At the Bar August 2014

At The Bar August 2014

Post-Steigrad – the Insurer’s Perspective Focus on Juniors Silks 2014 Technology – Office 365 and One Note

From the Executive Director INSIDE THIS ISSUE Pg 2 - From the Executive Director Pg 3 - From the Chief High Court Judge Pg 5 - Post-Steigrad: What Should I Ask My Broker?

Pg 6 - New Zealand Bar Association’s Mentoring Programme Pg 8 - Juniors at the Bar

Pg 9 - Junior Barristers’ Function Pg 12 - Welcome Back Silks Pg 18 - Meet the New Silks Pg 20 - Petrolheads’ Corner Pg 22 - Training - Registering for Events and Recording your CPD Pg 24 - LexisNexis – the Offering From LexisNexis Pg 26 - Technology – Office 365 Pg 28 - Technology – OneNote Pg 29 - Events – Bar Dinner, Tauranga Lunch and Juniors’ Function Pg 31 - New Members

By Melissa Perkin The middle of the year has been marked with the appointment of new judges in several jurisdictions as well as the announcement of the 2014 Silks appointments.

The Attorney-General, Hon. Christopher Finlayson, has announced the appointment of the Hon. Sir Mark O’Regan to the Supreme Court and the appointment of the Hon. Justice Ellen France who will replace Sir Mark O’Regan as President of the Court of Appeal. The Hon. Justice Mark Cooper has been appointed a Judge of the Court of Appeal to fill the vacancy created in that court. The appointments will take effect on 1 September 2014.

Other judicial appointments include Bruce Corkill QC to the Employment Court, and Wellington based Crown Counsel Stephanie Edwards, David Sharp from Gisborne and Chris Sygrove from Wellington, who have all been appointed as Judges of the District Court. In addition, Belinda Pidwell of Tauranga and Alisdair Menzies of Hamilton will be appointed to the District Court bench in July.

EDITORIAL COMMITTEE Clive Elliott QC - Chair Tel: +64 9 309 1769 Email: elliott@shortlandchambers.co.nz

The announcement of 14 new Silks was made in early June and the ceremony dates have been confirmed as follows:

Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz

WELLINGTON - Wednesday 20 August at 2.30pm - David Laurenson, Matthew McClelland, Matthew Palmer and Paul Radich

CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 21 679 061 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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AUCKLAND - Thursday 28 August at 2.30pm - Russell Bartlett, Stephen Bonnar, Paul David, Marie Dyhrberg, Antonia Fisher, Paul Rishworth and Paul Wicks DUNEDIN - Friday 29 August at 2pm - Anita Chan CHRISTCHURCH - Wednesday 3 September at 11.30 am - Prudence Steven and Peter Whiteside

NZBA will be hosting dinners to honour the new appointments.

Details will be announced shortly.

World Bar Conference 2014 – 4-6 September 2014 Queenstown Organising committee Chair Kate Davenport QC and Deputy Chair Simon Foote have confirmed 27 speakers from eight jurisdictions.

We have had registrations from advocates and barristers from many countries and it will present an excellent opportunity to meet both local and overseas colleagues and members of the judiciary. Limited places are still available. Register before it is too late. More information and online registration is available on the NZBA website.

Appellate Advocacy Workshop – 7 & 8 September – Queenstown We have secured senior judges and advocates from 6 jurisdictions as teachers and trainers. The workshop will involve two intensive days of teaching, practical demonstrations and participant performance. Performances will then be reviewed by the highly experienced judges and trainers.

The workshop is full but we are taking applications for the waiting list in both civil and criminal streams. More information is available on the NZBA website. www.nzbar.org.nz Submissions The Law Reform Committee has recently provided a submission on the Chief Justice’s In-Court Media Review Panel. The submission is available to be viewed at http://www.courtsofnz. govt.nz/In-Court-Media-Review.

Melissa Perkin

From the Chief High Court Judge

By Hon. Justice Helen Winkelmann Appointments and retirements Justice Moore was sworn in on 21 March and sits in Auckland.

Justice Rodney Hansen retired in mid March.

List and Liaison Judges From 1 July the list and Hon. Justice Helen Winkelmann liaison judges who oversee workload matters in the circuit are as follows: Auckland civil list judge – Venning J Auckland criminal list judge – Lang J Waikato/Bay of Plenty Liaison judge – Brewer J Whangarei/New Plymouth/Gisborne liaison judge – Heath J Wellington list judge – Dobson J Wellington criminal list judge – Simon France J Christchurch list judge – Gendall J Notification of Judicial Review Lists – June 2014 The High Court instituted Judicial Review Lists (JR List) in Auckland (April 2013) and Wellington (December 2013), to ensure the efficient management of judicial review cases and that urgent cases are promptly heard and determined. Collins J runs the Wellington list. In Auckland, Ellis J will run the list from August (taking over from Cooper J).

Once a proceeding is listed, counsel are sent a check list of things to be addressed at a callover. If parties cooperate and file a joint memorandum dealing with these, appearances at the callover can usually be dispensed with.

In Wellington, the list is conducted on either the first Monday or Tuesday of each month (depending on the list judge’s availability). Cases that are ready for hearing are allocated a fixture.

Since the JR List was introduced in Wellington the average time from the commencement of a judicial review proceeding to a fixture is five months. Urgent cases are able to be heard sooner than this.

In Auckland, cases are called every Thursday at 9 am, when timetabling orders are made and in most cases a fixture is able to be allocated for the hearing of the substantive application. This is typically within 2 months to 3 months of the callover.

Meetings with the profession Lang J and I visited the Hamilton and Tauranga courts in late April and also met with the local profession. At those meetings I gave a general overview of the work of the High Court, particularly how the new civil and criminal procedures are operating and spoke about the rostering arrangements in the area (generally there are two judges in the area in any week).

An area of concern for practitioners was the intermittent reliability of audio-visual facilities which are used for the majority of Criminal Procedure Act pre-trial appearances. The Ministry of Justice is working with its suppliers to improve reliability in an environment where there is a mix of old and new technologies and equipment.

In May, Wylie J (one of the earthquake list judges) and I met in Christchurch with members of the profession who have proceedings on the earthquake list. Much of the discussion focused on procedures which would reduce the cost of proceedings, particularly with the use of experts. Those present commended protocols/draft report formats as a way to ensure relevant and concise information was provided. Some of the case management improvements from the earthquake list are now being used in the leaky building list in Auckland which is now overseen by Fogarty and Faire JJ and Judge Bell.

Media matters Submissions to the Chief Justice’s in-court media guidelines review closed at the start of the month. There are a good range of responses from the legal profession, the media and universities. The review team (Ronald Young J and Asher J (chair) and Judge Russell Collins) will report to the Chief Justice by year end.

The courts and the media have a symbiotic relationship. The courts rely on the media to report fairly and accurately about its proceedings so that the public may know about its proceedings and judgments and ultimately have confidence in the court system. Media have special status before the courts, particularly under the Criminal Procedure Act. Over the last nine months or so, members of the Media and Courts Committee and I have met with media organisations and court reporters in the main centres. The meetings will conclude in Christchurch at the end of June. The meetings so far have allowed us to explain to media representatives the court’s concerns about some practices as regards fair trial rights and for the judges to hear the media perspective about obstacles to accurate reporting.

To assist the media in accurate reporting, a list of the most common statutory prohibitions against identifying defendants

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and witnesses has been posted on the Courts of New Zealand and Ministry of Justice websites.

courts, the court is able to provide trial dates at a time the parties say they will be ready.

Workload New criminal business continues to fall. The 12 month figures for the year ended 30 April show there were 22% fewer (42 cases) new cases than in the previous year. There are no longer any purely High Court cases pending in the District Court that are to be committed by the Summary Proceedings Act procedure and about 40% of the current criminal caseload is made up of Criminal Procedure Act cases. Indications are that this fall off in cases is transitional only. It seems the new protocol procedure has been poorly understood. We are working close with Crown Solicitors and registries to address that.

Annual review The 2013 High Court Annual Review was published in early April. It can be found at http://www.courtsofnz.govt.nz/ from/judicial-reports Ngā pānui i te reo Māori From 2012, Court announcements have been made in English and Maori. These announcements are now available on the Courts of New Zealand website at http://courtsofnz. govt.nz/business/court-announcements-in-maori

Civil jurisdiction The adjudication rate – ie the proportion of disposed cases disposed of by trial (rather than summary judgment or settlement) – was 10% for the last year.

Time to trial continues to reduce. In the last 12 months, the median time to trial reduced 41 days (to 415 days) and the average time to trial reduced 42 days (to 509 days). Leaving aside very long cases, and longer cases in some circuit

WORLD BAR CONFERENCE 2014

ADVOCATES AS PROTECTORS OF THE RULE OF LAW 4th to 6th September 2014 Heritage Hotel, Queenstown, New Zealand Hosted by the New Zealand Bar Association, the World Bar Conference 2014 will bring together members of the International Council of Advocates and Barristers and guest jurisdictions to hear from some of the best legal minds and for discussion and debate.

Register before it closes: www. nzbar.org.nz.

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www.nzbar.org.nz

Post-Steigrad: What Should I Ask My Broker?

Jennifer Calder, Senior Risk Advisor and Mark Rogers, Risk Advisor, Marsh* Steigrad – A Brief Recap The Supreme Court ruling issued in December last year in BFSL v Steigrad [2013] NZSC 156 (“Steigrad”) has received considerable attention both within and outside of insurance circles, and quite rightly so: anyone who purchases a liability policy is potentially affected.

Traditionally, liability policies comprise a single limit of indemnity combining third party compensation and defence costs. After last December’s Supreme Court ruling, this ‘combined limit’ approach potentially puts an insured’s ability to access their defence costs at risk if a third party claim exceeds the insured’s limit of indemnity. Below we will focus on the implications of this on professional indemnity policies, but the same scenario could apply to all liability policies including: • Directors & Officers Liability Insurance • Statutory Liability • Employers Liability • Fidelity • Cyber Liability and Privacy Risk Cover What should I be asking my insurance broker?

The Steigrad ruling prompts some important questions to be raised during your next chat with your insurance broker.

Are my limits of indemnity high enough?

Of course, there is no magic formula to prescribe how much cover you need. Contrary to, say, a material damage policy where it is simply a matter of totalling up the cost of replacing an item if it has been damaged or stolen, liability insurance is a whole different matter. Each individual will be unique and there is no “one size fits all” answer; one can only make a well-informed guess. Questions to consider in one’s decision-making may include: • What is the highest value transaction I have been involved with – this can provide an indication of the worst case loss scenario you could face; • What is the size of the clients I am acting for – this can provide insight into the ‘fighting funds’ of potential claimants; • What are the average fees I am earning – this can provide insight into compensation awarded against you; • What is the nature of the work I am doing – the more complex the work, the more complex a claim arising from the work may be; this can provide insight into the level of defence costs required to defend a potential claim.

Do I have a solution in the event I face a claim that exceeds my limit of indemnity?

This is a new part of the insurance conversation in a postSteigrad era. We recommend an insured decides with their broker how to structure the policy, so that there are funds available to fund a defence, in the event of a significant claim that is in excess of the limit of indemnity, and a charge potentially arises under s 9 Law Reform Act 1936.

Insurers have formulated a range of solutions to choose from to address this issue, including: • Splitting the limit to ‘ring-fence’ defence costs in a separate limit – the caution with this option is that an insured is potentially compromising the overall amount of insurance cover available

by specifying a certain amount is only for defence costs; • Adding another ‘Defence Costs only’ or ‘Costs and Expenses’ policy to your programme – there are a number of insurers who offer an entirely separate defence costs policy to supplement your existing liability policy; • Increasing your limit of cover and endorsing the policy with a clause addressing what happens in the event of a s 9 charge arising – some insurers have clauses that can be added to the existing liability policy that specifically addresses what occurs in the event of a s 9 charge.

