a will for the above-named, late of 44 Okareka Loop Road, Rotorua, who died between 28 February 2012 and 29 February 2012, please contact Jane Goulding, Daniel Overton & Goulding, PO Box 13017, Onehunga, Auckland 1643, DX EP71005, ph 09 622 2222, fax 09 622 2555 or email email@example.com.
Trilby Joan Williams Would any lawyer holding a will for the above-named, who died on 20 October 2011, please contact Richard Clancy, Solicitor, PO Box 27, Putaruru 3441, ph 07 883 7086, fax 07 883 8827 or email firstname.lastname@example.org.
Lorraine Freida Mason Would any lawyer holding a will for the above-named, late of 20 Williams Avenue, Pakuranga, Auckland, who died on 14 March 2012, aged 80, please contact Zoe Cooper, Paxton-Penman et al, Solicitors, PO Box 5530, Wellesley Street, Auckland 1141, ph 09 912 9055, fax 09 912 8518 or email email@example.com.
The Public Defence Service represents legally aided clients in a full range of criminal cases and has a commitment to providing independent high quality, timely, legal advice including providing professional leadership of the duty lawyer service.
Junior Criminal Lawyers – Manukau The Public Defence Service office in Manukau has opportunities for junior lawyers to join an enthusiastic team committed to providing high quality, timely legal advice and representation. The Manukau office services the District Courts within the CountiesManukau Region; this includes the Manukau, Papakura and Pukekohe District Courts. There are also opportunities for High Court appearances and to be involved in trial work alongside senior lawyers. In this role you will be able to advance your legal career in a busy, challenging and supportive environment. Our commitment to training and development includes ongoing mentoring, training, interesting work, a strong collegial environment, and a competitive salary. Reporting to the Deputy Public Defender, Manukau, you will have completed duty solicitor training and have a Category 1 listing approval or have the ability to gain this in the shortterm. This is not a graduate position, and would be suited to someone with at least 12 months post-admission experience in criminal law or litigation. For more information, please email firstname.lastname@example.org or telephone her on (04) 978 7052. Applications close on 25 May 2012.
Jonathan Paul Simon Jackson Would any lawyer holding a will for the above-named, late of 18 Longmynd Drive, Katikati aged 22 years, who died in Queensland on 25 February 2012, please contact Claire Horler of Kaimai Law, PO Box 16010, Bethlehem, Tauranga 3147, ph 07 579 3313, fax 07 579 1560 or email email@example.com.
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LAWTALK 796 / 25 MAY 2012
Fearon & Co 56x100 ad_BW.qxd:Layout 1
EDDIE (AKA EDWIN) HUBBARD
ERNEST CHARLES HARRISON
Would any lawyer holding a will for the above-named, born 28 June 1958, late of Massey East, Auckland, who died on April 18 2012, please contact Melissa, ph 021 201 7370 or email firstname.lastname@example.org.
Would any lawyer holding a will for the above-named, born on 18 February 1919, late of 108 St Particks Row, Whangamata, who died on 6 March 2012, please contact Gael Baldock, 34 Warwick Ave, Westmere, Auckland, ph 09 376 5589 or email email@example.com.
Lecturer or Senior Lecturer The Treaty of Waitangi, Mäori Legal Issues, Indigenous Rights Faculty of Law University of Auckland Vacancy Number: 14006 The University of Auckland is New Zealand’s leading university and one of the world’s major research universities. The Auckland Law School was recently ranked one of the top twenty law schools in the world in the QS World University Rankings. It is the largest law school in New Zealand and has an international reputation for academic excellence. Situated in the heart of the legal precinct, the Law School has strong links to the legal profession and the judiciary. The School aspires to provide a complete legal education, preparing students for legal practice as well as many other careers in an internationalised world. Its thriving undergraduate and postgraduate programmes offer the largest range of courses of any law faculty in New Zealand and attract high calibre students. The School enjoys excellent international links.
ENGLISH LAW AGENCY SERVICES SOLICITORS Established 1825
Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations
VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: firstname.lastname@example.org
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Client Care Co-ordinator Real Estate Practice. Della Randall RE/MAX Northside Realty Ltd, Licensed REAA 2008, MREINZ. See TradeMe.
The Auckland Law School invites applications for a position as Lecturer or Senior Lecturer in Law, depending on the qualifications and experience of the successful applicant. The successful applicant will be committed to teaching and research in areas related to the Treaty of Waitangi, Mäori Legal Issues, and indigenous rights and may have interests and strengths in other areas of the law.
