At The Bar December 2017
Search Warrants on Lawyers’ Premises Barristers and Client Care Information Cybersecurity
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YOUR ASSOCIATION p13
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4 From the President – Clive Elliott QC 8 Train the Trainers – Report on a recent workshop 9 Seven Easy Steps to Purchasing a Ticket – on the NZBA Website 10 New Members – recently joined members 34 Member Benefit Offering: Why it Pays to Buy Travel Insurance Early – information about a new member benefit 42 Events – Auckland Christmas Function LEGAL MATTERS
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11 Guidelines for the Execution of Search Warrants on Lawyers’ Premises – a review of the NZ/Australian positions 14 Barristers and Client Care Information – an update from the NZLS 17 When Mobile Call Data Speaks – how mobile data can be used in expert evidence 20 Dividing the Pie – timely reminder about barristers’ costs v solicitors’ costs 23 Digital Justice: Online Access to Legal Resources – developments in online dispute resolution PRACTICE AND LIFESTYLE
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26 Cybersecurity and How it Applies to NZ – the cloud and potential dangers 29 Bridge the Behaviour Gaps with Evidence-Based Investing – making rational decisions about money 32 The Opportunity to Innovate Through Leveraging Technology – delivering better service through technology 36 Garnering Likes, Shares and Maybe Even Some s – Using social media to grow your business 39 Petrol Heads' Corner – David O’Neill’s Targa report
p42 The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. EDITORIAL COMMITTEE David O’Neill - Chair Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com
Jacqui Thompson (Compilation & contributions) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz
Melissa Perkin (Contributions & Advertising) Tel: +64 9 303 4515 Email: melissa.perkin@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 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140
From the President Clive Elliott QC
NZBA Council Gretta Schumacher of Shortland Chambers, was elected onto Council as the junior barrister candidate. There is a commitment to maintain a strong connection with the junior and intermediate bars and I am pleased to welcome back as co-opted junior members, Lara Mannis of Richmond Chambers in Auckland and Tiho Mijatov of Stout Street Chambers in Wellington. Gretta, Lara and Tiho have made a significant contribution to date and I would like to welcome them back for another term. Lara Mannis
Tiho Mijatov
Management Committee Following the rule change which was passed at the September 2017 Annual General Meeting, the Council has established a Management Committee, comprising myself as Chair, Kate Davenport QC (President-Elect), David O’Neill (Treasurer/Secretary), Lisa Hansen (Vice President, Wellington), Dale Lester (Council member, Christchurch) and Melissa Perkin (Executive Director). The Council has agreed to delegate certain largely administrative functions to the Management Committee to streamline the running of the Council. The Management Committee has had its first meeting, via conference call. It will provide regular reports of its business to the Council. Annual Conference 2018 – Rotorua, 21 & 22 September - Save the Date! The Conference Committee has confirmed the 2018 Annual Conference, to be held in Rotorua. Following the very successful 2017 conference, we are planning on a similar format to this year with the inclusion of the optional activities which proved very popular. More details will be announced very soon. Gender Equity Committee There has been some excellent progress made by this committee with work on developing a new Equitable Briefing Policy. Liaison with the New Zealand Law Society and Russell McVeagh has resulted in a joint Gender Equitable Engagement and Instruction Policy being developed. The policy was launched on 5 December in Auckland and Wellington. My congratulations and thanks to the committee on this work and in particular to co-chairs James Farmer QC and Kate Davenport QC and to Jenny Cooper QC, Gretta Schumacher and Lara Mannis. I am also pleased to advise members that the NZBA has received a $5,000 grant from The Law Foundation to fund research into the gender ratio of lawyers appearing in the Court of Appeal and Supreme Court between 1 January 2012 and 1 January 2018. This data will provide useful insight into the extent to which male lawyers appear in these courts more frequently than female lawyers, and whether there is a different gender ratio for those appearing as senior counsel as opposed to junior counsel. The NZBA is grateful to The Law Foundation for its generous support of this initiative. Members will be updated with the results of the research in due course. Christchurch - Old and New The rebuilding of Christchurch continues. As part of that process, the last sitting of the Christchurch High Court in the Durham St North building took place on 15 November. My thanks to Jonathan Eaton QC who represented the NZBA at the special sitting. Submissions and Law Reform I would like to thank a number of members who have kindly assisted the NZBA. Anti-Money Laundering/Countering of Financial Terrorism Act – MOJ Working Group As mentioned in the October 2017 issue of At the Bar, Council member Paul Radich QC has been representing the NZBA for the purposes of consultation with the Ministry of Justice Working Group
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which is currently developing the regulations under the Anti-Money Laundering and Countering of Financial Terrorism Act 2009. Dr Derek Johnson and Paul have both reviewed the regulations for the purpose of providing a written response to the Ministry of Justice. Derek provided a substantive draft for the response which has been reviewed by Paul and former Council member John Dixon QC. My sincere thanks to Derek for the significant amount of work in preparing the substantive draft response, to Paul for his ongoing time and effort reviewing the regulations, peer reviewing Derek’s draft and his liaison with the Ministry of Justice, and to John for his work on peer review. The work in this area has potential to be of great significance for many NZBA members. I will keep members updated as developments come to hand. Bail Appeal Intervention On 15 November, the NZBA received notice from the Court of Appeal of an invitation to intervene in relation to a case where the appropriate standard of review for the Court of Appeal hearing an appeal against a refusal of bail from the High Court was under consideration. Prior to the passage of the Bail Act 2000 the Court of Appeal had described such an appeal as an appeal against the exercise of a discretion, therefore requiring the appellant show the refusal was contrary to principle, or that the judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong. This had resulted in a different test being applied to bail appeals in the Court of Appeal from those in the lower courts. The Court sought submissions as to whether that test remains correct. NZBA member Belinda Sellars very kindly agreed to appear on behalf of both the NZBA and NZLS at short notice. Belinda was assisted by Simon Barber a final year law student at Victoria. My thanks to all concerned. Training The NZBA is committing significant resources to training development. This is an area in which we can contribute meaningfully to supporting our members. Our approach to training is that it should be more than simply gathering CPD points - it should be about improving advocacy and addressing the needs of our members. As part of this approach, we have recently run two workshops. The first, Paperless Hearings, was held in October in Auckland. It focussed on using electronic documents and bundles in court. It included the opportunity for attendees to present before a panel of three judges; Dr David Harvey and workshop leaders Josh McBride and Phillip Cornegé. Together with Gretta Schumacher, Josh and Phillip had prior to this demonstrated the techniques required for presenting and in a hands-on session, taken the attendees through the process of navigating and hyperlinking in the documents. This event was extremely successful, with a great deal of positive feedback. We will run it in other centres next year. My thanks to Josh, Phillip, David and Gretta. The second event was the Train the Trainers Advocacy Skills Workshop held in November. We invited senior members of our Faculty to a training session run by Ian Robertson SC (Chair of the Australian Bar Advocacy Training Council), Chris Gudsell QC and James Rapley. Ian, Chris and James are all very seasoned trainers, having taught on numerous advocacy courses both in New Zealand and internationally. The Faculty members were joined by senior practitioners who presented openings or closings in the morning, and either an examination in chief or a cross-examination in the afternoon. Other members volunteered to take on the role of witnesses. We thank all those who attended and the ANZ Bank which provided its premises free of charge for the workshop. On 1 November we held a Worksafe Prosecutions Update Webinar. The presenters were Her Honour, the Chief District Court Judge Jan-Marie Doogue, Sue Petricevic (Worksafe NZ), and Fletcher Pilditch (Richmond Chambers). It was chaired by Nick Chisnall (Blackstone Chambers). One of the advantages in webinar technology is that it is possible to draw on presenters irrespective of their location and to later convert this material into an online module. For those who missed it, we will soon have this available on our website to be viewed.
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I would like to thank our Training Committee for their hard work this year. Together, with our Secretariat, they have been key to the delivery of a varied and useful programme. While I am loathe to single out anyone in particular, I do want to highlight the contributions of our tireless Chair, Chris Gudsell QC, and the Director of our criminal stream, James Rapley. Thank you to all. International Bar Association Annual Conference – Sydney – 8-13 October 2017 I represented the NZBA at the IBA Conference in October in Sydney. Members of the International Council of Advocates and Barristers (ICAB), which hosts the biennial World Bar Conference, attended the conference as well. I attended a meeting of the section for barristers. It was attended by a number of the presidents of the independent bar. We discussed a number of issues including obtaining funding for junior and intermediate barristers to attend IBA conferences. We also discussed the upcoming ICAB Conference in South Africa over Easter 2018, which I am attending. The NZBA co-hosted a dinner with the New Zealand Law Society. Our guests included Fiona McLeod SC (President - Law Council of Australia), Jonathan Smithers (CEO of Law Council of Australia), Hon Mark Dreyfus QC (Shadow Attorney General), Joe Egan (President, Law Society of England and Wales), Andrew Langdon QC (Chair, Bar Council of England and Wales), Gordon Jackson QC (Chair, The Faculty of Advocates - Scotland), Paul McGarry SC (Chair, Council of the Bar of Ireland) and Ian Huddleston (President, the Law Society of Northern Ireland). The function was very successful and was a good illustration of successful cooperation and coordination with the NZLS. Finally, a special thank you to our superb executive team, Melissa Perkin, Jacqui Thompson and Lisa Mills. They do a great job for the Association and nothing is too much of an effort for them. They all deserve a well-earned break. On behalf of the NZBA Council and staff, we wish you a safe and happy Christmas and holiday break. We look forward to seeing you again in the New Year, refreshed after your summer vacation. Clive Elliott QC President
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Train the Trainers Workshop – 17 November 2017 by Jacqui Thompson*
emphasise collegiality. Whether you are senior counsel or a junior, you are colleagues who are attending to learn, and all parties must (to use a phrase that was heard several times during the workshop) leave their egos at the door. This approach allows for a positive and memorable learning experience.
The success of the Mastering Advocacy workshops run by the NZBA is the quality and commitment of the faculty. We are constantly seeking to improve all aspects of our programmes but, as noted by the Chair of our Training Committee, Chris Gudsell QC, a major emphasis is the quality and commitment of our trainers.
There are a number of people who contributed this very successful workshop. First were the coaches. They gave up a substantial amount of time with one aim in mind – giving back to the profession by improving the training available to members.
Recently we took advantage of the presence in New Zealand of Ian Robertson SC and requested him to co-direct a training session for a small number of members of our teaching faculty. Ian is the President of the South Australian Bar Association, President of the Advocacy Training Council (ATC – the Australian Bar Association’s training arm) and a director of the Australian Advocacy Institute.
The participants who signed up at short notice but gave their time and dedication deserve a special mention. The feedback from them was that they learnt a great deal and appreciated the comments of the coaches. The next group to note are the witnesses. Again, they gave generously of their time. A great deal of preparation was required but they participated fully, including in the discussions that followed the performances. We were also delighted that several joined the faculty and participant for the drinks at DeBretts Kitchen. This is a sign of a successful workshop, that practitioners of all levels come together and enjoy each other’s company.
We invited NZBA members to come to an Advocacy Skills Workshop and be participants who would be critiqued by our faculty coaches. In turn, Ian with workshop co-directors, Chris Gudsell and James Rapley, would critique the coaches on their training of the participants.
We would also like to thank our hosts, the ANZ Bank who allowed us to use their premises and provided excellent support. The NZBA and ANZ have a long history together and the Bank is one of our Member Benefit partners**.
Our guest speaker was Justice Rhys Harrison. His Honour had attended the inaugural NZBA/ ATC appellate advocacy course in Brisbane in September and in spite of significant time pressures, agreed to address the attendees. The Judge commented that learning comes from participating. He also emphasised that there is no substitute for oral advocacy – cases are won and lost on your feet. A 15 minute cameo performance that is clear, crisp and to the point can win over the written word. Such a performance can even overcome a hostile Bench (not, as His Honour said, that there is such a thing, of course!).