I have decided to split my current limit/purchase a separate Defence Costs policy…How much defence costs cover is enough?

Similar to the question of how much overall cover is necessary, there is no magic formula here. One can only make a well-informed guess at the level of defence costs to purchase, that provides one with some comfort. We point out that a s 9 charge indicates the third party claim is in excess of the insured’s overall insurance limit; a high value claim is likely to necessitate a high value defence team.

Lawyers may be the most well-positioned to know how high the cost of litigation and defending an action can be, but Marsh can provide some rough cost indications based on anecdotal statistics of defence costs: Trial Duration “Short” 2-4 week trial “Medium” 3-4 months “Long/very long” civil trial of 6+ months

Preparation time Legal Costs 1 – 2 years $1.5m - $2m + 2 – 3 years $3 - $5m + 3 – 5 years

$10m +

The solutions provided by insurers in response to the Steigrad litigation are still in their infancy and their practical operations are yet to be tested. However, Marsh recommends having the discussion with your broker as to what would happen to your insurance policy in the event a claim exceeded the full amount of your annual limit, and going through the options available.

Marsh recommends that NZBA members revisit the level of their liability insurance cover and how their policy is structured with regards to defence costs. Marsh is currently working closely with NZBA’s insurers to develop a pragmatic solution to the risk of a s 9 charge arising to a member’s policy. We will shortly be offering existing NZBA policy holders the option to purchase costs and expenses cover that is ring-fenced from – and is in addition to – their overall limit.

Questions? Comments?

If you have any comments or concerns, we welcome the opportunity to discuss this or any other insurance requirement with you.

Please contact Clinton Stanger or Mark Rogers.

Telephone: 0800 627 744 *Jennifer Calder BA/LLB (University of Auckland) is a Senior Risk Advisor at Marsh and specialises in Professional Indemnity and Directors & Officers Liability insurance.

Mark Rogers is a Risk Advisor at Marsh specialising in Barristers and Solicitors Professional Indemnity.

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New Zealand Bar Association’s Mentoring Programme Jacqui Thompson* The NZBA recognises that different levels and types of support may be needed at different stages of a barrister’s career. In the early stages, professional rather than business concerns may be more relevant, while at the intermediate stage, business issues or career direction might be more prominent. The NZBA’s mentoring programme is aimed primarily at less experienced practitioners and members who are new to the Independent Bar. Because of the different levels of support required, it is an informal arrangement that is made between a mentor and mentee. It is important to note that the mentoring system is not a “friends’ panel” or a form of coaching that can be substituted for formalised CPD.

if they have been used to the support of a large firm with qualified staff making administrative decisions for them.

It can seem overwhelming to strike out on one’s own.

There are a multitude of business needs and professional obligations to navigate.

What is mentoring?

The University of Cambridge website describes a mentoring programme as “…a system of semi-structured guidance whereby one person shares their knowledge, skills and experience to assist others to progress in their own lives and careers.”1 It goes on to state that it is more than giving advice or passing on experience and is about motivating and empowering another person to identify and achieve their goals or resolve their issues.

How to choose a mentor When choosing a mentor it is important to think about what a suitable match might be. There should be a match of relevant expertise and communication styles. For example, if a mentee works mainly in the criminal field, choosing a barrister with little or no criminal experience may not be the best move.

When you speak to people about mentoring, often they talk in terms of people who promoted their career aims, such as a partner who guided and fed them work when they started in their career. The role is seen as a mixed coach or advocate of someone’s career. Men in particular seem to perceive the importance of mentoring as a method of career advancement or promoting new opportunities.2 Many law firms now have formalised mentoring programmes for juniors who begin their careers at firms or who may have joined the firm in their early years. Given the concern at the too slow closing of the gender gap, there is increasing attention being given to mentoring women – particularly in the light of research that says early years mentoring can increase job satisfaction and retention of women in the profession.

However for barristers, mentoring may be necessary when they first decide to join the Independent Bar, particularly http://www.admin.cam.ac.uk/offices/hr/ppd/pdp/mentoring/what/ Champion Carter et al “Mentorship: use it to get the “corner office” 2010 Georgetown University Women’s Leadership Initiative; Executive summary.

Mentors are not business analysts, therapists or coaches.

Nor will they be able to answer all questions for a mentee.

A mentor may however be a sounding board and in this way, help the mentee sort out priorities, as well as perhaps suggest alternatives and give a more analytical or dispassionate summary of a situation. They may also be able to suggest people who can help with particular issues.

There is a divergence of opinion on whether gender is relevant to the mentoring relationship. Although a recent study suggested that this was an issue for women, a contradictory report revealed that of 34 top female US CEOs, 33 had identified a male mentor as having had the most significant impact on their careers.3 This may of course reflect that there were more men available in senior positions to act as mentors than women at that time, but it does also suggest that gender is not as relevant as some might think. In fact, one commentator notes:4 “Many women believe that the only worthwhile mentor is someone whose gender, life choices, and lifestyle align with their own. This myopic perspective restricts the pool of potential mentors and limits the developmental value of the mentors they find.”

What should you expect from a mentor?

Expectations of the mentoring relationship vary according to the individuals involved, but as in all relationships, it is important to set these out at the beginning. Agreement should be reached on issues such as: Jones, D “Often men help women get to the corner office “ (2009, USA Today) Abbott, Ida O “Women and mentoring: Debunking the myths” Of Counsel 20.5 (May 2001): 17

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• confidentiality; • honesty and courtesy in communications; • a period for the relationship – e.g. until a particular issue is resolved, a finite term, indefinite?

• sharing of expertise and knowledge/skills – are there limits in this respect?

• how to communicate and how often (for example, you may prefer monthly Skype sessions to email or in person meetings); • feedback on the relationship.

It is likely to be the mentee’s responsibility to initiate contact, particularly when dealing with busy senior barristers.

However, if the relationship is not working, for whatever reason (pressure of work, mismatched communication styles etc), either party can end it without recrimination. The mentee can then request an alternative arrangement.

Becoming a mentor There are many qualities that make a good mentor and not everyone will have most of them, let alone all. This should not deter anyone from becoming a mentor if they have a genuine interest in helping. Some of the qualities needed are: • Ability to maintain confidentiality; • Desire to help people succeed and to promote

excellence in the profession; • Reliability – if you make an appointment, keep it; • Ability to listen without judging; • Ability to reflect back relevant issues, check

understandings and provide a dispassionate view while maintaining a sense of empathy; • Understanding that the role is to help the mentee sort out their own issues rather than you solve them for them; • Encouraging and passing on expertise in a helpful manner.

When taking on a role as a mentor it is important to make the time to communicate regularly and respond to reasonable communications. Litigators can suffer from tunnel vision while preparing for hearings, and meeting for a coffee won’t always be possible. However a five minute phone call, an email or a brief Skype session may be all it takes to assist a mentee.

How to apply for mentoring Potential mentees will find a list of available mentors on the NZBA website. A list of three preferred mentors should be chosen. Please fill in the application form on the website and send it to the Executive Director, Melissa Perkin, who will then consult with the mentors as to availability. Mentees will be advised of the outcome.

Applying to be a mentor Mentors should also fill in the application form on the website and send it to the Executive Director. An outline of their experience will be required.

A NZBA mentoring experience This account is based on a recent mentoring relationship.

The names of the participants have been changed for confidentiality reasons. The account was given during a courtesy follow up by the NZBA to check on how the relationship was working.

Ben approached the NZBA requesting a mentor. At the time Ben had been finishing his Masters while working as a junior barrister for the previous six months, mostly doing criminal work. He had questions about the best way to move his career forward. He had a job offer from one of the big law firms and wasn’t sure if he should go to the firm or persevere at the Bar, where he ultimately wanted to practise.

Ben had initially asked for a mentor from a group of three senior silks. However, a senior criminal barrister, John Smith, had just applied to become a mentor and the NZBA team suggested to Ben that this might be a better match given the matching work areas.

John was very helpful and accommodating in making time to see Ben. After discussing the options, John recommended that Ben consider in more depth the option of taking up the position offered by the law firm. He suggested that there were advantages to starting a career in such a firm, as the big firms in particular offered great training and it was an excellent way to make contacts for a future life at the Bar. Ben was very positive about his experience with John.

He said that John had told him to feel free to contact him about any work related issues, be they ethical, legal or even personal. Ben felt John’s comments were very useful in clarifying his options and the advantages or disadvantages of each. While as a result of the mentoring experience he left the Bar, he still felt that he would end up there in the future, when he would be better prepared for the experience.

Ben emphasised that the success of a mentoring relationships comes down to a balance between availability and consideration. The mentors tend to be very busy and it is important that the mentee recognises that they have to follow up on contact but not to be overly demanding.

An interesting feature of this mentoring experience was that John’s advice and comments were focussed on Ben’s needs rather than keeping Ben at the Bar. This is exactly what would be expected of a mentor – disinterested advice with no agenda. John reported that he very much enjoyed the experience of mentoring Ben and he would like to do more mentoring in the future. * Jacqui is the NZBA’s Training Director.

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Juniors at the Bar We asked some juniors (i.e. barristers with 3-7 years PQE) to describe their paths to the Bar and what the challenges and rewards were for them. The first, Arlan Arman, is a criminal barrister. The second description comes from Anja Borchardt, a barrister specialising in civil and commercial litigation, whose career began as a lawyer in Germany. While their pathways to the Bar were not necessarily typical of all juniors, their insights had a commonality with what other barristers said.

Arlan Arman* I began my legal career as a litigation law clerk with Chapman Tripp.

Soon after, I joined chambers with Quentin Duff and Howard Lawry where I practised for several years as a junior barrister. I founded Arman Law shortly after I left and have been enjoying private practice since. I practise primarily in criminal defence.

I became a barrister because I value freedom – freedom to run my own cases, set my work hours and make my own mistakes. I enjoy the independence, as well as the assurance that I reap the rewards (and repercussions) of my labour.

My experience is a little different from most junior barristers, because I don’t work under a senior or in a chamber with other barristers. This is both good and bad. It’s good because I have more autonomy than most junior barristers in my position. I also directly profit from the work I put into my cases and how I run my practice. However it’s bad because I lack the support structure and mentorship that others would have from working with senior barristers.

In terms of trial experience, I was very fortunate to be involved with a large number of trials when I worked with Quentin Duff. Without my time with Quentin, I wouldn’t have the experience to feel comfortable going out on my own.

When I juniored on trials, I learnt that there are good days and bad days – and to take both with equanimity.

Since coming to the Bar, I realise that learning opportunities generally come in the form of mistakes – and that embarrassment is often the price of improvement. A thick skin is probably the foremost quality in a good advocate.

In my experience, the biggest challenges facing junior barristers are mental and emotional. Speaking for myself, isolation goes hand in hand with freedom and autonomy.

Most of your peers don’t necessarily work the same hours as you, and it can be depressing sometimes when you

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realise you don’t have an office full of people to talk to or Friday night drinks to go to.

Many junior barristers are concerned about the financials of going out alone. And so they should be. The pay is dismal in the beginning. But in my experience, word of mouth propagates at an exponential rate. So above all, I focus on doing good work and maintaining my reputation. When I do that, the finances invariably take care of themselves – “making money” is no longer among my concerns.

