LAWTALK
9 NOVEMBER 2012 / 808
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INSIDE
THE MAGAZINE
FEATURE: BIG LAW FIRMS
“Lawyers must take care ... where ... negotiations could declare an intention to expose wrongdoing.”p. 18
“A challenge that large law firms face is capturing knowledge so all clients benefit, having a robust knowledge database and keeping the entire firm updated.” p. 6
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Alcohol and Other Drug Treatment Court – first sitting
Draft CPD rules circulated for comment
Drug and alcohol dependent offenders have a chance to turn their lives around with an Alcohol and Other Drug Treatment (AODT) Court pilot programme...
15 Review of District Court Rules 2009 In the 8 June 2012 issue of LawTalk, the subcommittee of Judges ... discussed amendments to the District Court Rules 2009... New prison policy The Department of Corrections is phasing in a nationally consistent prisoner property process...
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The New Zealand Law Society has released draft rules for a mandatory continuing professional development...
JON E S & SMIT
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By FRANK NEILL
SANDERS McDONALD
Justice ‘R’ Us
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When faced with criminal conduct by an employee in the workplace, the employer will probably want to bring the employment relationship to a swift end...
Big law firms
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One interesting statistic is the percentage of New Zealand lawyers who work for large firms...
Lawyers can help people turn their lives around
Large firms provide depth and breadth of experience
Lawyers can play an important and invaluable role in helping a significant group of New Zealanders turn their lives around...
Unlike England, the United States, Canada and Australia, New Zealand does not have a system of ranking law firms...
WILSON McGUINNESS
Fine line between settlement discussions and blackmail
Writing persuasive opinions
Large law firms’ role in the private and public sectors By RACHAEL BRECKON
Communication and industry knowledge is what separates one firm from another according to top private and public sector in-house counsel...
By ELLIOT SIM
Roger Partridge, New Zealand Law Society Large Firm Corporate Representative and Bell Gully chairman defines what a large New Zealand law firm is, what it does, and the legal market trends of the past 10 years...
REGULARS
By ELLIOT SIM
Convoluted and jargonladen opinions could become history for those attending a new workshop which began this year...
Revenue information benefits law firms and clients
MIGHTY LAW C O R P LT D .
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By ELLIOT SIM
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LAWTALK 808 / 9 NOVEMBER 2012
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FROM THE LAW SOCIET Y ROG ER PARTRIDG E
T
his issue of LawTalk includes a feature on the country’s largest firms. Large law firms are an important part of New Zealand’s legal landscape: around 14% of the country’s lawyers are employed in New Zealand’s large law firms. This makes the top firms the largest employers of graduates each year, hiring well over 200 graduates a year. The desire for firms to attract the best and brightest young talent is a benefit for all law students. Large firms are big supporters of law schools. They support a raft of competitions, such as mooting, witness examination and cross-examination. Large firms also sponsor professors and fellowships, computer facilities and offer undergraduate scholarships. Large law firms contribute sustainable billable hours to the pro bono sector and community law centres. They contribute to ensuring access to justice is maintained through providing legal assistance to organisations and people that otherwise could find it hard to access advice. Top firms actively build professional collegiality throughout the profession, sponsoring numerous New Zealand Law Society events around the country, as well as hosting seminars and providing opportunities for professional development.
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All commercial lawyers ‒ and New Zealand businesses ‒ benefit from the large law firm input into the law reform process. The large law firms would have spent thousands of hours submitting on the recent Securities Act reforms in order to ensure the legislation is workable. This is important because it helps the wheels of commerce meet their needs. It helps to sustain business and ensure New Zealand’s regulatory environment is attractive and provides the security needed to attract overseas investment. In this issue of LawTalk I define a large firm and look at the current legal marketing trends. The feature also explores the relationship between internal and external legal providers and a firm’s role in the business community. Although many of our country’s lawyers are not directly working for a large firm, the place of large firms in the legal landscape is an important one, and one that works in the best interests of both the profession, the administration of justice, and the business community as a whole. Roger Partridge New Zealand Law Society Large Firm Corporation Representative
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.
Coming up … Coronial conference The Asia Pacific Coroners’ Society Conference will be held in Sydney from 20-23 November. Judge Neil McLean, New Zealand’s Chief Coroner, is among the speakers. He will present a review of the first five years of coronial reform in this country. See www.dcconferences.com.au/ apcsc/.
International arbitration STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz Elliot Sim Ph +64 4 463 2902 elliot.sim@lawsociety.org.nz Advertising: Christine Wilson Ph +64 4 463 2905 christine.wilson@lawsociety.org.nz
The 32nd Annual Meeting of the ICC Institute of World Business Law will be held in Paris on 26 November. The last decade has seen an exponential growth in both international commercial arbitration and international investment arbitration. Yet arbitration proceedings can prove to be very costly and their funding raises the delicate question of the accessibility of arbitration. The solution offered by third-party funding has become a fact of life. This conference will first consider the various funding techniques specific to international arbitration and then look at some of the legal issues raised by such funding and the reactions it may arouse among international arbitration practitioners. See www.iccwbo.org/ Training-and-Events/All-events/ Events/2012/32nd-AnnualMeeting-of-the-ICC-Institute-ofWorld-Business-Law/.
Inquiries about subscriptions to: subscriptions@lawsociety.org.nz
Battling corruption
DESIGN: Jesse Cogswell Ph +64 4 463 2981 jesse.cogswell@lawsociety.org.nz
A conference that will focus on the international battle against corruption has been organised by the International Bar Association.