Finally, we can’t finish without noting the commitment of our workshop directors, Ian, Chris and James. Their contribution was enormous, and this event would not have happened without them. We sincerely thank them all. We look forward to seeing everyone at our next Mastering Advocacy Workshop in 2018. * Jacqui Thompson is the NZBA Training Director. For more information about the NZBA training programme, please email her at jacqui.thompson@nzbar.org.nz.
There are a number of significant features to the way the NZBA trains. We use a similar methodology to the ATC and in particular
** For more information about the ANZ member benefit, please go to the member benefits section of our website.
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Guidelines for the Execution of Search Warrants on Lawyers’ Premises: a Review of the NZ/Australian Positions By Shane Elliott*
The execution of search warrants on lawyers’ premises is a relatively uncommon occurrence. However, it does happen and when it does, it can raise significant issues in relation to privileged documents and how those are to be managed as part of a search.
copying or “cloning” computers and electronic storage devices found onsite (sometimes this happens onsite, and sometimes the devices are removed to be cloned and then returned). If it is not clear to the searcher whether an item may be lawfully seized and it is not reasonably practicable to determine that onsite, the searcher may remove the item for the purposes of examination or analysis to determine if it may be lawfully seized (s 112 SSA). Some onsite analysis of material is required however. It is not permissible for a searcher to simply take everything and then work out later what may legally be kept.
The Queensland Law Society and Queensland Police recently released a joint set of guidelines regarding Search Warrants Executed on Solicitors’ Premises. Those provide a series of protocols for claiming privilege over hard-copy and electronic documents, and for dealing with those while any disputes about privilege are resolved (Guidelines). A full copy of the guidelines can be found at http://www.qls.com.au/Knowledge_ centre/Ethics/Search_Warrant_Guidelines.
Under section 136 of the SSA, those search powers are subject to a variety of privileges. Those privileges extend to religious and medical privileges, but relevantly include privilege for: • communications with legal advisors (“solicitor- client privilege”); • preparatory materials for proceedings (“litigation privilege”); and • settlement negotiations (“without prejudice privilege”).
The release of those guidelines provides a timely reminder of the issues that can arise in this context and an opportunity to review the position in New Zealand.
In summary, if a document or information is subject to one of those privileges, it cannot be searched (i.e. examined) by the searcher. Those privileges do not extend to objects (other than documents). So, a defendant could not rely on a claim of privilege to prevent the search of, for example, drugs or a weapon.
Relevant search powers The relevant principles in New Zealand are codified under sections 136 –147 of the Search and Surveillance Act 2012 (SSA). Those principles apply to search warrants issued under the SSA, but also to a selection of search powers available to other regulators including the Serious Fraud Office, Financial Markets Authority, Commerce Commission, Customs and others. This is important as the types of cases that are likely to involve evidence from lawyers’ records will often be brought by one of those regulators rather than the Police.
Execution of search warrant The most important point to note about search warrants on lawyers’ premises, is that a warrant cannot be executed there unless a lawyer or their representative is present. If the searcher is not able to contact a lawyer from the relevant office, or their representative, section 143(3) requires that the searcher contact the New Zealand Law Society and request that it appoint a representative.
The starting point is that a search warrant (or similar search power) authorises the person executing it to enter the relevant premises and seize anything covered by the particulars of the warrant. In more recent times, this also includes
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Once a lawyer or representative is present, the
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searcher must then give them the opportunity to claim privilege over any relevant materials before the warrant can be executed. Asserting privilege during search warrant Section 147 of the SSA sets out the requirements for making a claim of privilege over material sought to be seized. The person wishing to assert privilege must provide a particularised list to the searcher, identifying the documents/information in respect of which privilege is claimed. The “particulars” required in the list relate to the documents listed, rather than the basis for claiming privilege. Accordingly, the list may be expected to look similar to a criminal disclosure index or discovery list of documents, setting out the type, date, author, etc of each document, or categories of similar documents. Although there is no statutory requirement to do so, it would also be prudent to identify the type of privilege asserted as that will become an issue if the privilege is disputed in any event. The list must be provided “as soon as practicable” after the person asserting privilege is advised that a search is to be conducted or given the opportunity to claim privilege. As noted above, in the case of lawyers’ premises, this opportunity must be given before any steps can be taken to execute the warrant. However, in other (non-lawyer) cases, this notification may only arise later, if the searcher comes across something that they have reasonable grounds to believe may be privileged. Given the purpose of a search warrant would generally be undermined by advance warning, the first a lawyer is likely to know about a search warrant, is when the searcher arrives at their premises and presents it. The situation is different for examination or production orders (which are written requests for documents). In those situations, the lawyer has a timeframe for responding, and will be able consider the documents requested, and determine any bases upon which documents may be withheld. Interim procedure pending resolution of privilege claim Given the potential number of documents involved and/or the short time available, it will often not be possible for a lawyer to adequately
particularise all the material over which privilege is claimed at the time of the search. In such circumstances, an interim or general claim of privilege may be made. Where that occurs, or where there is otherwise a dispute over a privilege claim made, the searcher may take the material sought (or a copy) and secure it. However, the material cannot be searched (examined) until the privilege claim has been determined either by agreement or by the court. The searcher must also provide the lawyer or person claiming privilege with a copy or access to the material taken, so that they can further particularise the privileged documents as necessary. Differences between Queensland Guidelines and NZ position The main difference between the Queensland Guidelines and the procedure set out in the SSA is the specificity the Guidelines provide in terms of how privileged documents are to be identified, and how they should be secured pending determination of privilege claims. While the SSA calls for those steps, no detail is provided about practically how to do that. Accordingly, the Guidelines may provide some useful examples and templates. For example, attached as appendices to the Guidelines are two template forms for listing hard copy documents in respect of which privilege is claimed and also electronic documents in respect of which a forensic copy or clone is taken. As noted above, those look very much like discovery lists of documents – including spaces for document ID numbers, document type, etc. Where such detail cannot be provided at the time of the search, the Guidelines provide that the solicitor should identify the documents that may be subject to privilege generally (e.g. by reference to file or client names, number of pages, etc). Those documents are then required to be placed in separate containers and sealed. The solicitor then has up to 14 days after the execution of the search warrant to complete the requisite form particularising the documents claimed as privileged. The Police must provide access/copies of the documents for that purpose. The Guidelines provide a timeline for any
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disputes in respect of privilege claims to be notified by the Police (within 7 days of notification) and for the solicitor to make an application to the Court to determine those. Importantly, the Guidelines specifically provide that if a claim of privilege is not disputed, or is upheld by the Court, the relevant documents must be returned by the Police. The SSA does not expressly require that. However, it could be argued that such a result follows by implication – i.e. if the searcher is not able to examine the documents because they are privileged there is no point in retaining them. The Guidelines state that if no claim of privilege is made either during the search warrant, or if privilege is claimed but no particularised list is provided within 14 days of the search, the Police are entitled to examine the material seized. Cases concerning searches of lawyers’ premises As noted above, the execution of search warrants on lawyers’ premises is relatively rare. Rarer still are reported cases concerning them. There appears to have been only one case arising since the enactment of the SSA that discusses legal privilege in any relevant detail1, and only a handful arising before that. While the SSA codified the law, that codification reflected the common law position at the time. Accordingly, those earlier cases are still relevant to applying the Act. Gowing & Co Lawyers Ltd v Police2 is the most recent case. It provides guidance regarding the status of non-privileged documents sent to a lawyer by their client. The defendant in that case had given his lawyer a letter written by the defendant to a girl he was charged with indecently assaulting. The letter was obtained by the Police from the lawyer’s office via a search warrant. The lawyer asserted the
letter was privileged as it was provided to him in the course of a privileged meeting with the defendant. However, it was accepted that the letter was not privileged when it was created. The Court held that providing it to the lawyer, even for the purposes of seeking legal advice in relation to it and the charges, did not render it privileged and accordingly it was subject to the search. An earlier case, Director of the Serious Fraud Office v A Firm of Solicitors3, provides helpful guidance in terms of what should be included in an application for a search warrant where it concerns a lawyer’s premises, and the appropriate scope of forensic cloning of electronic files. The solicitors in that case were alleged to have provided advice about how to create a fictitious paper trail to support a fraudulent transaction. They were therefore suspects in their own right. The SFO obtained and executed a search warrant for their offices, taking away a large number of paper files as well as cloning the entire computer server. The Court held that the application for the search warrant omitted a number of relevant details. In particular, it failed to note that the partners of the firm had acknowledged in interview that they held relevant documents and had offered to cooperate in providing those. It also held that warrant was unnecessarily broad. The SFO knew the details of the alleged transaction and the names of the parties. It was therefore in a position to exclude from the ambit of the search the vast bulk of the documents and electronic data held by the firm for its own purposes or on behalf of its other clients. Instead it had cloned everything. Finally, no provision was made by the SFO for dealing with potentially privileged material contained on the cloned server. Certain suggestions were made by the Court for how
Gowing & Co Lawyers Ltd v New Zealand Police [2013] NZHC 2177. Ibid. 3 Director of the Serious Fraud Office v A Firm of Solicitors (2005) 22 CRNZ 94 (CA). 1 2
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to deal with that. However, those suggestions by the Court have been somewhat overtaken by the provisions of the SSA discussed above, which now provide a procedure. Practical points to take away Hopefully this is not a situation you will ever find yourself in. However, if your or your client’s legal premises are ever the subject of a search warrant, the key points to keep in mind are: (a)
Ensure nothing is done unless and until a lawyer or representative of the firm is present.
(b)
Review the search warrant carefully to ensure it is adequately specific. A general warrant to take any documents relevant to the investigation, for example, may be objected to.
(c)
Carefully monitor the execution of the search warrant to ensure that only
documents that are responsive to the particulars of the warrant are seized.
(d)
If in doubt, claim privilege over the seized material, even on a general basis. It is much more difficult to assert privilege after the fact than to concede upon reflection that it does not apply.
(e)
Record all objections to material being seized, assertion of privilege and any other relevant points at the time of the search, in as much detail as possible. If practicable, also have the person in charge of the search sign that record to acknowledge it as an accurate record (this is a prerequisite under the Guidelines).
* Shane Elliott is a civil and regulatory barrister at Blackstone Chambers in Auckland. He specialises in regulatory prosecutions and cases involving complex white-collar crime.
Barristers and Client Care Information By Mary Ollivier, New Zealand Law Society*
This article examines a barrister’s obligations to provide client care information.
writing to a client information on the principal aspects of client service including the following:
Where a solicitor instructs a barrister, the barrister is not required to provide client care information to the client.
a) The basis on which the fees will be charged, and when payment of fees is to be made.
This is spelled out in rule 3.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC). However, a barrister may have obligations beyond the scope of r.3.7 to provide information and these are explored below.
b)
The professional indemnity arrangements of the barrister sole. This obligation is met if it is disclosed that the barrister sole holds indemnity insurance that meets or exceeds any minimum standards from time to time specified by the Law Society. If a barrister sole is not indemnified, this must be disclosed in writing to the client.
c)
The fact that the Lawyers’ Fidelity Fund does not provide any cover in relation to a barrister sole as he or she does not hold client’s funds.
Amendment to the RCCC Some confusion has arisen since the 1 July 2015 amendment of the RCCC providing changes to the intervention rule. Rules 3.4A and 3.5A were inserted as part of that amendment. They apply when barristers take direct instructions.
d) The procedures in the barrister sole’s practice for the handling of complaints by clients, and advice on the existence and
Rule 3.4A states: “A barrister sole must, in advance, provide in
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availability of the Law Society’s complaints service and how the Law Society may be contacted in order to make a complaint.”
by checking that a client has received the information from an instructing solicitor. This obligation was highlighted by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in Auckland Standards Committee 1 v Hart [2012] NZLCDT 20.