A criminally neglected technology that could be put to better use with current barristers is cloud storage and multi-device cloud access. I don’t bother with cumbersome paper files anymore.

Everything is scanned and uploaded to the cloud, and printed out only when necessary. The cloud is more efficient (and better for the environment). Some services are also completely free, such as Google Drive, DropBox, etc but you need to be aware of security issues around whatever you use. Another alternative is OneDrive which is particularly good if you already use Microsoft’s office suite.

The greatest advantage of life at the Bar is being your own boss. The ability to choose when to work, how to work, and where to work is liberating, especially if you’ve ever worked in a firm environment. Having said that, there’s nothing scarier than the first time you realise that if you don’t do any work, you don’t get to eat that week.

I spend time with my friends and family. I do Crossfit a few times a week. Read books regularly. Try to learn something new every day. Practise mindfulness meditation daily, without fail. Otherwise I’m on my lifestyle property, doing my best to avoid the Auckland rush.

My advice to a junior looking to join the Bar? Above all, be resilient. Your success isn’t determined by your intelligence, talent, social nous, or arguably even your hard work. Your success is determined by your ability to keep going no matter what gets thrown at you. * Arlan can be contacted via his website at http://www. underarrest.co.nz/about-us/

Anja Borchardt** I became a barrister sole and a member of chambers the day I got admitted in New Zealand in July 2008. I was not part of any formally structured “junior” scheme, but I had already worked on my own account as a law clerk in my chambers for a couple of years by then and also had previous experience in law firms. I now provide junior support to the barristers at Bankside Chambers and other sets of chambers, as well as managing my own matters independently.

The current rules requiring three years of supervised practice before becoming a barrister sole make a lot of sense to me.

My situation was different because I had previous legal experience having first qualified in law in Germany in 2002 and was therefore also a bit older than the average “junior”.

Other options for young lawyers to gain some experience at the Bar would be to participate in a formal junior programme or become employed by a barrister or a group of barristers. I would say that that sort of structure would be a better starting point for young lawyers. A role as a junior at the Bar early on can be a great experience, but in terms of long-term career planning, I would discourage juniors from staying in one of those roles for too long (a maximum term of two years seems sensible).

I do believe that if a young lawyer’s long term ambition is to go to the Bar, he or she will need experience in one or more law firms, ideally in a practice area that gets them on their feet. It probably does not matter too much which particular practice area that is. The experience young lawyers get in firms and also the connections they make to other practitioners during that time (who might become their instructing solicitors later on) are invaluable.

So when is the best time to go to the Bar? Probably in your mid-30s, or later, if you want to be a little more financially secure before taking the plunge. Selfemployment obviously carries risks and you will have a fluctuating income with often a considerable amount of overheads that need to be paid regardless of whether money is coming in or not. Working a lot does not necessarily translate into immediate payment. In addition, things like office infrastructure, access to databases, subscriptions and memberships to professional organisations, attending conferences, generally do not come cheap.

While legal ability is of course key, it will only be one factor for success. In my view, a large degree of self-discipline, self-motivation, and the ability to manage yourself as a one (wo)man business will be essential. ** Anja can be contacted at Bankside Chambers: anja@borchardt.co.nz – for full contact details see http://www.bankside.co.nz/Barristers/AnjaBorchardt.aspx

Junior Barristers’ Function 2014 Jacqui Thompson* Desley Horton organised and hosted our annual juniors’ function for the second year in a row. Desley will shortly be leaving to study at Stanford University. We wish to acknowledge her contribution to the NZBA and wish her well with her studies. Photos from this event appear later in this issue at p28. both from Shortland Chambers. This event was a great opportunity for barristers with up to 7 years PQE to meet and share experiences, and for those thinking about pursuing a career at the Bar, to gain an insight into what that might involve.

Our annual junior barristers’ function was held on 26 June 2014. Once again it was kindly sponsored and hosted by Shortland Chambers, and organised with her usual flair

by Chamber’s Manager, Pamela Caldwell. Our speakers this year were Jenny Cooper and John Billington QC,

Jenny Cooper is a commercial litigator specialising in company and securities law, insolvency, fair trading and consumer finance issues, and competition law. Prior to joining Shortland Chambers, Jenny was a partner at Bell Gully. She is a member of the Council of the Legal Research Foundation and the New Zealand Law Society’s Civil Litigation and Tribunals Committee.

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Jenny discussed how she came to be at the Bar and admitted that in many ways, it wasn’t a planned move but grew out of a sense of not gaining as much satisfaction from her career as she had in the past. She talked about four characteristics of life at the Bar that she had particularly noted.

The first characteristic was time, and in particular how there was more of it. Life in firms involves a lot more admin and marketing which can eat away at your disposable time. However, having more time can mean a greater tendency to waste it and there is therefore a corresponding need for more discipline. It is however, Jenny noted, a great luxury to be able to determine for yourself how you will use that time.

The second characteristic that Jenny discussed was money. When first moving to the Bar this can be in short supply until you have established yourself. Accordingly her advice would be to avoid moving at a time when you are highly leveraged, as this would have the potential to be very stressful.

Branding was the third characteristic Jenny considered.

It is not possible for barristers sole to compete with the law firms in marketing spend, although some chambers do offer marketing support. As a result of this, barristers are not particularly visible in some areas. For example, corporates tend not to understand how the Bar works and the advantages of using barristers. In-house counsel often don’t get it and don’t know where to look for a barrister.

This is why the Queen’s Counsel brand is important. It is an exception to the low visibility of barristers in general. The role is critical as it provides recognition of the Bar and establishes it as the place where the best litigators can be found.

Finally, Jenny drew attention to the role of women at the Bar. She acknowledged that there is a degree of unconscious bias and practical difficulties when practising as a woman in a law firm. But the Bar doesn’t have that problem to same extent. It is more accommodating of diversity and less hierarchical.

John Billington QC has, as Jenny said, a practice that ranges across civil, public law and criminal law, including cases that involve the three biggest evils of our time – murder, fraud and leaky buildings.

John highlighted five factors he considered to be important. He began by posing the question of what is a lawyer? He has in his time appeared in professional disciplinary proceedings and he noted the value that practitioners place in remaining on the roll. Legal practice

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is a profession with core values – not an industry. Lawyers have an overriding duty to the Court, but they also have a duty and obligation to the public and to maintaining public confidence in the profession. It is important that all lawyers remember that they are contributing to rule of law which has a central place in New Zealand. He urged those present to remember this and to consider how they might contribute, including by doing pro bono work.

John then talked about the limitations on lawyers in terms of how far they can go. He said that there are none.

The only limitation practitioners have is themselves. Lawyers could succeed beyond their current capabilities by taking considered risks, such as stepping outside their comfort zone and taking on a case that is outside their area. The first time a lawyer does that, there is a steep learning curve. But having done it once, it becomes possible to do it again and to build up expertise. Lawyers must be adventurous to create change.

Another issue John considered was how you maintain interest over your career. It was his observation that to be a lawyer you must like helping people and making a difference to their lives. Everything you do as a lawyer involves people – even when representing large corporates. Making things better for people is where the reward comes from. And the ultimate reward is to be able to do this for decades during a career.

John next turned his attention to the nature of advocacy. Advocacy is not, he stressed, a sledge hammer. It is ultimately the art of persuasion. As an advocate, you have to start by knowing what your goal is. You should then (in the words of the Hon. Robert Fisher QC) be able to summarise your argument on one sheet. He stressed that there is no problem so big that it can’t be made smaller.

Gender and age was another aspect of legal careers that John addressed. He said that one obstacle that had to be overcome was clients who refused to engage with women lawyers. This is an issue that needs to be addressed head on. In terms of age, firms have changed in their attitude to age. He noted that partners are now squeezed out as they get older and this had led to a loss of knowledge within many of these firms. He said the Bar is better placed to acknowledge their contributions, expertise and mentoring ability.

Finally, John considered career planning. Given the pressures of today’s legal profession, he believes there is a need for practitioners to do some planning. In particular, he thinks it is wise to pause every now and then and consider if you are still getting satisfaction from what you are doing, and whether you are on the track you want to be on.

Jacqui is the NZBA’s Training Director.

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11

Welcome Back Silks: Why the Return of the QC Rank was Entirely Justified David A R Williams QC and Thomas Clark 1

2

This article was previously published in an abbreviated form in the New Zealand Law Journal. We thank Mr Williams for his permission to publish it in full in this issue of At the Bar. The rank of Queen’s Counsel (QC) was utilised in New Zealand between 1907 and 2006 to identify and recognise outstanding members of the Independent Bar. In 2006 that rank was terminated by the Labour Government and replaced by the Senior Counsel (SC) regime which permitted members of law firms to be appointed SCs. The Lawyers and Conveyancers (Amendment) Act 2012 eliminated the SC regime and restored the rank of Queen’s Counsel. In order to preserve the necessary independence and objectivity of Queen’s Counsel the Act restricts appointments to barristers sole. In May 2013 the Attorney-General announced the appointment of 26 barristers as Queen’s Counsel. The return to the status quo should be warmly welcomed. By contrast, the intimation by the former shadow Attorney-General Mr Charles Chauvel that a future Labour Government intended to remove again the rank of Queen’s Counsel was unfortunate as well as untimely. As explained below, the reasons given by Mr Chauvel for such a planned reversal are unsound. The short experience with the rank of Senior Counsel, which is discussed below, has exposed the inherent problems with that regime.

History of the rank In New Zealand, appointments to the rank of Queen’s Counsel or King’s Counsel (KC) have been made since 1907. Since then, 265 lawyers have been appointed to the rank. Queen’s Counsel take precedence in Court after the Attorney-General and Solicitor-General. Precedence amongst Queen’s Counsel is determined by seniority in terms of date of appointment.3 Queen’s Counsel wear silk gowns and are widely known as “silks”. In New South Wales where there exist for historical reasons both QCs and SCs, SCs are colloquially known as “rayons”.

Barrister, Bankside Chambers, Auckland and Singapore (QC, 1987).

Legal Assistant to David Williams QC. 3 Sir Noel Anderson “Queen’s Counsel — Origins, Development and Present Significance” (unpublished paper, June 2000) at 2.

1 2

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Until 1915, KCs could practice alone or in a firm, but they were required when appearing in the Supreme Court to have a junior from another firm. However, this system proved unsatisfactory for a number of reasons, including alleged favouritism of particular juniors by KCs; the practice of “freezing juniors” (whereby juniors were selected merely for the sake of form); and the tendency of clients desiring to utilise a KC to be expressly or impliedly required to instruct the KC’s firm for the solicitor’s work on the case. Such dissatisfaction led to the enactment of s 3 of the Law Practitioners Amendment Act 1915, prohibiting silks from practising as solicitors. In 1935 Parliament reinforced the prohibition on joint practice through the Law Practitioners Act Amendment Act 1935.4 Both the Law Practitioners Act 1955, s 15, and the Law Practitioners Act 1987, s 62, provided that: “No barrister of the rank of Queen’s Counsel shall practice as a solicitor, either alone or in partnership with any other solicitor, and no practising certificate as a solicitor shall be issued to any such barrister.”

On 12 August 1991 the former Chief Justice, the Rt Hon Sir Thomas Eichelbaum GBE, and the then AttorneyGeneral, the Hon Paul East QC, issued a Practice Note for their intended procedure for the appointment of Queen’s Counsel. Clause 11 of the Practice Note emphasised the statutory position in stating that: “Queen’s Counsel will continue to practice only as barristers and not as solicitors or as partners in a legal firm.”5 However, in 2006 the Labour Government decided to follow the example of the Australian states and abolish the rank of QC. The Lawyers and Conveyancers Act 2006 replaced the title Queen’s Counsel with Senior Counsel and purported to make the selection process more transparent. The 2006 change also dispensed with the requirement that Queen’s Counsel should practice as barristers and not solicitors. Seven SCs were appointed in 2008, most of whom were practising in law firms. At the same time, existing Queen’s Counsel were given the option of electing to assume the new title of Senior

Peter Spiller discusses the history and foundation of the office in further detail in “Queen’s Counsel” [2000] NZLJ 371.