Printing: Lithoprint, Wellington ISSN 0114-989X
The International Fight Against Corruption: What’s working, what’s not working, what will work? will be held in Washington DC on 4 December.
CLIENTS WITH 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.
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See http://www.ibanet.org/ Conferences/conferences_home. aspx.
Legal process outsourcing The Global Litigation Outsourcing Conference and Exhibition will be held in London on 12-13 March 2013. This event is organised by Global Outsourcing Association of Lawyers (GOAL), a non-profit organisation established to provide global lawyers the most influential knowledge sourcing and networking platform in the field of legal process outsourcing (LPO). The conference seeks to educate its audience about recent changes to outsourced/offshored litigation services, outsourcing rules and regulations, models and methods of sourcing the services overseas, ethical practices, relevant laws and statutes, risk management aspects, privacy and security issues, and quality concerns. See www.connect-goal.com/ events/global-events/london2013. html.
Tax in cross-border finance and markets The 2nd IBA/CIOT Seminar on Current International Tax Issues in CrossBorder Corporate Finance and Capital Markets will be held in London on 11 and 12 February 2013. This event is presented by the International Bar Association’s (IBA) Taxation Section and the Chartered Institute of Taxation European Branch (CIOT), supported by the IBA European Regional Forum. The conference is aimed at tax, corporate, finance and banking lawyers, accountants, bankers and economists. See www.ibanet.org/Conferences/ conferences_home.aspx.
• 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 808 / 9 NOVEMBER 2012
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One interesting statistic is the percentage of New Zealand lawyers who work for large firms. New Zealand has nine firms which each have more than 100 lawyers with a current practising certificate, the New Zealand Law Society’s Annual Report 2011/12 shows. These nine firms have a total of 1,465 lawyers with practising certificates, or 20.3% of the total number of lawyers with practising certificates in New Zealand. One in every five lawyers in New Zealand, then, works for one of the largest nine firms by practising certificates held. The Law Society’s Annual Report also stated that 11 firms had over 20 principals. These firms collectively had 414 principals and a total of 1,612 lawyers with practising certificates. With no published list of large firms available, LawTalk went to a series of firms on 30 October and asked each firm how many partners it had.
The top 11 firms by partner number they provided are: Firm
Number of partners
Chapman Tripp
55
Simpson Grierson
48
Bell Gully
45
Minter Ellison Rudd Watts
43
Buddle Findlay
41
Russell McVeagh
40
Duncan Cotterill
36
Kensington Swan
31
Meredith Connell
28
Anderson Lloyd
26
DLA Phillips Fox
25
Large firms provide depth and breadth of experience By Elliot Sim Roger Partridge, New Zealand Law Society Large Firm Corporate Representative and Bell Gully chairman defines what a large New Zealand law firm is, what it does, and the legal market trends of the past 10 years. He also describes the current climate and how he sees large law firms performing in the next decade.
the constant ebbs and flows of the industries they work for. “When economic activity is quiet, transactional activity is generally slower as well.
Most firms also have teams organised around major industries, like telecommunications, energy and the agri-sector. Mr Partridge says large firms deal with
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“The biggest focus for us all is on our domestic corporate client base.” Looking back over a 10-year period at the “mega trends” of the industry, Mr Partridge says the biggest strategic issue has been “the loss of our young talented lawyers to northern hemisphere law firms and in particular the London law firms”.
“A large law firm is one with over 100 partners or employees practising law as lawyers in New Zealand,” Mr Partridge says. Larger firms, he says, have a mixture of practice areas normally “organised as corporate or commercial transactional, property transactional, banking, litigation and tax”, with speciality areas within these practice groups including competition law, resource management, employment, IP and technology.
or selling out, but notes that while it is an important work stream, “for all of us, the majority of our work is domestic”.
Roger Partridge
“I think all around the world in recessionary times, like those currently, business activities are challenging for large firms, just as they are for other businesses.” Mr Partridge says that large law firms benefit from foreign investment, whether they are acquiring businesses
Large New Zealand firms would recruit between 20 and 50 graduates respectively a year, train them over two years and then face the risk of them going overseas for their overseas experience. “The OE is an institution for New Zealanders and our young lawyers are no exception. There’s a voracious appetite from the London law firms for our graduates. “This makes a donut effect or ‘hole in the middle’ in terms of our staffing.
BIG L AW FIRMS One of the benefits of the GFC (global financial crisis) for the large firms has been the easing of this pressure, as demand for New Zealand lawyers from the UK has eased.”
What makes large law firms different from medium or smaller firms and what are the challenges faced?
The growth of in-house legal teams over the past 15 years is another trend that large law firms have had to grapple with.
From Kensington Swan’s perspective, the main difference between the large, medium and smaller firms, according to chief executive partner Clayton Kimpton, “is the depth and breadth of our expertise”.
He says that CLANZ, the Law Society’s section for in-house counsel, represents about 2,200 lawyers. That means about 20% of the entire profession is employed in-house – in corporations, Government departments or local authorities.
Multi-office support and experience whether it be domestically, transTasman or internationally, gives international organisations confidence when engaging a firm. “There are several speciality divisions and practice areas, resulting in the best person in the firm working on different parts of a matter, instead of a generalist completing the whole matter. Clayton Kimpton
“They’re able to distribute work within the firm to make as large a team as needed to maximise speed of completion, or shrink the team if the matter becomes less complex. “Large firms are more attractive to multinational law firms, meaning we get the best international deals and can help our clients get the best advice worldwide.”