Rule 3.5A states: “A barrister sole must, prior to undertaking significant work under a retainer, provide in writing to the client the following: a) a copy of the client care and service information set out in the preface to these rules; and b)
any provision in the retainer that limits the extent of the barrister sole’s obligation to the client or limits or excludes liability. The terms of any limitation must be fair and reasonable having regard to the nature of the legal services to be provided and the surrounding circumstances.”
Rule 3.7, however, makes it clear that rules 3.4A and 3.5A do not apply where the lawyer is instructed by another lawyer or by a member of the legal profession in an overseas country. There are exceptions to that, listed in rule 3.7. Although barristers who have instructing solicitors are not required to provide client care information to clients, they may choose to do so. This is particularly relevant where the instructing solicitor has low involvement in the matter. Obligations beyond the amendment There are some obligations barristers have in relation to client care information regardless of the amendment. Barristers need to provide the instructing solicitor with fee information or “other advice” if that is requested by the instructing solicitor, rule 3.7 says. That “other advice” may include client care information. Where there is an instructing solicitor, one of the instructing solicitor’s roles is to provide the client with client care information. It is wise, however, for a barrister to ensure that the client has received this information from the instructing solicitor. Barristers have an obligation to ensure that the client is informed about the principal aspects of client service and the basis on which fees will be charged, and can meet this obligation
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It would be a “serious failure” of consumer protection if a lawyer in Mr Hart’s position was “relieved of any obligation to advise the person or persons he knows to be paying fees, concerning the principal aspects of client service relating to the basis on which his fees would be charged, in advance,” the Tribunal said (at [135]). The Tribunal noted that “a strict interpretation would suggest that, as required by the intervention rule, a barrister’s client to whom he or she owes obligations of fee disclosure is only his or her instructing solicitor. But the Tribunal believes such an approach is unduly technical, and does not give effect to the legislative purpose” (also at [135]). This position of the Tribunal further emphasises the advantage of barristers checking that clients have received client care information from instructing solicitors. Direct instructions Where barristers take direct instructions they will, as noted above, need to provide client care information to the client, as outlined in rules 3.4A, 3.5A and 3.6A. The need for barristers to provide client care information when they take direct instructions, or where the instructing solicitor has minimal involvement in a matter, was emphasised by the High Court in Hart v Auckland Standards Committee 1 of New Zealand Law Society CIV2012-404-5076 and 5528 at [214]. “Mr Hart had an obligation to inform the family of the work he would be required to do, and the basis upon which he proposed to charge for that work,” Justices Winkelmann and Lang said. “Mr Hart failed to meet that obligation. Instead, he charged the family large sums of money without providing any explanation regarding the nature of the services he intended to render, or how he proposed to charge for them.” That amounted to “reasonably serious
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misconduct”, Justices Winkelmann and Lang said. The Court also noted (at [151]) that “putting the scope of work in writing to clients was the best practice” on the part of barristers. “The important thing was to explain (in terms the client understands) what is required by the client, what can be done for them, and whether their expectations can be met,” Justices Winkelmann and Lang said. Barristers taking direct instructions will also need to include written, accurate advice about the barrister’s experience and expertise, as provided in RCCC rule 14.7.3. This rule also requires the barrister to identify, in writing, any disadvantages to the client in giving direct instructions. It is important to note that this requirement for the barrister to evaluate any disadvantages to the client in giving direct instructions needs to go hand-in-hand with an evaluation of whether direct instruction is both in the interests of justice and the best interests of the client. If direct instructions are not both in the interests of justice or the client, then an instructing solicitor is necessary.
Rule 1.6 states that “all information that a lawyer is required to provide to a client under these rules must be provided in a manner that is clear and not misleading given the identity and capabilities of the client and the nature of the information”. Rule 1.7 expressly provides that electronic provision of information is permissible unless the client makes it clear that this is not acceptable. If information is provided electronically, the information must be readily accessible to the client and must be available for subsequent reference. Benefits of providing information Regardless of any rule, the experience of the NZLS Lawyers Complaints Service is that many complaints would be avoided if the lawyer provided clear and easy to understand client care information and terms of engagement including an invitation to have open and ongoing discussion about likely fees. This helps set the expectation of the relationship, assists the client’s understanding of what is required from them and what they can expect from their lawyer. It can also prompt an open dialogue which is the key to any successful business relationship and lead to repeat instructions. * Mary Ollivier is the General Manager: Regulatory for the New Zealand Law Society.
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When Mobile Call Data Speaks By Dr A Sathyendran*
New Zealanders made 8.16 billion minutes of calls and sent 11.3 billion texts in 20161, which is on average about 1800 minutes of calls and 2500 texts per person. Each of these call and text activities has data associated with it and it is a large source of evidence that can be used in courts. Yet, in New Zealand, mobile data is not widely used. In the USA, over a million requests for mobile phone records are made every year2. On a pro rata basis this equates to about 15,000 requests in New Zealand. The author does not believe 15,000 cell phone record requests are made in New Zealand, highlighting the under-utilisation. Even when mobile data is used it is primarily confined to time of call, who was called and content of the text and very rarely is location information used. The fact that laws governing the retention of mobile call data do not require the retention of location information underlines the lack of understanding. When a new technology emerges as a forensic tool, it takes time before it is well accepted and widely used in the court system e.g. DNA. However, one would expect New Zealand to be a fast follower, but that is not the case when it comes to making use of mobile call location data. In countries such as the USA and UK, the legal system has a greater appreciation of mobile call location data and it is regularly used in domestic violence, murder, robbery, drug and rape cases. The level of acceptance of mobile call data as evidence has reached a point where in some court cases mobile call location data was the primary evidence. Laws around retention of mobile location data When a call, text or data activity takes place, the mobile phone makes contact with the mobile network. A mobile network has many transmitter towers (cell sites) which serve the mobile. Generally, the mobile is served by the closest cell site. The network operator collects information on the time of the activity, duration, cell sites that served the call, called party etc. The length of time this information is retained by the network operator varies. In New Zealand, there is no legal requirement
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to retain the cell sites that served the call or text (the location information). The length of time and the amount of data retained varies, and it is determined by the operator’s business practices. A significant amount of location related information is collected by the operators, however, this detailed information is discarded within days. Some operators keep cell sites that served a call or text. However, if multiple cell sites served a call, only the cell sites at the beginning and end of the call are kept. In contrast, the USA, UK and Australia have laws governing the retention of mobile location data. In the USA, the network operators are required to keep the data for at least a year. The UK has a Voluntary Code of Practice on the retention of communications data since 2003 (updated in 2007 and 2009) that requires the data to be kept for a year. In Australia, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 made it mandatory for network operators to retain data for a minimum of two years3. It is understandable that mobile call data is not one of the first types of evidence lawyers consider in their preparation, given that there is other more significant evidence that needs to be considered first. However, lawyers invariably do not consider the mobile call location data at all or by the time lawyers consider accessing the information, it is already lost. Therefore, it is best to request the data and figure out whether it is useful or not later. Key uses of mobile location data Mobile call location data is unlikely to give the exact location as does GPS. While mobile call location data does not have the accuracy of GPS, it has the advantage of being more readily accessible and usually in large numbers. The USA examples discussed later in this article show that law enforcement obtaining access to a large amount of mobile phone location data was crucial in securing a conviction. Corroborate or destroy alibis The first two cases are from the USA, where mobile location data provided the crucial link to the suspect.
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Rebecca Cleland was accused of hiring her two cousins to kill her husband. One of the key breaks was provided when the prosecution was able to prove that Cleland’s cousin Alvaro Quezada was lying. Cell phone data placed Alvaro Quezada about a block from the murder scene, despite his claim that he was at a restaurant 20 miles away.4 All three were successfully convicted. In 2005 Alejandro Avila was convicted of the murder of 5-year-old Samantha Runnion. Avila claimed that he was at an Ontario mall when the murder happened, however, his cell phone data showed that that he was near where Samantha Runnion’s body was found. The third case is a New Zealand example. The data presented is not the actual information but representative of it. In 2014 John Smith was convicted of assault. Both defence and prosecution lawyers agreed that the cell phone call data was not relevant to the case. The case was appealed in 2016 and the primary evidence presented was mobile call location data. The accuser claimed that she was at her house around 10.30am when the assault happened. Her cell phone data showed there was a call at 10.22:34. The call lasted 33 seconds.
Table 1: Call data of the accuser. Time
Call Duration
Serving cell at the start of the call
Serving cell at the end of the call
10:22:34
33sec
Shirley
Edgeware
Cell site Shirley was serving the call at the beginning of the call and cell site Edgeware was serving the call at the end. Figure 1 shows the two cell sites that served the call, nearby cell site Warrington and the accuser’s house (The House). The analysis considered whether it was possible for a call to be handed over from the Shirley cell site to the Edgeware cell site when a person was in The House. Using mobile phone signal measurement data taken at The House and propagation and statistical analysis, it was concluded that when the call was carried by the Edgeware cell site the accuser was not in The House. She was in the highlighted areas, placing her few kilometres from The House. The appeal was successful and a retrial was ordered. Police dropped the charges in light of “new evidence”. Track suspects' movements In 2002, Danielle van Dam disappeared from her San Diego home. Prosecutors used David Westerfield's cell phone records to track his movements in the days after and place him where van Dam’s body was found. Westerfield was convicted of kidnapping and murdering the 7-yearold girl.
Figure 1: The accuser's house in relation to the cell sites which served the call.
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In a New Zealand case (not actual data, but representative of what happened) the accused claimed that he was not at the scene of the incident and was getting dropped off at work in the Christchurch city centre around the time of the incident (around 10am).
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Table 2: Phone records of the accused. Time
Type Cell Site
09:56:44
SMS Bealey Ave West
10:07:43
SMS Christchurch West
10:08:22
SMS Christchurch West
10:11:21
SMS South City Centre
10:11:33
SMS South City Centre
10:11:48
SMS South City Centre
Figure 2 shows the cell sites that served the accused. The sequence of the cell sites that served the accused showed movement from Bealey Avenue West to Christchurch city centre. In this case the call data corroborated the accused’s alibi. Place a person in a location at a particular time Aaron Graham and Eric Jordan from Baltimore were convicted of six armed robberies in 2010 and 2011. Investigators used their cell phone location data for more than seven months to link them to the crimes. There were no eyewitnesses tying Graham and Jordan to the
robberies, so their prosecution hinged on the cell phone data5. Quartavious Davis was convicted of a string of robberies partly because of phone location data. Investigators got access to cellphone call records for 5,803 calls and 11,606 location data points, an average of around one location data point every five and a half minutes for 67 days. That allowed them to put Davis in the area of robberies and establish where he was during a crime spree in Florida in 2010 and 2011. He was convicted and sentenced to almost 162 years in prison6,7. Sean Mercer was convicted in the UK of murder and six others were convicted of lesser charges, following the killing of an innocent 11 year old who was the victim of a feud between rival gangs. Police were able to use communications data to attribute mobile phones to each of the offenders and to demonstrate association at key times and place individuals at specific locations. The data also showed that phones of the key offenders were in the area some twenty minutes after the murder, helping to establish that Mercer and the other convicted associates were together in order to burn Mercer's clothing and douse him in petrol to remove firearm discharge residue from him8. Despite its limitation in accuracy, cell phone location data in large numbers helped the prosecutors to successfully get a conviction even when there was limited other evidence. In summary New Zealand is behind countries such as the USA and UK in making use of location information contained in cell phone data. In those countries, cell phone location data and it is widely used to corroborate or challenge other evidence. In a number of court cases cell phone call data has played a key role in gaining a successful prosecution. New Zealand laws do not require the retention of cell phone location data, therefore, it is best to request the data early to avoid loss of crucial evidence.