Rt Hon Sir Thomas Eichelbaum and Hon Paul East QC “Procedures for appointment of Queen’s Counsel” (1991) 356 LawTalk 9 at 9.

4 5

Counsel. None chose to do so.

After its re-election in 2008, the National Government announced in June 2009 that it would revert to the original position.6 Following consultation with the legal profession, the Lawyers and Conveyancers (Amendment) Act 2012 reintroduced the rank of Queen’s Counsel and restricted those eligible to Queen’s Counsel to barristers in sole practice. This change allowed the existing SCs to switch and become QCs if they wished. It is a matter of interest that all SCs, including some with known Republican sympathies, immediately did so.

Labour’s then Shadow Attorney-General Charles Chauvel condemned the Government’s decision to return to the designation of Queen’s Counsel.7 His opposition was based on three grounds. First, he noted that Australia had dispensed with QCs.8 However, some Australian states are now following New Zealand’s example by reinstating the rank of Queen’s Counsel. In 2013, after 18 years with SCs, Queensland followed New Zealand’s recent move and reinstated the rank. The Queensland government considered that the title was more distinguished and highly regarded internationally. The Queensland government was also concerned that the initials SC might be mistaken for special counsel (a term used by some law firms for solicitors who are not partners). Of the 74 people who were appointed Queensland “rayons” after the QC title was dropped in 1994, 70 opted to revert to the title QC. Barristers in Victoria are reported to be urging the Victorian Bar Association to seek a return to the QC designation.9 Secondly, Mr Chauvel suggested that limiting those eligible to the rank of Queen’s Counsel to barristers sole restricted the diversity of the senior legal profession.10 However, as discussed below, there are powerful reasons of principle why independent barristers only should be called to the Inner Bar. Thirdly, Mr Chauvel expressed reservations over a perceived lack of transparency in the manner in which Queen’s Counsel were to be selected under the Lawyers

and Conveyancers (Amendment) Act 2012. But the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 201211 provide that the Chief Justice and the Attorney-General may issue guidelines which set out criteria by which Queen’s Counsel are appointed. These guidelines are freely available and can be obtained from the Crown Law Office website.12 The listed criteria include: excellence, knowledge of the law, oral and written advocacy, independence, integrity and honesty and leadership.

Advantages of QC Rank — Advancement of the Administration of Justice There are clear advantages to having a title by which senior members of the Independent Bar may be recognised.

First, the rank of Queen’s Counsel is widely known and understood as a mark of professional distinction at the Bar. At a recent Call to the Inner Bar the Chief Justice noted that the advancement of the administration of justice was the central justification of the QC rank:13 “Meeting the needs of the people of New Zealand in the administration of justice is the only justification for this distinction. There is very little obtained by receiving a patent as silk. It is what is made of it that counts.

The office exists to maintain the standards and the independence of counsel appearing before the courts and to ensure that skilled legal services are available to the public. Those appointed have the confidence of the judges they appear before.

They are expected to lead the profession by example. [Sir Ronald Davison] once said that the place at the Inner Bar is reserved for those who are upright, learned and brave.

Queen’s Counsel justify their appointments by demonstrating those qualities in all their work.”

These objectives are captured in the following declaration that every Queen’s Counsel must make at his or her call.

English form “I [name] do declare that I will well and truly serve all those for whom I may be called upon to act in the rank of Queen’s Counsel to the

NZPD, above n 5, at 5601.

Hon Christopher Finlayson “Government to restore Queen’s Counsel” (press release, 17 June 2009).

(25 September 2010) 684 NZPD 5601.

9 Michael D Wyles SC “On with her Head: ‘Queen’s Counsel must be Reinstated’” Victorian Bar News (online ed, Winter 2013) at 34¬–35.

10 At 5601.

11 At 5601.

12 Crown Law Office <www.crownlaw.govt.nz>.

13 Sian Elias, Chief Justice of New Zealand, “Upon the Admission to the Inner Bar of Paul Dacre, Frances Joychild, Graham Kohler, David Chisholm and Neil Campbell” (Auckland No. 1 High Court, 22 July 2013).

6 7 8

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best of my knowledge and ability, with due respect to the law and usages of New Zealand, and mindful always of my obligations to this honourable court.”

Maori form “E whakapuaki nei ahau, a [ingoa] kia tino pai, kia pono hoki tāku mahi mā rātou katoa ka karanga i a au hei Rōia nō te Kuīni, ki tāku mōhio tino pai rawa, ki tāku hoki e tino āhei ai, ki to whakanui anō i te ture o Niu Tīreni me ōna tikanga whakamahi, ki te whai whakaaro i ngā wā katoa ki ōku tiakanga ki tēnei kōti kahurangi.”

This declaration replaced the original Queen’s Counsel declaration in 2006 and has since been retained under Reg 9 of the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012. The original declaration is almost identical to the oaths taken by King’s Serjeants and Serjeants-at-law14 which were reportedly written during the reign of Queen Elizabeth I (1558-1603).15 The text of the original Queen’s Counsel declaration is set out below. While its language is archaic, it captured truly the origins of, and justification for, the rank. It also provided a challenge to New Zealand QCs called upon to read it in open court, especially in the tongue twisting end to the penultimate sentence:

in the law but eminence in the practice of a barrister.”16 As noted above, in the early years of the rank in New Zealand, QCs could also practice as solicitors. That was, however, at a time when the Independent Bar was small, and few could afford to abandon practice as solicitors.

Today the Independent Bar is significantly stronger, and the division between barristers sole and those barristers who choose to also practice as solicitors17 is much more marked.

Given the existence of a strong separate Bar, were the office to be extended again to those practising as solicitors, the nature of the office would be again adversely affected and, to a certain extent, its importance undermined.

There is a strong ethical justification for selecting only barristers from the Independent Bar for the rank. Working as sole practitioners allows barristers to avoid the conflicts of interest which can arise from partnerships and employment relationships. There is an inherent conflict of interest in practitioners acting in litigation where they have been personally involved in the matter being litigated. Rule 13.5.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules) Rules 2008 prohibits this practice: “A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer’s practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.”

Original declaration “I do hereby declare that well and truly I will serve the Queen as one of Her Counsel learned in the Law, and truly counsel the Queen in Her matters when I shall be called and duly and truly minister the Queen’s matters and sue the Queen’s process after the course of the law and after my cunning. I will duly in convenient time speed such matters as any person shall have to do in the law against the Queen as I may lawfully do without long delay, tracting, or tarrying the party of his lawful process in that that to me belongeth. I will be attendant to the Queen’s matters when I shall be called thereto.”

Avoiding potential conflicts of interest Secondly, there are very good reasons for prohibiting QCs from practising in firms. The most important reason is to protect the necessary independence of the Inner Bar. Independence is a unique feature of barristerial work, as barristers elect not to be partners or to form any business association which might compromise, or even appear to compromise, that independence. As Sir Noel Anderson has stated, “appointment as Queen’s Counsel is appointment to a barristerial rank. … The grant of silk is esteemed because it demonstrates not merely eminence 14 Josiah Henry Benton The Lawyer’s Official Oath and Office (Boston Book Company, Boston, 1909) at 26, 30.

15 At 25.

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New Zealand courts have always been extremely critical when lawyers place themselves in such conflicting roles. In Kooky Garments Ltd v Charlton a dispute arose between a landlord and tenant over whether a lease had been agreed to by way of correspondence written by the tenant’s solicitor.18 At trial in the District Court and on appeal in the High Court, the tenant was represented by counsel who was a partner in the firm of solicitors which had acted for the tenant in the original negotiations.

Although counsel who appeared in both Courts had not written the correspondence, Thomas J considered there was an actual conflict which arose from the time when the landlords’ solicitors claimed that the correspondence created a binding agreement to lease. Thomas J considered that from that stage forward the tenant was entitled to independent advice free from considerations of possible personal liability on the part of the solicitors concerned.

Anderson, above n 8, at 6,7.

Spiller, above n 9, at 372.

18 Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 (HC).

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Awarding costs against the solicitors, his Honour observed:19 “Where the acts or omissions of the law firm, including situations where the actions of the client are based on advice given by solicitors, are at the heart of the question in issue, the firm is, in a real sense, “defending” its actions or advice. There is, in such circumstances, a danger that the client will not be represented with the objectivity and independence which the client is entitled to and which the Court demands. There is no sound reason to presume or accept that solicitors must first have the opportunity to clarify whether their client is liable as a result of their actions or of acting on their advice before confronting the conflict. […]

In such cases, apart altogether from the position of the client, the Court is not receiving the assistance of counsel who are observably independent.”

A recent and even more unattractive example of this problem is found in Vector Gas Ltd v Bay of Plenty Energy Ltd.20 There the actual authors of the correspondence which was said to form the alleged, but disputed, contract appeared for their respective clients in court proceedings.

One of them was an SC. Wilson J strongly disapproved of this conduct, stating that:21 “[147] Whatever the court or tribunal in which they are appearing, it is undesirable for practitioners to appear as counsel in litigation where they have been personally involved in the matters which are being litigated. In that situation, counsel are at the risk of acting as witnesses and of losing objectivity.

[148] These dangers have long been recognised. In 1940, Myers CJ stated clearly in Hutchinson v Davis that “[a] practitioner cannot be allowed to act in the dual capacities of counsel and witness”. Northcroft and Blair JJ agreed.

[149] The present appeal illustrates the risks of counsel losing objectivity and of acting as a witness if they were personally involved in that way. Because he had been involved in negotiating and recording the terms of the interim agreement, it may have been difficult for Mr Hodder to be completely objective as counsel in advising NGC whether to plead rectification from the outset, rather than after the hearing of the appeal to this Court. And, at that hearing, Mr McIntosh sought to explain what he submitted where the differing meanings of “$6.50 per gigajoule” in his letter dated 5 October by asserting that “this was war”. When asked whether the recipient of the letter should have appreciated that $6.50 was being used in a materially different sense

because of the words “on the basis of the Agreement”, Mr McIntosh protested that this was not a “fair question” to put to him. Enough said.”

Tipping and McGrath JJ agreed with Wilson J’s comments and Blanchard J noted that counsel’s ability to persuade was “distinctly hampered by having been party to the letters in question.22 Equality of arms — access to senior counsel Another persuasive reason for disallowing SCs in law firms has to do with the desirability of having QCs available to all who wish to employ them. In the 1915–2006 period, QCs at the Independent Bar were often engaged to support the smaller firms in litigation work. Thus there was equality of arms between the small firms who could retain QCs and the large firms who would have significant resources within the firm including specialised litigation partners. Allowing SCs in firms distorted this balance.

Appointing QCs from the Independent Bar is desirable as a means to ensure that parties have the opportunity to instruct advocates of commensurate experience and ability. There is the further benefit that Queen’s Counsel are recognised as experts in a variety of specialist fields. The full range of the Bar’s experience is available to anyone who needs it. No client is disadvantaged by being unable to brief a particular advocate because that advocate is in a partnership with the opponent’s lawyer.

Acting for the Crown, upholding the rule of law, and defending the Judiciary Maintaining the connection between QCs and the Crown has other benefits.