To this end, he says, there has been a change in how legal work for major companies is resourced “partially inhouse and partially briefing external law firms”. In the current recessionary climate, Mr Partridge believes large law firms are performing “reasonably”, but thinks overall, most firms would describe the climate as fairly challenging. “Different firms will be telling different stories because when there is a light wind, you can pick up the puffs. You can have a good patch, but there’s little growth in the market and that makes doing business highly competitive and challenging.” In his personal view, the industry is at “the low point of the economic cycle”. “I think unless we get another financial shock, and I think the risks of that are now low, I see the New Zealand economy and the legal market picking up progressively over the next few years. I think looking further ahead, the outlook remains very positive.”
“Large firms can push work down to the appropriate level to control costs for the client. Due to the large [number] of similar matters that large firms deal with, we can take advantage of economies of scale. We can put in place systems to streamline the delivery of legal advice.” Mr Weenink says large firms have a level of expertise needed to complete entire transactions, resulting in smoother communication and faster results for clients.
“Unlike smaller law firms, a number of our clients are lawyers within the inhouse legal teams of large businesses. The likes of ANZ, Telecom, Westpac and Fonterra have significant internal legal teams and in some ways are like small firms within those companies. “That phenomenon really started to emerge in the early 1990s and that’s seen a division of the work that’s done for the large corporations. A lot of it is now done in-house and parts of it are out sourced. Different companies will outsource to external law firms – to private practice – different parts of their work, whether it’s litigation, significant banking transactional work or merger and acquisition work. And really, that’s what the big firms are focusing on.”
“Large firms have the ability to utilise a larger pool of contacts, due to larger numbers of senior staff maintaining networks.
Mark Weenink
“Scale also brings a greater ability to invest in back office and support systems, which enhances the service delivered to clients, and allows us to be flexible when responding to shifting economic conditions,” he says. Mark Weenink, managing partner of Minter Ellison Rudd Watts Lawyers agrees, saying more partners, consultants, special counsel and the like, bring greater depth of experience.
The firm’s practice includes: corporate and commercial law, mergers and acquisitions, competition and regulatory issues, finance, real estate, dispute resolution, public law, employment, and taxation. “Our teams collaborate to bring our best and brightest skills to bear for the benefit of clients across key industry sectors including infrastructure, government, health, banking and financial services, managed funds, technology, TMT, and energy and resource sectors. “We have put considerable focus on our China strategy. Our alliances and
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BIG L AW FIRMS business development strategy has so far been successful in positioning ourselves for this important market. “The opportunities that are coming out of Christchurch have also formed part of our strategic thinking. Our recent alliance with Lane Neave has allowed us to provide expertise and advice to the people of Christchurch as we contribute to the rebuild.” In terms of challenges, Mr Weenink says the bigger firms have plenty. “A challenge that large law firms face is capturing knowledge so all clients benefit, having a robust knowledge database and keeping the entire firm updated. This is a challenge all large firms face, which requires good systems and communication strategies.” Maintaining a “high performance culture” and entrepreneurial spirit is also important, he says. “We work with mid-market firms as well as corporates and we face the same scale challenges as any other large corporate. Perhaps this means we are not as nimble as smaller firms but we make up for that by trying to position ourselves for the expected changes in the market-place.” Employing experts in systems and investing heavily in them is a solution, according to Mr Weenink, plus a strong HR strategy to develop and support staff, rewarding staff for good work and an encouraging, positive culture.
Competitive environment Chapman Tripp is a national full service commercial law firm which advises national and multi-national clients on commercial, corporate, property, finance, tax, dispute resolution, environmental and government relations issues. It also plays key roles in mergers and acquisitions, disposals, takeovers, financing, insolvency, restructuring, banking, procurement processes, large scale infrastructure projects and dispute resolution proceedings in New Zealand and around the world. A statement provided by the firm says the “slow market” has created an even more highly competitive environment for law firms than has historically been the case. It is focusing on certain sectors which are important to New Zealand’s future, including infrastructure, energy and resources.
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Chapman Tripp is advising on infrastructure projects such as power generation, national roading and the Christchurch rebuild, as well as advising Mighty River Power on its upcoming IPO. The firm is also concentrating on the opportunities arising out of New Zealand’s increasing trade ties with China and acted for the Shanghai Pengxin Group on its recent and ultimately successful application to the Overseas Investment Office, relating to the purchase of the Crafar Farms. “Last month, the Supreme Court dismissed the case brought by a rival bidder, meaning the sale will now go ahead,” the firm said.
“
A challenge that large law firms face is capturing knowledge so all clients benefit, having a robust knowledge database and keeping the entire firm updated.