* Dr A Sathyendran is a senior telecommunication specialist with over 20 years’ experience in technology, policy and regulation. He is a member of The Forensic Group, a team of expert witnesses. Dr Sathyendran can be contacted at sathy@ansconsult.net.
Commerce Commission, “Annual Telecommunications Monitoring Report 2016”, June 2017 https://www.fd.org/docs/training-materials/2015/ws2015_05/cell-cites.pdf 3 http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/DataRetention#_Toc338835110 4 http://articles.latimes.com/2002/sep/06/local/me-onthelaw6 5 http://fusion.net/story/178295/court-ruling-cell-phone-location-scotus/ 6 http://www.computerworld.com/article/3003237/data-privacy/supreme-court-rejects-appeal-in-cellphone-location-privacy-case.html 7 http://www.rollcall.com/news/supreme_court_passes_on_cell_phone_tracking_case-244691-1.html 8 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228726/7586.pdf 1 2
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Dividing the Pie: A Timely Reminder About Barristers’ Costs v Solicitors’ Costs by Jacqui Thompson*
60% of the trustee’s solicitor’s estimate of a likely total of $239,485, including disbursements but excluding GST. Rares J commented that the total estimate appeared to be “… very large and to involve the participation of a large number of solicitors in performing work at rates far greater than counsel’s rates for tasks that appeared, primarily, to be the responsibility of counsel who would be presenting [the trustee’s] case and leading evidence in support of it.2
A recent case from the Federal Court of Australia has once again focussed attention on the issue of the division of labour between barristers and solicitors and the costs that are passed on to the client. In particular the Judge in this case noted that it appeared to “…have become a more general model for solicitors to do work that the purpose of having a separate bar was originally intended to ensure be done by the specialised and most costefficient advocate, namely counsel….”1 Armstrong Scalisi Holdings Pty Ltd v Piscopo (Trustee), in the matter of Task(s) Partner Collins was an application for security for costs by Hrs $ a trustee of two bankrupt Considering 1 605 SoC; seeking estates. The applicant further and better company (Armstrong particulars (if Scalisi) was seeking leave necessary) to file a claim against Conferring with 1 605 Counsel the bankrupt estates. Drafting Defence 1 605 Rares J was satisfied that and any Armstrong Scalisi would Cross-Claim not be able to pay the costs Filing and 0 0 ordered against it if the Serving Defence Trustee was successful. He and any Cross-Claim then turned his attention to Correspondence 1 605 the costs estimates. with client and The judge noted that the total amount of security of $143,691 (ex GST), was
The amount claimed was based on estimates on differing hourly rates for work performed by a partner ($605 per hour), a senior associate ($490 per hour), an associate ($420 per hour) and a lawyer ($310 per hour). Counsel was charging $3,200 per day and $400 per hour. The amounts estimated make interesting reading. Rares J identified the following amounts for consideration:3 1. $21,920 for considering the statement of claim and drafting and settling the defence and any cross-claim, comprising: Senior Associate
Associate
Lawyer
Counsel (daily rate)
Total
Hrs
$
Hrs
$
Hrs
$
Hrs
$
$
2
980
2
840
5
1,550
4
1,600
5,575
1
490
1
420
1
310
2
800
2,625
3
1,470
5
2,100
10
3,100
9
3,600
10,875
0
0
0
0
1
310
0
0
310
1
490
1
420
2
620
1
400
2,535
7
3,430
9
3,780
19
5,890
16
opposing solicitors regarding pleadings Total
4
2,420
6,400 21,920
Armstrong Scalisi Holdings Pty Ltd v Piscopo (Trustee), in the matter of Collins [2017] FCA 423 (21 March 2017) at [23] At [17] 3 At [18] 1 2
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2. $69,960 for preparation and conduct of an estimated two-day final hearing, comprising: Task(s)
Partner
Senior Associate
Associate
where “… lawyers at a solicitor’s firm were each charging different, but substantial, amounts for doing what must involve Lawyer Counsel Total repetitive work of looking (daily rate) at one another’s drafts, Hrs $ Hrs $ $ documents or other 8 2,480 1 3,200 10,040 communications, all of which, ultimately, would 0 0 2 6,400 6,400 be, and were intended to be (and properly should 18 5,580 0 0 16,960 have been), drafted and settled by counsel”.4 6 1,860 0 0 6,220
Hrs
$
Hrs
$
Hrs
$
Drafting submissions
2
1,210
3
1,470
4
1,680
Counsel preparation
0
0
0
0
0
0
Solicitor preparation
4
2,420
8
3,920
12
5,040
Correspondence with client and opposing solicitors, regarding hearing
2
1,210
3
1,470
4
1,680
Attendance at hearing
8
4,840
12
5,880
14
5,880
14
Transcript fees
0
0
0
0
0
0
0
Total
16
9,680
26
12,740
34
14,280
46
Rares J went on to note that $17,000 had been allowed for preparation by the solicitors for the estimated two-day hearing, while the cost of counsel’s preparation was only $6,400, and the attendance of all four solicitors for varying times at the hearing at a cost of nearly $21,000, when counsel, who was to present the case, would be charging a mere $6,400 (at [19]). His Honour remarked that: “[20] … Counsel's fees were less on an hourly basis than all of the solicitors' fees, apart from those of the junior lawyer, that were to be charged on the solicitor/client costs. Counsel was the one who should have had the primary role in preparing and drafting the pleadings and submissions, after having received instructions about the facts, rather than having pleadings, or submissions, drafted by not just one, but four solicitors. [21] Given the obvious efficiency (and proper role) of having counsel draft and settle pleadings and submissions, as well as leading evidence in chief, and significant savings in fees from his doing so, there is no apparent reason why much of that work was planned to be done by not one but, in various unexplained ways, four solicitors as well as counsel.” His Honour then noted that a significant societal concern was the cost of access to justice. He said that this was not surprising in a case 4 5
Another factor identified by the Judge for having counsel take the lead in this area was that it 4,340 2 6,400 27,340 was much more difficult 0 0 0 3,000 for counsel to delete 14,260 5 16,000 69,960 or jettison material prepared by a solicitor, if counsel decided that some, or often much, of it is irrelevant or unnecessary.5 The client would already have been charged for forensically useless material that, had counsel been in charge from the beginning, would never have been included in the drafting process. His Honour said that it was the experience of judges that frequently in appeals, counsel often departed significantly from the written submissions that have been ordered to be filed, when he or she informed the Court about the different way in which he or she was going to present the case. Rares J commented that in security for costs applications, the court was seeing estimates that were skewed towards the solicitors’ efforts. This was not efficient or appropriate. Counsel had to make the forensic decisions on pleading the facts, what pleadings were maintainable, the evidence to be led and what submissions should be drafted. Counsel had to “…undertake the burden of doing that work themselves and not have it duplicated unnecessarily by the involvement in preparing drafts of one, let alone multiple, solicitors” (at [24]). Following revision by the solicitors for the Trustee, the Court ordered security in the amount of $77,000 – about half of the original amount. However, there appears to have been some pushback from solicitors that there were solicitors who were as capable or more capable, than many junior barristers, of drafting pleadings
At [22] At [24]
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and preparing cases for trial.6 This was referred to in an editorial by the editor of the Australian Law Journal, Justice François Kunc (Supreme Court, N.S.W.). His Honour commented:7 “That is undoubtedly correct as far as it goes. However, it does not derogate from the basic truth of his Honour's observations, which are focused on what is in the best interests of the client rather than being an example of a former barrister's partisan favouring of the Bar over solicitors. Each has their proper role in litigation.
there is a multiplicity of factors at play when considering what might be a fair and reasonable fee for the services provided. But in the background of this is the question of whether the particular services (preparing pleadings and submissions) should have been provided by the particular lawyer in’volved, or whether they could have been provided by another member of the team more efficiently. In a speech in 2014 the then Chief Justice of the Victorian Supreme Court said:9 “Most importantly, I hear from many judges, particularly in the Commercial Court, that counsel has not been briefed early enough in the case. Secondly, that delays in providing the brief to counsel have led to unnecessary and wasteful preparation. For example, pleadings. Pleading is an art. I do not suggest that practitioners cannot draw pleadings but it needs to be appreciated that there is particular expertise at the Bar and for as long as we have pleadings, which we do in litigation, then they should be prepared by the artists, not by those whose strengths lie elsewhere.”
If the reassertion of the role of the Bar as being primarily responsible for preparing pleadings and advising on evidence disrupts (to use the word of the moment) an inefficient (for the client) practice that has arisen among some firms of solicitors, then so be it. That still leaves a large field of professional services that solicitors can offer to their clients that the sole trader barrister neither can nor should wish to do.” Rares J also referred to the fiduciary duty owed by solicitors to their clients to “…ensure that their cases are prepared as efficiently, but as economically and reasonably, as possible…”.8 In New Zealand, rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (CCCR) states that: A lawyer must not charge a client more than a fee that is fair and reasonable for the services provided, having regard to the interests of both client and lawyer and having regard also to the factors set out in rule 9.1.
In New Zealand, with its fused profession, there are many highly qualified litigators in firms and in government. But if a decision is made to brief a barrister from the Independent Bar, it is critical to rely on their expertise and independence, and not to pre-empt the decisions they may make about the conduct of the case. The guidance for briefing barristers published by the New Zealand Bar Association recognises the need to involve counsel at an early stage:10
Of the factors in rule 9.1, subparagraph (b) (the skill, specialised knowledge, and responsibility required to perform the services properly) and subparagraph (g) (the experience, reputation, and ability of the lawyer) could be said to be particularly relevant to the decision to brief and consequently pay for a barrister. The client will be advised that a specialist is required and that the said specialist must be paid for according to their experience, reputation, and ability. However, the client is unlikely to be happy with having to pay for two or more to do the same job when in the final outcome, only one of those lawyers’ work will make its way into the final hearing. As recognised in r9.1 of the CCCR,
“All too often, barristers are brought in when the directions hearings have come and gone, the witness statements are all but settled and major strategic decisions about the running of the case have already been made … most importantly, briefing counsel early will get them on top of the facts and more able to participate in strategic decisions about the conduct of the case. Preparation will always have to occur. You will just get better value for the client if the barrister can assist throughout the full conduct of the matter” * Jacqui Thompson B.A. LL.B (Hons) is the NZBA’s Training Director, newsletter editor and a private legal research consultant.
