LAWTALK NEW ZEALAND LAW SOCIETY
2 MARCH 2012 / 790
FOR THE NZ LEGAL PROFESSION
The virtual frontier
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A new model of law practice has emerged − one where clients aren’t walking past the shingle marking the firm’s premises. page 8
LAW FIRM OF THE FUTURE VIRTUAL L AW FIRM FEATURE PAGE 8
TIME TO RE-THINK FROM THE C OURTS PAGE 16
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FEATURE: VIRTUAL LAW FIRMS
“Ownership of land has been fundamental to both Māori and pakeha New Zealanders’ understanding of their identity and way of life.” page 17
“There is no doubt that the ‘traditional’ law firm model is in trouble and that both lawyers and clients are craving something different and new.” page 09
Defer legal aid legislation
Jury out on proposed criminal justice reforms
The Legal Assistance (Sustainability) Amendment Bill should be deferred until a major report on the Family Courts is presented to the Minister of Justice...
BY MARY-ROSE RUSSELL AND MARNIE PRASAD
The Law Commission’s consultation paper Alternative models for prosecuting and trying criminal cases...
Globalisation of legal services
Top legal executive students Despite living in a city wracked by shocks and aftershocks last year, Sally Poyser of Christchurch was the top graduating student in the New Zealand Law Society Legal Executive Diploma examinations... Criminal Procedure Act 2011 – stage one Criminal Procedure Act 2011 stage one provisions come into force on 5 March...
14 Barristers and provision of client care information Clients must be provided with certain client care information, the Lawyers and Conveyancers Act...
BY RACHAEL BRECKON
Innovation and technology could be the key to not being left behind in an increasingly global legal advice market...
Virtual law firms A new model of law practice has emerged − one where clients aren’t walking past the shingle marking the firm’s premises.
18 The death of the CV With the rise of internetbased CV services and templates, most people have access to tools that enable the creation of the ‘perfect’ CV...
28 Opportunity not to be missed A world leader in dispute resolution, Professor Laurence Boulle is coming to New Zealand to conduct a Mediation Masterclass...
“Now there are a lot more opportunities, and in my mind these opportunities are more exciting.”
The law firm of the future BY HANNAH GRANT
The increasingly volatile legal market means that firms need to be more innovative...
Top trends for legal outsourcing ...a summarised version of international management consulting company Fronterion LLC’s predictions on the environment...
People in the law
From the courts
Letters to the Editor
Lawyers Complaints Service
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LAWTALK 790 / 2 MARCH 2012
FROM THE LAW SOCIET Y CHRI STINE GRICE
he New Zealand Law Society’s regulatory function is focused on the needs of the legal profession and users of legal services, now and in the future. This issue of LawTalk looks at the virtual law firm and how technology is changing the way the profession disseminates legal advice. As the profession looks at new ways to give legal advice, the way lawyers expect to receive information is also changing. The New Zealand Law Society staff are focused on making legal knowledge as accessible as possible for lawyers. Not only are the NZLS librarians themselves a repository of knowledge, but the Society has worked on providing extensive online legal resources. This resulted in the introduction of 31 kiosks around the country to provide access to a wide range of electronic material previously unavailable to lawyers outside the central areas of the main centres. The Law Society’s LINX database, which contains approximately 230,000 records, is updated twice a week. There also are databases providing case law and commentary for New Zealand and selected Australian, United Kingdom, and Canadian resources. The EPIC collection (consisting of 29 databases) can be accessed by all lawyers at their desktop through my.lawsociety and provides a huge range of general, reference, business and other specialised information. Document delivery services are also available through the libraries to lawyers nationally. For more information on these up-to-date legal information services go to http://
LAWTALK 790 / 2 MARCH 2012
my.lawsociety.org.nz/library. We are continuing to look at legal information needs and how the Law Society Library can develop to ensure all lawyers are able to continue to access legal information for any legal practice. I would also like to take this time to reiterate Law Society President Jonathan Temm’s call for lawyers to read and forward comments on the mandatory Continuing Professional Development scheme. Lawyer input is a vital part of creating an effective CPD scheme; one which will affect everyone in the profession. The scheme proposes that all lawyers must complete a minimum of 10 hours eligible CPD per year and encourages 50 hours of non-verifiable self-study. Finally, it is now gone a year since the devastating February 2011 Christchurch earthquake. The Law Society Board enjoyed a function in Christchurch with members of the profession last month. It was heartening to hear from practitioners that while they are still facing constant infrastructure hurdles, most of them have found ways to keep their practices going, are very busy and confident about the future of Christchurch. There is a slow movement back into town. I was fortunate enough to visit law firm Taylor Shaw which recently reopened in the Cashel Mall in central Christchurch. The new premises have been elegantly refurbished and the firm is busy. The view across the city includes some of Christchurch’s landmarks such as the Bridge of Remembrance but is also a reminder of the number of buildings that have gone or are about to go.
Christine Grice New Zealand Law Society Executive Director
LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.
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Coming up … ACCIDENT COMPENSATION will be the focus of a public lecture by the Legal Research Foundation’s visiting scholar for 2012, Professor Ted White.
Professor Ted White
Professor White will deliver his lecture, entitled NoFault Accident Compensation in New Zealand and the United States – Divergent Species From a Common Ancestor, at 6pm on 3 April in the Auckland University law faculty’s Stone Lecture Theatre. Drinks and nibbles are from 5:15pm.
This lecture attempts to explain why no-fault accident compensation plans, which originated out of common concerns in several American states and in New Zealand at approximately the same time, have evolved so differently in the two nations. It emphasises differing attitudes toward the role of government, different governmental structures, and the continuing importance of tort law as a mechanism for governing accident compensation in the United States.
Anti-corruption THE 10th annual International Bar Association (IBA) Anti-Corruption Conference will be held at the OECD Headquarters in Paris from 12-14 March. The conference will take place at the same time as the meeting of the OECD Working Group on Bribery in International Business Transactions. The group comprises representatives from the 38 State Parties to the OECD Anti-bribery Convention, along with the Russian Federation. See www.ibanet. org.
World women lawyers
Professor White is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia.
THE 5th World Women Lawyers’ Conference will be held in London on 26 and 27 April.
Technology and privacy
The conference is presented by the IBA Women Lawyers’ Interest Group Committee. The 5th Outstanding Women Lawyer of the Year award will also be granted during the conference dinner. See www.ibanet.org.
NEW TECHNOLOGY and privacy implications will be the focus of this year’s forum run by the Privacy Commissioner. Think Big? Privacy in the Age of Big Data is the title of Privacy Forum 2012, which will run from 8:30am to 5pm on 2 May at the Intercontinental Hotel, Wellington. “We’re in the middle of a technological and digital revolution, accelerated by the use of cloud computing and social networking,” the office of the Privacy Commissioner states.
ACC DISPUTES? The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.
“The sheer amount of personal data is mushrooming. Managing personal information in that environment can look daunting, whether it involves online tracking or information sharing. Learn more so you can advise your clients and help them negotiate their way through the legal implications of ‘big data’ and the cyber world.” See http://privacy. org.nz/privacy-awareness-week201/?highlight=Forum%202012.
JOHN MILLER LAW
Level 1, 13 Leeds St I PO Box 6314, Wellington +64 (04) 801 5621 I firstname.lastname@example.org www.jmlaw.co.nz
For Christchurch THE RENOWNED Michael Kirby AC, former Justice of the High Court of Australia, will be guest speaker at the upcoming Criminal Bar Association of New Zealand bar dinner. To be held at the Ellerslie Event Centre, Auckland, at 7pm on 30 March, the dinner is being held to raise funds for the Christchurch criminal bar. • Wish to refer them to a specialist ACC law firm? • With nationwide coverage? • We deal with ACC matters only and will not represent your clients in other areas.
LAWTALK 790 / 2 MARCH 2012
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Defer legal aid legislation, Law Society says THE LEGAL ASSISTANCE (Sustainability) Amendment Bill should be deferred until a major report on the Family Courts is presented to the Minister of Justice. This plea was made when the New Zealand Law Society presented its submission on the Bill to Parliament’s Justice and Electoral Committee on 16 February. Both the Law Society President Jonathan Temm and Caroline Hannan of the Law Society’s Family Law Section spoke on the Society’s submission. New Zealanders were being misled about the “economic efficiencies” that the Bill was purported to deliver, Mr Temm said. “We will not make these savings. There has been no social policy work done on the impact of this bill on children and other vulnerable groups. The Ministry of Justice has focused purely on perceived economic benefit,” Mr Temm said. “Lawyers quite understand the need for prudent expenditure. However, the changes proposed in this Bill are going to impact on child poverty. Constraints are being placed on the availability of legal aid for Family Courts, but savings in one place are going to result in cost blowouts in others. “We are talking about the most vulnerable people in New Zealand here, and we are told there has been no time to investigate the social outcomes.” In 2006, Mr Temm said, the then government had increased the eligibility for legal aid from 750,000 New Zealanders to 1.3 million. Ministry of Justice modelling at the time had confidently predicted the economic impact of this. Instead, five years later the country was facing a major blowout in legal aid expenditure which was nothing to do with lawyers but driven by government policy. Former Justice Minister Simon Power initiated a major review of the Family Courts in 2011, Mr Temm said. This has resulted in major thinking on ways in which efficiencies and cost savings could be introduced in the Family Courts. The Law Society would be presenting its submission and recommendations by the end of
February. A comprehensive final report on the Family Court review is due to go to the Minister of Justice in March.
for family legal aid was automatically making an application to the Family Courts.
“This Bill should be deferred until the select committee has viewed the report and considered the efficiencies it will recommend.”
However, that is not so as family lawyers effectively provide a triage system which saw people pointed in the right direction for assistance such as counselling or social welfare support, and not just to the court, Ms Hannan said.
The Family Courts were introduced 30 years ago and were seen internationally as a landmark and visionary initiative, Mr Temm said. One of the key planks of the courts was that the judges had the power to appoint a senior lawyer to represent the interests of children involved in any proceedings. By bringing Family Court appointment of lawyers into the legal aid system without any investigation of the social consequences and in isolation from a major review of the Family Court, the Bill is a piecemeal and silo response to matters affecting access to justice and the rule of law. “Lawyers do not want to be barriers to change. We recognise the fiscal problems our country faces, but we must speak out here on behalf of a group of very vulnerable New Zealanders who will be further threatened if the changes proposed by this Bill occur. The underlying fundamentals of the Family Court system cannot be threatened,” he said. Noting that the Bill proposed a user charge of $100 for anyone accessing family legal aid, Ms Hannan said that was an “enormous sum” for the people who fitted the criteria to be eligible for legal aid. “This is taking money away from them that should be used for looking after their families,” she said. There was a wrongful presumption behind the Bill that anyone applying
“People who are respondents in Family Court proceedings usually find themselves in the court system through no action of their own. However, they will need to pay a $100 fee before they can access legal advice.” Ms Hannan said the impact of the fee could be counterproductive, as it is likely more matters will go to court with people representing themselves. This will cause further court delays and costs and a severe emotional impact on people who are already vulnerable. The consequences on children could well be dire. “The legal aid system should not be extended to cover lawyers for children,” she said. “Children must be adequately and properly represented by people who are totally independent from the adult parties.” Extending the legal aid provisions and a quality assurance framework to lawyers for children is both unnecessary and dangerous. “We already have a well-tried and successful system in place. Every lawyer appointed as a lawyer for the child must have had at least five years’ experience and must have completed a special lawyer for the child course. They must have been interviewed and approved by an expert panel. And their appointment is reviewed every three years,” she said. LT
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LAWTALK 790 / 2 MARCH 2012
PEOPLE IN THE LAW
ON THE MOVE
Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, tel (04) 463 2982, fax (04) 463 2985, email email@example.com. The usual editorial discretion applies.
Z Energy has appointed the companyâ€™s general counsel and company secretary, Meredith Ussher, to the companyâ€™s executive team. Meredith has been with Z Energy since May 2010, when the company was acquired from Shell New Zealand.
formerly of Freehills, has been appointed to Duncan Cotterill in Sydney as a partner. Kerryn advises across the spectrum of employment law and industrial/ workplace relations. Ben Lenihan joins the Christchurch corporate commercial team as an associate. Ben specialises in the TMT (Technology, Media, Telecommunications) sector, and is also experienced in general commercial acquisitions, mergers and joint ventures. Julie MaslinCaradus has been promoted to associate in Nelson. She is a commercial lawyer who specialises in insurance litigation. Julie previously worked for two leading London firms, one large New Zealand firm and was seconded to a large New Zealand Bank as in-house legal adviser. Amy Malone rejoins the Auckland office as an associate. She advises on a range of individual, corporate, commercial and insurance litigation matters. Amy is also experienced at mediation and alternative dispute resolution.
Wynn Williams Lawyers has added two staff members to its Christchurch office. Henry Holderness is a solicitor in the civil litigation team and Matthew Prendergast is a law clerk in the resource management team. Duncan Cotterill has made several senior appointments across its network. Matt Yates is promoted to partner in the Wellington office. Matt is a corporate lawyer and specialises in capital markets, mergers and acquisitions and takeovers. He advises clients on corporate governance, securities law, NZX listing rules, joint ventures and intellectual property. Kerryn Tredwell,
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Paul Collins is now practising as a barrister. He has joined Shortland Chambers in Auckland.
Peter McKnight has joined Chris Corry and Chris Chapman in Quayside Chambers, Lambton Quay, Wellington, to continue his practice as a barrister specialising in defamation and other media law matters.