In bygone days Queen’s Counsel traditionally were appointed to conduct court work on behalf of the Crown. Although the limitation on private briefs has long since been relaxed, the tradition remains that QCs will always accept instruction from the Crown when asked to do so. The obligation to attend to the Queen’s business, if called upon, is not a dead letter and has been invoked occasionally. The senior author recalls an occasion when the late Paul Temm QC was called upon, at the last minute, to answer a request from the Solicitor-General, Paul Neazor QC, to lead as prosecuting counsel in a murder trial in Whangarei. Mr Temm indicated initially that it was not convenient for him to take the brief but when reminded of his obligation as a QC to make himself available to assist the Crown he answered the call. These days this obligation manifests itself occasionally in a less dramatic way in an implicit obligation to accept briefs from Crown Law. There is also a tradition for senior members of the Bar to accept briefs where serious challenges to the rule of law or to the judiciary are involved and to speak out when the judiciary is unfairly attacked. For example, in 1903, when the Bench protested against the Privy Council judgment in Wallis

At 589–590.

Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444.

21 At [146]–[149].

22 At [51] per Tipping J; at [99] per McGrath J; and at [15] per Blanchard J. 19 20

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v Solicitor-General — in which the Privy Council accused the Court of Appeal of lacking independence from the Executive — the Bar supported the New Zealand Bench in its protest. At an adjourned sitting of the Court of Appeal, the doyen of the Bar, Mr W. L. Travers, rose and stated:23 “I think I am justified, without having had the opportunity of any conference with other members of the Bar [here the large number of solicitors in Court all rose, and remained standing throughout the speaker’s remaining remarks] in stating our conviction that the feeling always entertained by the Bar of New Zealand as regards the superior tribunals before which they have the honour to practice is not likely to be, and certainly has not in any degree been, shaken as to the integrity of the Bench. They felt that the judgments of the Supreme Court or Court of Appeal, propounded individually or collectively, have been characterised by the utmost integrity, and by that knowledge of law and with regard to the facts which are necessary in dealing with questions that come before them. Humanum est errare is common to every institution in the world, and the acts and dealings of all classes of persons, and it was not surprising if some of the decisions had not been upheld. We are quite willing that your Honours should treat the protest made by the Judges of the Court of Appeal as though it were supported in every point by members of the Bar.” A recent example of the tradition arose in relation to the Hon Gerry Brownlee’s criticism of Justice Panckhurst in Parliament. Referring to one of the Judge’s decisions, Mr Brownlee stated that he found it “extraordinary that someone can sit on the bench of a court in this country and inflict such injustice on so many people”.25 In response to such criticism, Queen’s Counsel and President of the New Zealand Bar Association, Mr Stephen Mills QC issued a press release, stating that, “It is the role of judges to make their decisions according to law. For a senior Government politician to publicly criticise a Judge for fulfilling his constitutional role, and to imply that he ought not to be a Judge because he has made a decision that the Minister dislikes, is dangerous.

The rule of law needs to be recognised and supported by politicians, even when they do not like the results.”

Use of the Rank to recognise Attorneys-General and Solicitors-General by appointment as Queen’s Counsel Following well established tradition, following the passage of the Lawyers and Conveyancers (Amendment) Act 2012, the Attorney-General Christopher Finlayson and SolicitorGeneral Michael Heron were appointed Queen’s Counsel to recognise their career achievements and the leading positions they hold among New Zealand’s legal profession.

These appointments follow a number of previous AttorneysGeneral who have been appointed Queen’s or King’s Counsel: Hon Henry Mason KC (1946), Hon Sir Clifton Webb QC (1954), Hon Dr Martyn Finlay QC (1973), Rt Hon Paul East QC (1995). In recent times, all Solicitors-General have been appointed Queen’s Counsel either before or shortly after taking office.

23 Wallis v Solicitor-General, Protest of Bench and Bar, April 25, 1903 [1840–1932] NZPCC Appendix 730 at 759–760.

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A comparison of the New Zealand and England and Wales selection processes The only possible concern in respect of the return to QCs is whether the selection process is sufficiently robust. Until 1956, in New Zealand, appointments were made by Letters Patent. Thereafter, statutory authority to make regulations in relation to Queen’s Counsel was conferred on the Governor-General under s 15 of the Law Practitioners Act 1956. This statutory authority is replicated under s 119 of the Lawyers and Conveyancers Amendment Act 2012. However, it is still customary for new Queen’s Counsel to receive a patent from the Governor-General in the name of the sovereign expressing confidence in the appointee’s knowledge, experience, prudence, ability, and integrity.25 The Application process in New Zealand The New Zealand QC application form covers the requirements of the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012 and the Guidelines for Candidates issued by the AttorneyGeneral and the Chief Justice. The Queen’s Counsel — Guidelines for Candidates 2013 outline the criteria for appointment. These provide information on the necessary qualifications and experience of lawyers seeking appointment as Queen’s Counsel and the process by which candidates will be recommended for appointment.

The application form requires that applicants provide: • Information about the candidate’s professional details, career history and any publications; • A brief description of the candidate’s current practice (including areas of specialisation and an overview of the main types of cases in which they have been involved in over the past five years); • A list of the significant cases in which the candidate has acted over the past three years.

Candidates are then asked to address the criteria (excellence, knowledge of the law, oral and written advocacy, independence, integrity and honesty, and leadership) and assess how they consider they meet these criteria.

Candidates may provide the names of referees to support their applications but they are not required to do so. The application form allows for up to four referees.

The Chief Justice has indicated that members of the judiciary are not to be named as referees. While it is true that the Judges have an opportunity to comment in the consultation stage that will be a much less focussed evaluation. We suggest that this restriction on naming Judges as referees is inappropriate since, as the comparable English procedures recognise, judges (or arbitrators) who have seen the candidate in action can provide the best assessment of the skills possessed as an advocate by the candidate.

The selection procedure in New Zealand The Guidelines describe the selection procedure as follows: 24 25

07 November 2013) 694 NZPD 14477.

Anderson, above n 8, at 2.

“On behalf of the Attorney-General, the Solicitor-General will consult the New Zealand Law Society and the New Zealand Bar Association, as required by regulation 8 of the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012, and convey their views to the Attorney-General. The Attorney-General will consult with the Chief Justice on the candidates whose appointment is to be recommended to the Governor-General.”

This latter consultation has been a constant requirement of the appointment process in New Zealand. As Sir Noel Anderson notes, “[the concurrence] reflects the Court’s proper interest in and supervisory authority over members of the legal professions of barristers and solicitors”.26 The Guidelines state that “[i]f the Solicitor-General contacts a referee it will be to obtain comments on how the candidate meets the selection criteria”. It follows that the Solicitor-General is under no legal obligation to contact any of the referees but it is quite apparent that he does so. In the 2013 QC round there was an unprecedented number of applications (119) due to the act that no appointment round had been held for over 4 years. This made it virtually impossible for the Solicitor-General to consult all referees for each candidate.

The English system In England until 2003 QCs were chosen by the Lord Chancellor on the advice of his officials. The then Labour Lord Chancellor, Lord Irvine proposed the elimination of the QC rank but the English Bar Council wished to retain it. What emerged as a political compromise was the establishment of an independent regulatory panel funded

by QC application fees. As part of the compromise solicitor advocates were permitted to apply for silk. Since 2003 only thirteen solicitors have been appointed QCs out of the several hundred appointed from the Bar. It appears that the solicitor-advocates appointed QC have been mainly litigation solicitors with extensive advocacy experience especially in international commercial arbitration.27 In England and Wales the Queen’s Counsel application process is an intensive affair, administered through an independent organisation called Queen’s Counsel Appointments (QSA).28 QSA is an independent selection panel that makes recommendations for the award of Queen’s Counsel. The Queen’s Counsel Selection Panel is independent of the Bar Council, the Law Society and of Government. The ten-person Selection Panel is made up of a retired senior judge, senior lawyers (including both barristers and solicitors) and distinguished lay people.

The QSA scheme is self-financing and is funded entirely by fees from applicants. The application fee is £2340.

The appointment fee, payable by successful applicants is £4200 in addition to the fee payable to the Exchequer for the Letters Patent. By comparison, the fee for the New Zealand application is $500.

In deciding whom to recommend for appointment, the Selection Panel rely on the applicants own self-assessment, what is said about the applicants in reports by referees

they themselves select or identify, and the account they give of themselves at an interview. The Selection Panel then makes recommendations to the Lord Chancellor, who puts recommendations to the Queen.

The key point about the English system is that it requires the applicant to name nine assessors (four assessors who are either judges or arbitrators, three local practitioners and two clients) who are willing to provide a written assessment of the applicant. The requirement of reports from judges and arbitrators as to the abilities of the candidate in presenting cases seems to be a sensible idea because, as noted earlier, the fundamental characteristic of a QC is that he or she is a leader of the Bar of wide renown and is exceptionally talented both as to court procedures and advocacy.

A final attraction of the English system is that the QSA reports annually on the recent appointment round. The reports are available online and detail the statistical information of applicants and those who are ultimately selected as Queen’s Counsel.

Concluding comments The rank of Queen’s Counsel (as opposed to Senior Counsel) with its associated appointment procedures should be retained permanently because it reflects accurately New Zealand’s constitutional structure, the history of the rank of QC in New Zealand, and the critical role of the Independent Bar in the administration of justice. The appointment of Queen’s Counsel also helps to provide incentives for those practising at the Independent Bar, by providing an office to which Court practitioners can aspire. Indeed many QCs regard their appointment as the pinnacle of their professional careers and exceeding even their later appointment to the Bench. Restricting the rank of Queen’s Counsel to those barristers in sole practice is necessary to maintain the essential independence of the Bar and to avoid conflicts of interest. The office of Queen’s Counsel in its traditional form is one which is amply justified in the public interest and it is to be hoped that the Labour Party, if and when re-elected, will not follow Mr Chauvel’s unwise pronouncement and repeal the legislation that is now in place. Finally, in light of the English experience, it is suggested that there are steps that might be taken to enhance the selection process in New Zealand including a requirement that four detailed reports be provided from either judges or arbitrators before whom the applicant has appeared. This and perhaps other modest improvements should be able to be introduced without establishing a costly independent administrative bureaucracy of the kind which exists in England. * David Williams QC has over 30 years’ experience as counsel in commercial litigation before New Zealand and overseas Courts and Arbitral Tribunals including numerous New Zealand cases heard in the Privy Council, London, England. He is a member of Bankside Chambers: http:// www.bankside.co.nz/Barristers/DavidARWilliamsQC.aspx

Anderson, above n 8, at 2.

Such as Lawrence Collins, later Lord Collins who thereafter had a stellar judicial career.

28 Queen’s Counsel Appointments <www.qcappointments.org>.

26

27

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Meet the New Silks On 5 June 2014 the Attorney-General Hon. Christopher Finlayson QC announced the appointment of 14 new Queen’s Counsel. The President and Council of the NZBA warmly congratulate the new Silks. The biographical material in this article is from the Attorney-General’s press release.

Peter Whiteside graduated from the University of Canterbury in 1971. He joined Wynn Williams in 1970 where he worked on a broad range of litigation in all New Zealand Courts, including three cases in the Privy Council. In March 2013 he joined the Independent Bar. Currently practising primarily in relation to earthquake claims and acting as an arbitrator and mediator, his areas of specialisation include real property disputes, company liquidations and receiverships, relationship property and lawyers’ discipline issues.