See for example: Rowan, T “Law Firms on Notice to Brief the Bar, But at What Cost to the Client?” http://toowoomba-lawyer.com/?p=1093 accessed 19/11/17 Kunc, François. The Division of Labour in Litigation (2017) 91 ALJ 427 8 Ibid 9 Warren, Marilyn. The Litigation Contract: The Future Roles of Judges, Counsel and Lawyers in Litigation. http://www.austlii.edu.au/au/journals/ VicJSchol/2014/13.pdf accessed 19/11/17 10 https://www.nzbar.org.nz/briefing-barristers accessed 19/11/17 6 7
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Digital Justice: Online Access to Legal Resources By Ian Macduff*
In this brief note, I will set out the basics of online dispute resolution (ODR) and indicate the initiatives that are currently being taken in New Zealand and comparable jurisdictions. Later notes will examine some of these developments in more detail. Some forty years ago, at the original “Pound Conference” in St Paul, MN, the founding ideas for the modern “access to justice movement” were sketched out. Critically, the concern was that the law was too costly, culturally unfriendly, and incomprehensible to anyone other than the initiated. Two core themes laid the groundwork for the last four decades of what was - and no longer is - “alternative” dispute resolution: these were, first, the prospect of going to where the disputants were, rather than obliging them to come to a Court or centralised location; and second, Professor Frank Sander’s enduring metaphor of the “multi-door courthouse”. Little could any of the original participants at that conference imagine the ways in which modern digital technologies would help realise those aims. While the prospect of anything digital, and especially the prospect of artificial intelligence as part of the practice of law and dispute resolution, might fill many with a sense of foreboding, or a wish for an early retirement before this all comes to pass, the reality is that most of the readers of this note are already engaged in some aspects of digitally-enabled practice. The modern history of mediation and other alternatives to litigation has been paralleled, for at least the past 20 years, by the exploration of ways of doing this same work through digital means. There are two main threads to this development of ODR. The first involves those disputes that arise online and, for reasons of
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distance, technology and jurisdiction, require responses through the same medium. This is very much in line with the original imperative of going to where the disputants are - all the more so if, as was and is the case, the disputants are linked only by technology with no prospect of face to face resolution. This first thread can also be broken into two parts. First, there are those disputes that arose from the invention of the Internet, as it turned out that the digital world was no less prone to conflict, bruising communication, mistrust and “flaming” than the face to face world. The early hopes for a peaceful world that could be mediated by fostering enhanced digital communication turned out to be illusory. Indeed, early observers such as Ethan Katsh, one of the “founding fathers” of ODR, predicted that the Internet would not be a peaceful place. Second, with the opening of the Internet to commercial activity in the early 1990s equally opened that domain to all of the same disputes that commerce in the offline world creates, exacerbated by problems of distance, jurisdiction, enforcement and - typically - the “high volume, low value” nature of most of the transactions. At the G20 summit in Hangzhou, China, it was projected that cross-border e-commerce will involve 2 billion customers by the year 2020. In correlation with the growing number of crossborder commercial transactions, another recent projection is that the number of disputes will continue to rise sharply, reaching a peak of one billion e-commerce disputes annually by 2017, and a million disputes a day by 2020. (odr.info) While the first main imperative for the development of ODR was created by the online world per se, the second line of development involves the application of those online resources to disputes that arise in the offline, face to face world. The availability and increasing accessibility of online platforms, plus the enhancement of computing speed, reliability of connectivity, and the spread of
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digital resources meant that it has become more realistic to contemplate a transition of at least some of the world of dispute resolution into digital spaces. Beyond the more obvious commercial applications in cross-border transactions (still the main area of potential in ODR), we are now seeing the use of digital technologies in, for example, small claims, family, employment, trusts, relationship property and other fields of law and disputes that might, at first sight, seem better suited to interpersonal, direct and “real time” communication. However, as the technology improves, as our facility with that technology also improves, and as a generation of “digital natives” emerges for whom it may be more normal to communicate asynchronously by text, the “new normal” will be the digital mode. There are, I suggest, two principal drivers for this development, apart from the technological imperative itself. The first is the same concern that has been with the modern ADR movement for at least four decades, and that is the question as to how to enhance access to legal and public resources for those who are typically disadvantaged by costs, distance, language and familiarity. Of particular concern for the Courts in recent years has been the increased numbers of self-represented litigants (SRLs) who, typically for reasons of cost, do not come to courts with counsel and are, therefore, disadvantaged in both substantive and procedural terms. Equally, those SRLs take more of the Courts’ and judges’ time and, to the extent that they may require more assistance in Court, risk placing the Bench in the invidious position of appearing to offer too much of a helping hand. The second driver comes from the administration of justice itself, made clear in the ominous title of a 2015 report by the group JUSTICE, entitled “Delivering Justice in an Age of Austerity”. 1 In simple terms, many governments find that they simply cannot afford to run justice systems that offer the full menu of resources we associate with the administration of justice. Digital resources - including online dispute resolution - thus offer options to disputants, practitioners and governments that were hitherto unimaginable. Two caveats need to be entered at this stage: first, not all uses of digital resources necessarily qualify as “online dispute resolution” but are rather simply the
application of digital technologies to more conventional tasks; and second, not all ODR is ADR in digital form (“e-ADR”). On that second point, there were and are parallels between the development of mediation and its online counterpart, notwithstanding reservations about the loss of immediacy and intimacy of face to face communication. But, as will be noted below, it is increasingly the case that digital technologies are being applied - for reasons of efficiency and economy as much as disputant convenience - to the formal institutions of law and administration. Digital technologies have very rapidly made the transition from marginal to mainstream in justice systems. Dr Richard Susskind, the IT Adviser to the Lord Chief Justice, Chair of the Advisory Board of the Oxford Internet Institute, and most recently Chair of the Advisory Group on Online Dispute Resolution for the Civil Justice Council (UK), has – in several places – asked the rhetorical question: are the courts a location or a service? The contexts in which, and the regularity with which, he asks that question, suggest what the answer must be. As the author of several books on the future of lawyers and law practice, which stress the shift from conventional structures of practice and a greater reliance on ICTs, at least for communication and information management, and increasingly as the way in which we’ll practice, Susskind is clear that we’re shifting to a more networked mode of work and access to justice. The Courts as a “location” area at being at least supplemented, and in some cases supplanted, by forms of digital access that underscore the “service” aspect of the delivery of justice. There are three ways in which we can think about these changes, three tiers of digital “intermediation” in which we might be able to identify our own current or future levels of engagement with digital technologies. The first is “imitative”: that is, the use of technologies such as smart phones, tablets and of course computers to enhance and in many ways, simplify the things we already do, ranging from diary management through to more complex document management and e-discovery - and in this respect, we already see instances of counsel using tablets rather than paper in Court. This is not, strictly speaking, ODR; but it is a precursor by way of an incremental step towards digital working platforms.
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The second level of working digitally is “innovative”: that is, moving beyond our normal work but in a digital way, we see practitioners migrating practices online, for example, in online arbitration (usually on the papers) and mediation; the creation of portals through which prospective clients and counsel can engage, often wholly online, with shared and secure document sharing, video conferencing, and asynchronous text-based communication; the creation (of course) of “Apps” to provide access to online resources and, most significantly, the emergence of online courts. This last development needs separate discussion; but suffice to say that it is illustrated through examples such as British Columbia’s Civil Resolution Tribunal, the EU’s Regulation (EU) No 524/2013 providing for the establishment of an online dispute resolution platform at Union level; the recent formation of the Hangzhou Internet Court;2 and the moves towards “Her Majesty’s Online Court” in the UK. This last example follows the recommendations of the Report of Lord Justice Briggs,3 in turn reflecting the work of the Civil Justice Council Working Party, in finding ways to meet both the needs of would-be (and possibly selfrepresented) litigants and of fiscally-strapped justice systems through enhanced access to legal information and an algorithm-driven first stage of case-management; through a second stage (if needed) of online mediation; to a (hopefully limited) third stage of judicial determination by the online court. The third and “disruptive” stage of development in digital justice is one that most of us are - at
least at this stage - less likely to engage in, and it involves a more intensive use of artificial intelligence, data-driven decision making, and, following the example of online trading platforms such as e-Bay, the development of predictive and preventive strategies through the accumulation of dispute-derived data. The prospect of “predictive justice” might fill some with a sense of Orwellian foreboding, but at least the experience of e-Bay, in managing some 60 million disputes annually, indicates the possibility of changing commercial and financial transactions in ways that anticipate and prevent disputes. In all of this, the essential drivers remain those of founders of the modern ‘access to justice’ movement, but rather than relying only on the alternatives of mediation and arbitration, themselves now mainstream, there is a growing reliance on and enthusiasm for the prospects that information communication technologies can, as Briggs LJ noted, offer ”[f ]reedom from the tyranny of paper giv[ing] rise to a wholly new range of choices about the geographical location of all aspects of the civil justice system." Support for at least innovation, if not yet disruption, comes from the more conventional voices in the judicial system when Lord Justice Neuberger, President, UK Supreme Court observed "Now justice can be seen to be done at a time that suits you." * Ian Macduff is a Teaching Fellow and Deputy Director at the NZ Centre for ICT Law, University of Auckland. The New Zealand Centre for ICT Law, in the School of Law at Auckland University, will host the 18th ODR Forum, on 15th and 16 February 2018. See http:// odr2018.org.nz/?page_id=2 for further information.
https://justice.org.uk/justice-age-austerity-2/ http://www.netcourt.gov.cn/portal/main/en/index.htm?spm=a1z8s.8020632.0.0.30ed8d927PPDit 3 https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courts-structure-review-ccsr-final-report-published/ 1 2
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Cybersecurity and How it Applies to NZ By Iain Hally and contributions by Alex Teh * Cyber security was once a mystical term that many people found difficult to understand. The concept that cybercrime is now the fastest growing global threat has caught many New Zealand companies underprepared and vulnerable to modern day threats. The global cost of cyber security is now 3 times our national GDP. Did you know that it sometimes takes more than 500 days for a New Zealand company to detect that they have been breached? Only 4% of all cyber-attacks are ever detected in NZ. Did you also know that we have the second highest attack of ransomware in the southern hemisphere? NZ has on average 108 attacks per day of ransomware, commonly 'crypto locker'. The good news is there is now a healthy
awareness of the cybercrime problem. It is now commonly accepted that there is a threat and something needs to be done about it. The legal industry is no exception to the problem. The main problem the cyber security industry faces today is that there is a massive shortage of resources and skills in New Zealand. Organisations that believe they are able to handle these threats without good technology and resources are simply putting their head in the sand. We believe that as breaches become more prevalent, compliance drivers with the teeth to enforce standards of security, will be demanded by the public. One of the areas we wish to highlight is the mass migration to the cloud. Due to our geography, we are one of the most virtualized and cloud adopted environments in the world. The adoption of services such as Office 365, Azure, Amazon Web Services (AWS) is extremely high. This in itself is a good thing however many users may incorrectly expect that very large cloud companies have adequate security and protection to protect their data. Data leakage, ransomware and phishing attacks are still common problems with many of the email services available today. One way to assess the threat for yourself is to download
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software monitoring your web browser traffic.
a free email threat scanning tool: (https:// scan.barracudanetworks.com).
What can you do? The answer to this is not straightforward and you will need to take into account the following:
There have been a number of high profile hacks with diagram 1 showing the non-web based hacks and security breaches in 2017. Diagram 2 shows the same data with web or cloud based hacks and the scale of each. This clearly shows that web based systems are much more prone to attack and you may not be able to rely entirely on the providers for security.
• The compliance regulations in your business sector and ensure firstly, these requirements are being met. • Discuss what your budget is, what securing your data and continuing to run your business costs you per hour, and assign a dollar value to a few days’ downtime.
So how do you manage this minefield and establish the right balance between using flexible cloud based services vs the cost of securing your system? The challenges are not lost on our government which provides a number of resources to highlight the risks and help you navigate your way through. Websites such as https://www.cert.govt.nz/ provide a forum on current threats and sites like barracuda (mentioned above) will provide detailed reports on your current threat in specific areas.
• Do you retain sensitive information that may expose you to any legal action should it be leaked?