Minter Ellison Rudd Watts has appointed three new partners. Quentin Lowcay and Richard Gordon have joined the firm and are in the Wellington office. Construction and property specialist Janine Stewart, who is in the Auckland office, has been promoted to partner. Quentin specialises in IT, technology, strategic outsourcing and procurement and assists organisations to deliver greater long-term commercial benefits through better management of purchasing decisions, supplier relationships, and overall spending. Quentin was previously a partner with Kensington Swan for four years, including as managing partner of their office in Abu Dhabi UAE. Richard is a civil and commercial litigator, with particular expertise in banking and securities law, and insolvency. He advises trading banks on various contested enforcement matters, and insolvency practitioners on disputes arising out of receivership and liquidation appointments. Richard
joins the firm from Buddle Findlay in Wellington. Janine is a specialist in complex construction and commercial projects and disputes, including defective and leaky buildings. She also advises clients in the energy and resources and the infrastructure industries. Janine returned to New Zealand in 2008 to join the firm after working with Walkers Global in the Cayman Islands. Grant Hewison has been promoted to special counsel at Kensington Swan. Based in Auckland, Grant is a member of the firm’s local government and environment team. Grant specialises in local government, environment and planning law, public law and transport infrastructure law. Janine Smith has joined the board of Kensington Swan as an independent board member. Janine has been a CEO, executive director and independent director with companies in the commercial, arts and education sectors, both in New Zealand and overseas. She is a founding principal of The Boardroom Practice Ltd and a director of The Warehouse Group Ltd and Steel and Tube Holdings Ltd. Janine is chair of AsureQuality Ltd and McLarens Young New Zealand Ltd. She is also a member of a number of advisory boards and panels. Natalie Lord has joined Brookfields’ litigation and dispute resolution team. Her primary focus will be on civil and commercial litigation and alternative dispute resolution, and she will also provide assistance to the firm’s employment law team. Nick Whalley has joined Buddle Findlay’s Wellington office as a solicitor in the litigation team. Nick specialises in insolvency and general civil litigation. Before joining Buddle Findlay, Nick worked
in the litigation management unit at the Inland Revenue Department and in the dispute resolution team at another large law firm. Sebastian Bisley has rejoined Buddle Findlay’s Wellington office as a senior associate in the litigation team. Sebastian has a particular specialty in commercial, insurance and insolvency litigation. Tim Clarke has been appointed a partner in Bell Gully’s employment team. Based in Auckland, Tim joined Bell Gully in 2006 after spending time working in Hong Kong with Baker & McKenzie and in the British Virgin Islands with Harney Westwood & Riegels. Tim specialises in employment and commercial disputes, including disciplinary and personal grievance hearings, restraints of trade, restructuring, all aspects of relationships between employers and unions, and Privacy Act and Human Rights Act issues. Bell Gully has also appointed four senior associates. Mark Cunliffe is a corporate lawyer who advises on capital markets transactions, mergers and acquisitions, other corporate transactions, commercial contracts and joint ventures with a focus on the energy sector. Mark joined Bell Gully in 2011. Belinda Green is a commercial property lawyer who first joined Bell Gully in 2004. She then spent three years practising overseas before returning in 2010. Graham Murray has been a member of the Bell Gully tax division since 2005, and advises New Zealand and offshore clients on all aspects of New Zealand tax law. Jesse Wilson is a
commercial litigator with experience in company and securities law disputes. He began his career with Bell Gully in 2006, after clerking at the Court of Appeal. He rejoined Bell Gully in 2009 after completing his LLM at Stanford Law School. Brookfields Lawyers has appointed Alison Gilbert a special counsel, recognising her experience in the law of trusts and administration of trusts. Alison is the secretary of the New Zealand branch of the Society of Trust and Estate Practitioners, which is the principal professional body for trust and estate practitioners worldwide. LT
PEOPLE Part-time law student Sam Johnson of Christchurch has been named the 2012 Young New Zealander of the Year. The founder and leader of the Student Volunteer Army in Christchurch, Sam was one of two law students among the three finalists (see LawTalk 789, 17 February 2012, page 7). The other was Elizabeth Chan, national president of United Nations Youth New Zealand. The awards ceremony was held in Auckland on 16 February. Ian Finch has been appointed president of the New Zealand Institute of Patent Attorneys (NZIPA). The NZIPA, which celebrates its centenary this year, represents most patent attorneys registered under the New Zealand Patents Act who are resident and practising in New Zealand. Mr Finch is a supervising partner of James & Wells Intellectual Property’s Auckland patents team and national litigation team. He is the general editor of James & Wells Intellectual Property Law in New Zealand, published by Thomson Reuters. Anne Gaskell and Philip Hall have been appointed Judges of the Court Martial of New Zealand. LT
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The firm of the future? BY HANNAH GRANT THE INCREASINGLY VOLATILE legal market means that firms need to be more innovative. Due to fierce competition and wavering economies, a new model has been forged for the industry. Although still in its infancy in New Zealand, lawyers and clients now have the additional option of a hybrid business that sees the provision of legal services no longer confined to an office space. ‘Lawyers on secondment’ or ‘virtual law firm’ are terms coined for this new model. The business model entails having lawyers working either from home or from a client’s premises. In most cases the information/files used are hosted by a virtual or cloud-based practice management system. The concept is being hailed as revolutionary for the legal market as it pivots around the client and the client’s business requirements. The money saved on overhead expenses means clients are charged up to 40% less. Based in New Zealand, Virtual Law Ltd does just this. Founder Miriam Hollins says they wanted to establish an innovative practice (away from the traditional approach) that provides flexible and adaptable legal services for clients and staff. “Nowadays people are so busy with
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their daily lives with work and family that we thought the best way to make our legal services truly accessible was to also offer a mobile service. We visit clients at home, or wherever it is more convenient, at a time to suit them, offering a practical solution to modern needs. This means going to see clients after hours, including weekday evenings and weekends,” she says. A ‘law to your door’ service is what Virtual Law Ltd promises. “We find that home visits assist to build greater rapport with and understanding of our clients. The lower operating costs mean we can offer fixed price fees for conveyancing yet offer the additional mobile service at no charge,” Ms Hollins says. The model steps away from the normal maths used by large law firms, where one-third of the revenue goes to salaries, one-third goes to overheads, and one-third goes to profits. Instead the majority of revenue stays in the lawyer’s hand. The pricing structure also says “goodbye” to minimum billable hour requirements and “hello” to fixed fees. Business growth specialist Simon Tupman says that although the New Zealand legal landscape is small, there is an opportunity to produce more innovative offerings that come outside the traditional law firm model.
A traditional commercial law firm based in London, Berwin Leighton Paisner, has established a business within a business called Lawyers on Demand. Effectively, the firm has diversified to offer two quite different models to their clients. “You either choose the traditional Berwin Leighton Paisner lawyers, or a different type of lawyer more in the mould of a virtual law firm or secondment, where they go into the clients’ premises. “To me it’s an indicator of how volatile and innovative the market is becoming in providing outsourced work,” says Mr Tupman. It is only a matter of time before the traditional New Zealand model reinvents itself or has some more competition, Mr Tupman predicts. “If you were an in-house counsel of a large company with a fixed budget, then you would be very interested to hear of alternatives to the traditional current providers. “It may be that one of the big law firms in New Zealand will take a leaf out of the Berwin Leighton Paisner book and say, let’s go down this route and see if it’s viable,” he says. Australia has progressed more in this respect. Advent Legal, one of the first firms of this mould in Australia,
has grown exponentially since its establishment in December of 2008 and is now seen as a threat to the large magic circle firms. Advent Legal CEO, John Knocks, says that they are not a partnership but rather an incorporated legal practice that is owned by investors and the management team. “Our lawyers work from our clients’ offices, not ours, on a wide variety of projects, transactions and secondments. We work on a 100% fixed fee basis, rather than hourly rates, ensuring our clients have budget certainty. We have stripped out all of the fat and overhead associated with a traditional law firm (physical libraries, art collections, baristas, partner profits, large premises costs etc) and we can provide the same quality lawyers and services at a fraction of the cost (typically a third to half),” he says. “I think there is no doubt that the ‘traditional’ law firm model is in trouble and that both lawyers and clients are craving something different and new,” Mr Knocks says. Many New Zealand firms may be watching to see what success other law firm business model innovators have. “New Zealand is still rather conservative compared to other countries when it comes to the business of law, so for the moment the consumer just has to put up with what’s on offer,” says Mr Tupman. He says that much of his work has been on encouraging private law firms to be
I THINK THERE IS NO DOUBT THAT THE ‘TRADITIONAL’ LAW FIRM MODEL IS IN TROUBLE AND THAT BOTH LAWYERS AND CLIENTS ARE CRAVING SOMETHING DIFFERENT AND NEW.
JOHN KNOCKS more innovative in the way that they service their clients. “The reaction that I often get is, ‘why fix what isn’t broken?’” A firm’s business model may not be broken, says Mr Tupman, but it is almost definitely outdated. “All it will take is someone with some entrepreneurship and some initiative to second lawyers out, or to generally
get closer to the clients by asking them what they want or what their future needs might be. It surprises me how many law firms don’t. “The impact of technology globally will provide more options for the legal consumer particularly at the commodity end level of legal work, like wills and divorces. For providers, this could mean you can have a brand online and go and live in the middle of the mountains and operate a business,” he says. Ashley Balls of LegalBestPractice says clients are not ready for a completely virtual-based legal market. “I think clients still want to know that there is an office, an edifice, something tangible that they are buying their advice from.” Law firms have started to embrace flexible working practices by giving their clients more choice. “This flexibility enables the virtualisation of law firms to take place as well as having the traditional law firm. Two businesses under the same name.” It’s not as black or white as having one model or the other, says Mr Balls. “How many people do you know with a fully electric car? You may know a few people with hybrids, but some would ask − what’s the point in having two motors? But it’s a way of helping us, the community, migrate away from our comfort zone”. LT
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VIRTUAL L AW FIRMS
Globalisation of legal services BY RACHAEL BRECKON INNOVATION AND TECHNOLOGY could be the key to not being left behind in an increasingly global legal advice market. Legal process outsourcing (LPO) is rapidly growing internationally. India is currently leading the game followed by the Philippines, with providers emerging in China and Sri Lanka. It is now a fixed part of the legal advice scene in the United Kingdom and the United States, with Microsoft among the many high-profile companies using this modern model. There are obvious cross-jurisdiction hurdles, namely different laws, legal systems, privacy laws, languages and practising certificates. So far the trend has been that law firms outsourcing legal work tend to use lawyers qualified in a common law jurisdiction and then retain responsibility for the quality of the work. Most legal process outsourcing has focused on due diligence, discovery and document production rather than detailed analysis or complex legal work. The largest “pure play” LPO in the world, Pangea3, founded in 2004 and bought by Thomson Reuters in 2011, proves it is possible to overcome crossborder problems that may arise. Currently Pangea3 employs around 950 legal staff in India, making it one of the biggest employers of lawyers in that country. Based on its historical growth, the company could be at 2,000 lawyers in two to three years. It is unlikely talent or work is about to dry up for Pangea3. LPO has the potential to grow to a $20 to $25 billon industry and 80,000 new graduates stream out of Indian law schools each year. “We’ve just touched the tip of the iceberg so to speak. This service is likely to grow in the US, UK, Australian and New Zealand legal services industry,” says Antony Alex, India-based legal solutions manager for Pangea3 New Zealand has been slow to pick up LPO.
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“There is not a lot of business coming from New Zealand. But as the Australian market starts getting its arms around legal outsourcing and starts to use outsourcing firms more pro-actively and aggressively, we’ll see organisations in New Zealand adapt or adopt legal outsourcing,” he says. Using time zones to its advantage, Pangea3 is able to work while attorneys or companies in different jurisdictions sleep. As a nation, India hosts many first language English speakers and is a common law jurisdiction.
NOW THERE ARE A LOT MORE OPPORTUNITIES, AND IN MY MIND THESE OPPORTUNITIES ARE MORE EXCITING.
JEREMY SZWIDER “We have a similar foundation, hence our attorneys are able to provide services to attorneys licensed to practice law in different common law jurisdictions,” Mr Alex says. “The way we view the world is (and I guess the global financial crisis kind of triggered some of it) that as there is a greater push towards cost savings and cost predictability, we’ll find a lot of [legal tasks] can be done by lower cost jurisdictions.” “You’ll find [some legal tasks] really do not have to be done by expensive lawyers in higher cost jurisdictions. They can be easily done by attorneys working in organisations like ours to the same quality if not better,” he says. To ensure a client’s privacy rights are maintained, Panega3, an ISO 27001
certified organisation, works with its clients to ensure that they operate within the framework of data protection laws of the country the work originated from. The major issue for lawyers then becomes what effect will this globalisation of legal services have on lawyers’ salaries and job availability? This won’t mean the end for legal firms but it could mean the legal profession has to operate more efficiently, according to Mr Alex. “What you’re going to find is firms the world over are going to focus on the higher end tasks that really justify the high fees that they charge,” he says. “What you will find is law firms won’t be as large as they are, they will be much leaner, but every dollar is value for the customer.” Former associate at Simpson Grierson in Auckland, Dr Sam De Silva, who is now a partner and the head of technology and outsourcing at Manches LLP (UK), says outsourcing has “both pros and cons”. “Whilst costs for the client can be reduced, it may mean that jobs are lost in the UK,” he says. “There will be some type of legal work (for example complex litigation, highvalue mergers and aquisitions) which will be very difficult to outsource. Also there will be some clients who don’t mind paying more to use a law firm they have a personal relationship with and can actually go and see in person.” While Manches does not outsource legal work, Dr De Silva knows the realm well as he advises clients on business process outsourcing, such as IT, human resources, accounting and manufacturing. New Zealand “has plenty to offer” the growing outsourcing market, he says. This is because: •
the New Zealand legal system is very similar to the United Kingdom;
many New Zealand lawyers have worked in the United Kingdom;
the cost differential is beneficial; and
VIRTUAL L AW FIRMS
Top trends for legal outsourcing BELOW is a summarised version of international management consulting company Fronterion LLC’s predictions on the environment for legal process outsourcing in 2012.
PROFITABILITY The shrinking gap between wages in the developing and developed countries and accelerating growth of onshore LPO services will combine to squeeze margins.
NEED TO GROW LPO firms need to diversify into other practice areas such as mergers and acquisitions, and contract management.
Legal technology platforms will increasingly be bundled together with traditional LPO offerings. This means using software systems, as well as lowcost human labour, to provide cheaper and more efficient legal services.
LPO vendors face intense competition from more formidable and established mainstream legal vendors.
ADOPTION OF LPO TECHNIQUES The broad adoption of LPO techniques will, more than ever, reshape the practice of law.
INSURANCE As outsourcing becomes more common, the unique nature of LPO services creates new risks for legal professionals that will be addressed by law firm insurers in the coming year.
EXECUTIVE RANKS The shifting skill sets required for leading an LPO in this evolving industry, along with growing pressure on existing management to produce results, will drive changes in executive ranks.
the time difference can be used to New Zealand’s advantage.
However, the continual growth of outsourcing and global virtual firms like Pangea3 could mean their size ends up undermining the concept they were born out of.
PROFESSIONAL GUIDELINES Professional and regulatory bodies in the United States and the United Kingdom, which have been slow to address alternative legal services delivery, are due next year to publish the results of studies on the impact of outsourcing.