”
MARK WEENINK Comprehensive practice DLA Phillips Fox chairman Martin Wiseman says the practice areas for the firm are “pretty comprehensive”. “The firm is ‘full service’ and advises many of New Zealand’s largest organisations.” The firm specialises across the board in litigation, employment law, banking and finance, corporate and commercial, funds and superannuation, government and local government, IP, IT and telecommunications, property, RMA and environment, energy, mining and natural resources, farming, forestry, fishing, transport, OIO and Asia. Mr Wiseman says the firm “draws strength from its many long-term, annuity clients to which it is a trusted
advisor”. He says the firm has an alliance with global business law firm DLA Piper, with shared international clients contributing to the firm’s growth in terms of turnover and capability. “Operationally, a lot of what we do is aligned with DLA Piper. So the New Zealand firm’s IT, professional indemnity, methodologies, pro bono and community work, values and marketing echo DLA Piper’s systems and competencies. “We constantly work on shared clients, attend video and tele-conferences, practice group meetings and global partners’ meetings.” The firm has recently been acting for global client Pfizer on the worldwide sale of its nutrition business. “Our New Zealand team has been part of a global sale process. We’ve had to meet deadlines set by other time zones and we’ve participated in advice and frequent interaction with lawyers from throughout the world. Our lawyers on that transaction have a very different working day from those at most New Zealand firms,” says Mr Wiseman. Law and business are synonymous with each other, he says. So too, the fact that both are globalising. “We assist international clients in New Zealand and they seek a sound, reliable presence offshore – including Asia. When local clients come to us for help offshore, they know what they’re going to get, because they get a mirror image of us.” Mr Wiseman says the issues that confront law firms today, and those that test clients, begin offshore and migrate to New Zealand. “Every business and legal trend gets here sooner or later.” He says the firm gained insight from DLA Piper on the global recession and as far as managing professional law firms goes, “the soft stuff is the hard stuff”. “Making our people feel good about themselves, the firm and clients, managing their needs, and still keeping the firm on a growth path are the key challenges. “It’s all about the ‘three Cs’ – clients, clients, clients. Client service, upholding the rule of law, and access to justice, that’s what all firms should do. All firms regardless of size are cooperatives at heart. You can never escape that.” LT
BIG L AW FIRMS
Revenue information benefits law firms and clients By FRANK NEILL Unlike England, the United States, Canada and Australia, New Zealand does not have a system of ranking law firms. The American Lawyer magazine has been ranking United States law firms since 1986. This year, Am Law 100 produced its 25th anniversary list of what has become a most sought-after publication. It was not always like that, however, well-known legal consultant Ashley Balls told LawTalk. When the American Lawyer decided to run its law firm ranking and approached practices to provide their turnover figures, they declined. American Lawyer said it was going to publish anyway, and would work on developing reasonably accurate estimates. Some firms threatened to sue American Lawyer if it went ahead with the plan. It did. Nobody sued, however. In fact, the next year law firms were eager to provide their gross revenue. The 2012 Am Law 100 list is on the website www.americanlawyer.com/. A similar list was published in the United Kingdom on 2 October – The Lawyer UK 200 Annual report 2012 (see www.thelawyer.com). For the first time this year, Mr Balls says, all 200 firms provided their figures. The last time a ranking of law firms was produced in New Zealand was the 2009 Thomson Reuters book The Business of Law (ISBN 978-0-86472-653-7). Mr Balls and consultant and lawyer Ron Pol were among the principal authors of this work. The Business of Law listed what it believed to be the top 20 New Zealand law firms by annual billings. Russell McVeagh topped the list, with estimated total fees of over $110 million in 2008. Bell Gully and Chapman Tripp were placed second equal, with estimated billings of $100 to $105 million, while Simpson Grierson followed with an estimate of $95 to $100 million. The report says the data from which the
estimates were made was compiled in February 2009, with most data coming direct from the firms themselves. It notes that information was not compiled on a single day, which may explain minor variations. “The fiscal calculations are based on standardised models which take account of known charging rates, estimated fixed and variable costs, leverage, relative seniority of staff, utilisation rates, profitability, mark down/write up, and more.” Buddle Findlay was placed fifth on the table, with estimated annual billings of $70 to $75 million. Other firms in the top 10 were Kensington Swan ($50 to $55 million), Minter Ellison Rudd Watts ($50 to $55 million), Meredith Connell ($48 to $52 million), DLA Phillips Fox ($45 to $50 million), and Duncan Cotterill ($42 to $47 million). In New Zealand, there is a “huge reluctance” to publish revenue information, Mr Balls says. “We are so out of step here. “I find that very sad, because I think the industry is losing out because of that. “I think that the productivity growth in the legal profession in New Zealand lags behind all of its competing states … simply because there is a lack of robust performance metrics.” Both law firms and their clients suffer because of this, Mr Balls argues. Firms miss out because overseas experience has shown that publishing this information has, perhaps, provided “the biggest aid and prompt to productivity in the last 15 to 20 years,” he says. New Zealand firms are missing out on this incentivisation. Overseas, lawyers are using the information provided by data such as that in Am Law 100 and The Lawyer UK 200 as a process for lifting their game. Clients are missing out because they are not able to identify which firms are performing the best in the areas of their interest.
“If I am a client, I would want to know who the leading players in the market are. Clients are suffering with this lack of information in New Zealand because they have no guaranteed resource they can go to and ask ‘who is the leading firm in banking?’ “None of us are served well by that.” In New Zealand, firms “have the drawbridge up and are saying ‘I’m not going to tell you’.” That reluctance was reflected in answers provided to LawTalk reporter Elliot Sim. He asked: “why do you not disclose annual billings like other international firms?” “Our fees are between us and our clients,” said Mark Weenink of Minter Ellison Rudd Watts. “Some of our deals are confidential which will skew results and we publish those confidential results to our shareholders.” “We are a New Zealand-based partnership,” Chapman Tripp said. “Like New Zealand-based private companies, we are not required to disclose our revenue figures to the market.” Lack of empirical data makes ranking firms both difficult and problematic, Mr Balls says. However, he considers that there is a group of four firms – Russell McVeagh, Chapman Tripp, Minter Ellison Rudd Watts and Simpson Grierson – “and I think they are almost in a group of their own in terms of fiscal performance. We are seeing this group pull away from the others.” But in terms of ranking New Zealand firms, Mr Balls provides three examples of why this would be a problematic exercise. One is boutique firm Harmos Horton Lusk. If it ranked in the top 100 by size, it would only just be in that group. However, if you could evaluate it in terms of fees per lawyer, it would rank very highly and could possibly be “doing better than any other firm in New Zealand”.