Cybersecurity is a very broad topic and covers your entire system end to end to ensure complete protection. Securing your personal computer with antivirus and antimalware is one layer but you need to protect the gateway where all your internet traffic flows through, with the addition of third party filtering
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Once you have established your budget and level of cover, speak to a trusted IT advisor or managed service provider to help implement the system. Alternatively, you can do it yourself but we would suggest using penetration tests and audits such as those mentioned in this article to validate your security. There are some basic rules to follow which will help you start or continue your cybersecurity journey. Backups are essential to dealing
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with threats such as cryptolockers and other ransomware as they allow you to restore quickly and easily to a point in time when the systems were clean. If your systems were infected at 10am and your last backup was at 5pm the previous night you could restore your system to pre the infection and continue working in less than two business hours. Obviously with larger sites incremental backups are taken regularly and can be restored on demand, reducing down time to minutes not days or hours. Antivirus is another simple precaution but ensure it is always up-to-date and a paid product. There are many free packages out there but they do not provide the same level of protection. Antivirus goes a lot further than just your PC or laptop nowadays and you should ensure your phone is covered if you have sensitive information on that device. Phones are now small powerful computers and are at similar risk to your laptop but with a lot less awareness on security and are generally more vulnerable. We recommend using a firewall with advanced threat protection which can dig into the traffic going through your network and quarantine the nasties before they become a threat. In addition, ensure your cloud mail and file systems are protected as software tools like Barracuda can dive into the files and folders, clean them and detect any potential threats, and quarantine them before they ever get activated, providing protection to online file systems like Office365, OneDrive and SharePoint.
security picture. Just as important is your ability to identify threats through effective staff training. Additionally, all the security in the world won’t protect against documents not dealt with appropriately and sticky notes on screens showing your login details. With this in mind most businesses with serious security requirements are investing heavily in training and cybersecurity courses to ensure the “Human Factor” is as secure as it can be. Sadly, as the world moves to being more online and connected to optimise business performance, the risk of cyber-attack increases. This was a small problem in the 80’s, bigger in the 90’s and now is considered one of the greatest threats by most governments globally. As a business owner or stakeholder it is your responsibility to ensure your data and your clients' data is secure. * Iain Hally is Technical Account Manager and Lead Team Member at Noel Leeming Tech Solutions for Business (TS4B) who provide Managed IT Services, Cloud Services and consulting to business clients. Alex Teh, is the Cybersecurity Expert and NZ General Manager at Exclusive Networks. Alex and Iain work together to provide comprehensive security reviews and recommendations to businesses. Noel Leeming is a Member Benefit partner for the NZBA. Refer to the NZBA website for more details.
Technology, whether it be hardware or software is only one component of the overall
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Bridge the Behaviour Gaps with Evidence-Based Investing By Laetitia Peterson*
In my last article, I talked about the various behaviour gaps or biases that can have a negative impact on our ability to make rational decisions regarding investments. Every day we get flooded with new ideas and information. There’s barely enough time to process it all. Even if you’re a smart and rational person your brain still takes decision-making shortcuts. These intellectual stumbling blocks are the cognitive biases or behaviour gaps. In this article, I am going to look at strategies that can help you to implement rational, evidence-based decisions when it comes to your money. First, let me start with a simple question. Why is your money invested the way it is? The answers I have received to this question over the years have been quite revealing. Things like: “ There was an article in The Herald about it.” "My brother-in-law told me about it.” " They talked about this investment on that money program on TV3 - you know, the breakfast one…” But none of these answers are what I would like to hear. There is — and indeed only ever will be — one right answer to the question. "My money is invested in a way that gives me the greatest chance of meeting my goals." Without knowing that, you can't really invest (you can only speculate). Without a diagnosis, you can't get a prescription. And evidencebased investing is all about the diagnosis. What is evidence-based investing? In a nutshell, evidence-based investing makes use of the best academic research currently available for the design and execution of an investment portfolio as well as for its ongoing
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management. This investment philosophy is similar to evidence-based medicine, which incorporates peer reviewed research with careful planning to optimise the decision-making process that points to the best outcome for the patient. The Centre for Evidence-Based Medicine at Oxford in the United Kingdom states that, “EvidenceBased Medicine is the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients”. Evidence-based investing is based on the same principles and recognises that finance is a science. Why should we invest money? Before we delve into the what and the how, let’s quickly talk about why we invest money. Why do people choose to take their money out of the bank and invest it in stocks, shares and funds that could go down as well as up? The simple answer is they do it because they need to. When we calculate the projected income needed to enjoy a good lifestyle in our retirement we often realise that we need to get a higher return on our investments than afforded us by a traditional savings account. The average life expectancy for New Zealanders is increasing. For example, a female born in 1961 who reaches age 65 can expect to live to 90 years. That means that after the age of 65 you need to think about your income for the 30 years post your working life. When you look at the decades available to you now to grow your wealth and the total amount you will need to enjoy a good lifestyle, even though there will be periods of poor and good growth, in the long run an evidence-based investment portfolio will increase in value and at a better rate than it would if it were left in the bank. Another good reason for investing is that it is a good way for you to spread your money and
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therefore your risk. Good investment tends to be diversified meaning you can spread your money over different sectors, geographical regions, and different types of assets, moving away from reliance on one specific bank account or piece of property. One more reason to use evidence-based investment is to combat the effects of inflation. Over time, things tend to get more expensive and if your money isn’t growing at a satisfactory rate compared to inflation then you are losing the real value and purchasing power of that money. Your investment philosophy should be one that will make you more money, relative to the level of risk you are prepared to take. It’s a simple philosophy however it is not simplistic. There are key elements to this philosophy that need careful consideration. Let’s look at those now. Let markets work for you Here’s a simple example of a market at work. It shows how collective knowledge can come together and be more powerful than the knowledge of any one person. At a client event, a jar of jelly beans was placed in the lobby and attendees were asked to estimate the number of jelly beans it contained. The participants wrote down their estimates, and whomever offered the closest estimate to the actual count received a prize. There was a wide range of estimates - 409 to 5,365 jelly beans. The average of all estimates was 1,653. The actual count was 1,670. This experiment has been repeated at other client events, and the average of all guesses is usually very close to the actual count. The principle is that the combined intelligence of a group is better than the knowledge of one person. Together, we know more than we do alone. The market is an effective information processing machine, and the real-time information it brings sets prices. In 2015 the average daily number of trades was 100 million with a value of US$500 billion.
Every one of those of trades was the result of someone agreeing to a buy or sell rate. Instead of trying to beat the market, wise investors strive to understand it. Invest, don’t speculate Traditional, active fund managers try to outguess the market. They are attempting to buy the selection of shares that will perform well and sell the shares that they believe are overvalued. The issue with this approach is that it is hard to get it right consistently. In Australia in 2016 only 31% of share fund managers beat the market index over a five-year period. Only 11% of bond managers outperformed the index. Active fund management is also expensive. Take a long-term approach Evidence shows that over time, investing in capital markets will give you a positive return. There will be volatility and occasionally the timing won’t be right but the longer you leave it the more likely the return will outperform a cash based investment. Avoid trying to time the market It is very difficult to know which market segments will outperform from year to year. A performer that is top one year, for example, emerging markets, might be bottom the next year. Australian companies might be bottom one year and then top the next. If you can hold a globally diversified portfolio, then you can capture the returns wherever they’re from. Start with the market and use the information embedded in prices The first step is to look to the evidence. Is there useful information embedded in prices which is sensible, persistent, pervasive and robust over different regions and sectors, that is cost effective to analyse and capture? The idea is to move or tilt away from the market and enhance your returns based on the information available in prices. There is a weight of evidence that shows there are “dimensions” which have higher expected returns. Certain investments tend to perform better Equities have a higher return than bonds. By investing in shares, you’re taking ownership in the company, so you can expect a higher return
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for the risk rather than just lending money to the company. Smaller companies have a higher expected return than larger companies. Partly because smaller companies are riskier but also because as companies grow they become less dynamic, less able to change as markets change which has a drag on their performance. Which is not say that you should exclude larger companies. Exposure to the whole market is optimum but it’s recommended that you tilt your portfolio towards the dimensions that have a higher expected return. The next proven premium is the value premium. When you compare a company’s share price to its book valuation, the ones with the lower share value have a higher expected return. For example, Amazon lost money for years but had an extremely high share price as the expectation was for them to grow in the future. In their case it was correct but part of the reason growth companies have a lower expected return is because many of them don’t make it. Tilt your portfolio towards value vs. growth as over time this is likely to be the case. The final equity premium is profitability. You can calculate the profitability of every company and rank them from highest to lowest. Companies with a higher profitability have a higher expected return. A company’s current profits contain a lot of information about what their future returns will be. Manage your emotions Many people find it a real struggle to separate their emotions from their investing. When times are good, they feel happy and want to invest more. When markets are going down they feel unhappy and want to sell. Reacting to these market cycles reduces your return because you end up buying when values are high and selling when they are low.
sure that the enhanced returns on offer are cost effective to capture. Evidence shows that the higher the cost of management, the more drag they will have on your overall performance. Focus on what you can control In summary, the key to evidence-based investing is to focus on the things that you can control. Use the information that enables you to make educated decisions to inform actions that will produce better results. Such as: • • • •
And that will lead to a happy, contented investment experience! *
Laetitia Peterson is a personal wealth adviser and is married to competition barrister, Andrew Peterson. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families. Laetitia's book Legal Tender explores the ideas of family stewardship, typical money behaviours, attitudes towards money, and lawyers’ views on wealth creation. It delves into the psychological effects of money and the impact of stress and financial worries, as well as the importance of personal resilience and creating a legacy worthy of a life well lived. Legal Tender will change the way you look at the value of your work as a lawyer.
Try to avoid the noise in the market We live in the midst of a 24-hour news culture, where bad news sells and good news isn’t really seen as valuable. We must try to ignore that. Don’t let those messages stir your anxiety about the future. Stick to the plan, stay with your risk profile and your portfolio’s diversification. Keep costs low Avoid the high costs of active management. If you’re going away from an index, then make
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Diversify and minimise fees Tilt your portfolio towards the dimensions of higher expected returns Avoid market timing and stay disciplined Review your plan regularly
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The Opportunity to Innovate Through Leveraging Technology By Andrew King
Different parts of the journey Many are at different parts of this journey – some will be at the forefront of legal innovation, whilst others will only be starting this journey.
Technology is changing how we work in all aspects of life and the legal profession is no different. The profession is facing considerable change as growing pressures are forcing law firms to innovate in how they deliver their legal services.
The experience of those just starting may be considerably different to those at the forefront of innovation and leveraging technology. Even if you are not innovating yourself, or simply just starting your innovation journey, it is important to be aware of what is available, what others are doing, and what the future holds.
This is also impacting barristers and how they practice. Changing Landscape Traditionally the legal profession has been slow adopters of technology, but this is changing as barristers need to explore how legal services are delivered, largely to better meet the demands of their clients. For many, legal innovation is simply exploring new ways to deliver legal services. Trends are showing consumers of legal services are starting to look for fixed or capped fee structures, are wanting more value at a lower price, and are not necessarily looking to traditional legal resources for legal services. Consumers are seeking innovative professional service firms that offer a wider range of options.
Being tech savvy is becoming an essential skill for practitioners and will become more so as technology evolves further. We’re seeing refreshing examples of those who see the opportunities in exploring new ways to innovate and drive efficiency, and a growing number of legal professionals recognising that to address these pressures and challenges they need to look to technology. The legal profession need to re-skill to take advantage of the developments in technology and to stay relevant in their particular field. This could require many to diversify their skillset. This in turn creates a whole different area of law to embark on. You do not have to be a mechanic to be able to drive a car!
The fundamental practice of law will remain the same, although it’ll be enhanced by innovation and use of technology to deliver legal services faster and more accurately. New Opportunities Innovation should be embraced as an opportunity and not seen as a threat. Innovation through leveraging technology is becoming a game changer for providing legal services. It is the opportunity to do things better than what we do at present and for less money. The profession is only starting to take advantage of the opportunities that technology brings – opportunities that many other industries have embraced for many years.
There should not be an expectation that barristers need to learn technology so in-depth, or even learn to code or develop software. Technology will never do everything, critical skills like analysis, judgement and problem solving are just as important as they have ever been, it is just that technology can be used to assist in this. It will help to be aware of the solutions that are available, to help you perform your job better. What’s new? How we access case law, research, manage documents, dictate, bill and communicate is all changing. These tasks previously were manual exercises and took considerable time to
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complete. Many of these tasks are now being performed quicker, cheaper and more accurately through the assistance of technology. Artificial intelligence (AI), blockchain, court technology, the general automation of repeatable tasks and embracing the cloud is becoming more mainstream.
Artificial intelligence AI is all around us with examples like Siri, Amazon Echo, Alexa, Netflix, Amazon, Spotify and Pandora radio. These are all forms of AI with recommendations tailored to your previous choices. This is learning from the information that the technology has put together, related to your preferences.