For further information see www.law.auckland.ac.nz or contact the Dean’s Executive Assistant via email@example.com or Faculty of Law, University of Auckland, Private Bag 92019, Auckland, New Zealand.
The work to be undertaken would be conveyancing and commercial in nature but some trust and estate administration would also be involved.
Apply online at http://www.auckland.ac.nz/uoa/home/about/opportunities/ Applications close 28 May 2012. The University is committed to meeting its obligations under the Treaty of Waitangi and achieving equity outcomes for staff and student.
A vacancy exists within our firm for a lawyer with at least two years’ post admission experience.
The position provides an opportunity for a practitioner to enjoy a superior lifestyle and join a challenging practice in the Manawatu, with distinct partnership prospects. Interested applicants should send their CV as soon as possible to email: firstname.lastname@example.org Wadham Goodman Lawyers Palmerston North
LAWTALK 796 / 25 MAY 2012
Time to step up? Time for a change?
Leading Edge Banking Lawyers Wanted Minter Ellison Rudd Watts is a full service commercial law firm with 45 partners and offices in Auckland and Wellington. Our highly regarded Banking and Financial Services team in Auckland is looking for additional banking lawyers with more than two years’ experience. You will be part of a positive and enthusiastic team, including five partners. Ideally you’ll have gained your general banking or insolvency experience in another highly regarded law firm or financial institution. If you want to develop your skills in a top law firm with an excellent client base including all the major banks and have a commercial approach, strong academics and technical skills, excellent communication and the ability to develop great relationships, then we welcome your application. You should be qualified to practice in NZ. If you have any questions or would like to forward your CV please contact Vivien Maurice, (09) 353 9770 or email email@example.com. All applications will be treated with complete confidence.
LeeSalmonLong is a thriving specialist commerical litigation firm looking for talented litigation lawyers with one to five years’ post-qualification experience to join our respected firm. •
We challenge our lawyers to develop and push their legal experience to the limits in one of the best and most supportive working environments in the law.
Our lawyers regularly appear in the District, High and appeal courts, in arbitrations, specialist tribunals and mediations.
As well as working with partners of the firm, our lawyers also work directly with external senior counsel.
Our lawyers earn top of the market salaries, work on a range of files and enjoy high levels of client contact and file responsibility.
If you have an impressive academic record and CV and want to take your litigation career to the next level, we welcome your application. Please email it in confidence to: firstname.lastname@example.org, or mail to Recruitment, LeeSalmonLong, PO Box 2026, Shortland Street, Auckland 1140
Applications close on 23 May 2012.
Director of Operations Real Estate Practice Litigation Opportunities – Palmerston North This is an opportunity to have it all – a great career in a leading firm, working alongside fantastic people on challenging and interesting work, all in a central location. Fitzherbert Rowe is the largest law firm in the Manawatu and a member of the Lawlink Group. They are looking for two exceptional people to join their busy commercial/regulatory litigation team: • an experienced litigator (5+ years’ PQE); and • a junior litigator (1-3 years’ PQE) (exceptional graduates may be considered). You will receive exposure to a broad range of work and will ideally have experience in civil litigation, employment law or resource management and local government law. The litigation team is committed to excellence in all areas with a view to training skilled, well rounded advocates through regular exposure to Court work. Fitzherbert Rowe has a forward thinking partnership and a modern and progressive outlook. There are genuine opportunities for advancement for the right person. For further information in strict confidence please contact Clare Savali or Jane Temel on 04 471 1423 or email admin@ nicherecruitment.co.nz quoting ref: CS9926. Phone: +64 4 471 1423 Email: email@example.com www.nicherecruitment.co.nz
RE/MAX NORTHSIDE REALTY LTD – LICENSED REAA 2008 MREINZ
Recognised internationally this boutique practice, located on the Kapiti Coast, has gone from strength to strength and continues to be the envy of its peers. It is a progressive business known for its fast-paced environment, high profile clients and strong values.This is a dynamic and integral role within the senior management team. Ideally you will bring to this role a solid commercial grounding gained either in the legal environment, or from within the real estate industry. To qualify for this position you must have: • The ability to handle complex and multidimensional matters • A strong measure of urgency that gets things done • Self structure, good discipline, and be assertive and thorough; as well as • A proven ability to drive success in others The successful applicant will be expected to be unfazed by a diverse and demanding clientele and work to other time zones as well as client imposed timeframes. Included in your responsibilities will be: • Managing risk; consulting on compliance, implementation of legislation and industry best practice • Continued improvement to systems, procedures and operational efficiencies • Business and report writing • Overseeing all general administration activities within the office on a day to day basis and improvising when necessary • Driving success in the sales team • Working closely with senior management to achieve strategic objectives for the Company • Commitment to a business culture that emphasises continued improvement and high quality work Please send your CV and covering letter to: firstname.lastname@example.org. Job description available on request.