LAWTALK 808 / 9 NOVEMBER 2012
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BIG L AW FIRMS
Large law firms’ role in the private and public sectors By Rachael Breckon Communication and industry knowledge is what separates one firm from another according to top private and public sector in-house counsel.
Understanding the business Ideally an external legal counsel should be able to “truly understand your business, because unless [they] really understand our drivers it is really difficult to give relevant and appropriate advice,” according to Jeremy Valentine, associate general counsel ANZ. NZQA chief legal advisor Grant Adam says he tries to match legal skills with subject expertise when selecting external counsel. Sector knowledge often gives important context. Sector knowledge does not simply aid a firm’s ability to advise a company from their perspective, it also helps to keep costs down. “If you go to a firm that has little knowledge of the context of your business and the sector in which it operates, you are basically paying to upskill them,” Mr Adam says. “It’s a false economy sometimes. If someone has a lower hourly rate but doesn’t know the area involved, it can actually cost you more.”
Plain English “Increasingly clarity of communication is important. Everyone is so overwhelmed with the amount of information they have now,” Mr Then there are the IP firms. Only one or maybe two would probably rank in the top 20 and there would be half a dozen outside the top 20 by size, all providing top quality service. In addition, the size rankings do not take into account patent attorneys who do not also have practising certificates as lawyers, Mr Balls points out. The third factor is that there are firms who are “struggling out there”, including firms likely to rank in the top 10 by size at the moment, he adds. LT
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Valentine says. It is hugely valuable if an outside lawyer is able to give advice that is clear and concise and able to be passed on to others within an organisation without needing to translate it. “I guess advice can operate at various levels. If it is something that’s a technical legal opinion that might just be for the benefit of the in-house legal team, then that’s fine,” Mr Valentine says.
to talk with you on various elements of the issue being referred, and you would be paying for the five people at that meeting,” Mr Adam says. “Where possible it is best to deal with one person, who would then discuss the issues with their colleagues and arrange direct contact only where necessary.” The partner/senior associate/junior ratio is another example of where costs can be managed by the in-house counsel.
“But if it is advice that is for the direct benefit of non-lawyers, it is efficient if it is a form that can just be passed on with an overarching comment. It demonstrates that the law firm understands the issue and what we want resolved.”
“If you have a really important strategic issue then you might want the partner to be spending 60% of their time on it and then directing traffic with the senior associate and junior doing all the research, and the partner putting the analysis together,” he says.
Mr Adam reiterates that law firms need to understand the pressure their clients face. In the public sector, this includes political pressures alongside public and reputational pressures.
“But if it is not so strategic and important, then you would only want the partner to be setting the direction and have general oversight. That might only involve up to 10% hands-on time,” he says.
“You don’t want long legal treatises when seeking opinions,” he says. “While the legal analysis might be good for an in-house lawyer to read, the executive summary must be targeted towards the client.”
Communicating costs In-house lawyers want external legal providers to clearly communicate costs. Mr Valentine says it is important that external legal counsel offer billing options that are appropriate to the particular matter. It can be a determining factor when selecting law firms. Most firms really try hard to be transparent with billing and it is important that they are. “It’s just recognising that with any contractor they are there to make money, so it’s just a case of managing expectations,” Mr Adam says. An example of managing costs is being clear about how many people you require at meetings, and the level of expertise necessary for the task. “Some law firms may want five people
Public sector word of mouth Cross-government reputation is becoming increasingly important in the public sector for providers of legal services selected in the tender of All-ofGovernment External Legal Services. “Participating departments and entities receive information on the relative cost, quality and value for money of each provider, which will no doubt be relevant to reputation,” Mr Adam says.
Law reform If a law firm clearly understands your business, they can be really helpful in advocating and communicating about legislative change, Mr Valentine says. “Some of them are really good at being active in the process and expressing strong views about it, not just reporting on what it is, but actually taking a stance and commenting and being assertive about that,” he says. “If they do that, recognising the particular interest of their clients, it is really helpful.” LT
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WHAT’S NEW? Alcohol and Other Drug Treatment Court – first sitting By ELLIOT SIM Drug and alcohol dependent offenders have a chance to turn their lives around with an Alcohol and Other Drug Treatment (AODT) Court pilot programme which has just begun. Offender screening started earlier this month with the first court sitting being held yesterday, 8 November, in Waitakere and another today in the Auckland District Court. The AODT Court focuses on treating a defendant’s alcohol and other drug (AOD) dependency to help prevent them from committing further crimes. The pilot, which will run for five years, will use a pre-sentence model by way of adjournment and deferral of sentencing. Three criteria must be met for people to participate in an AODT Court. They must have an AOD dependency, plead guilty and be facing imprisonment of up to three years.
specialist courts or life experience, an understanding of addiction and extensive experience in criminal courts because these people have been charged with serious offences.” Offenders who are selected and agree to take part in the AODT Court will have their case put on hold before sentencing. This allows offenders to enter an intensive treatment programme for their AOD dependency, or moderate to severe addiction. “This is not an easy option. The programme takes commitment and the defendant will still be sentenced for their crime. If their participation in the addiction treatment programme is successful, this can be taken into account when they are sentenced,” says Mr Fisher. The programme and treatment will be tailored to the offender’s needs and take about 12 to 18 months to complete.