A prominent example of AI earlier this year was JP Morgan developing a program called COIN for contract intelligence, which interprets commercial-loan agreements, that had previously taken 360,000 hours of lawyers’ time annually. eDiscovery is a process that has long embraced AI and automation. There are tools that help to provide smarter ways to address a process that can quickly become time consuming and costly, especially with the ever-increasing volumes of data. Technology Assisted Review is popular as it can save barristers hundreds of hours looking at documents. Blockchain Blockchain is a development is that is in its infancy, especially for the practice of law. Put simply, Blockchain is a piece of software with a digital ledger of information. This includes a record of transactions grouped into blocks with references back to data in previous blocks. This creates a chain of blocks, known as blockchain. Transactions are broadcast to all participants to be validated. The use of blockchain will evolve, but is often used for identification, copyright and patents, Smart Contracts with share trading and property auctions.
The same technology can also be applied to the practice of law, to make barristers life easier, to work smarter and ultimately ensure you are more profitable. AI involves machines performing work that traditionally could only be completed by humans, although also has the potential to go deeper having AI machines think like humans. AI capability is moving ahead at a rapid rate, although we are still a long way off lawyers becoming obsolete. As far as AI relating to the automation of repetitive and routine tasks, some of the uses include • Legal research • Document generation and templates • Due diligence • eDiscovery • Chat boxes or Robo-advice
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Court technology Technology that is used in a courtroom is developing significantly. With the preparing of briefs, pleadings can be hyperlinked to documents, with the ability to collaborate and annotate key evidence. How technology is used preparing for trial (whether it be a courtroom or an online process), will evolve. At present the use of technology is largely imitating the same practices as conducted with paper. This is not always more efficient, and not innovative. Embracing the cloud The cloud is dramatically transforming how barristers work.
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Embracing the cloud is an appealing option for barristers that will not require the big budgets of large law firms or corporates to make an expensive investment in on-premise technology. In almost all circumstances cloud solutions are more cost effective, more secure, and enable greater access to leading technology that barristers may never have been able to buy themselves.
the way. The ones that choose not to, could be left behind by an increasingly competitive market.
What does the future hold? These developments will continue to transform how the profession practices. They will help make barristers life easier, work faster and ultimately be more profitable.
Find out more at LawFest LawFest is leading the way in New Zealand in raising awareness and preparing the profession for what comes next. On 8 March 2018, over 200 delegates will be attending New Zealand's premier legal innovation and technology event, at the Langham in Auckland. The oneday conference provides a platform for legal professionals to learn about how they can innovate and adopt technology into their practice.
In the future, there will be further automation of tasks that are time consuming, costly and presently performed by humans. There will be a greater adoption of AI, and embracing the cloud to improve the access and cost of these solutions. The profession will be able to focus on practicing law and providing expert legal advice for their clients, instead of being restricted by time consuming administrative tasks. Even if the legal profession is not currently embracing some of the technologies available, it is important to keep abreast of what opportunities that technology may bring, both today and into the future. Those that are open to innovation and embracing technology will be the ones that lead
There are exciting legal tech start-ups in New Zealand. Some are led by lawyers, who have identified a problem and developed a solution to address these issues. To name a few we see the work of Automio, LawHawk, LawVu, and CataLex.
Find out more about LawFest https://www.lawfest.nz/ NZBA members can get $100 off the ticket price using the coupon NZBA100 Andrew King is the organiser of LawFest and founder of E-Discovery Consulting. E-Discovery Consulting assists lawyers to conduct eDiscovery proportionately and cost effectively, by managing the entire eDiscovery process or providing independent advice on any aspect of it. For more information contact Andrew andrew.king@e-discovery.co.nz
Member Benefit Offering: Why it Pays to Buy Travel Insurance Early - Plus 5 Policy Benefits You Might Not Know About By Helen Condon*
Allianz Worldwide Partners New Zealand has revealed that cancellation and travel disruption account for approximately one third of all travel insurance claims made by Kiwi travellers. Chief Sales Officer, Will Ashcroft, says that most people who book their travel early, tend to be buying more expensive or longer trips. Five-star hotels in Venice, Mediterranean cruises and first-class flights to Russia are just some of the claims Allianz Worldwide Partners New Zealand has received this past year. Half of those surveyed in the 2016 Travel Insurance Market Monitor survey1 thought that travel insurance cover could only come into
effect once travel commenced. However, this is not the case. Allianz Global Assistance travel insurance policies include valuable cancellation benefits which are valid from the moment that the policy is purchased. “Whether you’ve booked well in advance or just weeks before you depart, you don’t want to miss out on these benefits,” says Will Ashcroft. “We recently received a large claim from a woman who had organised a holiday in June for her and her husband, but her husband tragically passed away from a stroke. She had purchased business class flights, luxury accommodation and private tours, so was grateful that she had
1 The Travel Insurance Market Monitor survey is carried out by Colmar Brunton. This online survey includes New Zealanders aged 15+. Sample size 3,011. Data weighted to online population by gender and age
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cancellation benefits in her policy.” “Another of our customers recently claimed for the cost of a safari to Africa that she was planning as a surprise for her mother’s 60th birthday. The mother was diagnosed with cancer four months after the daughter purchased their travel insurance policies, which included cancellation benefits.” “Purchasing travel insurance up front can protect your investment – you can purchase a policy up to 12 months prior to your departure date. You can still buy travel insurance while sitting on the plane before you fly, however you could be missing out on cancellation benefits, especially if a covered event happens before flying.” Some policies may include benefits such as: • Automatic cover for some adventurous activities. • Cover for emergency baggage and travel documents – if you accidentally lose your passport or your bag, your policy may cover the cost of obtaining emergency replacement baggage and documentation. • Personal liability cover – this covers your legal liability to pay damages for compensation arising out of your negligence and causing a personal injury or property damage to another person. • Rental vehicle excess – in the event that you damage a rental vehicle, your policy could cover you for the excess amount, provided the terms of the policy were upheld. • Cancellation cover. Marsh has worked with Allianz Worldwide Partners to bring the New Zealand Bar Association members a comprehensive travel insurance policy at 25% off the standard premium pricing*. Explorersafe Outbound policy The Explorersafe Outbound policy offers the following policy features:
• Dependent children under 18 years covered at no additional charge • Cover includes white collar work (e.g. attending overseas conferences. Manual labour is excluded.) Policy extensions available: • Varying excess options • Increased cover for specified high value items • Cover for Pre-existing medical conditions (on application) Booking details for NZBA members Book your travel insurance policy online via: https://www.insurancesafenz.com/ explorersafe/explorer-safe-outbound. Enter your unique promo code NZBAR to receive your member discount.2 For help and support, please email help@ insurancesafenz.co.nz or call us on toll free 0800 486 004. Further information and booking can also be done via the link in the Travel pages of the Member Benefits’ section of the NZBA website. About Allianz Global Assistance Allianz Global Assistance is a globally renowned and specialised brand of Allianz Worldwide Partners for assistance services and travel insurance. Dedicated, multilingual teams work hand in hand with a vast, global network of service providers and correspondents and help people 24/7 by combining a unique human touch with innovative technologies and services. 250 million people benefit from the services that this brand offers, which are provided on all five continents. Allianz Worldwide Partners is the leader in assistance and insurance solutions in the following areas of expertise: global assistance, international health and life, global automotive and travel insurance. These solutions, which are a unique combination of insurance, service and technology, are available to business partners or via direct and digital channels under three internationally renowned brands: Allianz Global Assistance, Allianz Worldwide Care and Allianz Global Automotive. This global family of over 16,000 employees is present in 75 countries, speaks 70 languages and handles 40 million cases per year. See www.allianzworldwidepartners.co.nz
• Cancellation and travel disruption • Medical benefits including medical treatment, emergency dental and accompanying person costs • Emergency assistance provided 24 hours/7 * For more information please contact Helen Condon days a week by Allianz Global Assistance at helen.condon@mercermarshbenefits.com • Personal baggage, effects and personal money benefits • Personal liability benefits • Rental vehicle excess • Accidental death and disablement benefits • Automatic cover for some pre-existing 2 Terms, conditions, limits and exclusions apply. Please refer to the NZBA medical conditions website for further information.
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Garnering Likes, Shares and Maybe Even Some s For Lawyers in This Digital Age By Lynn de Winnaar*
‘Like’ it or not, social media has infiltrated our lives and overhauled the way we communicate. The continuous feed of information is manipulative and dangerous at worst, but can also be a fantastically powerful tool for growing your profile and reputation, and winning business. At the heart of social media, is the ability to share information that others want to consume, in order to make them ‘like’ you more, share what you have to say as promoters, and ultimately
recommend you as the best provider to their networks. There is no form of paid marketing that comes near a personal recommendation within a network. Social media is such a powerful medium that it influences, educates (not necessarily with facts), and can initiate ‘movements’ that change the world. The viral nature of social media can influence which presidential candidate wins, be the catalyst that changes laws and uncover atrocities. Quite simply, social media gives every citizen the ability to be a broadcaster and over two billion users have logged into Facebook over the past month to consume and deliver information. Because ‘everyone is doing it’, if you’re not
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then you’re missing a trick. A social presence is mandatory if you’re looking to attract and engage with potential clients. Where do you go first to look for information, say about a company or person? Six and a half billion searches are made every day using search engines. Try it out – Google any person’s name and see what pops up in the top search results - you are likely to see results for social media near the top. Creating a social profile allows you to control, to a degree, what pops up in these search results about you or your business. Remember too that even if you choose not to have any sort of social media presence, any content you’ve created on your business website is shareable on any social media page through a URL share. If you don’t have a social profile, you cannot participate in any discussion or comments taking place. Before you start A social media strategy should be included in your marketing plan. First off, you need to formulate B2B buyer personas for your business – who you would like to target, both industry and the persona’s objectives, what they need from you, their pain points, and of course where you will ‘find’ them in this digital world. There are some handy free templates available online to guide you with creating persona outlines that you’ll want to revisit and tweak from time to time. Next, plan your storylines for each persona, i.e. what is the key message that you want to hit home each time you post something on your social feeds. This information should culminate in the compilation of a content calendar that plots out the posts and channels. It doesn’t need to be jam packed, but rather ensure that what you do put up is relevant and well thought out so that it adds real value. You will also need to do some scenario planning around how you will respond to comments on your feeds, good or bad. Many a proprietor has ended up egg faced by responding impulsively rather than strategically and in a measured way to criticism on their pages. It’s important to respond quickly, but well, and so this should be brainstormed during the planning stage. It goes without saying that ‘Trump’ type tweets would be a faux pas. Which Platforms? It’s likely that your personas would dictate, at the very least, a Facebook and LinkedIn presence. The dynamic nature of the legal field
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means that Twitter is still relevant too, but take care with grammar and spelling if you want to be taken seriously. Don’t discount Facebook because of the misconception that it’s not for business - Facebook is by far the biggest social media platform and offers cost effective options for promoting yourself to a relevant or targeted audience. In setting up your professional social accounts, have your photo taken professionally and if you’re using images and logos, ensure that they’ve been sized correctly and are the correct resolution (for web) to avoid distortion and ensure a sleek look. Check your profiles on different devices to ensure clarity and legibility, even on small screens. Content Social posting will usually comprise a combination of created and curated content. While we take great care in creating content, often curated content is not well thought out, possibly because it’s so easy to hit the ‘share’ button. Be sure to align what you share with what you are trying to achieve for your target personas – it should fit the storyline brief. You can set up your website to automatically share your blog posts to your social pages as they go up, an efficient feature for busy people. Created content is king and this is where you will gain wins. You can establish yourself or your practice as the thought leader in your field by producing information that is in demand and distributing it digitally. It is best to ‘home’ your content on your website and share it to your social channels. This way you get to benefit from the lead generation aspect of the content (you can pixelate website visitors to retarget to them), and also enjoy the SEO benefits (Google will direct ‘searchers’ to your page rather than a blog platform owned by a publisher). Don’t be tempted to cut and paste your website content onto a social publishing platform – the duplicated content will be penalised by Google. Lead Generation If you’re wondering how to turn your social efforts into lead generation, there are a couple of ways. First off, by sharing your website content on your social feeds, the reader will click through to your website where you can pixelate them to retarget. Or, you could offer your content
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social accounts in advance as opposed to logging into individual accounts each time, and provides some analytics too.