Matthew McClelland graduated LLB (Hons) from Canterbury University. He worked in various law firms from 1976 until 1981, when he joined the Attorney-General’s Chambers in Hong Kong as Crown Counsel primarily prosecuting criminal matters in the District and High Courts, and appearing in the Court of Appeal. In 1987 he joined Kensington Swan where he was a partner. He joined Harbour Chambers as a Barrister Sole in 2003 working in the areas of professional discipline, health law, defamation/ media and resource management.

Russell Bartlett graduated LLB from Auckland University in 1975, following which he worked for various law firms prior to joining Chapman Tripp Sheffield, where he was made a partner in 1986. A founding partner at Ellis Gould in 1988, he joined Shortland Chambers as a Barrister sole in 2000. He specialises in Resource Management and other local government law.

Paul Rishworth joined the University of Auckland Faculty of Law in 1987.

His research interests are in the fields of human rights and comparative constitutional law, and South Pacific legal studies. His work on the New Zealand Bill of Rights has been widely cited by peers, practitioners and judges. He has worked over the years as a consultant and advisor for government agencies and

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groups, including the Human Rights Commission, in New Zealand and overseas, on issues ranging from restrictions on hate speech to the autonomy of religious organisations to hire and ordain leaders. He was the Faculty Dean and the Head of the Department of Law 20052010. He remains involved in the litigation of civil rights issues in the higher courts and in community organisations.

Antonia Fisher graduated LLB in 1982 and worked at two law firms before joining Brandon Brookfield as an Associate, and was made a partner in 1990, specialising in family law and medical law. She joined Barristers at Chancery in 2003 before moving to O’Connell Street Barristers in 2011, where she specialises in relationship property and medico-legal cases.

Marie Dyhrberg graduated LLB in 1981 from University of Auckland.

She worked as a staff solicitor in various firms before joining the Independent Bar in 1990, specialising in criminal jury trial and appellate work. In 2005 she was appointed a Senior Magistrate in the Magistrate’s Court of Pitcairn, Henderson, Dulcie and Oneo Islands. She is a member of the Criminal Bar Association of NZ (a founding member from 1984), convener of the Criminal Law Committee of the Auckland District Law Society from 2012 to present, and specialises as a senior defence counsel in complex criminal trials.

Anita Chan graduated from the University of Otago in 1984, before joining various Dunedin law firms working in criminal, civil and family law and tribunals. She joined Barristers Chambers in late 1997, later moving to Princes Chambers where she is currently practicing.

She is Vice President of the International Academy of Matrimonial Lawyers and is a former chair of the NZ Law Society Family Law Section.

She specialises in complex child and financial family law cases, often with an international aspect.

Paul Radich graduated LLB (Hons) from Victoria University in 1986. He worked for a number of Wellington law firms, becoming a partner.

Prior to going to the Independent Bar in 2012 he was a partner and board member at Minter Ellison Rudd Watts. Currently a Barrister at Clifton Chambers, he specialises in public law advice and litigation for public bodies including government departments and Crown entities.

Matthew Palmer graduated LLB (Hons) from Victoria University in 1987, LLM at Yale Law School and JSD (Doctor of Laws) from Yale in 1994. He joined Treasury in 1988 before moving to the Ministry of Justice as Deputy Secretary for Justice (Public Law) in 1995. He was Pro Vice Chancellor and Dean of Law at Victoria University from 2001 to mid 2006. He then joined the New Zealand Law Foundation as an International Research Fellow, researching and writing The Treaty of Waitangi in New Zealand’s Law and Constitution, which won the Legal Research Foundation’s J F Northey Award for best book published by a NZ-based author in 2008. He joined Crown Law as Deputy SolicitorGeneral (Public Law) from 2008 to 2012 before joining Thorndon Chambers as a barrister specialising in public law.

Stephen Bonnar is a graduate of Auckland University. He joined Meredith Connell, the Auckland Crown Solicitor’s Office in 1987.

In 1992 he took up a position as a senior Crown prosecutor in the Crown Prosecution Services in London and in 1995 joined the Attorney-General’s Chambers in the Cayman Islands. He rejoined Meredith Connell in 1997, and was appointed a partner in 2000. In July 2002 he joined 22 Lorne Barristers Chambers. He specialises principally in criminal defence work, is a member of the Auckland Prosecution panel, and is also instructed in civil proceedings linked to criminal proceedings, including the proceeds of crime.

Paul David graduated BA (Hons) in Modern and Medieval languages, Cambridge University; Diploma in Law, City University London, Bar Finals, Inns of Court School of Law and LLM from Cambridge University.

He worked in various common law chambers in the United Kingdom doing civil and criminal work along with specialist maritime law matters before joining Russell McVeagh as a senior solicitor in 1990, became a partner in 1993. He joined Wilson Harle as a partner in 2002 before going to the Independent Bar in 2006 where he specialises in maritime, international trade and sports law.

David Laurenson graduated LLB/ BCA from Victoria University in 1991.

He worked in London as a paralegal from 1988 until 1990 before joining Bell Gully’s litigation department in Wellington in late 1990. In mid 1993 he joined the Wellington Crown Solicitor’s office prosecuting jury trials in the District and High Courts and appeals in the Court of Appeal, including prosecutions on behalf of government departments.

He returned to Bell Gully in 1996 until joining Capital Chambers as a Barrister in 1999. In late November 2002 he joined Thomas More Chambers. He acted for the Crown Law Department of the Kingdom of Tonga in 2009, prosecuting sedition/ conspiracy charges against five members of Parliament arising out of the 2006 riots. He specialises in civil/ commercial litigation.

Prudence Steven graduated LLB (Hons) from University of Canterbury in 1992. She worked in various law firms from 1993 until becoming a partner in Goodman Steven Tavendale Reid in early 2002. She became a consultant to the firm in early 2008 before joining the Independent Bar in late 2008. She specialises in resource management and local government law.

Paul Wicks graduated LLB from University of Auckland in 1994.

He joined Princes Chambers as a Barrister Sole in 1994 before moving to City Chambers in 2003. His practice centres around his specialist areas of criminal and employment law.

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Petrolheads’ Report - Targa North Island

By David O’Neill* This time of year is the annual Targa Rotorua event. For those of you that have not read this column before, this comprises a tarmac rally on sealed roads in and around south Waikato and the Rotorua region. It is always a good run up to the main Targa which is a five day event in October 2014.

The main Targa is going to the South Island this year to celebrate the 20th anniversary of the running of the event and as a consequence Targa Rotorua was renamed Targa North Island. It was also enlarged from two days to three days.

Again, for those of you who do not follow Targa or have not read one of my columns previously, we drive the roads just like you do, without pace notes and without any pre-competition run through. We just drive a little bit faster. There is only one rule and that is we are not allowed to exceed 200kph.

The car speed is monitored by a GPS attached to the car which can tell Targa HQ of our speed within 10 seconds of the signal being sent. It is a little daunting at times when you are closing in on 200kph, having to watch the road and watch the speedo at the same time.

This year the start of Targa North Island was a Simunovich Olive Estate, a beautiful setting amongst olive trees. It is slightly different to the Dotcom mansion (apparently Mr Dotcom was a bit busy at the time).

For whatever reason, we were very lucky with the weather.

Friday morning was clear and reasonably warm and the first stage was around the lake at Te Kauwhata. This is one of the traditional stages for the Targa rally and inevitably claims a victim or two. We did this twice. We got through unscathed, unlike a couple of other cars. It’s a long way to go and we wanted to get through to the end. I’ve always worked on the old adage that last is still a better position than a DNF!!

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Also, the best bits were coming up. We toured to the Coromandel Peninsula and drove the ThamesCoromandel coast road up to the turnoff to Whangapoua.

This is the only road that connects Coromandel township with the eastern side of the peninsula (apart from having to go the long way round further north via gravel roads) and is a very windy, steep hill climb with a similar windy, steep descent. How Targa gets to close these roads always escapes me, but again, they succeeded in doing so and it was all to our benefit. I’m very happy to fang around on great roads at speed.

Unfortunately, we were running a bit late and I had left my ordinary glasses in the van and only had my sunglasses on which meant that we drove the stage in (sort of) gloomy light. It probably made for a better time because I didn’t see the gravel patches from the new seal until we had gone through them. It gave my navigator some “tightening” moments!!

We made it through to Whitianga unscathed, serviced the cars in the dark and then took off for a wellearned meal and sleep.

Saturday was a tour down the eastern side of the peninsula to Whenuakite School. For those of you unfamiliar with the Coromandel Peninsula, this is the school just south of the Cooks Beach/Hot Water Beach turnoff. From there we raced over Pumpkin Hill and into Tairua. Again, this is the only road that connects the eastern part of the Coromandel Peninsula with any other part and again, Targa, for some extraordinary reason, was able to convince TCDC that the road should be closed to allow us to have a play.

The next stage, which was probably the best stage of the day, was the hill climb south from Whiritoa Beach up and over the top and down to Waihi, turning off just before Waihi into Golden Valley Road and going around the back to the Waihi Beach Road. The hill climb from Whiritoa Beach is about as good as it gets. It is windy, fast and a great road surface and no-one is coming the other way.

Lots of Yeeha moments and no off-road incidents.

For those of you who are interested in times, the Coromandel/Whangapoua hill climb took 8.20 minutes.

The quickest modern car did it in 6.43 minutes. The Pumpkin Hill stage (Whenuakite School to Tairua) took us 8.16 minutes and the quickest cars did it in 7.04 minutes.

The Whiritoa hill climb took us 11.47 minutes with the quickest cars doing it in just under 10 minutes. As you can see – a tad different to taking the family to the beach…….

sharpening his claws ready for Targa South Island which takes place in October/November 2014. I suspect he’ll blast past me very quickly.

Those stages were 10.5 kilometres, 12.2 kilometres and 20.1 kilometres long respectively.

I have entered that event. The rumours that we have heard swirling around are now confirmed. One of the special stages is over the Crown Range between Queenstown and Wanaka. I have also been reliably told that the final stage on the Targa South Island is the Coronet Peak hill climb. Needless to say, this will be an event not to be missed and I know that a number of competitors are treating it as their “bucket list” event.

We then toured through to Matamata for more of our favourite roads, but unfortunately the first stage was a tour only. It was initially delayed because a farmer had a heart attack and our ambulance crews had to go in and revive him and then one of the classic cars came round a corner too quick and nailed a concrete power pole, destroying that completely, which brought down the lines across the road, shut off power to the area and created general mayhem. The driver and co-driver walked away completely unscathed, apart from heavy bruising. This just reinforces the safety gear that is in the cars.

It meant a long stay at the Hobbiton tourist attraction which wasn’t too bad, given the warm day and no rain. It did mean that the three stages planned for later that day were cancelled because of problems with the power lines.

The next day was spent in and around Rotorua.

It started with a long stage near Atiamuri which was shrouded in fog. Trying to race along a country road you don’t know where visibility is down to about (or so it seemed), 20 metres is difficult at the best of times and really difficult when you are trying to get to the other end as fast as possible. One particular corner caught seven cars out.

I believe the farmer was pretty happy because he got a new fence out of it to replace the old one, but there were cars whizzing off in all directions and the fence was destroyed for approximately 100 metres down the road.

Thankfully the fog lifted and this meant a slightly quicker time next time through, but still difficult because the road was damp and it would go from dry to damp to dry in the space of 100 metres and got a tricky around some of the corners.

These roads are all well-travelled by Targa competitors, but notwithstanding that, they still manage to crash at fairly regular intervals. A number of very experienced drivers went out with cars being demolished along the way. I reckon there were about four cars which were totally written off over the course of the weekend.

The logistics of working out how to get down there and how to get home is a bit daunting, but no doubt I’ll work it out somehow.