THE LAW FIRM-CLIENT RELATIONSHIP The injection of third party legal vendors into the law firm-client relation has significant implications for the role of the lawyer. Source: http://fronterion.com/ tenfor2012/. LT
“Traditionally clients have not had that many options for law firms in Australia. Now there are a lot more opportunities, and in my mind these opportunities are more exciting,” he says. LT
“As they grow, they are growing to become more of a traditional law firm,” says Jeremy Szwider, director of Bespoke Law (Melbourne). Bespoke Law, founded in 2008, primarily offers in-house style legal advice to Australian companies. The majority of its contractors reside in Australia and hold Australian practising certificates. “We believe that aside from some important hurdles in being able to practice within specific jurisdictions, a lot of commercial work can be captured cross jurisdiction by individuals that work in a style akin to in-house lawyers,” Mr Szwider says. Bespoke Law may work virtually, but its practitioners remain focused on face-to-face contact (often via internet connections) with clients. The Bespoke Law contractors become the “central pivot” for a company’s legal needs, along with a more predictable payment platform. Business has been evolving towards different structures and Mr Szwider says Bespoke Law is a “force to be reckoned with within the legal profession and is helping to shape and evolve that profession.” The virtual set up means they are able to be “more savvy and more competitive” but also it provides a better “work-life balance” as its contractors can “work wherever, whenever … as long as they have got a good internet connection,” he says.
View ConferenceProgramme Programe View the the Conference and register online today and register online today at at
www.clanzconference.org.nz www.clanzconference.org.nz CLANZ Premium Members who register before 30 March will go into the draw to win a luxury long weekend in Aitutaki, Cook Islands.
Passionate about the virtual platform, Mr Szwider thinks it is making the law a more attractive profession.
LAWTALK 790 / 2 MARCH 2012
Pushing the boundaries is easier when there aren’t any
Do you want to work abroad in an international team? Germany is calling. With Freshfields’ finance group in Frankfurt, you can be part of the most exciting aircraft finance and banking deals in Europe. Frankfurt offers a big city lifestyle in a welcoming, small city environment. This breathtaking German city has some of the best restaurants and bars, parks, sport, music and festivals in Europe. And as the financial heart of Europe, it’s in an ideal location with the whole of the continent just a short flight away. As an experienced finance lawyer, or someone looking to move into finance, you will work with international blue-chip clients, with lots of opportunities to work under your own initiative as part of our worldwide team. German language skills are useful (but not essential), and most of the legal work is in English. This is a chance to develop your career, life and languages. If you are a lawyer with prior, relevant experience and would like to make this exciting international move, please contact Thomas Wagner at firstname.lastname@example.org.
12freshfields.com LAWTALK 790 / 2 MARCH 2012 Freshfields Bruckhaus Deringer LLP
Top legal executive students DESPITE living in a city wracked by shocks and aftershocks last year, Sally Poyser of Christchurch was the top graduating student in the New Zealand Law Society Legal Executive Diploma examinations. Sally, who works for Chapman Tripp, will be one of 153
students graduating with the diploma at ceremonies to be organised by Law Society branches later in the year. The winners of the New Zealand Law Society $150 prize for the top mark in each subject (TOPNZ stands for The Open Polytechnic of New Zealand) are:
Introduction to the Legal System
Introduction to Law Office Practice
Melanie De Munnik
Property Law and Practice
Business Law and Practice
Estates Law and Practice
Litigation Law and Practice
Criminal Procedure Act 2011 – stage one
New levy for practice on own account applications
CRIMINAL PROCEDURE Act 2011 stage one provisions come into force on 5 March.
BARRISTERS and barristers and solicitors applying to the Law Society to practise on their own account will be charged a levy of $250, including GST, from 1 April 2012.
These provisions include codification of the grounds for granting name suppression and the ability for judicial officers to give sentence indications up until a substantive hearing commences. Other changes under the Act and related amendment acts include: •
an ability for the media to appeal in relation to suppression;
reframing the prohibition for publishing matters dealt with at a bail hearing;
clarification of Registrars’ powers to withdraw warrants related to unscheduled appearances, and of bail conditions that may be imposed pending sentencing;
removal of the consent and exceptional circumstances test for courts to proceed with 10 jurors and enabling courts to proceed with fewer than 10 jurors;
providing for the Court of Appeal to treat appeals as abandoned for procedural non-compliance; and
for the police to produce either the original or copy of a warrant when executing it.
To implement stage two of the Act, expected to commence in mid-2013, the Ministry of Justice and sector agencies are making significant changes to systems and processes. More information about stage one is available at www. justice.govt.nz “In Focus”. LT
The levy was passed by the NZLS Council on recommendation from the Board to cover the cost of the substantial amount of administrative time taken to process these applications. For further information about applying to practise on own account see www.lawsociety.org.nz/home/for_ lawyers/registry/practising_certificates. LT
Professional Teaching Fellow Bernard Brown still comes in to the Auckland University Law School every day, just as he did when he joined the faculty more than 50 years ago. Now a sprightly 78 years, Bernard has no plans to quit the teaching he loves. “There is nothing worse than drawing the curtains on life,” he says. To mark the rare distinction of serving 50 years, the faculty put on a surprise celebratory luncheon for Bernard on 10 February.
Independent Resource Management Specialist Advice, strategy, advocacy, dispute resolution for your clients Waterfront Chambers Wellington
PhiliP Milne Barrister
021 803 327 or PA 04 499 6653 email@example.com milnelaw.co.nz
LAWTALK 790 / 2 MARCH 2012
Barristers and provision of client care information CLIENTS MUST be provided with certain client care information, the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) rules state. This requirement reflects the consumer focus of the current legislation and emphasises the underlying principle that clients have a right to expect clear information and advice when a lawyer provides legal services. The Law Society has received a number of enquiries, asking who is responsible for providing client care information where the intervention rule applies and a barrister is engaged by an instructing solicitor. RCCC 3.4 states that a “lawyer” must provide client care information in advance of providing the client with legal services. There is also an ongoing obligation to ensure that any change to information originally provided is updated with “due expedition”. There are four limited exceptions to the client care information requirements (see LawTalk 778, 12 August 2011, p6). One of those exceptions is where the lawyer is instructed by another lawyer or overseas practitioner (unless the information is requested by the instructing lawyer or member
Practising without a trust account – annual certification requirements ALL PRACTICES that have made an election under s317 of the Lawyers and Conveyancers Act 2006 (LCA) not to operate a trust account should by now, 2 March, have received a letter from the Law Society Registry asking them to complete and return their s112(2) certification. This is an annual requirement. Regulation 4 of the LCA (Trust Account) Regulations 2008 requires every practice that relies on s112(2) of the act to certify in writing to the Law Society, not later than 31 March each year, that it: •
has not done any of the things specified in s112(2)(b) of the LCA during the preceding 12 months; and
does not intend to do any of those things during the following 12 months.
Completed certificates must be returned to the Law Society no later than 31 March if the practice wishes to continue to rely on s112(2) in relation to the obligation to keep records in respect of trust accounts and valuable property. If a practice is no longer entitled to rely on s112(2), it must notify the Law Society immediately and revoke the election made under s317(1). Requirements in relation to this revocation are contained in s318. Practices which have not previously been entitled to rely on s112(2) but now meet the requirements can complete the combined certification and election form available at www.
LAWTALK 790 / 2 MARCH 2012
of the legal profession). In cases where the intervention rule applies, barristers may rely on this exception. In this situation, the primary responsibility falls on the instructing solicitor to provide the required information. In practical terms, however, some initial agreement between barristers and their instructing solicitors to confirm who will be responsible for providing client care information will be desirable to ensure clients receive the required information. If concrete arrangements are made at an early stage between the barrister and the instructing solicitor concerning progress reviews, billing and the provision of instructions and client care information, the legislative requirements will be met. This may also avoid client concerns surfacing about the conduct of both lawyers, which could be the subject of a complaint to the Lawyers Complaints Service. The exceptions to the intervention rules are contained in rule 14.6. Those exceptions include lawyers engaged in criminal legal aid work (rule 14.6 (f)(i)) but do not apply to legal aid lawyers working on family or civil legal aid assignments. A barrister in circumstances when the intervention rule does not apply will be directly responsible for providing client care information. There is guidance about the provision of client care information for legal aid lawyers on the Ministry of Justice’s website (www.justice.govt.nz). General information about client care is also available on the Law Society’s website at www.lawsociety.org.nz, including a draft template entitled Information for Clients, which lawyers may wish to adapt to suit their needs and those of their individual clients. LT
lawsociety.org.nz or contact the Registry on 0800 22 30 30. In doing so, the practice should have regard to the “deeming” provisions of s110(3) in relation to receiving money. Note also that a practice cannot rely on s112(2) if fees or disbursements are received in advance. A lawyer (or practice) will be “deemed” to have received money belonging to another person if: •
that person, or a bank or other agency acting for, or on behalf of that person, deposits funds by telegraphic or electronic transfer into the bank account of the lawyer or practice, or a person or body related to the lawyer; or
a lawyer or incorporated practice takes control of money belonging to that person.
As couched, the provisions apply to lawyers using third party trust accounts or dealing with funds electronically. One feature of practising without a trust account is that those practices are not directly subject to Law Society Inspectorate scrutiny or assistance. Where there is any suggestion that a practice may be abusing or impinging upon the exemption, the Law Society will investigate. If any lawyer has concerns in this area, they should discuss them with their branch manager or local inspector in the first instance. Practitioners who have any queries about whether they are entitled to rely on s112(2) can contact the Financial Assurance Manager Diane Bradley on (04) 463 2936 or diane.bradley@ lawsociety.org.nz. LT
Jury out on proposed criminal justice reforms BY MARY-ROSE RUSSELL AND MARNIE PRASAD* THE LAW COMMISSION’S consultation paper Alternative models for prosecuting and trying criminal cases was released in mid-February. Media coverage has been modest, despite the extraordinary reach of some of the proposed changes: to use a medical metaphor, the patient has been diagnosed with a life-threatening illness and radical surgery is the treatment plan. There would be little disagreement that our criminal justice system has problems and that a degree of overhaul would be beneficial. Some reforms have already taken place including the removal of depositions hearings and the introduction of majority verdicts. The commission refers to the public’s disenchantment with our criminal processes and its lack of support for the victim, particularly in cases of sexual offending. In fact the genesis of the commission’s recent work on reforms to criminal justice processes largely stems from high profile rape trials in 2007. The commission’s latest brief in this area is to review criminal trial processes including those in sexual offending cases. The consultation paper makes some welcome recommendations about the establishment of a specialist sexual violence court and the provision for a range of processes and outcomes, including restorative justice, for defendants who admit their sexual offending. Such courts, incorporating therapeutic jurisprudence, are not new to New Zealand; family violence courts having been established a decade ago. They have sought to place an emphasis on holding offenders accountable for their actions and promoting the interests and safety of victims. More controversially, the report proposes radical general reform for criminal trial processes, notably
CONTACT FRANK NEILL editor @lawsociety.org.nz
that our adversarial system be extensively retrofitted with inquisitorial characteristics. This would change the role of judges with their taking on greater investigative and administrative trial responsibility: the selection and order of witnesses, whether expert evidence is required, how evidence is to be given, and whether further investigation is required. At trial, the judge would initiate the questioning of witnesses, with counsel having the opportunity later to ask further questions. In addition, the jury trial as we know it would be jettisoned and replaced either with a judge alone trial or with a judge sitting with two semi-professional lay jurors. These proposals strike at the very heart of the criminal justice system. As the consultation paper acknowledges, the adversarial process, just like the inquisitorial process, has its flaws. The jury trial, with its random selection of citizens as jurors, proffers the reassurance of impartiality and fairness. Does the prospect of semi-professional jurors offer the same sense of reassurance? They are to be trained in criminal procedure; but the extent or detail of this training is not provided. The paper alludes to the prejudices, myths and stereotypes that a jury brings to a trial and which influence its decision-making, but will targeted training of short-term lay jurors eradicate prejudices, myths and stereotyping? That said, there is a real danger of a power imbalance between the adjudicators. Verdicts must be unanimous, and the pressure on lay jurors to agree may be immense, exacerbated by a natural tendency to defer to the judge’s view. Dominant personalities may be diluted in a jury of 12; unlikely in a panel of two accompanied by a judge. The Criminal Bar must be concerned that these proposals threaten our criminal justice processes and the protections they afford. The big picture in all of this reveals a seismic shift in our legal culture. We have taken on aspects of inquisitorial systems in other areas of our legal system, but the criminal trial and the
jury system have remained sacrosanct in recognition of the imbalance of power which results when the state prosecutes an individual. While it is important that the rights of the victim and witnesses are recognised in a criminal case, those rights must be balanced with the rights of the defendant who may be facing serious penalty, including loss of liberty. Will the ills detailed in the consultation paper be fixed simply by the grafting of civil law processes onto our common law cornerstone? Surely the first step is acquiring more substantial empirical evidence of the apparent defects, some of which has been done by the commission. Is it not somewhat premature to propose that a foundation of our criminal trial process be abolished in order to achieve reforms that may well be possible within our existing framework? The proposals imply a legal culture shift which may well take a generation of lawyers to embed. The consultation paper itself is confusing as there is constant differentiation between specific reforms for sexual offence cases and those of general application. While it is no doubt more efficient to run the two together, it does neither section justice. Separate discussion papers would have made consultation and debate so much easier. Of greater concern is the very short time frame for public submissions which must be in by 27 April 2012, hardly adequate for an informed response to a paper proposing such monumental changes. All members of the legal profession are encouraged to read the paper. It is available online at www.lawcom.govt.nz/alttrials. *Mary-Rose Russell and Marnie Prasad are senior lecturers at AUT Law School. The New Zealand Law Society is considering the consultation paper Alternative models for prosecuting and trying criminal cases and is keen to hear from lawyers with comments on the paper and the issues it raises. To comment, email rhyn.visser@ lawsoceity.org.nz. LT
LAWTALK 790 / 2 MARCH 2012
Depression – how insurable are you? FROM THE COURTS
Responses to the initiative to find ways in which the Law Society can assist members of the profession who may be suffering from stress and/or depressive disorders included a question about a practitioner’s insurability after being diagnosed with a depressive disorder. This prompted the NZLS Women’s Consultative Group (WCG) to research the matter at various levels and the following article is based on its discreet inquiries as to what insurance company policies might be. The overall initiative continues, with the NZLS about to launch a special section on its website that will carry a range of information for practitioners, including various articles received for which there has not yet been room in LawTalk. Further information about the web page will be published in the next issue of LawTalk. Meanwhile, the confidential email for responses remains active at firstname.lastname@example.org For access to free information, help and counselling, see www.depression.org.nz
The Crafar Saga – time to rethink the decision-making process profEssIonaL IndEmnIty InsurancE
Application forms for renewing an existing professional indemnity insurance policy have no specific provisions or questions asking about whether any partner or professional staff member has been diagnosed with a depressive condition, such that may affect that person’s ability to practise; nor any similar questions that anticipate BY MARGARET WILSON* such having to be disclosed.
occur to [XYZ] as a direct or indirect result of any anxiety state, depression, stress or functional disorder, or complications arising therefrom, then no income protection or waiver of premium benefit shall be paid.