Most of these tools have basic free versions.
through a form submission – the reader is required to complete and submit a form in order to download the commentary / whitepaper. Often, website integration will have been set up for your web forms to send captured data straight into a CRM as new leads for the continuation of nurture campaigns, personal contact, digital communications and advertising, etc. Get going So, when is it time to wade into advertising on social media, and why would a business want to do such ‘in your face promotion’? Well, because it’s not necessarily ‘in your face’. Social advertising can be done very subtly, in an unrushed way, nurturing and influencing prospective clients until they have been persuaded that you viably offer the best solution to their problem. Ensure you have your Facebook pixel set up on your website if you’re doing any advertising on Facebook to track conversions. Similarly LinkedIn has an Insight Tag to track conversions from their platform.
SEO, or Search Engine Optimisation entails using various techniques to improve the chances of your content ranking near the top of Google search results. Google has a free keyword planning tool that is useful in helping you to construct headings and headlines, and incorporate strings of text into your website pages and blogs to help you appear in search results relevant to your area of expertise. Trello is great for building a content calendar, in particular if you’re collaborating. Hootsuite is a social media platform that is used to schedule content across all
Without a doubt, the biggest advantage of using these digital tools to build, grow or sustain your business is in the analytics that are available. Everything can be measured, and so ROI can be determined. I cannot miss this opportunity to mention LinkedIn’s ‘Request a Recommendation’ feature. Ask happy customers for a recommendation. If they do it, LinkedIn will notify you and give you the option to publish the comments, or not. There’s even the ability to request a revision (bit of a cheeky feature this one). Your LinkedIn page can become your loudest promoter if you set it up to be.
There are a number of tools available to help you with your content and social media programme: • • •
Sharing We cannot talk about social media without covering off the huge opportunity that exists for us in enabling our content to be shared where the reach becomes exponential. All of your ‘content’ should have share buttons that allow the reader to immediately post the content onto their feeds. The more your content is shared, the more your digital profile will grow. Include share buttons in your email updates and newsletters (easy drag and drop integration if you’re using a platform like Mail Chimp); incorporate a social share widget onto your website, and ensure that what you post in your social accounts is set as ‘shareable’.
If all of this sounds a little over the top for something as simple as being present on social media. Or if it all seems too convoluted, just start implementing one tweak at a time. Then keep track of the basic analytics available to you and you will start to see a trend you will like – increasing ‘likes’, ‘shares’, comments on your posts, and perhaps even some devoted fan ‘’s’. * Lynn de Winnaar is a Marketing Consultant who has previously worked in publishing including as the Segment and Solutions Marketing Manager at LexisNexis New Zealand. She can be contacted at lynndewinnaar@gmail.com. For more information see https://www.linkedin.com/in/lynn-de-winnaarba421267/
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Petrol Heads’ Corner - Targa 2017 By David O’Neill*
Targa 2017 commenced the Tuesday after Labour Day at Hampton Downs, south of Auckland. It was the 23rd running of the Targa. In the preamble prior to setting off in our cars, the director of Targa announced that next year Targa will be run in the South Island. The South Island is a bucket list number. The last time (and first time ever) Targa was run in the South Island – it was fantastic. The roads are in great condition, easily driveable (well, sort of ) and very fast. That is not one to miss. If you are an aspiring Targa driver, competitor or tour driver, then it is my suggestion you get everything together and get out there and do it. You won’t regret it. The tour is a great way to start. The drivers are limited to 160 km per hour, but they do move through stage very quickly. No passing is allowed, but hey, it doesn’t really matter, you’re not trying to pass people, you’re trying to have a good time and learn how to drive. If you think you know how to drive now – think again! You’ll
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really learn something. Anyway – back to this year’s Targa; We did two stages on the afternoon of Tuesday in the North Waikato. It poured with rain on the second stage and wasn’t enjoyable. The car was skittish with new suspension and “green” tyres which made handling altogether difficult. Then it was back home to my bed in Hamilton for Tuesday night (and Wednesday) so it was quite a treat. It did feel weird because it didn’t feel like we’d been away. Despite all the weather forecasts, the weather for the next few days in the different parts of the country was simply fantastic. It was hot and dry everywhere we went. Maybe the big guy is a Targa fan………. On Wednesday morning we proceeded out towards Matamata around Hobbiton for a few stages and did other stages south of Hamilton and then back to Hamilton for the Wednesday night. Thursday was again a cloudless day and we headed out towards the Kawhia Harbour area. All was going well until one of the cars
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in front had a wee whoopsie. Have a look at the photograph of the car that was once a Holden. The co-driver was airlifted to hospital for a check-up but I understand wasn’t too bad. However, I think the car is destined for the scrapheap. Whether we’ll see them back again is another issue.
time, only to come around the corner to see said cyclist biking along the special stage. My silky oratory is now embedded in a Targa video clip of the fourth day in the afternoon. Quite a few bleeps were injected into the clip. Apparently said cyclist (with a death wish) had slipped under the “closed road” tapes, ignored the entreaties and shouts of the officials and set off push biking down the special stage. It, sort of, defies belief that somebody could be so stupid as to imagine that they should go biking in the country when the road is officially closed and cars travelling at up to 200 kms per hour are on it and are able to use the entire road. These cars can also crash. Anyway, we didn’t crash and he didn’t die so I suppose that’s one relief (i.e. we didn’t crash).
New Plymouth was the place we stopped for Thursday night. Again, I think we flogged one of the three fine days New Plymouth has every year. This day coincided with a special stage which went out to the Whangamomona township. It’s 39 kms long and has about one million bumps in the road, three saddles and can be dreadfully difficult. There were a couple of cars which disappeared off the edge but by and large it wasn’t too bad. Honest – only two crashes is pretty good! However, we toured out of Whangamomona towards Taumarunui. It’s a very tight, windy and, in places, gravel road. However, the views are absolutely fantastic looking north across the top of the hills and down the valleys of the central North Island. Well worth the grind through the hills.
This took us to the Ohura stage. Believe it or not the stage actually starts in the Ohura township. I would have to say that I doubt whether more than about 20 people live there. But there was one very obnoxious cyclist living there who had a death wish. I hadn’t been taking much notice, but we set off on this special stage and, with the confidence of the ignorant, went at it flat out and got the car up to a reasonably quick speed in a very short space of
Whangamomona is worth a mention all by itself. The road itself is called “the Forgotten Highway”. The hotel has been purchased by two young couples who have now turned it into a boutique hotel and they often receive visitors from New Plymouth and further afield who come out, have dinner, stay the night and stagger home the next morning across the bumpy, windy roads back into Stratford. It’s a fascinating place and I remember the first time we went there, we were greeted by a hunter coming out of the hills above the township with his dogs and a dead pig or deer over his shoulder. It certainly amused the overseas drivers anyway. We proceeded through to Palmerston North, again in beautiful, fine, dry weather. The next morning saw us leave and go over the Paihiatua track and into the Wairarapa where we went through several stages, all of which were
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fantastic roads. At one stage we were rolling along a special stage and my co-driver was having to call the speed because we weren’t allowed to go over 200 kms per hour. For us that’s quite something because the car takes some time to get up to that speed.
long nights of fixing cars, telling tall stories and drinking the odd beer or two you come back to the office and start answering the telephone, dictating proceedings, dictating letters – it’s all surreal. However, the wonderful thing about doing what I do is that I completely divorce myself from my work. I can’t afford to think about work. You must focus on the driving otherwise you are liable to go off and hit a tree or something silly. In that regard it’s a fantastic release and if you have got a bent towards driving, want to go fast or just want to try it out for the hell of it, then try this because it’s something quite different. For those of you interested, you can contact me if you wish and I can tell you all about it.
We ended with a final stage in Peter Dunne’s electorate out the back of Karori. The stage was closed but, unfortunately, we had to tour it. This meant that we could go along the stage at 100 km per hour but no more. However, it was still a closed road. You can imagine my surprise when I came around a corner to be greeted by a bus proceeding in the same direction as us. How or why he got onto the stage I’ll never know but by that point it didn’t really matter. Anyway – I am able to say I did pass two people in Targa this year. No point in mentioning the finer details such as one being a cyclist and the other being an old bus…………….
There won’t be a car review this publication. I’ve been a little bit busy to get a car and some of them are playing hard to get but I will be driving the new Range Rover Velar soon. I have the new Lexus LC500 Coupe to drive this month and I am also going to arrange to drive the Skoda Kodiaq and I am trying to get hold of a Porsche or two plus I have something coming up with Tesla [Woohoo – the Petrol Head is converted to a Power Head – Exec Director].
The Targa finished at the Taranaki Wharf and we were awarded third in class (there were only 3 cars in our class – but I don’t care) and we were part of the winning team of the Hamiltonians which had the best finishing aggregate of all the teams that were entered. We had two firsts in class, a second and a third.
So, as they say in some publications – watch this space. Until next time, happy driving.
The prize for these astonishing accomplishments is a tin plate. I suspect they give them away with cans of dog food. There is a winner’s medal - but everyone gets one of those. It’s the tin plates that are coveted by the competitors. Even the overall winner gets a tin plate. I did speak to one of the competitors from the Coromandel (he will remain nameless) who tells me that in the 8 or 9 years he has been competing, he has now spent more than $1.3 million on racing in Targa only. That makes my investment of capital in the Targa at $18,000 seem reasonably miserable. I confess to having blown up three engines so far and rolled and wrecked one car but that’s another story.
* David O’Neill, a Hamilton barrister, the Treasurer of the NZBA , and the Editor-in-Chief of At the Bar. He has an affinity for fast things on wheels and is allegedly the New Zealand Jeremy Clarkson. But very well behaved.
One of the fascinating things about Targa is that after a week away of travelling at speeds well in excess of the open road speed limit, occasionally frightening yourself or for that matter your co-driver,
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Auckland Christmas Drinks 21 November 2017
Vivienne Crawshaw and Justice Ailsa Duffy
Suzanne Robertson QC, Sir Ted Thomas and Ken Ng
Maria Dew and Steve Bonnar QC
Josh McBride, Paul Collins and Phillip Rice
Clive Elliott QC, Sarah Wroe, Paul David QC and Des Wood
Chris Patterson and Justice Tony Randerson
Brett Cunningham, Michael Fisher and Geoff Jenkin
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2017-2018 COUNCIL CONTACT DETAILS 2013-2014 COUNCIL CONTACT DETAILS CLIVE ELLIOTT QC – President Ph: +64 9 307 9808 elliott@shortlandchambers.co.nz KATE DAVENPORT QC - President Elect Ph: +64 9 307 8787 kate@katedavenportqc.co.nz JENNY COOPER QC Ph: +64 9 309 1769 jcooper@shortlandchambers.co.nz MARIA DEW Ph: +64 9 307 5251 maria@mariadew.co.nz JONATHAN EATON QC – Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN – Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz LARA MANNIS Ph: + 64 9 600 5509 lara@richmondchambers.co.nz JANE MEARES Ph: +64 4 974 5952 jane.meares@cliftonchambers.co.nz TIHO MIJATOV Ph: +64 4 472 9025 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer / Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com PAUL RADICH QC Ph: +64 4 974 5951 paul.radich@cliftonchambers.co.nz GRETTA SCHUMACHER Ph: +64 9 309 1769 gschumacher@shortlandchambers.co.nz ROB STEVENS – Associate Member Representative Ph: +64 9 302 1963 rob.stevens@pds.govt.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net