I will write a column on Targa South Island (if your editor will accept it [Ed: the article will be accepted with thanks]).

It is going to run from Christchurch, down through to Dunedin to Invercargill and then up to Queenstown for the final bit. It will involve racing on four of the South Island race circuits with the final circuit being Highland Park, a newly opened race track in Cromwell.

This will be an event which will be a spectacular show case for motor racing.

For those of you that have always dreamed about going racing but do not know where to start, give me a ring. For those who may want to dip your toe in the water, but not immerse yourself completely, you can always do the Tour which uses an ordinary road car, no helmets and no safety gear and no wrecking your family wagon, just going out there and going fast on closed roads. It’s a great way to start. If you over cook it, then you will find out first-hand how quickly the emergency services can swing into action.

By the same token, going from participant/competitor to spectator in a nanosecond is not the best way to do things. It is expensive and a little bit disheartening. But that’s motor racing.

Until next time – drive safely!!

For a change the tour drivers managed to keep their cars in one piece. In the past they have broken their cars fairly regularly and frequently as the Targas have moved on. A lot of drivers find out to their extreme discomfort that having all the driver aids in the world doesn’t make you go round the corner any better when you are going too fast.

This time through our former President Jim Farmer QC, did not appear. I e-mailed him the week before asking whether he was going to appear and his response was that he was getting a whole lot of flash bits put on his car and was indulging in more driver training. No doubt he is

David O’Neill, Blair Brookbanks and service crew Hayden Robertson and Shane Hingis

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CPD in Five Easy Steps: Registering for Seminars and Events and Recording Your CPD

By Lisa Mills* In addition to the Member offer from Storkk (an online CPD management system), the New Zealand Bar Association has its own CPD records. You can choose which system you use - they are both free for NZBA members - but this article concentrates on the NZBA system.

In order to manage your CPD online, it is critical that members (and non-members) start registering for seminars online. We will still accept manual registrations, but if registrants want to ensure they receive a CPD credit, online registrations are preferable.

Step 1 – Find a training session: To see what events the NZBA are hosting, click on the heading “Events Calendar” on the NZBA home page. This will take you to a list of all upcoming events the NZBA are hosting (as well as a few events NZBA members might be interested in). Click on “more info” under the relevant event.

The event page contains full details including registration information. If the event is an NZBA hosted event, online registration is available. On the right side of the screen, there is a register now button (above that are the GST exclusive prices – members and non-members). Click on the Register Now button.

Don’t use the new user signup if you are a member or have registered previously. This will create multiple profiles for you which creates issues when trying to retrieve CPD points attached to your profile.

Step 3 - Complete your registration details On the event registration box, please fill in details of your chambers or organisation, or note “barrister”. By now the price is shown as GST inclusive.

There is an option for adding another ticket. Please fill in the details of each person who is registering. This is critical for CPD purposes.

Step 2 – Login if you haven’t already done so If you are already logged in to the website, your details will automatically appear in the registration box.

Otherwise you will be asked to login using your usual details (email and password).

If you can’t remember your password, click on the forgotten my password link or contact the NZBA.

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You will then be able to review your tickets and move onto payment by clicking Proceed to Checkout.

Step 4 – Payment and Checkout Here you will see your Checkout screen where you can fill in further details or change the billing address if necessary. Once you are happy with these details choose next.

At this point you can choose your payment option (Visa/ Mastercard, cheque or bank transfer). If you choose credit card you will go straight through to the secure DPS payment gateway to insert your credit card details. If you choose bank transfer or cheque your screen will show a tax invoice with a message at the bottom indicating registration is complete.

Step 5 - Maintaining your CPD record (CPDR) Now that CPD is required for all legal practitioners, the NZBA has upgraded the website to provide a CPDR for members. When you sign up for one of our events, it will be populated on the record when we verify your attendance. To access your NZBA CPDR you will need to login to your profile on the NZBA website.

• Login or register at www.nzbar.org.nz, choose login • Choose ‘Please login or sign up’ type, email address, password then login.

• Click on your name / member dashboard • Click on CPD – CPD will show you the current year (CPD History, shows historic records)

This will bring up a list of the CPD events you have attended with the NZBA and the CPD points applicable to each. You can add other CPD events by clicking New CPD Record.

You can edit each CPD record by choosing the edit button.

You are also able to record non- NZBA events but will need to fill in the details manually.

In the additional fields you will see Learning Needs, Learning Outcomes and a space to add notes to your CPD record for each event.

Right click on the page to print your CPD record.

You will need to ensure that you pay this invoice.

NB: For the events that are not NZBA events or the upcoming World Bar Conference you will be directed from our Events Calendar through to another registration page.

What happens if something goes wrong?

If for any reason you need help, click on “Contact us” for details. * Lisa Mills is the NZBA Administrator and maintains membership records. If you have any questions about your membership, please email her at nzbar@nzbar.org.nz

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Member Benefits – the Offering From LexisNexis

By Jacqui Thompson The NZBA has negotiated a member offering with LexisNexis NZ Ltd for the supply of the LexisNexis/NZBA eLibrary Online Package. This package provides access to a huge number of resources at a very attractive price. This article looks at the way research solutions have been integrated into practice management and how members can learn more about this package. If you want to know more about the online package, refer to the information at the end of this article.

Current trends for legal services product development.

There are some significant emerging trends in the legal services industry. The interesting aspect is that while a few years ago these would have been driven by innovation and greeted with some suspicion, they are now being driven by demand from both the lawyer and the client. Examples of these include:

are no longer enough. Courts expect lawyers to be upto-date with the latest and the latest is online or via an e-book update. Most importantly, clients are owed the latest information; • Workflow - lawyers can now choose to design their own precedents or rely on the expertise and currency of the online precedents. The time savings are considerable, as they can provide an up-to-date starting point for documentation. Equally, checklists can take a lawyer quickly through a process without the lawyer having to spend time identifying all steps and their order; • Risk management - a considerable benefit of using online precedents and updating is that you lower your exposure to mistakes made by not having used the most up-to-date precedent or information source.

• Efficiencies of space – it is a cliché that real estate costs have risen and as a result, square metres must be used as efficiently as possible. This means that rows of books give way to more productive uses of the available space; • Integration with other products such as Outlook – less is more.

Co-ordinating multiple systems and

services can eat up too much of a

practitioner’s time. In line with this,

services are moving towards compatibility with key products, to make choices easier for the end user.

•

•

An example of research integration With workflow in mind, LexisNexis has adopted a blended approach to its product delivery. You don’t have to choose one format over another but can instead opt for a mixture. You may decide to keep paper copy for one product but also adopt an e-looseleaf format (LexisNexis Red) for use in court on your iPad.

Believe it or not, the biggest change to the way research is undertaken is not the use of online databases. They are old news. The biggest change is integration between the knowledge/information sources and legal practice management systems.

Online legal service platforms do not just tell you what the law is at any given moment; they also provide you with practical tips for advising your client, checklists, the forms you need to implement the law, suggest various options and can then integrate with your time recording and practice management systems.

If that sounds terrifying, relax. It is a bit like using an automatic washing machine. Having learnt which buttons to push, there is no way anyone is going to want to go back to the old wash board and wringer of our great-grandmothers.

Having these legal service platforms at your fingertips means that in future you will be frustrated if they are not available.

Mobility – lawyers need to use resources on the move. While many have been slow to adopt this, the increasing mobility of other industries (banking, insurance, accountancy) means that clients are pushing lawyers to respond in the same way; Continuous updating of resources – monthly paper updates that are filed when someone gets a moment

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LexisNexis’ practical guidance, which is part of the LexisNexis/NZBA eLibrary Online Package, is an example of integration of research source and practical tools. This is a product that starts at an overview level of the law and then drills down to specific issues and links to in-depth research for those who have the associated databases.

However it retains a practical approach, giving short answers to real problems, suggesting what forms will need to be completed and then providing the latest precedents to use. There are also practice guides and pointers for choosing options.

Practical guidance is particularly useful for areas of the law where a lawyer either doesn’t have any expertise or is looking to move into another area. It won’t replace subject specialism but will help those who, for example, are involved in a family property transaction but need to check the relationship property implications.

If practical guidance is the first level of support, it is backed up by the intense research capability of the online research solutions that we all know.

A quick check on the LexisNexis website shows that there are 59 individual titles offered for New Zealand alone. The LexisNexis/NZBA eLibrary Online Package not only contains most of these, but it also draws on a considerable number of overseas titles, including major encyclopaedic works. Works that would fill a decent sized law library are now available online without any time delays and with very little support required.

Learning to use the products If you get stuck, apart from extensive online help, there is a 24/7 training portal available which includes video clips.

In person and online training is also available, and much of this qualifies for CPD credit. LexisNexis is also offering online training sessions for NZBA members and we will be advertising these shortly.

How’s your hotspot?

Mobility is worth revisiting. Apart from using your cell phone’s hotspot, for just under a $100 it is now possible to buy a mobile hotspot that can (depending on the device) connect up to 10 separate devices using a pay as you go data plan. Subject to local connectivity conditions – and you should ask about coverage when buying your hotspot – this means that mobility is not an issue (or excuse) for anyone.

If you are up at court, you can still access the material you need by turning on your hotspot. This makes online services even more attractive.

Is this the death of paper?

This is a harder question to answer.

It is certainly not the death of paper right now. And Matt Pedersen* from LexisNexis confidently states that paper is still alive but a bit thinner than it was. However, for those of us who have only read e-books in the last year, and write our notes in OneNote on our iPads, have our shopping lists stored on our phones and can’t wait until Apple releases its new large screen phone to help our aging eyes, it is a pointless question. From a convenience or efficiency point of view, this is better than paper! * Matt Pedersen is LexisNexis’s key contact for barristers.

For information about the eLibrary package, contact him on +64 9 368 9515 or email matthew.pedersen@ lexisnexis.co.nz

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Microsoft Office 365 – Office in the Cloud

by Ian Handricks* Following a recent request from a member for advice on how he could access all his files, emails and documents while not in the office, Ian Handricks looks at Office 365 and answers some questions for us.

Microsoft Office is now available in three forms. The first is the desktop version that most of us have used for years.

This version is installed on your computer and goes where your computer goes. You may have more than one licence which will allow you to install it (for example) on a desk top and on a lap top. You are responsible for maintaining version consistency (i.e. making sure you are working on the latest version of a document).

Office 365 and Office Web Apps are recent additions.

Office Web Apps is an internet version of Office that’s integrated with OneDrive. You can use Web Apps to view and edit files on devices that don’t have Office installed. But it has limited functionality and is not a substitute for Office for business purposes.

Office 365 gives you the full office suite with the flexibility of Cloud functionality. It follows the user rather than the device and therefore makes hardware a secondary consideration when it comes to access (subject to any platform limitations). This service has rapidly become one of Microsoft’s top selling packages. Importantly, because documents are stored in the cloud, version consistency is not an issue.

What is Office 365?

Office 365 is a subscription-based online office application that is built around the familiar Microsoft Office platform that most of already know (Word 2013, Excel, Powerpoint, Outlook, Publisher Access and OneNote). The business plans come with access to Lync which gives you the ability to conduct online meetings - including desktop sharing - Instant Messaging and audio facilities (you can buy this separately).

The main difference with 365 is that it is powered by the cloud – in fact, the Microsoft publicity refers to 365 as

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an “Office in the Cloud”. Wherever you are, your Office comes with you – including file structures and the latest versions of documents.