The AODT Court pilot will sit weekly in both Waitakere and Auckland District Courts and will deal with about 100 participants per year with 50 in each court.
Justice Minister Judith Collins has recently returned from a trip to the United States where she visited AODT courts in San Francisco and New York City.
District Courts General Manager Tony Fisher says a new form of duty lawyer service has been developed to represent participants in the court.
She says she was very impressed with the practical assistance given and the firm messages provided to the offenders appearing there.
“The participants’ interests will be represented by a team of duty lawyers throughout the course of the programme of about 18 months. It is based on the duty lawyers’ scheme, but the lawyers have been selected to meet the particular requirements of the AODT Court.
“There is no doubt that alcohol and drugs are a problem for many communities in New Zealand. After all, the majority of people in our prisons identify as having some sort of drug or alcohol issue.
“Their role requires experience in other
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“Where substance abuse results in crime it is important we take action,” says Ms Collins, “not just to punish the offenders
but also to get them the help they need to stop them committing further crime.”
AODT Court process Step 1 At the first court appearance, if the defendant meets the eligibility criteria, the judge may refer the defendant for an AODT Court assessment, where the defendant will be fully assessed by an AOD specialist. The case will be put on hold for three weeks while the defendant is assessed.
Step 2 If all the criteria for the AODT Court are met, the defendant could be given the chance to take part in an addiction treatment programme. The judge will explain the ways to complete the programme. During treatment, AODT Court participants may need to appear in court every fortnight (initially) and have random alcohol and drug tests twice a week.
Step 3 If the offender agrees to take part, a treatment plan will be developed. Treatment options include residential or in-house treatment and community-based or outpatient treatment.
Step 4 The offender will be sentenced at the end of the programme. The judge will take the offender’s success on the programme into account, which could reduce their sentence. LT
PEOPLE IN THE LAW 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, ph (04) 463 2982, fax (04) 463 2985, email editorial.lawtalk@lawsociety.org.nz. The usual editorial discretion applies.
PEOPLE Judge Laurence Ryan has been appointed the Acting Principal Family Court Judge for six months. His appointment will take effect from 10 November. Judge Ryan will replace Judge Boshier, who joins the Law Commission. Judge Ryan has served as a Family Court Judge since his appointment in 1996. He sits in Auckland. Judge Boshier officially retires as Principal Family Court Judge in December 2012. Auckland barrister Anna-Marie Skellern has been appointed an Acting District Court Judge with jury and Family Court warrants. Judge Skellern is to be sworn in today, 9 November, and will sit in Hastings. Of Ngāpuhi and Pākehā descent, Judge Skellern was admitted in 1985. She has practised both as a barrister sole and in partnership at Bergseng & Co in Rotorua and Auckland since 1992. Her legal career began as a law clerk and then staff solicitor at Williamson & Co, Mangere. She then went on to specialise in family law as an associate at Cairns Slane. In 1987 she started practice in Rotorua, firstly with O’Sullivan Clemens before becoming a partner at Bergseng & Co. As well as family proceedings and relationship property matters in the Family Court, Judge Skellern undertook civil and criminal matters in the District Court and High Court. Judge Skellern has also regularly received instructions from the court to appear as Lawyer for Children and Lawyer to Assist the Court. Earlier this year, Judge Skellern completed her LLM thesis, entitled Children and the Property (Relationships) Act 1976, which she achieved with distinction. She has also guest lectured to law students and presented to the profession on aspects of family law. She serves on the New Zealand Law Society Family Violence Standing Committee. David Noble has been re-appointed Chief Parliamentary Counsel and Compiler of Statutes for a further term of three years from 5 November 2012. Mr Noble commenced in the role on 5 November 2007. Mr Noble is expected to return to New Zealand in June 2013 from his secondment as the Director, Treasury Solicitor’s Department in London. During his secondment he has led the co-ordination of the legal and drafting work for that government’s major programme
of constitutional reform including the change to the law governing successions to the Crown. Bill Moore, who has been the Acting Chief Parliamentary Counsel and Compiler of Statutes since September 2011, has agreed to continue in the role until Mr Noble’s return. Clayton Kimpton, chief executive partner at Kensington Swan, has been appointed Regional Director for the new India, Middle East and Africa region for New Zealand Trade and Enterprise. Mr Kimpton will manage private sector relationships in the region, and develop and manage collaborative relationships that will strengthen New Zealand’s economic, political and security relationships with key international partners, particularly the Ministry of Foreign Affairs and Trade. He will lead a team of Trade Commissioners, and marketing and investment managers. While at Kensington Swan, Mr Kimpton led international trade programmes, advising on the effects and implications for trade and investment under the proposed free trade agreement with the Co-operation Council for the Arab States of the Gulf as well as the Beachheads programme. He was also a senior member of the trade and ministerial delegations to the Middle East. Mr Kimpton, who has been the senior executive partner at Kensington Swan for the past 10 years, will take up the position early in the New Year. He will be based in Dubai.