In this instance, the (non-lawyer) applicant had sought cover for life, income protection (largely for mortgage repayment purposes) and disability (largely for situations where physical disability rendered the person unable to work). As As insurers can use material non-disclosure to reject a claim, part of his application, he had been asked to sign a general brokers and underwriters generally recommend disclosure at THE RECENT the overseas person met the tests in considerable discussion because of the authorisation allowingcontentious the insurersnature to make inquiries withsale his some level as beingDECISION the best approach, thoughthe notOverseas mandatory. of Investment Act 2005 and of the proposed This would apply particularly where been a significant doctor about medical of issues. Justice Miller in there hasthe Overseas Investment Regulations farm land to overseas buyers who Tiroa E andfor TeaHape 2005 including do not New Zealand and whose episode, or series of episodes, practitioner suffering fromevidence At of anrelevant earlier point in his life,live thein applicant had been B Trusts v Chief business experience and acumen, and primary business has not been farming. depression, such as attempted suicide/s, months off work or depressed, seen a psychiatrist and been prescribed antiExecutive of Land that the transaction was likely to bring institutionalisation for a period. The politics the issue are major clear. depressants. The depression aroseofwhen several Information 
substantial and identifiable benefit
The economic policy pursued by New However, the insurers would to prove that, events coincided – his marriage ending, a sister’s suicide, NZHC 147,have more to had Newthey Zealand. Before making this Zealand since the 1980s has been commonlycondition referred of the insured decision, ministers sought advice from known about the depressive his estranged father’s death fromoncancer and his company Margaret Wilson premised the assumption that to as the Overseas Office. practitioner, they would notCrafar have renewed thethe cover on the Investment going into liquidation.what He is remained medication forfor some good foron business is good Case, provides a good example of the existing terms; or they would have imposed other or in essence Theterms, legal issue wasmore whether New Zealand. It is generally accepted years, to stabilise his daily functioning ability rather relationship between law, policy and thework correct was applied to establish thatdepression. New Zealand overseas exclusions. Strict supervision of a practitioner’s by atest third than because of ongoing Heneeds had not missed one politics. that the overseas investment “...will, or investment to be encouraged and party may be one such condition imposed. day off work for depression-related issues since commencing The law was reasonably is likely to, benefit New Zealand (or any facilitated by regulatory frameworks medication. His life had stabilised; had re-partnered, Brokers also suggested that the NZLS test of New straightforward. The plaintiffs were might need partto oftake it oragroup Zealanders)” consistent withhe this policy. This policy a family and in good case challenging an insurance claim because seeking a judiciala decision review oftoa refuse decision (ss14(1)(c) and (d) andhad 16(1)(e)(ii)) and was otherwise approach has beenhealth. challenged from made by ministers the Overseas that depressive the benefit will beSome or likely to be after this time to time period, when it comes to what the practitioner wasand suffering from an undisclosed 15 years traumatic he wanted to has Investment Office. The decision was “substantial and identifiable” (ss16(1) been termed strategic assets. There is disorder. Therefore, anyone who encounters such a situation is explore insurance options, mainly because of his family the granting of consent to an overseas (e)(iii)). a fear that New Zealanders may lose asked to contact the NZLS so it can investigate if any action can commitments. The applicant disclosed information person, namely, Milk New Zealand control of decisionsthe that affect their Whether the correct test had been be taken. Ltd (Milk NZ) to purchase about his previous depression the insurance broker Holdings material,to social and cultural well-being. applied was “...whether the ministers adopted of “the lesshas said, thetobetter” must assess benefits bywho reference to a policy The policy tried balancewhen these submitting the application forms. a counterfactual (an alternative state various interests and concerns. It The insurance minefield intensifies when a practitioner, The Crafar’s farming-owning company of affairs) and, if so, whether that is not an easy balance to attain and As a matter of routine, the insurer sought medical having been diagnosed with a depressive condition, thinks of went into receivership in October 2009 counterfactual is the status quo (a maintain in specific cases, especially information from the applicant’s doctor, who supplied a getting their financial affairs in order, perhaps considering life and since that time the receivers had before and after approach) or what cases involving land. The taking copy of the applicant’s entire medical file without checking insurance, disability insurance cover.if the transaction does been tryingincome to sell protection the farms, or which it will happen and developing of land defines New with the applicant first. Upon receipt of the information was accepted were in poor condition. not proceed (a with and without Zealand’s history as is seen through As a worst case scenario, insurance companies may refuse cover, th Milk NZ agreed to buy the farms but approach).” Justice Miller after to treatment the land wars in the late 19the century, withdecided its references for depression, insurer depending on how serious the disorder may be; or load the because it was an overseas person an analysis of the legislation that “the and the subsequent Treaty Settlement raised material non-disclosure as a reason to reverse premiums;ministerial or add exclusions any cover. before and after” approach taken by required consent.toThe process. Ownership of land has been its initial decision to provide cover. The applicant was ministers could onlythat give theShould Overseas Investment Office was fundamental to both Māori and pakeha One such exclusion theconsent WCG if has seen was: death justifiably annoyed as he had been honest and open with incorrect and “a with or without” test New Zealanders’ understanding of the wasbroker. required by their identity and way of life. Although theIntense statute.negotiations The economic since the 1980s SAMARITANS between thepolicies insurance company, Judge then granted have challenged this understanding LISTENING & CARING 24/7 broker and followed and ultimately thein thethe application forthe applicant of ourselves, it still remains strong Samaritans is a service available 24 hours a day for people company agreed to provide life cover the levelItsought and review and directed the politics of theatcountry. was not who want confidential listening and support. thedisability ministersinsurance to then that thetype Crafar Case tosurprising cover accident/injury issues. We are there for callers who are reconsider Milk some controversy. However, the income created protection policy contained exclusions lonely, depressed or suicidal. NZ’s application. to rule out any possibility paycomplicated out, if the claim relatedinin Whatofhas the process Call anytime day or night Theany decision the current is the way in which (as way (directly or indirectly) tocase the depressive disorder (04) 473 9739 or 0800 726 666 hasper provoked the quote above). both the policy is made and how it is a group of dairy farms known as the gEnEraL InsurancE IssuEs Crafar farms.
Law Talk | 741 | 16 november 2009 16
LAWTALK 790 / 2 MARCH 2012
implemented. The lack of transparency and the lengthy time it took to make a decision created the likelihood of a contested decision whatever the decision of the ministers. The use of the judicial review in this case has highlighted, however, decisions must be made by officials and ministers within the context of the legal rules and if those rules are not clear and incorrectly applied then it is the role of the courts to provide a remedy through often interpreting the rules made by the executive or Parliament. The fact judicial review is resorted to so rarely is more likely to be due to a lack of plaintiffs with sufficient resources than clarity of regulatory frameworks within which officials and ministers make their decisions. The Crafar Case highlights not only the appropriate role of judicial review as a check on the executive but also the need to review our current methods of policy making. The methods used for policy making over the past 20 to 30 years have relied heavily on what has been labelled “new public management” (NPM) based largely on economic and private sector
OWNERSHIP OF LAND HAS BEEN FUNDAMENTAL TO BOTH MAORI AND PAKEHA NEW ZEALANDERS’ UNDERSTANDING OF THEIR IDENTITY AND WAY OF LIFE.
management theories. There is a growing sense in many countries that there is a need to move into a “post NPM” era with recognition there are “public” dimensions to governing and policy making. Although New Zealand is slow to recognise the need for change in approach, interesting research is being undertaken by Victoria University School of Government researchers (Bill Ryan, Key Ideas in Post-NPM Public Management, bill.ryan@ vuw.ac.nz) on attempts to develop a more transparent, inclusive, and participatory form of policy making. For lawyers, the challenge is to ensure that the policy is translated into legal rules that clearly express the policy to provide clients with the certainty they require to make decisions. Until this ideal is reached there will be an important role for judicial review. *Margaret Wilson is Professor of Law and Public Policy at Waikato University. As well as working in private practice, Ms Wilson has had an extensive career in the public service and in politics. She is a former Cabinet Minister and Speaker of Parliament. LT
International precedent set A RECENT ITALIAN COURT DECISION could set an international precedent for safety in the workplace, according to Perth-based asbestos lawyer Simon Millman. He was commenting on the recent Italian court sentencing of a Swiss billionaire and a Belgian baron to 16 years’ imprisonment for their links to some 3,000 asbestos-related deaths in Italy’s industrial heartland. On 13 February, the judge in the case found 64-year-old Stephan Schmidheiny, the former owner of a company making Eternit fibre cement, and its major shareholder, Jean-Louis Marie Ghislain de Cartier de Marchienne, now 90, guilty. The decision sends a chilling message, says Mr Millman, of Slater & Gordon. “These two elderly men were directly involved in causing an environmental disaster and failing to follow safety regulations as they spent years producing and making a fortune out of deadly fibre cement. “And despite the company failing in the mid-1980s, the deadly legacy of the product it produced will long outlive the former owners of the company,” he said. Schmidheiny and De Cartier were ordered to pay 30,000 euros in damages to relatives of people killed and 35,000 euros for every sick person, as well as other payouts expected to total tens of millions of euros. LT
LAWTALK 790 / 2 MARCH 2012
FROM THE COURTS
WHAT’S NEW? Profession needs social networking guidelines THE LEGAL PROFESSION needs guidelines on the use of online social networking sites, a survey conducted by the International Bar Association (IBA) indicates.
guidelines for the legal profession regarding the use of online social networking sites; •
This is revealed in the first global report examining the impact of online social networking on the legal profession, launched by the IBA on 10 February. Entitled The Impact of Online Social Networking on the Legal Profession and Practice, the report examines the role of online social networking within profession and also assesses whether there is a need to set principles regarding usage. The report includes insights from a survey by the IBA Legal Projects Team. This survey canvassed 60 bar associations/bar councils/law societies from 47 legal jurisdictions.
almost 95% of respondents from jurisdictions with a jury system held that, in addition to routine instructions, jurors should receive specific instructions from judges limiting their online communications and use of online social networking sites;
almost 70% felt that it was acceptable for lawyers and judges to have each other as online contacts; and
over 93% considered it unacceptable for lawyers and judges to post comments or opinions about other lawyers, judges, or parties involved in cases in progress.
The survey contained 31 questions relating to the appropriateness of the use of online social networks by legal actors, with a particular focus on judges and lawyers. Respondents’ findings include:
Recently, a number of news reports have highlighted examples across the globe where the use of online social networking has affected the administration of justice and legal professionals.
In the United Kingdom, jurors have
over 90% said there is a need for
The death of the CV WITH THE RISE of internet-based CV services and templates, most people have access to tools that enable the creation of the ‘perfect’ CV. As a consequence, CVs are becoming much more generic, making it harder to tell candidates apart. So, how up-to-date and comprehensive are your social media profiles? If searching for a job, you may need to overhaul your social networking channels, as many companies are increasingly relying on these to gauge candidates’ suitability for a job.
LAWTALK 790 / 2 MARCH 2012
The majority of employers still ask for CVs, so they are far from redundant , but some companies are bypassing the traditional education, experience and two smoking references, and trending towards the use of social media to provide a better overall picture and more individual depth of a candidate. New York venture capital firm, Union Square Ventures, recently advertised a position for which they asked applicants to send links representing their “web presence”, such as LinkedIn, twitter or a blog. The firm also asked for short videos demonstrating candidates’ interest in the position. According to the Wall Street Journal, Union Square says its process nets better-quality candidates. “A résumé doesn’t provide much
been jailed for online social networking activity during trials, while in South Korea the Supreme Court refused to reappoint judges after they posted controversial remarks on an online social networking site. In Cambodia, contentious comments on Twitter by a Khmer Rouge tribunal judge led to public debate as to whether they violated judicial ethics, and in the United States a lawyer was denied continuance of trial after the judge discovered, via Facebook, that the lawyer had not suffered a bereavement as stated, but had instead been partying – according to the information posted on the lawyer’s Facebook page. The impact of online social media networking sites is unprecedented, the IBA says. A global social media project plan will be launched by the IBA Legal Projects Team at the IBA Latin American Regional Forum Conference in Bogota, Colombia, 14–16 March 2012. The report is available online at www. ibanet.org/Search/Default. aspx?q=online%20social%20 networking. LT depth about a candidate. We are most interested in what people are like, what they are like to work with, how they think,” says Christina Cacioppo, an associate at Union Square Ventures. CVs may not be the best indicator of an applicant’s character or motivations, so potential employees who look good on paper may not be the right cultural fit for an organisation. There are many online presentation tools available to job seekers. In times of increased competition in the employment market, bypassing CVs can potentially help companies find individual candidates from a broader labour pool, which will undoubtedly pave the way for a more holistic approach to recruitment. LT
LE T TERS TO THE EDITOR
Practising Well (Ref. page 8, LawTalk issue 788, 3 Feb 2012)
IT IS PLEASING to see on page 8 of your 3 February edition the development of the Practising Well initiative. The Law Society should be commended for promoting this. I had to stop and think, though, why the job seems more stressful, and the answer seemed relatively simple. You cannot give legal advice by way of a simple return email to a client interested in purchasing a property without considering whether to send an engagement letter, many pages in length. Practitioners have been fined for not responding quickly enough to correspondence from litigious and difficult lay litigants. The Landonline system, while efficient and prompt for basic transactions, still poses problems for very technical registrations which involve a large amount of time figuring things out, and the system itself also contains many bureaucratic and regulatory requirements now heaped on lawyers. Then there is the promotion of Propel lc, which again involves a double-up of work for lawyers, but an easier life for lenders. The compulsory aspect of this (for some lenders), and the time it takes to work your way around the system, is frustrating, let alone the myriad of emails you receive every time a “note” is posted. The Law Society itself is now considering imposing a mandatory CPD regime, which will require compulsory updating; the filing of an annual statutory declaration by lawyers and naturally more administrative paperwork. Apart from all this, practitioners were expected to “deal” with the implementation of the Property Law Act 2007 on a few weeks’ notice, and then had to get their heads around the strange regime under ss94 & 94A of the PPPRA (Protection of Personal and Property Rights Act 1988) regarding the witnessing of Enduring Powers of Attorney,
The expert in professional liability The expert in and discipline professional liability LANE NEAVE LAWYERS and discipline CONTACT DUNCAN WEBB:
LAWYERS +64 3 LANE 364NEAVE 6456 CONTACT DUNCAN WEBB:
Mob +64 21 244 3346 Tel +64 3 364 6456 Mob +64 21 244 3346 Eml email@example.com Eml firstname.lastname@example.org
and the complaints from clients on the added costs as a result of poorly drafted legislation. These are simple examples I think of in just a few minutes over lunch (I still get to eat it, fortunately). There are plenty more. I haven’t even mentioned timesheets on a six-minute basis. I sometimes get the feeling that programmes such as Practising Well are, to use a pun, well intentioned, but miss the bigger issue: the complete overload of regulatory paperwork and an unnecessarily ever-changing legal framework that is becoming more and more difficult to deal with. Is the Practising Well initiative an ambulance at the bottom of the cliff? Nick Kearney North Shore
Pro bono (Ref. page 9, LawTalk issue 787, 16 Dec 2011)
TAIHEI SIMPSON’S letter to the editor states that the former Legal Services Agency issued a “warning” to a barrister for doing pro bono work. This is incorrect. The “warning” issued to the barrister was not because the barrister did pro bono work, but because he did not have approval under the Legal Services Act to offer legal aid services in the particular area of law of the case. All lawyers undertaking work on a legal aid case must be approved under the Act for the specific area of law the case is in. This is important to ensure legal aid clients receive a quality service. Lawyers who have not shown they meet the experience and competence requirements for approval in a particular area of law cannot provide legal aid services in that area of law. We welcome lawyers undertaking pro bono work on legal aid cases so long as they are approved in the relevant area of law. Alison Hill Director, Provider and Community Services Ministry of Justice
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BRANCH NEWS OTAGO NEW ZEALAND LAW SOCIETY NZLS EST 1869
Otago Graduate named UK New Zealander of the year OTAGO LAW and commerce graduate Kent Gardener was named the 2012 UK New Zealander of the Year. Kent has lived in London for 10 years, where he recently set up the Step Up for 4 Christchurch. This initiative raised £325,000 for earthquake relief. Kent is a trustee of the UK Christchurch Earthquake Appeal. He is a founding partner of Evans Randall, a property fund manager, and is also commissioner of the Crown Estate Paving Commission. The UK New Zealander of the Year award was presented at the New Zealand Society’s Waitangi Day charity dinner in London on 10 February.