LAWTALK 796 / 25 MAY 2012
Property Associate – Christchurch
Commercial Litigator – Wellington
• The pipeline of property work on offer promises a challenging and rewarding career path
• A firm with a refreshing outlook and commitment to excellence • A team that is dedicated to the development and investment of its people
• Enjoy a string of high profile transactions with eminent New Zealand companies
With a new generation partnership emerging and a strategic plan for growth, this established and innovative commercial practice is expanding its litigation capability.
Recognised as a leading commercial law firm, Anthony Harper is an attractive opportunity for an ambitious and self-motivated property specialist with 5+ years’ property experience in commercial acquisitions and disposals, leasing, subdivisions, development projects and property support on corporate transactions.
An opportunity exists for an intermediate commercial litigator with 3-5 years experience. They must demonstrate a sound understanding of commercial structures and transactions and bring with them an enthusiasm and ability to develop trusted relationships with a range of public and private organisations as well as SMEs and high value individuals.
This experienced team is in demand to deliver on large innovative property transactions to some of the largest property owners throughout the country. The opportunity to be involved in cutting edge development projects as part of the Christchurch rebuild will offer very tangible rewards to the successful candidate.
Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732
This role requires an engaging personality capable of developing trusted relationships and winning business. In return Anthony Harper provides an attractive remuneration package, desirable brand, and a collegial culture within its modern CBD office that supports and rewards outstanding performance. To apply, please email your CV to email@example.com quoting reference number 29992. For further information in strict confidence, please contact Jennifer Little or Marissa Barnao on 04 499 6161
The successful candidate will be exposed to a variety of litigation to include leaky projects, corporate insolvencies, mortgagee sales, commercial leasing disputes and complex relationship property matters.
Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732
In House Counsel
Step into a professional boutique firm who are well renowned for the work they do. Perform under an approachable partner and fabulous senior associate, build your profile and access an interesting variety of work with exceptional clients.
A rare chance to join the legal team in this listed company. A broad, varietal workload will include a mix of regulatory, governance, compliance and corporate commercial. You will engage in all levels of the business and bring a commercial outlook and business awareness to the role. Energy sector or construction background essential along with around 5-7yrs PQE. An outstanding in house career move. Ref: MH30050
Legal Counsel – Media Industry
Corporate Commercial Associate
This dynamic organisation has a 5-7 month contract for a 3-6yr solicitor starting mid May.
Establish a future in a leading and reputable large firm that genuinely values its lawyers and supports career growth. Work with listed companies, multi-nationals and significant private companies and individuals whilst developing close client relationships.
Wellington Ph: +64 4 499 6161 PO Box 11003
To apply, please email your CV to firstname.lastname@example.org quoting reference number 29991. For further information in strict confidence, please contact Jennifer Little or Marissa Barnao on 04 499 6161.
Property Solicitor – 3-6yrs
Some previous top tier or strong mid tier experience plus a good academic record is ideal. If you want to work alongside a capable team in a firm that encourages a healthy work/life balance, this could be for you! Ref: RL23008
Auckland Ph: +64 9 306 5500 PO Box 105732
Working within a supportive team of experienced lawyers this opportunity will see you run your own files and develop your reputation as an experienced practitioner.
Ideally you will have 5+ years experience in a mid or large sized firm, as well as having a business focus and an active interest in career progression. Ref: MH29846 To apply, please send your CV to email@example.com quoting the reference number. For further information in strict confidence, please contact Rebecca Laney or Meryn Hemmingsen on 09 306 5500.
A great mix of commercial, media and employment law will keep you busy and interested whilst dealing with personnel, production and licensing agreements as well as general advice.
Auckland Ph: +64 9 306 5500 PO Box 105732 Wellington Ph: +64 4 499 6161 PO Box 11003
The ideal candidate will have previous experience in or a good working knowledge of the media industry as well as a decent understanding of employment law. Ref: RL29933 To apply, please send your CV to firstname.lastname@example.org quoting the reference number. For further information in strict confidence, please contact Rebecca Laney or Meryn Hemmingsen on 09 306 5500.
To apply visit www.momentum.co.nz and enter reference number. Alternatively email your CV with reference number to email@example.com