NZ LAW Ltd has elected three new directors to its board – Michael de Buyzer, Jacqui Gray and Kristine King. Partner in Oamaru and Queenstown law firm Berry & Co, Mr de Buyzer specialises in commercial and agribusiness, estate and asset planning, and also criminal law. He has strong community interests being a founding executive member of the Oamaru Police DARE Support group and the Oamaru Blue Light Committee. He is honorary solicitor to many North Otago organisations and is a director of the Highlanders rugby franchise and Whitestone Contracting Ltd. Ms Gray is a partner at Gifford Devine (Hastings and Havelock North). Her specialist fields are commercial property, business law and issues relating to the aged. An experienced company director, Ms Gray is the chair of Royston Hospital
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PEOPLE IN THE L AW Trust Board, a director of Acurity Health Group (formerly Wakefield Health Ltd) and of Austron Ltd. Ms Gray was a board member of the New Zealand Law Society for four years, and from 2001-2003 was President of the Hawke’s Bay District Law Society. Ms King is a partner at Wadsworth Ray, based in Epsom. Her areas of practice are business law, joint ventures, commercial property and trust law. Ms King is the honorary solicitor for the New Zealand Federation of Graduate Women. She is also a fluent Japanese speaker. NZ LAW’s board of directors now comprises: Simon Price, Mackintosh Bradley & Price (chairman); Michael Busch, Lowndes Jordan, Auckland; Michael de Buyzer; David Graham, DG Law Ltd, Panmure; Jacquie Gray; Kristine King; and Alan Vane, Le Pine & Co, Taupo.
WELCOME TO THE PROFES SION
ON THE MOVE Hayley Miller has joined Kensington Swan as a partner. Hayley will be based in the firm’s Auckland office and will practise in IT, telecommunications and broader technology transactions, as well as outsourcing, commercial supply and procurement, sale of businesses and franchising. Donna Llewell has joined Prime Law Bethlehem Ltd in Tauranga as a senior solicitor. Donna recently returned to New Zealand after one year of voluntary work advising the Autonomous Region of Bougainville Government on constitutional, land issues and customary law. Before this, she was Crown Counsel in the Treaty and International Law Team of Crown Law. Donna specialises in resource management and environmental law, public administrative law, Māori land, customary law and Treaty of Waitangi issues. She also has experience with negotiations and mediation of complex issues. Dale Nicholson is a new litigation partner in the Auckland office of Duncan Cotterill Lawyers. Dale’s litigation experience is across a wide range of commercial and corporate disputes and regulatory issues, with an emphasis on insolvency related matters. Dale acts for retail banks, receivers, liquidators and secured creditors. Before joining Duncan Cotterill, Dale worked at Russell McVeagh and DLA Phillips Fox in Auckland. John Land is now a barrister at Bankside Chambers in Auckland specialising in competition law and commercial litigation. He was previously a partner of Kensington Swan for 20 years and was with that firm for a total of 26 years. John is particularly known for his competition law experience. In May this year he was a presenter of the NZLS CLE seminar Competition Law – The Must Knows. He is also a faculty member on the NZLS CLE litigation skills course, and a member of the Law Society’s Ethics Committee. LT
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At their admission in Auckland (from left) Clara Suh, Charlotte Campbell and Victoria Bayly.
LawTalk welcomes the following recently admitted lawyers to the profession.
Nelson Bridget Ann Lummis
Dunedin Michael David Stephen Beck Jeremy Charles Callander Ryan David John Ehlers Sandra Bevan Ehlers William Alexander Hughes Harriet Sarah Eveline McKinnon Ewa Dominika Przygoda Charlotte Eileen Tonks Nathan James Watt Brooke Elizabeth White Sophia Choon Yiing Wong
Auckland Faizal Abba Bradley Thomas James Aburn Sarah Elizabeth Anderton Charlotte Marion Falvey Baird Francesca Anneliese Bakker Michael Devi Balthazar Victoria Mildred Bayly Johari Bertram Lara Margaret Lillie Bird Steven Charles Bird Alexander Andrew Bond
WELCOME TO THE PROFESSION
Auckland cntd. Charles Michael Boon Kieran Thomas Joseph Boyle Isabel Sophy Brears Kirsty Elyse Broderick Alexandra Elizabeth Buddicom William Luke Bulling Charlotte Frances Campbell Madeleine Rose Holmes Cayford Carlos Edmond Chambers Simon Robert John Cleary Rebecca Helen Coldicutt Kylie Jane Cooper Harry Richard Cundy Rachael Ann Davidson Sinead Paterson Dennis Jeremy Kean Mun Dobbie Michael Jeffrey Dodge Amy Wenjun Duan Ruonan Duan Katie Earl Katherine Isabella Caroline Farrer Amélie Lise Fillion Aroha Kahira Jasmine Fletcher Edward Isiah David Fox Timothy James Patrick Gavigan Benjamin Campbell Gilbert James Edward Arthur Glover Rebecca Jane Goldsmith Stephanie Worsley Gray Aimee Laura Gulliver Maria Elena Hamber Corina Louise Haemmerle Sherryn Elizabeth Harford Justin Christopher Harder Alexandra Mary Hellaby Anna Louise Hickmott Matthew Stephen Hill Campbell Peter Hinton Oliver John Hornbrook Finnian James Douglas Howie Stephanie Kelly Irons Aparna Jain Paul Richard Jennings Brooke Karen Johnston Jeremy Crawford Jones Rachael Elizabeth Judge Beth Ellen Jurgeleit Eesha Sunil Karamchandani Emily Rose Kempkers Gloria So Yeon Kim Kathryn Hannah LawsonBradshaw