SOUTHLAND Christchurch assistant librarian Theresa Graham sorting out some of the historic collection in the Law Society Library in Dunedin for packing.
Dunedin’s historic law library collection secured DUNEDIN’S historic law library collection is now safely packed and placed in storage. Packing of the collection began in midDecember after part of the Dunedin Courthouse was closed as being an earthquake risk. Among the spaces affected was the area where the Law Society’s Dunedin library was housed. This meant that the books had to be removed and placed in storage, activity reminiscent of the previous move when the courthouse was being “upgraded” at the start of this century. Packing and storing the collection, which cannot currently be accessed, was completed in mid-January.
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NEW ZEALAND LAW SOCIETY NZLS EST 1869
A Southland Shindig THE NEW ZEALAND Law Society Southland branch is putting on a Shindig at Queens Park Cricket Pavilion on Friday 9 March. The word Shindig was created in 1871 from the word Shindy “a spree, merrymaking” and refers to “a gathering where alcohol is involved”. This event is sure to fulfil this definition, members and partners are invited to lamb on a spit and ham, and to BYO drinks. It is a casual affair with live music provided. Cost $30 per person approx. Time 4:30pm until late. RSVP by 2 March to janine.mcmurdo@ lawsociety.org.nz.
TOP BRANCH EVENTS AUCKLAND AGM March 7 at 5:30 pm Venue: Ground Floor, Training Room 2 & 3, WHK Tower, 51 Shortland St SOUTHLAND AGM March 23 at 5:30 pm Venue: Kelvin Hotel OTAGO – TOWN AND GOWN DINNER 23 March 2012 at 7pm Location: The Dunedin Club, 33 Melville Street, Dunedin The dinner to celebrate the career of Justice Sir Bruce Robertson will be held on Friday 23 March 2012 at the Dunedin Club. WELLINGTON – WALKING THE TALK 8 March 2012 at 12:30 pm Location: Intercontinental Wellington Practical ways for women lawyers to make a difference for themselves and for others. Marks International Women’s Day. For more Law Society events please go to http://my.lawsociety. org.nz/events
IN MEMORIAM The Law Society would like to acknowledge the passing of: Gerald Tuohy QC Noel Kelly If you would like to contribute to In memoriam please contact rachael. email@example.com. Obituaries on late members of the profession can be found in the People section of my.lawsociety.org.nz.
Successful practitioner function in Christchurch
THE LAW SOCIETY President, board and executive staff held a cocktail function with Christchurch lawyers on 10 February at the Westpac Hub, Addington.
Young lawyers get croquet crazy AUCKLAND YOUNG LAWYERS held an event called Get Croquet Crazy at the Epsom/Remuera Croquet Club on 16 February. The Lawn Pirates took out the District Dining vouchers for first prize. The winners of the plate, also worthy of a mention were the Queen of Hearts. The young lawyers were thrilled with the hospitality extended to them by members who gave coaching tips and refereed (one of 3 whom was former High Court Judge David Toogood). LT 2
1. Scott Fairclough (L), Christine Grice and Gerard Richardson. 2. Bronwyn Jones (L), Clare Oâ€™Neill and Elizabeth Neazor-Wolm. 3. Anne McMurtrie (L) and NZLS Board member Mary Jeffcoat. 4. Young lawyers ready for croquet action. 5. Not as easy as it looks, concentrating on the game. 6. Zac Bingham takes advice from a more experienced player. 7. Andy Morris watches as Matt Linehan takes a shot. 8. Kelly Litt tests her polo swing.
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THE BOOKSHELF BUTTERWORTHS NEW ZEALAND LAW DICTIONARY, 7TH EDITION By Peter Spiller Reviewed by MaryRose Russell* WITHIN ANY legal system arguably one of the most important reference works is its own law dictionary. Butterworths New Zealand Law Dictionary is our jurisdiction’s only legal dictionary and now in its seventh edition, it re-affirms its status as an essential legal resource. The continuous nature of change, especially in statute law, demands that a legal dictionary, to remain current and useful as a reference resource, must be updated regularly. A lengthy six years between the last two editions meant that a significant amount of updating was required for this seventh BOOK OF THE MONTH
What’s the Hurry? Urgency in the New Zealand Legislative Process 1987-2010
WHAT’S THE HURRY? URGENCY IN THE NEW ZEALAND LEGISLATIVE PROCESS 19872010
By Claudia Geiringer, Polly Higbee and Elizabeth McLeay Claudia Geiringer Polly Higbee Elizabeth McLeay
The first in-depth study of the use of urgency in New Zealand’s parliament, this book documents every use of urgency over a 24-year period and analyses how, when, how much and why urgency is used. The research and detailed analysis is supplemented with information gained from interviews of current and former politicians, academics, civil servants, lawyers and journalists. The authors conclude by presenting options for reform of some uses of urgency. (Victoria University Press, January 2012, 978-0-864737-72-4, 177 pages, paperback, $60 RRP).
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edition. The Preface to the work states that there are some 200 additional entries and over 5000 new terms and concepts added to the dictionary. Surprisingly, the number of pages has remained constant. This has largely been achieved by removing direct extracts from legislation and instead opting for a more paraphrased style. This unfortunately detracts from the readability of some of the entries and has at times led to a loss of meaning. One such example may be found for the entry “abortion”. A change of font has provided the Dictionary with a clean, attractive text, although readers with visual impairments might well appreciate a slightly larger point size in the next edition. Entries are alphabetically arranged in bold text, with definitions enhanced by New Zealand legal authority where available. This new edition incorporates current case law and updates legislative references. Recent significant changes in our law, such as in property law and the law of wills have been covered. Definitions are typically concise. But this MODERN CHALLENGES TO THE RULE OF LAW Edited by Richard Ekins Reviewed by Austin Forbes QC* THE BLURB on the back cover of another recently published collection of lectures and papers on the rule of law goes so far as to say that “The rule of law is one of the hot topics of the new century”. This was said by Francis Neate, an English lawyer and a former president of the International Bar Association. As the then chair of the IBA Rule of Law Action Group, he said in a letter to the New Zealand Law Society in 2008 that he would be surprised if New Zealand was not the first country to impose a statutory obligation upon the legal profession to uphold the rule of law. That obligation is imposed expressly
is a work largely for legal professionals and English first-language speakers, with many definitions, particularly the numerous Latin words and phrases, expressed in a technical manner. These may pose comprehension difficulties for law students or legal practitioners who do not have English as their first language. Increased use of plain English would greatly enhance the usability of this vital reference work. The few editorial and stylistic issues aside, this seventh edition of Peter Spiller’s Butterworths New Zealand Law Dictionary is not only very welcome, but a totally indispensible addition to the New Zealand legal bookshelf. Butterworths New Zealand Law Dictionary, 7th edition by Peter Spiller, LexisNexis, November 2011, 978-1-927149-80-5, 358 pages, $99.48 (GST incl, p&h excl). Available in paperback and e-book. *Mary-Rose Russell is Senior Lecturer in Law at AUT University, Auckland. LT by the Lawyers and Conveyancers Act 2006 s4. The former Lord Chief Justice of England and Wales, Lord Bingham, elegantly and perceptively described the rule of law in a lecture given at Cambridge in 2006: “the Rule of Law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual living in society implicitly accepts that he or she cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden, before the creation of Eve, and accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has
the power to do but only that which laws binding upon it authorise it to do. If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law. For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live.” This is as good an elucidation of the rule of law as one is likely to get. Modern Challenges to the Rule of Law is a collection of essays which had its origin in a conference held by the Legal Research Foundation in Auckland in 2009. In addition to the distinguished speakers who contributed papers to that conference, the book contains further papers commissioned by Dr Ekins, senior lecturer in law at Auckland University. The essays provide comprehensive current perceptions as to the nature and content of the rule of law, in particular the distinction between formal and substantive perceptions. Three essays contain a spirited debate between Professor Philip Joseph, University of Canterbury and Professor James Allan, University of Queensland. Allan’s robust criticism of what he describes as Joseph’s “morally laden understanding of the rule of law” is met with an equally forthright response from Joseph. They disagree on virtually every aspect of the other’s argument, with little regard to traditional academic restraint. Joseph advances an aspirational concept of the rule of law, arguing for COMPETENCIES OF TRIAL: FITNESS TO PLEAD IN NEW ZEALAND By Warren Brookbanks Reviewed by John Dawson* THE LAW OF COMPETENCE (or fitness) to stand trial operates at the intersection of psychological assessment, human rights law and rules of criminal procedure. Its development has challenged the New Zealand legal system in the last decade. We are indebted to Professor Brookbanks of Auckland University for this timely, well-researched book on the field.
a strongly substantive content and one which is the fundamental principle of legality in western democracies and legal systems. He is in the school of those who adopt a “thick” conception of the rule of law. It is inextricably linked to liberty and democracy and the notion that the rule of law is the mainstay of safeguarding and advancing civil and political rights and essential norms of political morality. Indeed, Joseph considers the rule of law, rather than parliamentary sovereignty, to be the ultimate norm of all western legal systems.
in economic growth is in substantial part due to the insufficiency of its property protection regime. Their essays reflect a developing idea that the rule of law is an essential ingredient in economic growth. The research of some economists internationally claims to have found that the stronger the maintenance of the rule of law in a nation, the richer it is likely to be. Most poor countries do not score well on rule of law measures. On this approach, the rule of law has emerged from being principally a political and legal concept into a staple of economic development.
The “thin” conception emphasises the efficient administration of justice and that laws must provide stability. They do not necessarily have to be moral or promote human rights. The apartheid regime in South Africa could be said to have been governed by the rule of law on thin definitions, but not on thick. Joseph’s approach is in contrast to Allan’s and that of Justice Dyson Heyden, High Court of Australia, who adopts the more traditional or thin approach of viewing the rule of law as being essentially a formal and procedural conception, which reflects Dicey’s early view.
There are, in all, 13 illuminating essays in Modern Challenges to the Rule of Law from 12 distinguished contributors, including from Australia and the United Kingdom. The book exemplifies that the rule of law is an open-ended concept which continues to be the subject of permanent debate. Ultimately, as the essays amply demonstrate, the common goal is that guided by what Locke wrote in 1690 that “Wherever law ends, tyranny begins”.