There is also a feature known as “Office on Demand”, which allows users to temporarily stream an Office 2013 application on any compatible computer without needing to fully install it. However you may not need to use this as by signing into the portal via the internet you can use the Office web apps which will at least allow you to perform basic Office functions.

I am used to my version of Office – why should I change?

The key difference is that the old packages were connected to the hardware or device they were installed on. You are limited by access to a particular machine (although you may use a Virtual Private Network and access your material via your document management system).

Office 365 is connected to the user, which means, for example, that home users can install it on up to five PCs or Macs concurrently and can use it on mobile devices.

And because you can access it via a portal by logging in, you don’t even need one of your own devices. Office 365 recognises that users are more mobile than ever before.

Office 365 also comes with free storage.

Basically Office 365 suits people who: 1. Work from different locations; 2. Use different devices to

access their information; 3. Need to be kept up to

date on different

document versions; 4. Wish to work

collaboratively on documents; 5. Do not have access to an IT team for updates and security installations.

If it is in the Cloud, does this mean I can only access it via the internet?

In terms of software, you don’t need to be connected to the internet to use your office apps (Word, Excel etc).

The software runs locally on your computer. For the most part it is no different to using the older versions, but the products and services can be managed and configured through the online portal. You do need to connect to your Office product once every 30 days to maintain your subscription, but you will get a reminder about this (and as you need to connect to the internet for Outlook, this is not likely to be something you have to worry about!).

Your documents can also be stored on your computer and then when next you connect to the internet, your files will be sync’d with OneDrive. This should maintain version consistency.

How much does it cost?

When you subscribe, you are in effect renting the software for a period, as opposed to buying it and owning it until you next decide to upgrade (or are forced to do so). This means that if you don’t pay your renewal fee, you lose the software. The files that you have created are your own and you will keep these provided you download them. There is a 90 day limited function post cancellation access that will allow you to retrieve your data.

There is a range of subscription plans which are designed to suit specific needs and sizes of organisation. An example for business would be Office 365 ProPlus which costs $19.95 per month. This is an annual commitment but you can choose to pay monthly. You can cancel at any time, although there is a penalty when you cancel an annual subscription. This subscription comes with the full Office suite.

What can I use it on?

It is important to note that for Office 365 to run properly, you have to be using Windows 7 or above; otherwise it will run very slowly. Access to Office 365 is also available

on Apple iOS and Android devices. Office 365 installs quickly across all your supported devices, and you don’t need to uninstall your old version of Office.

What about Mac? As at the time of writing, Office 365 is available for Mac with OSX 10.6 or higher but it (and those who have used Mac in business will simply sigh in frustration) may be more limited than that available for PC users.

For example, Publisher and Access are not available for Mac in the home version and OneNote is available as a separate download from the Mac App store. Current Office application versions for Office 365 are Office 2013 for Windows and Office 2011 for Mac. Customers with an active subscription will be entitled to the newest versions when available.

What about security?

Microsoft states that that a foundation of Office 365 is the security, compliance and privacy provided in the Cloud. While there are a range of measures in the background to safe guard your data, examples that will mean something to the ordinary user are that they regularly back up data and enforce “hard” passwords to increase security. The days of typing in “password” or “pwd1234” are obviously over…

Microsoft apps use encryption so that transmissions intercepted by those without authority can’t be read.

It is certified as compliant by accepted industry (ISO) services. Office 365’s built-in security deflects malware, spam, phishing attacks and other threats. You will may well have better security using Office 365 than you can afford on your own!

How do I share information?

With Office 365 it is easy to more securely share files with co-workers, customers, and partners. There are several ways to collaborate and share files with colleagues within or outside your organisation and retain version control.

Calendars are easily shared as are contacts. Office 365 also offers online conferencing with real-time note taking and screen sharing.

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What about a website?

The business package provides a mechanism to develop, edit and publish a website using online tools. There are zero hosting fees and you can use your own domain name for your website. You don’t need any special skills to build your site and there are a host of tools to help you construct it. All content can be edited and updated as your needs dictate.

since the dawn of time, you will spend your first couple of weeks trying to work out where basic commands now appear in menus. Apparently it isn’t an upgrade if you don’t confuse the user by switching everything around into different menus. But the concentration on automatic updates – especially for security – makes it much easier for those who do not have easy access to an IT team.

Do I need more IT support?

Office 365 has been designed so that updates and security are taken care of for you. It is fast and easy to install. Of course, as with every single Office upgrade

* Ian Handricks has worked in the technology sector for many years and specialises in teaching professionals how to get the most from technology. Ian can be reached at ihan@ihug.co.nz or visit http://www.ianhandricks.com.

Onenote – Smarter and Easier Than a Paper Notebook

By Andrew Hunt* Whenever someone mentions the paperless office, it’s hard to not to smile quickly and think that’d make a good ‘yeah right’ bill board. For most of us, printed material is easier to work through and comprehend. However, it’s not necessarily the best way to make or keep notes anymore.

Using “the cloud” and ONENOTE (part of Microsoft Office), I’ve found that it’s now easier to take notes electronically. Like most of us, I have a smart phone and a laptop, and a small tablet. I take notes on each of these, and using ONENOTE and the cloud, they keep each other in sync. It means that if I quickly put a brief note in from my phone, it’s immediately visible on my tablet and PC, and vice versa. That’s more useful than it seems. Quite often I only have my phone with me – its small and, like my wallet and car keys, I always carry it with me.

But it’s terrible for doing any substantive work – the screen is too small and the keyboard too awkward. That’s where the laptop comes in. And sometimes I want something in the middle, and that’s where the tablet is best. I can choose whichever machine suits my purpose.

Onenote works on Android, Apple IOS and Microsoft devices. What I especially like about the Microsoft devices is that is understands styluses – I can draw diagrams (as a visual person, I do loads of diagrams) and handwriting just works. It’s just like paper except it’s immediately backed up and sync’d to my other devices. Even better, in seminars, rather than quickly scribbling down the inevitable powerpoint slides, I can simply photograph

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them and they appear directly in my notebook. I can even record audio or video content. For those people that use tasks in Outlook, you can mark an item as an Outlook Task, and it automatically flows through.

So, Onenote takes my old paper notebook, and all of the convenience of that, and makes it much smarter, safer, and in many cases, easier. My notes are always with me, great for my faltering memory, and I can easily sort them, cull old and irrelevant items, and keep myself up to date.

So, there has to be a downside. Battery life is the obvious one – and you do find yourself being aware of opportunities to recharge devices. Familiarity is another – you do have to get used to working this way. But that’s pretty much it, and the payoff is the ability to file notes pretty much as you create them, or email them to the people you are with. Onenote is an example of a cloud tool that changes the way we operate.

There’s a huge array of cloud tools available to practices.

The trick is to find the ones that suit your practice the best, and run with them. Onenote and Office 365 should be on your list, to help you change your habits and adopt the new technology. * Andrew Hunt is the Managing Director of Kinetics Group, which is an award winning Microsoft partner for small – midsized businesses. For more information about training, see http://www.computercoaching.co.nz.

Events March - June 2014 Bar Dinner The New Zealand Bar Association and the New Zealand Law Society Auckland Branch co-hosted a Bar Dinner on 9 May 2014 to honour recent judicial appointments at the Royal New Zealand Yacht Squadron.

All photos are property of the NZLS and for viewing only. Photos / Claudia Chilcott, NZLS Auckland Branch photographer.

Judge D Henare and Chief Justice Dame Sian Elias

Justice Thomas, Judge Sinclair and Justice Peters

Stephen Mills QC

Aimee Credin and Harry Waalkens QC

Josh McBride, Justice Wylie and Jim Farmer QC

Mike Ruffin and Mark Treleaven

Michael Heron QC, Solicitor-General

Nick Malarao, Sanjay Patel and Patrick McGrath

Catherine Heron, Anne Hinton QC, Judge Fleming and Glenda Macdonald

Melissa Perkin, Judge Powell and Louise Freyer

Justice Moore and Stephen Mills QC

Anna Adams and John Dixon

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Lunch for Tauranga Members

Paul Mabey QC and Kate Barry-Pinceno

Tim Castle and Duncan McWilliam

Nathan Smith, Glenn Barnett and Matthew Pedersen (LexisNexis)

Matthew Smith, Peter Davey and Tim Richardson

Genevive Denize and Glenn Barnett

Junior Barristersâ&#x20AC;&#x2122; Function - Auckland Shortland Chambers 26 June 2014 The Auckland Junior Barristersâ&#x20AC;&#x2122; function was again kindly hosted and sponsored by Shortland Chambers. A full review of the event is available on p8.

Graham Kohler QC, Richard Keam, and Mark Tushingham

David Bigio and David Dickinson

Tim Gavigan, unknown, Jenny Cooper

Daniel McLellan QC and John Billington QC

NZBA Council Auckand Junior Barrister representative Desley Horton, Alex Sinclair and Stephanie Thompson

Tony Sung and Andrew Barker

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Steve Bonnar QC and Russell Bartlett QC

Desley Horton, John Billington QC and Jenny Cooper

John Billington QC was one of the guest speakers

Guests listening to speakers

NZBA Council member Bruce Gray QC and Yoon Lee

Tony Sung and Bianca Saldhana

Samuel Moore and John Billington QC

David Dickinson and NZBA Council member Peter Davey

Thomas Cleary, Victoria Skelton, Stephen Laing and Melissa Hammer

New Members to July 2014 Janine Bonifant

Wellington

Robert Enright

Auckland

James Every-Palmer Claudia Farry Karen Feltham Listening to speakers

Wellington Auckland Christchurch

Graeme Little SC Dianne Martin Hamish McIntosh

Sydney Auckland Wellington

Rangimarie (Lana) Paul Christchurch Fletcher Pilditch

Auckland

Ruth Gregory

Auckland

Lisa Preston

Dunedin

Daniel Grove

Auckland

Rachael Schmidt-McCleave Wellington

Andrew Irwin

Wellington

Catherine Ward-Johnson

Tauranga

Iswari (Ish) Jayanandan

Auckland

Sam Wimsett

Auckland

Panama Le’Au’Anae

Auckland

Marian Whyte

Rotorua

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2013-2014 CONTACT DETAILSDETAILS 2013-2014COUNCIL COUNCIL CONTACT STEPHEN MILLS QC – President Ph: +64 9 307 9820 stephen.mills@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland 1140 PAUL MABEY QC - Vice President/President Elect Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199, Tauranga 3141 TIM CASTLE – Vice President Ph: +64 4 471 0523 Fax: +64 4 471 0672 tim.castle@xtra.co.nz P O Box 10048, Wellington PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 pj@davey.co.nz PO Box 1811, Shortland Street, Auckland 1140 JOHN DIXON- Co-opted Associate Member representative Ph: +64 9 3367 535; Fax: +64 9 336 7629 john.dixon@meredithconnell.co.nz Meredith Connell, PO Box 2213, Auckland 1140 CLIVE ELLIOTT QC Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 MARCUS ELLIOTT Ph +64 3 348 7300 me@marcuselliott.com PO Box 9344, Christchurch BRUCE GRAY QC Ph: +64 9 307 9811; Fax: +64 9 307 1572 bdgray@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DESLEY HORTON - Junior Barristers Representative Ph +64 9 307 9826 dhorton@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland, 1140, DAVID O’NEILL Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 SUZANNE ROBERTSON Ph: +64 9 307 8778 suzannerobertson@xtra.co.nz PO Box 854, Shortland Street, Auckland 1140 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Lambton Quay, Wellington MATTHEW SMITH – Junior Barristers Representative Ph: +64 9 460 0749 matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@bridgesidechambers.co.nz P O Box 13254, Christchurch 8141

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