Professors Lewis Evans and Neil Quigley, Victoria University of Wellington, argue for the rule of law as a protection against the compulsory taking of private property for public use. They consider the rule of law requires secure property rights, extending not only to ownership but all users of property. This is a different and wider perspective of the rule of law where the argument extends as far as claiming that New Zealand’s relative underperformance The work covers the strange history of unfitness within the common law, a history strongly influenced by the existence of the death penalty and rules about forfeiture of property by convicted felons. It traverses the evolution of the common law test for fitness, and the procedure, then pays sustained attention to the New Zealand regime found in the Criminal Procedure (Mentally Impaired Persons) Act 2003. Judicial interpretation and problematic aspects of that regime are fully discussed. Evidence about unfitness is considered, plus the matter of disposition and the separate question of fitness for sentence. The distinct position of defendants with intellectual disabilities, and of juveniles, receives particular attention. An informative
The Legal Research Foundation and Dr Ekins have engendered a valuable contribution to this debate, which is as important in New Zealand as anywhere else, even if it might not be a frequent topic of conversation at after work drinks on a Friday evening. Modern Challenges to the Rule of Law, edited by Richard Ekins, LexisNexis, July 2011, 978-1877511-75-2, 314 pages, $172.50 (GST incl, p&h excl). *Austin Forbes QC is convener of the New Zealand Law Society’s Rule of Law Committee. LT chapter by the senior British academic, Professor Mackay, is included, on unfitness in the UK. And the work concludes with suggestions for reform of New Zealand law that should be carefully considered by the Government in its current review of the Act. In total, this is an impressive work, drawing on 30 years of Brookbanks’ research. The analysis reveals the sources of many current difficulties in the area. There are the conflicting aims that fitness principles try to serve, which are bound to produce internal tensions in the doctrine. There are the many possible causes of unfitness, including subtle delusions. There is the potential for disagreement between experts concerning the consequences of various mental conditions for the accused’s
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THE BOOKSHELF functioning in relation to trial. And there is the great difficulty of setting a clear standard for fitness and applying that standard consistently from case to case. Brookbanks is careful not to leap to the conclusion that all these difficulties could be resolved by further legislative reform. He is at his strongest when suggesting reform of current fitness procedure, particularly the timing of the trial of the facts, where a convincing case for change is made. He also argues that fitness should be resolved by consent in some cases, as is now possible with the insanity defence. He moots the establishment of a specialist Mental Health Court, with medical members, as in Queensland, that would resolve both unfitness and insanity. And he suggests that the abilities of counsel to represent defendants in unfitness proceedings should be very carefully vetted by the Court. The case made for reform of the substantive legal test governing unfitness in New Zealand is less compelling. Brookbanks argues (at page 104) that “major overhaul” is required of the fitness provisions of the 2003 Act, but also concludes that the New Zealand courts have taken a sophisticated and flexible approach to interpretation of the fitness criteria. That approach suggests to me that the current fitness criteria can be adapted and applied in many different contexts, and can absorb new thinking about “decisional” or “functional” capacity – or about the full range of situations in which defendants must decide matters concerning their trial, that Brookbanks thinks the law should accommodate – without necessarily requiring change in the statute’s text. I would like to have seen more sustained attention paid directly by the author to the actual wording of the New Zealand fitness test. This is a focused but flexible test based on the concept of inability to conduct a defence or instruct counsel to do so (section 4). It need not be viewed simply as a restatement of the common law. The careful judicial approach taken to its interpretation suggests it can accommodate new thinking about the decisions a defendant must make at trial, or the range of mental impairments that can impede such decisions. Case law can explicate this test and list factors relevant to the level of performance the defendant must attain, without subverting the statutory language. Change in the substantive fitness test may not therefore be required. One can only admire, nevertheless,
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the depth of scholarship that informs this work. It is essential reading for lawyers and judges engaged with the trial process, and it should help promote the aim – of Professor Brookbanks’ work as a whole – of ensuring that every defendant is dealt with fairly in the criminal process, regardless of their current mental functioning. Competencies of Trial: Fitness to Plead in New Zealand, by Warren Brookbanks, LexisNexis, September 2011, 978-1-877511-745, 380 pages, $138 (GST incl, p&h excl). *John Dawson is Professor of Law at Otago University. LT
KNOW YOUR RESOURCES The Law Society belongs to the Electronic Publishing in Collaboration (EPIC) consortium and has secured access to 29 specialised information databases. Under the terms of the licence
agreement, Law Society members may use them by logging on through my.lawsociety. To help show what is included in this very valuable asset, LawTalk is running a series which looks at the content in one of the databases. Criminal Justice Collection This database aggregates information from over 700 journals, with any articles or information specific to criminal justice extracted and indexed. Searches can be carried out by keyword, subject, publication or full text documents. At midFebruary 2012, the Criminal Justice Collection contained information on 5,676,318 articles published between 1980 and 2012. The collection contains information relevant for criminal lawyers and researchers, but also has a lot of material on forensic science, policy development, sociology, psychology, law enforcement and corrections. Publications included in the database with specific relevance to New Zealand include: Australia and New Zealand Journal of Criminology (full text 2003 onwards), Australian Law Journal, Criminal Law Journal, and the New Zealand Journal of Psychology (full text). LT
Practising Well Supporting Kiwi lawyers since 2009 Be sure to check out our PRACTISING WELL resources at my.lawsociety.org.nz/practising_well
LAW SOCIETY NZLS EST 1869
OVERSEAS Protect privilege Bar Council says THE BAR COUNCIL, which represents barristers in England and Wales, has urged the British government to protect the right of citizens to hold private conversations with their lawyers, reports The Gazette (9 February), magazine of the Law Society of England and Wales. The call, supported by the Law Society, comes as the proposed Protection of Freedoms Bill, intended to protect people from unwarranted state intrusion in their private lives, goes through parliament. Liberal Democrat Lady Hamwee proposed an amendment to the Bill, adding a clause to protect legal professional privilege in all circumstances except where privilege is being abused to further a criminal purpose. The government opposed the amendment and it was withdrawn without a vote. The right to legal professional privilege was eroded in the 2009 case In Re McE  UKHL 15 when the House of Lords held that the Regulation of Investigatory Powers Act 2000 entitles police to listen in to lawyer-client conversations, even where there is no suggestion that privilege is being abused for a criminal purpose.
Ms Gale, the Director of Resolve Conflict Lawyers and Mediators in Melbourne, became the Law Council’s 60th President on 1 January. “This regulation, when introduced later this year, will create a single, uniform Legal Profession Act which will allow seamless national practice and benefit both lawyers and consumers of legal service,” she says. When outlining her agenda for the coming year, Ms Gale identified national legal profession reform, improving practice rights for the Australian lawyers in foreign markets, and alternative dispute resolution (ADR) as some of the priority issues for advancing the Australian legal profession in 2012. LT
Profits up for Scots’ firms THE LAW SOCIETY OF SCOTLAND’S annual Cost of Time survey has reported the first rise in profitability for law firms since 2008, reports The Gazette (13 February). Average profit per partner at Scottish firms totalled £71,000 in 2011, on a par with 2004 but well below the highs of 200508.
Legal professional privilege is “a fundamental human right that the ordinary citizen has had for centuries”, the Law Society chief executive Desmond Hudson said. It is necessary for the proper administration of justice, he added. LT
Sole practitioner and small firms continue to be worst affected by difficult trading conditions, in particular firms which undertake legal aid work, with profits per partner averaging around £46,000 for sole practitioners and £75,000 at two- to four-partner firms.
Afghan judge killed
Medium-sized firms of five to nine partners showed strong growth, with a per partner profit of £80,000, up from £66,000 in 2010. Firms with 10 partners or more showed a sharp drop from £178,000 in 2010 to £144,000. However, the report’s authors warn that the sample of large firms was small and included firms who did not participate the previous year. LT
AN APPELLATE JUDGE in Afghanistan and his 8-year-old daughter or niece were shot and killed on 11 or 12 February, reports the ABA Journal, magazine of the American Bar Association. According to a government spokesman, the attack occurred when their vehicle was ambushed on the way home from a family visit. However, other accounts said the slayings of Mohammad Nasir, a leader of the Kunar province appeals court, and the girl took place in a home they were visiting, according to the Associated Press and the Los Angeles Times. The judge’s wife and another five children were wounded in the attack. Targeted killings of judges and government leaders by the Taliban and other insurgent groups have been a problem in recent years. No one has claimed responsibility for the attacks, and no suspects have been arrested, the Khaama Press reports. Afghan police are investigating. LT
Lawyer regulation in Australia WITH THE IMPLEMENTATION of new national regulatory legislation, 2012 will be a crucial period for the law profession in Australia, according to Law Council of Australia President Catherine Gale.
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Online registration and payment can be made at www.lawyerseducation.co.nz
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Time Mastery for Lawyers
What lawyer can say that they are not short of time to do everything they need or want to do? Frank Sanitate Auckland 2 Mar has conducted this workshop many times in the United States and in Australia with great reviews. Now he Wellington 7 Mar is available in New Zealand to do the same. One month after attending the workshop, participants have Christchurch 9 Mar been asked to self assess the change in their effectiveness as a result. While many say between 20% and 40%, some rate the change as high as 80%. Imagine if you could say the same.
Criminal Legal Aid – ﬁxed fee and complex cases
Michele McCreadie Kiri O’Hagan
From 5 March 2012 all new criminal legal aid cases, except those being managed under the complex and high cost frameworks, will come under the fixed fee regime. You need to know how these changes will affect you and in particular how to claim payment for a fixed fee case so that it can be processed in a timely fashion thus avoiding delay and frustration.
Stepping Up – Foundation for practising on own account
Director: John Mackintosh
The new national course Stepping Up replaces the various local Flying Start courses. All lawyers wishing to practise on their own account whether alone, in partnership, in an incorporated practice or as a barrister, will be required to complete the course. Developed with the support of the NZLF.
Auckland Christchurch Auckland 2 Wellington
8-10 Mar 19-21 Jul 6-8 Sep 8-10 Nov
Rural Property Issues Intensive
Chair: Mark Tavendale
This intensive is designed to assist practitioners who specialise in advising agricultural families, corporates Wellington and commercial entities. This sector has increasingly become more capital intensive and more challenging under a myriad of complex legislation. Demands and expectations placed on practitioners in the agricultural sector have also increased considerably. Attend the intensive to develop and enhance your skills in advising the agricultural sector.
Lawyer for the Child
Trish Allen Hana Ellis Antony Mahon
This three-day workshop gives participants the opportunity to develop the full range of skills, knowledge and attitudes required to carry out the role of Lawyer for the Child effectively.
Mediation for Lawyers – Part A 2012
Virginia Goldblatt Either Geoff Sharp or David Patten
Many more clients are now taking disputes to mediation, because it works! It’s about the parties, not just the law. Take this opportunity to learn the significantly different skills required to be able to offer mediation services and lay a foundation for specialist Part B training.
Section 21 – contracting out
Judge Murfitt Vivienne Crawshaw
This seminar is designed for experienced practitioners, and will examine s 21 agreements and how to guide your clients through this typically emotional process. The presenters will discuss mechanisms to reduce an agreement’s vulnerability to challenge, as well as minimise the risk to the lawyer when clients have hidden agendas. They will also provide a comprehensive tool kit for some of the more complex clauses, such as attributing value, review and reconciliation clauses; including tips to help you create your own robust clauses.
Dunedin Christchurch Wellington Hamilton Auckland Live videoconference
19 Mar 20 Mar 21 Mar 26 Mar 27 Mar 27 Mar
Social Media and the Law
Richard Best Andrew ScottHowman
The widespread use of social media has given rise to new legal exposures in both the private and public sector. The presenters will give their perspectives on the legal and practical issues inherent in deploying social media, the importance from an employment law perspective of up-to-date technology use and communications policies and how to deal with anonymous and destructive people who use social media for malicious purposes.
Christchurch 2 Apr Wellington 3 Apr Auckland 4 Apr
Lawyer as Negotiator
This one-and-a-half day workshop will build on participants’ experience and give insights on assessing negotiation strategies and tactics. It will examine techniques for dealing with difficult negotiators, address participants’ specific issues and enhance confidence in dealing with aspects of negotiation.
Wellington Auckland Christchurch Wellington 2 Auckland 2
Workings of the Property Law Act – four years on
Associate Professor David Grinlinton Peter Nolan
Presenters will review the now four years’ worth of case law and academic writing to consider how the Dunedin 2007 Act is performing and will examine how the standard ADLS forms have adapted to cover issues Christchurch raised under the PLA. They will focus on real property aspects. All experience levels should attend. Wellington Hamilton Auckland Live videoconference
Francis Cooke QC
You can effectively use judicial review proceedings as a useful means of challenging decisions made by a range of public, private and voluntary organisations. If you operate in the public law area or advise decisionmakers, this programme offers you a practical approach to the principles and processes of judicial review.
Christchurch 1 May Wellington 3 May Auckland 9 May
Mediation Masterclass with Prof Laurence Boulle
Professor Laurence Boulle
Practitioner, academic and teacher Laurence Boulle needs no introduction to mediators. We are indeed fortunate to have someone with his international reputation willing to hold masterclass workshops for us. Numbers are strictly limited.
2 May 4 May
Education Law Intensive
Chair: Patrick Walsh
Given the size of the school sector and its increasingly litigious nature, practitioners should add this day to their calendar. This intensive will help all practitioners who assist boards of trustees, principals, and parents in resolving, what can be complex, legal issues such as employment disputes, suspensions and exclusions, negligence, search and seizure, family law, harassment, cyber bullying and responding to complaints to the Ombudsman and Privacy Commissioner.
2 May 7 May
Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email firstname.lastname@example.org or contact CLE information, tel 0800 333 111.
2-3 Apr 1-2 May 29-30 May 30-31 Oct 7-8 Nov 23 Apr 24 Apr 26 Apr 30 Apr 1 May 1 May
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Mediation for Lawyers – Part B – Family Law 2012
Virginia Goldblatt Denise Evans
For those with recent approved prior mediation training, including our Part A course. This programme will give an opportunity to practise mediation skills in the family law area and then to be assessed on them. Strictly limited numbers with pre-course work required.
John Land Tom Weston QC
Competition law is a specialised and complex area and it can be quite difficult to keep up-to-date with. This seminar will alert you to the dos and don’ts when dealing with a Commerce Commission investigation. It will look at the impact of the Commerce Act on a range of issues, the current proposal for cartel criminalisation and remedies for breaches of the Act.
Christchurch Wellington Auckland
7 May 8 May 9 May
Death and the Law Intensive
Chair: Prof Nicola Peart
Most of us have a good deal of time to prepare for the inevitable – our death. Yet, too often the preparation has been inadequate and problems arise post death that can create family rifts, be costly and emotionally draining. This intensive will look at steps needed to minimize the risk of conﬂict and uncertainty post death – dealing with incapacity; testamentary advice and drafting; issues relating to the body, the validity of wills, and claims against estates.
24 May 25 May
Trust Account Administrator
John Hicks Steve Lewis David Littlefair
How do you keep a trust account in good order? This training is for new trust accounting staff, legal executives, legal secretaries and office managers.
Auckland Auckland Wellington Whangarei Palmerston North Hamilton Rotorua Christchurch Nelson Invercargill
14 Mar 15 Mar 20 Mar 21 Mar 22 Mar 28 Mar 29 Mar 15 May 17 May 22 May
Mark Anderson, John Hicks or David Littlefair. And David Chapman, Bob Eades or Lindsay Lloyd
To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments.
TRUST ACCOUNT TRAINING PROGRAMMES
Trust Account Supervisor Training Programme
NB: Numbers are limited so be sure to register early.
Auckland Hamilton Make sure you register in time to do the preparatory work before the assessment day as Wellington Auckland listed on the right. Christchurch
21 Mar 11 Jul 12 Sep 14 Nov 21 Nov
ENTRY LEVEL PROGRAMMES
Developed with the support of the Law Foundation Introduction to Family Law Advocacy and Practice
Judge John Adams Usha Patel
This limited-number workshop is designed for practitioners in their first two or three years of family law practice. It works through the sort of case that will be likely to be encountered at this stage of one’s career.
Wellington Auckland Christchurch
1-2 Mar 3-4 May 23-24 May
Introduction to Criminal Law
This practical two-day, entry-level workshop will cover the fundamentals of being an effective criminal lawyer. You will gain essential skills to enable you to advise your clients about the range of available law-based resolutions that may apply to them, and put those skills into practice.
19-20 Mar 22-23 Mar
Introduction to Company Law
Jeremy Blake Andrew Leete John Horner Anne McLeod Graeme Switzer Daniel Wong
This is a practical two-day workshop for practitioners in their first three years of practice with small, Christchurch medium or large firms. It will cover issues such as acquiring a business, funding, governance, Auckland distributions, expansion, shareholder disputes, financial problems and the sale of shares. Participants Wellington will gain many practical tips to enable them to develop good practice and provide quality advice to their clients.
Duty Solicitor Training Programme
Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day).
Christchurch Timaru Wellington Nelson Auckland Gisborne Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei
3-4 May 14-15 May 28-29 May
16 Mar, 4 May, 5 May 16 Mar, 4 May (in Chch), 5 May (in Chch) 30 Mar, 18 May, 19 May 30 Mar, 18 May (in Wgtn), 19 May (in Wgtn) 11 May, 22 Jun, 23 Jun 11 May, 22 Jun (in Akl), 23 Jun (in Akl) 1 Jun, 20 Jul, 21 Jul 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 13 Jul, 31 Aug, 1 Sep 13 Jul, 31 Aug (in Dun) 1 Sep (In Dun) 3 Aug, 14 Sep, 15 Sep 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 21 Sep, 26 Oct, 27 Oct 21 Sep, 26 Oct (in Man), 27 Oct (in Man)
Programme brochures, online registration and booket purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz
CONTINUING YOUR PROFESSIONAL DEVELOPMENT AN IMPORTANT SEMINAR for private and public sector lawyers, the Criminal Law Series 2012, will take place on 9 March at the Crowne Plaza Hotel in Auckland. It is also available to police and members of the public concerned with the integrity of the rule of law. The seminar will address the recent criminal law legislative changes. Speakers include Justice Minister Judith Collins, Grant Illingworth QC, Dr Warren Young, Charles Chauvel MP, Simon Moore SC, Brendan Horsley (Public Defence Service), David Jones QC, Matthew Goodwin and John Anderson.
Tongarewa, Wellington. At the conference leading medicolegal minds will discuss the latest developments in the law relating to medical care. Presenters include Anthony Hill, Health and Disability Commissioner; Katie Elkin and Cordelia Thomas, Office of the HDC; Professor Peter Skegg, Otago University and Professor Grant Gillett, Otago University Medical School.
More Information is at www.legalresearch.org.nz/ images/stories/commercial_brochure.pdf
The conference will facilitate direct access to legal experts and peer-to-peer group discussions on topics such as practitioner competency and rehabilitation; fast tracking of clinical trials; the Medicines Act and the challenges of new technologies; and protecting personal health information.
The 13th annual Medical Law Conference will take place on 26-27 March at the Museum of New Zealand Te Papa
For more information or to register see www.conferenz. co.nz/conferences/medical-law-conference. LT
Opportunity not to be missed
Australia and is on the international panel of International Centre for Settlement of Investment Disputes (ICSID) mediators. ICSID is an autonomous international institution established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States with more than 140 member states.
A WORLD LEADER in dispute resolution, Professor Laurence Boulle is coming to New Zealand to conduct a Mediation Masterclass for NZLS CLE Ltd in association with Massey University. The Mediation Masterclass will be held in Wellington on 2 May and Auckland on 4 May. Because of his international reputation, Professor Boulle is highly sought after to conduct training workshops on negotiation, conflict management, mediation and arbitration. These are aimed at lawyers, judges, business and industry bodies. It is something Professor Boulle has been doing for 20 years now, and he conducts an average of eight workshops a year. Professor Boulle chairs the Mediator Standards Board in
He has practical legal experience and has researched and taught in universities in Africa, Europe, North America and Australia as well as being a Visiting Professor at the University of Gent in Belgium, the University of Cape Town and Massey University. As well as mediation and dispute resolution, Professor Boulle is widely experienced in both legal practice and research. He has many years’ experience in constitutional and administrative law, international economic law and globalisation. He has also practised as an advocate in criminal and labour law trials, appeals and arbitrations and in disciplinary hearings. He recently returned to Bond University, where he was a founding member and before that was the Director of the Mandela Institute and Professor of Law at Witwatersrand University. The aim of the Mediation Masterclass is to help attendees: •
extend their understanding of the mediation process;
reflect upon what they do now as a mediator and what they might do differently in the future: and
increase their understanding of skills and strategies including dealing with impasse, reframing, managing emotions and addressing power imbalances.
More information is on the NZLS CLE website, www. lawyerseducation.co.nz. For registration enquiries, Freephone 0800 333 111. LT
LAWTALK 790 / 2 MARCH 2012
LAWYERS COMPLAINTS SERVICE Lawyer must not act for both sides if advice could be compromised A LAWYER who represented both parties in a house sale was fined $5,000 by the LCRO after his flawed advice to the seller significantly disadvantaged her. The lawyer’s inadequate knowledge meant he failed to recognise that there was a conflict of interest between the parties that barred him from acting for them both. The LCRO also found that even if the lawyer had been able to act for both sides, the seller’s purported consent had not been “informed consent”.
THE FACTS In January 2009 the complainant had been having difficulties meeting her mortgage payments. She came to an agreement with her ex-husband that his company would buy her property for $240,000, roughly $16,000 below the valuation they had obtained. The ex-husband prepared an unconditional Sale and Purchase Agreement and the two parties signed it. However, the ex-husband’s bank told him it would advance only $150,000 for the purchase, and the complainant then agreed to leave the $90,000 shortfall as a debt to be owed by the buyer company. The complainant was not experienced in property matters and gave no thought to obtaining security for the debt. The ex-husband then instructed the lawyer who was the subject of the complaint to act for both parties in the transaction, to minimise costs. The lawyer told the ex-husband of the difficulties involved with acting for both sides. The lawyer also contacted the complainant to find out her views, and by phone she confirmed she wanted him to act for her also. The lawyer prepared a variation to the agreement to address the shortfall in the purchase price. This stated that
“The vendor is leaving the balance at [sic] $90,000 in the property”. The amount was to be paid on 30 January 2014 or any earlier date agreed on by the parties, and no interest was to be payable. The lawyer had also prepared a “Deed of Indemnity” for the parties to sign. As well as providing an indemnity from the parties for his firm, the deed included an acknowledgement that the parties had been given an opportunity to obtain independent advice but had chosen not to do so. The lawyer also recorded the proposed terms of sale in a separate letter to the complainant from his firm. The letter stated that the proposal was for her to “retain a $90,000 interest in the property”, and the letter referred again to her “right to consult an independent practitioner”. The transaction went ahead and title was transferred to the ex-husband’s company. Around March 2010 it was suggested to the complainant that, contrary to her understanding, she in fact had no interest in the property. She sought advice from another lawyer, who tried unsuccessfully to register a caveat against the title. She then complained to the Law Society, alleging that the lawyer had breached the Conduct and Client Care Rules by acting for both sides (Rule 6.1) and that he had failed to act competently and with reasonable care (Rule 3). She claimed also that the lawyer had not provided her with the client service information required by Rule 3.4.
the complainant was far outside the committee’s jurisdiction. The complainant applied to the LCRO, who found that the committee had, in focusing on the reparation issue, overlooked that the lawyer’s conduct revealed serious professional shortcomings that needed to be addressed. The LCRO found that the lawyer had been barred from acting for both sides by Rule 6.1. This provides that: “A lawyer must not act for more than one client on a matter in any circumstances where there is a more than negligible risk that the lawyer may be unable to discharge the obligations owed to one or more of the clients.” Here the lawyer’s obligations had included advising the complainant to seek adequate security from her ex-husband for the $90,000 debt. The lawyer had been unable to discharge his obligations to both sides and so should have declined to act for both of them. In this case, however, his inadequate legal knowledge meant he hadn’t recognised that the variation to the agreement had potentially compromised the complainant’s position.
CONFLICTS AND INFORMED CONSENT
After the complainant was asked to clarify whether she had suffered any quantifiable loss, her lawyer replied that the $90,000 debt would not crystallise as a loss until it was due in 2014. He indicated that her preferred option was for the Standards Committee to order the lawyer’s firm to pay this amount to her, after which she would assign the debt to his firm.
The LCRO said that the new Rule 6.1 had, from 1 August 2008, established a stricter test than formerly applied under the leading case of Clark Boyce v Mouat  3 NZLR 641 (PC) and under the old Rules of Professional Conduct (Rule 1.04). Summarising the new test the LCRO said: “if the advice is to be compromised, then the lawyer should not act for more than one party.” Under the old Rule 1.04 a lawyer could act for both parties if they both gave prior informed consent, but under the new Rules it is only when there is no risk of the advice being compromised that informed consent will allow a lawyer to act for both sides (see Rule 6.1.1, which is subject to the overriding test in 6.1).
The committee decided to take no further action on the complaint on the basis that it was not the appropriate forum for dealing with the debt and that in any case the amount sought by
While the parties’ consent could not have cured the lawyer’s breach of Rule 6.1, the LCRO went on to discuss exactly what “prior informed consent” under Rule 6.1.1 would have required
LAWTALK 790 / 2 MARCH 2012
L AW YERS COMPL AINTS SERVICE in this case. He quoted Dr Duncan Webb’s view that “a formulaic consent procedure will not suffice” and that “the client must be made fully aware of the consequences of such consent” (Ethics, Professional Responsibility and the Lawyer 2nd edition). Dr Webb had also emphasised that there “must be more than a mere giving of an opportunity to seek independent advice. It will be necessary to positively advise the parties to seek independent advice.” In this case, the lawyer had simply read the documents through to the complainant before she signed them. The LCRO said this would not have been enough to make sure she appreciated the consequences of giving consent: the lawyer had not acted for her before and so did not know how well she understood the proposed transaction. Further, the Deed of Indemnity had focused, as its title indicated, on the indemnity provided to the lawyer’s firm so that the importance of the waiver of independent advice was minimised. The complainant told the LCRO that in fact she had not understood what this document meant. The LCRO found that the complainant had not given “informed” consent under Rule 6.1.1 and that the lawyer had breached this Rule. The LCRO also found that in advising the complainant the lawyer had failed to act competently and with reasonable care, breaching Rule 3.
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ADEQUATE ADVICE Although the lawyer said he practised in conveyancing, at the review hearing he continued to maintain that the complainant had an equitable interest after the sale. The LCRO noted that in fact she had neither a legal nor an equitable interest, as shown by the Registrar of Lands’ subsequent refusal to register a caveat against the title. The complainant was, therefore, merely an unsecured creditor of her ex-husband’s company. The lawyer also incorrectly believed that the complainant could recover the debt from her ex-husband personally, as the director who authorised the transaction. A director’s personal guarantee was common practice for company debts, the LCRO said, and the lawyer should have made sure that one was included in the varied agreement. When the agreement was varied the lawyer should also have explored with the parties the issue of security for the debt, whether through a second mortgage on the property or an agreement to mortgage, or a mortgage on other properties owned by the buyer. Instead it seemed the lawyer took instructions from the ex-husband that there was to be no security and treated this as an instruction from the complainant also, without satisfying himself that she fully understood the consequences.
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LAWTALK 790 / 2 MARCH 2012
The lawyer had also failed to provide the complainant with the required client service information (under Rules 3.4 and 3.5), although he had given her ex-husband a letter of engagement with 21/8/09
S40 PUBLIC WORKS ACT
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The LCRO found the lawyer guilty of unsatisfactory conduct on the basis of his breaches of the Rules (under s12(c)) and also on the separate ground that he had fallen short of the competence and diligence that the public is entitled to expect of a reasonably competent lawyer (s12(a)). For those transgressions the LCRO fined the lawyer $5,000. He said the complainant had been “poorly served” by the lawyer, and the fine was necessary to reflect disapproval that his shortcomings had disadvantaged her. The LCRO said, however, that the review process could not remedy her situation, for she had not yet suffered a loss and in any case the maximum compensation the LCRO could order was $25,000. Instead, she would have to pursue a remedy through the courts at the relevant time.
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At the review hearing there was an indication that the ex-husband may have been using the complainant’s weakened position as leverage in a custody dispute between them. “If that is the case”, the LCRO remarked, “it demonstrates how such matters can come to have unexpected consequences.”
SUSAN TOWLER To satisfy the requirements of section 40 Public Works Act 1981, information is required in relation to the above-named person, niece of Mr John Gebbie of Wakari, Dunedin, (married to Hannah (nee Brew) Gebbie), retired hotel keeper who died in January 1952. In connection with land situated in Dunedin being Part of Lot 7 DP 26386 contained in Computer Freehold Register OT18B/822 [originally part of Section 5 Wakari Survey District]. If you can help please contact: Garry Patrick, Opus International Consultants Limited, Private Bag 1913, Dunedin 9054, ph 03 471 5552, fax 03 474 8995, or email firstname.lastname@example.org. In the event that no or insufficient information is forthcoming within 30 days of publication of this notice, the requirements of the Public Works Act 1981 shall be deemed to have been satisfied.
L AW YERS COMPL AINTS SERVICE this information. The LCRO noted some previous disciplinary decisions where a Standards Committee or the LCRO’s office had imposed no penalty or imposed only a censure, but he said that in those cases there had been mitigating factors − for example, the new rules had only recently come into force, or there was confusion over who the lawyer was acting for. In this case there were no mitigating factors, and the LCRO found that an additional $400 fine and a censure was appropriate for the failure to provide the required information. The LCRO noted clear gaps in the lawyer’s professional knowledge that needed to be addressed, but he said that it was difficult to identify appropriate courses or seminars that the lawyer might be ordered to attend and that, more importantly, education needed to be voluntary to be effective. The LCRO hoped the making of the complaint would itself be enough to prompt the lawyer to acknowledge and address the relevant gaps. LT
Lawyer fined for pressuring client to withdraw complaint A LAWYER WAS FINED $1,000 after placing inappropriate pressure on an elderly client to withdraw her complaint against him. A Lawyers Standards Committee found the lawyer guilty of unsatisfactory conduct. As well as fining him, the committee ordered him to pay $500 costs to the Law Society. The client had impaired vision and was unable to concentrate for long periods. She was, therefore, reliant on the help of others. The lawyer had acted for her when she had made a number of property investments through an investment company. This company had collapsed and the client had had to sell her former family home to repay outstanding loans. A friend of the client laid a complaint on her behalf about the lawyer’s conduct. The committee decided to refer this complaint to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. Some months later, while the complaint was waiting to be heard, the client passed on to the Law Society a draft letter the lawyer had prepared and sent to her a few days before. The draft letter was addressed to the Law Society from the client, and said that she wished to withdraw her complaint. The lawyer had placed a yellow sticker at the bottom, indicating the space for her signature. In his accompanying letter to her he had written: “If you wish please sign and send off the letter to the Law Society.” The client told the Law Society she did not want to withdraw the complaint. The committee began an own-motion investigation into whether the lawyer had acted improperly in preparing the letter. The lawyer told the committee the client had contacted him the previous month to tell him that the friend who had complained on her behalf had suffered a severe stroke. During another call, the lawyer and the client discussed the fact that it would be difficult for the friend to continue with the complaint. The lawyer asked her whether she wanted to withdraw the complaint, suggesting she might want to think about this for a bit. After considering this, the client told him she did want to withdraw the complaint. The lawyer then asked her whether she wanted to write directly to the
Law Society herself or whether she wanted him to prepare a document for her to sign. She said the latter. The client was shown the the lawyer’s response and gave the committee a different account of the conversation. In particular, she said she had not asked the lawyer to prepare a letter withdrawing the complaint. She said she had felt pressured by him to withdraw the complaint. The committee said that lawyers were entitled to try to resolve a complaint against them, but this could not extend to pressuring the complainant to withdraw it. The committee accepted the lawyer’s account of how he had come to prepare the letter, but it said that even on his own account he had placed inappropriate pressure on the client, given her age, vulnerability and reliance on him. In so doing he had breached the Conduct and Client Care Rules. LT
Registry The following people have applied to the NZLS for certificates or approvals.
under Part 3 of the Lawyers and Conveyancers Act 2006 Auckland Branch Madeleine Jane COLLIER Regina Leai FAALETATAU Bernice Beryl HENRY Kieran Hamiora KIDDLE Danielle Maree HOWDEN Hong HUI (AKA Linda HUI) Arash RAFEIE Madeleine Cochrane WRIGHT
Elisha Anne KEMP Robert Jason STYLES
Otago Branch Donald James MATTHEWS Christian John PETERS
Wanganui Branch Nicola Ann REFOY-BUTLER
Southland Branch Rochelle MONIQUE SURENDRAN Katie VARGHESE Katherine LOUISE MCDONALD Taranaki Branch Jessica KATE RUDDLESDEN
Approval to Practise on Own Account
under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch Francis Kevin MCENTEE Joseph Wallis BIDDLES James Stuart BLACKIE
Canterbury Westland Branch Kathryn Therese DALZIEL Wellington Branch Susan Dale BARKER Kathleen Marie DAWSON
The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/ applications_for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 8 March 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate.
Lisa Attrill, Registry Manager Email: email@example.com, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989
LAWTALK 790 / 2 MARCH 2012
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Would any lawyer holding a will for the above-named, late of Whangarei, who died on 28 January 2012, please contact Katrina Simpson, Henderson Reeves Connell Rishworth, PO Box 11, Whangarei 0140, ph 09 430 4350, fax 09 438 6420 or email katrinasimpson@ hendersonreeves.co.nz.
Would any lawyer holding a will for the above-named, late of 58 Metcalfe Road, Henderson, chef, who died on 6 November 2011, please contact John Boyle, Boyle Mathieson, Solicitors, PO Box 21640 or DX DP92555, Henderson, Auckland 0650, tel 09 837 6004, fax 09 937 6005 or email jboyle@boyle-mathieson. co.nz.
Would any lawyer holding a will for the above-named, late of Mt Albert, Auckland, who died on 3 November 2011, please contact Rob Brennan, Blackwells Lawyers, DX CP 31039, PO Box 9325, Newmarket, Auckland 1149, tel 09 522 2402, fax 09 522 1727 or email rbrennan@blackwells-law. co.nz.
CHEN-CHUN LEE Would any lawyer holding a will for the above-named, late of 1/9B Watling Street, Mount Eden, Auckland, housewife, married, aged 48, who died on 19 November 2011, please contact Stella Chan of Forest Harrison Barristers & Solicitors, PO Box 828, Auckland 1140, ph 09 308 0080, fax 09 308 0082 or email stella@ forestharrison.co.nz.
JERRY ERUINI WAEREA Would any lawyer holding a will for the above-named, late of Tokoroa, who died on 26 January 2012, please contact J.A. Hassall of Hassall Gordon O’Connor & Newton, PO Box 76, Tokoroa 3444, ph 07 886 6279, fax 07 886 8231 or email email@example.com.
BERTIE DONALD WOODS Would any lawyer holding a will for the above-named, late of 12A Oban Road, Tauranga, bricklayer, born 5 November 1928, died on 15 November 2008, please contact Claire Horler of Kaimai Law, PO Box 16010, Tauranga 3147, ph 07 579 3313, fax 07 579 1560 or email firstname.lastname@example.org.
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Would any lawyer holding a will for the above-named, late of Sunset Lodge, 123 Boundary Road, Blockhouse Bay, Auckland, who died on 28 September 2011, please contact Christine Taylor, Taylor Grant Tesiram, ph 09 920 8667 or email email@example.com.
Would any lawyer holding a will for the above-named, formerly of Henderson and Cambridge, late of Wanganui, who died on 9 January 2012, please contact Bruce Day of Russell Moon & Fail, PO Box 22, Ashburton 7700, ph 03 308 3191, fax 03 308 9894 or email firstname.lastname@example.org.
Would any lawyer holding a will for the above-named, late of Whangarei, who died on 28 January 2012, please contact Katrina Simpson, Henderson Reeves Connell Rishworth, PO Box 11, Whangarei 0140, ph 09 430 4350, fax 09 438 6420 or email katrinasimpson@ hendersonreeves.co.nz.
LAWTALK 790 / 2 MARCH 2012
Intermediate Solicitor SITUATIONS VACANT
We are looking for an intermediate solicitor to join our well established general practice in Wellington’s CBD. This position will be on a full-time basis starting late March/early April 2012.
Intermediate Solicitor ARE YOU READY? The position offers a real variety of exposure to property and … to take on responsibility and be recognised for your commercial contribution?
We are looking for an intermediate solicitor to join our well
established general practice Wellington’s CBD. This position transactions, trusts and in estates, employment advice will be on a full-time basis starting late March/early April 2012. and advocacy, debt recovery and litigation assistance.
Mackintosh Bradley & Price is a thriving legal practice that The position offers a real variety of exposure to property and has been based in Riccarton, Christchurch, for over 30 commercial trusts and estates, employment Our key requirements fortransactions, the role are: years. We need a lawyer experienced in commercial, advice and advocacy, debt recovery and litigation assistance. property & trusts to help us provide our usual excellent service to our large client base.
Our key requirements for the role are: minimum two years’ experience
This is an ideal opportunity for someone to build their strong research and opinion writing skills career in our law firm with prospects of partnership for the • minimum two years’ experience ability to manage files and work well independently right person. Our key requirements are:
strong research and opinion writing skills
a sound knowledge of or interest in employment law
others • ability to manage files and work well independently and outstanding communication and client skills with others a sound knowledge of or interest in employment law • outstanding communication and client skills
Proven excellence in client service;
Commitment to Christchurch;
Even temperament and team player;
Strong belief in having a good work lifestyle balance.
right experience, ability and attitude.
We will offer a competitive salary to the applicant who has the Willingness to contribute to best practice development of legal systems and firm management; We will offerand a competitive right experience, ability attitude.salary to the applicant who has the
Please send your CV, academic transcript coveringletter letter CV, academic transcript and and covering MBP offer an excellent and friendly staff, good officePlease send you to Malcolm Galloway by email (email@example.com). facilities, well developed systems, professional relationship Malcolm Galloway by email (firstname.lastname@example.org). networks, continuing legal education, mentoring and Applications close 13 March 2012. encouragement in personal, professional and business Applications close 13 March 2012. development. Contact us in the first instance by email to bradleypd@ snap.net.nz providing us with your CV and any other information you feel will help us to assess your suitability for this exciting role. Applications for this position close 16 March 2012.
TREADWELLS Barristers & Solicitors
Barristers Level & 14,Solicitors 45 Johnston Street Level 14, 45 Johnston Street Wellington Wellington Phone: (04) 472 0929
Civil Litigation Solicitor In-house Counsel, Wellington This is a great opportunity to gain international experience in offshored/ outsourced services for a major bank. You will ideally have a background in contracts and commercial drafting and have dealt with outsourcing internationally. Experience of dealing with the Reserve Bank and their conditions of register would also be an advantage but not essential. It is important that you have experience and confidence in dealing with senior internal and external stakeholders with regards to risk management and compliance as this will be an integral part of the role. You will be responsible for briefing and advising Senior Executives on the organisation’s regulatory and compliance obligations both here and within other international jurisdictions. Maintaining and implementing new policies and procedures to ensure compliance will also be important, so an understanding of this area would be useful. We are very realistic and understand that lawyers with this mix of experience are hard to come by in the NZ market so are prepared to consider candidates with any of the following: •
Financial regulatory and compliance experience.
Outsourced contracts management.
Stakeholder engagement/management in financial services.
We are also prepared to look at J:\Memo\IntermediateSolicitorAdvertisement17.02.12.docx overseas qualified candidates with relevant experience that don’t currently have a NZ practising certificate. For further information in strict confidence please contact Ben Traynor or Jane Temel on 04 471 1423 or email admin@ nicherecruitment.co.nz quoting ref: BT9765
Phone: +64 4 471 1423 Email: email@example.com www.nicherecruitment.co.nz
• Talented Intermediate or Senior? • Looking for better work life balance in 2012? • Yes, you can have it all in sunny Nelson! Hamish.Fletcher Lawyers, a third generation Boutique Specialist Commercial firm, based in Central Nelson, are progressive. They’ve developed a contemporary approach to legal work. Being Boutique is their strength and their approach is straightforward and effective. They talk-the-talk and walk-the-walk with their clients to achieve best practice across all aspects of law. A fabulous opportunity now exists for either a talented Intermediate looking to step up or a dynamic Senior Civil Litigation Solicitor with extensive experience in Civil Litigation, Relationship Property and Employment law, to join their successful team. You’ll thrive on the opportunity to partner with your clients to achieve targeted outcomes, and your success will be based on your ability to deliver innovative solutions, and draw from the experience of the team. You’ll be 100% focused on the end goal and prepared to roll your sleeves up to deliver the best result for your clients.
To find out more or to apply, please contact Jessica Rolinson Consultant Fanselow Bell Ltd
38 Buxton Square PO Box 1128, Nelson Tel: (03) 546 8649 Fax: (03) 546 6776 jessica.rolinson@ fbhr.co.nz www.fbhr.co.nz
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If you like to have it all – a fabulous career with a great bunch of people, doing challenging work in a fabulous location, this could be the role you’ve been looking for!
LAWTALK 790 / 2 MARCH 2012
In-house Legal Counsel Compliance Manager, Suncorp Life NZ Shared Services – Auckland or Wellington (12 months parental leave cover)
Are you up for the challenge? Suncorp Life New Zealand is a key business in the Suncorp Group which is one of the largest financial service providers in Australasia with around 9 million customers and more than $28 billion funds under management. We are a life insurance specialist providing life and income protection services to clients across New Zealand under the well respected brands of Asteron Life and AA Life. This role will play an important part in the Chief Risk Office team by providing independent advice, oversight and monitoring of the Compliance Framework within Suncorp Life New Zealand. The successful applicant will have: 5 years’ or more compliance and/or related experience in the finance industry; Demonstrated capabilities and experience in policy frameworks and compliance activities within the finance industry; A strong understanding of compliance requirements within the finance industry; Ability to work with management on commercial solutions; Demonstrated experience in a leadership role. If you feel you have the required skills and would like to join our team, please forward your CV and covering letter by 16 March 2012 to: Compliance Manager, Shared Services Email: firstname.lastname@example.org For a copy of the position description, please visit www.asteron.co.nz.
Wellington Legal Market Picks Up Intermediate public law solicitor: Firm with strong public law practice seeks lawyer to assist in advising private and public sector clients on legislative change, public law and regulatory obligations. Working with a senior practitioner with a utilities focus, you would enjoy a broad variety of work in a friendly environment. Ref: 29243 Employment/litigation solicitor: Our client seeks someone with intermediate to senior experience for a team of five led by a dynamic partner. This is a busy role where you’ll run your own files and mentor more junior solicitors. The firm has an international reputation and can offer good career development opportunities. Ref: 29007 Intermediate commercial solicitor: 2-4 year PQE solicitor sought for role encompassing securities, regulatory compliance, superannuation and other managed funds work. Hone your skills in this leading team. Ref: 29120 Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732
To apply, please visit www.momentum.co.nz and enter the reference number for the role you would like to apply for on the home page. Alternatively, email your CV to email@example.com quoting the reference number. For further information in strict confidence, please contact Carla Wellington or Jo Mummery-Smith on (04) 499 6161.
The internet is at the heart of everything we do at Orcon – from providing broadband services to homes and businesses across the country, to full communications solutions, mobile and more. We know innovations lead to customer benefits, and we are focused on continually pushing the boundaries to deliver the latest and greatest stuff to New Zealanders. Due to Orcon’s continuing growth and success in all areas of the business, we are looking for a lawyer with a minimum of 5 years’ post admission experience in a commercial law firm or an inhouse legal team, ideally within a telecommunications environment. This role would support our Senior Legal Counsel. You need to have sound commercial acumen and the ability to provide pragmatic advice on a wide range of issues. You will also need to possess excellent verbal and written communication and negotiation skills. You will need to be confident in your ability to build strong relationships with our executive and management teams and external stakeholders, and thrive on the challenge of working in the ever changing world of telecommunications. Orcon is a fast-paced, exciting place to work, filled with smart people keen to change the way Kiwis communicate. The people we employ are a key to this. If you are excited about the challenge of working alongside people who are innovative and agile enough to make good things happen quickly, then please apply online https://careers.orcon.net.nz/index.
Junior/Intermediate Solicitor – Dispute Resolution/Insolvency Christchurch Would you like to work in a state of the art building in a high-calibre practice providing advice to some of New Zealand’s leading banks, financial institutions and insolvency professionals? Anthony Harper is seeking a self-motivated junior or intermediate dispute resolution solicitor for its Banking, Finance and Insolvency team. Some insolvency experience is desirable, but not essential. A clientfocused approach, strong technical skills and an innovative approach to solving problems are a must. You will join a high performing team that will provide you with the support, knowledge and experience to grow a desirable practice and career path. This is an opportunity to be involved in a range of disputes including large-scale finance litigation, priority disputes, actions brought by and against receivers and liquidators, debt recovery, bankruptcies and liquidations. To apply, please email your CV to firstname.lastname@example.org quoting reference number 27916. For further information in strict confidence, contact Jennifer Little or Jo Mummery-Smith on (04) 499 6161.