Emily Nghi Cheng Lay Finnegan Meiji Leung Deemant Himmat Lodhia Kathryn Rebecca Lydiard Elizabeth Rebecca Manion Serah Maree Matehaere Susannah Louise Maxfield Emily Rose McKibbin Sarah Lee McKone Renee Sally McLennan Liam John McNeely Andrijana Milosavljevic Amanda Leigh Mitchell George Donal Eisdell Moore Phoebe Louise Morley Beth Josephine Murphy Victoria Kate Nicholson Anna Lucy Norcross Josephine Eva Norris Steven Bryan Choy O’Connor Thomas Joseph O’Flaherty Thomas Joseph Orr Yasmin Chanel Parat Stephen John Parry Penelope Anne Pasley Tony Ah-Thit Payne James Robert Pearson Andrew John Peat Anisa Purbasari Ee Ling Quah Harriet Louise Quinlan Thomas Peter Raudkivi Ross Keith Reddy Hayden John Reyngoud Jessica Alison Riddell Zoe Alexandra Roborgh Johann Arthur Rocha Mariya Lvovna Romanov Benjamin Ropati Sarah Elizabeth Ryan Hae Won Ryu Alice Olivia Jane Sinclair Katherine Anne Sinclair
Eva Grace Smith Alec John Steel Jeremy Robert Stewart Cameron Richard Stuart Yoori Clara Suh Michael Anthony Warren Tames Yu Sian Tan Rene Michael Theelen Rebekah Nadja Tollemache Thompson Benjamin Jack Thomson Kate Emily Tidbury Deborah Jane Tillett Roman Lemisio Vaihu Richard Iain Wallace Tiyi Wang Amy Louise Watson Samual Alexander Welsh Kimberley Nicole Wong Lena Tuane Ana Wong Quilae Wong Stephanie Jane Wright Ellen Danning Zhang
Hamilton Tajneet Aujla Deborah Rohani Li Chan Chow Laura Clews Jonathan Andrew James Cook Roxy Dhanjee Damian John Eades Andrea Elizabeth Fraser Chantal Louise Hickey Amanda Marie Jew David Adam Jordan Ryan John Christian Kerr-Bell Gabrielle Sarah Kershaw Zhi Jian Khong Sonya Tuiane Theresa Teroro Marama Ivy Lou Obillo-Rodriguez Jacqui Marie Owen Duncan Takena Stirling LT
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LAWTALK 808 / 9 NOVEMBER 2012
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FROM THE COURTS Defective buildings and duties of care By Barry Allan* It has long been accepted that councils owe a duty of care to owners of houses in respect of the work done by councils in issuing building consents, inspecting houses in the course Barry Allan of construction and issuing a code compliance certificate. Liability to all home owners was confirmed by the Supreme Court in North Shore City Council v Body Corporate 188529 (“Sunset Terraces”) [2011] 2 NZLR 289. Chief Justice Elias expressly refrained from considering the position in relation to commercial buildings. Justice Tipping made no mention of commercial buildings, but held that the intended use of a building as a dwelling determined the scope of the duty, and said this duty arose because of the twin factors of council control of the building process and the home-owner’s reliance on the council. Several Court of Appeal decisions have held that this duty of care does not arise in respect of commercial buildings of any sort. As most readers will be aware, the Supreme Court in Body Corporate 207624 v North Shore City Council [2012] NZSC 83 has now decided that in deciding if a duty of care exists, it does not matter if the building is used for commercial purposes. The building in issue was used primarily as a hotel, but the court proceeded on the basis this was a commercial building rather than attempting to characterise it as a dwelling. It refused to strike out the claims of the various owners, which added up to $19 million for repair work. Four of the five judges found in favour
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of the duty, and they delivered three separate decisions (there is a joint judgment of Justices Chambers and McGrath). There is considerable disparity in the approaches taken. In a comprehensive and carefully thought out decision, Justice William Young dissented. The first point arising was whether the facts created a novel duty of care at all. Chief Justice Elias held that the Sunset Terraces case had already decided the point: thanks to the Building Act 1991, councils owed a duty of care and there was no basis upon which dwellings could be distinguished from other buildings. Justices Chambers, McGrath and Tipping all saw a novel duty, but held that the Sunset Terraces analysis of proximity was equally applicable to non-residential buildings. They did, however, differ as to the relevance of proximity. Justice Tipping said that proximity would establish a duty unless it was not in the public interest to recognise it. This is an approach rejected by South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 which, as Justices Chambers and McGrath noted, required a more balanced approach. Justice William Young placed particular emphasis on the multi-faceted role policy plays in a novel duty analysis. Another vital point was the nature of the interest protected by the Building Act. Chief Justice Elias held that it was not limited to the safety and health of buildings, so that there could be a duty of care to protect the economic interests of owners. This was because the purpose of the Act was to assure owners of compliance with the Building Code: if a want of care by council meant non-compliance, then owners could look to council for compensation. On her view, the Act and Sunset Terraces had “overtaken” Invercargill City
Council v Hamlin [1996] 1 NZLR 513. On the other hand, Justice Tipping saw the Act as more focused on the safety and health of buildings than economic interests, but this did not mean there could not be a duty of care as health and safety issues can arise with commercial buildings as well, so owners should be able to recover the cost of care. Justice Chambers also saw the Act as designed to ensure safe and healthy buildings: it is appropriate that those who contributed to unsafe or unhealthy buildings contribute to their repair. Curiously, he said at [187] that a building not built according to Code would not be safe and healthy, and that failure will generate liability. This suggests that there may be no duty unless there is a breach of Code which affects health and safety. Justice William Young also saw the Act as allowing for a duty of care focusing on health and safety, but was of the view that the duty recognised by courts had come adrift from that purpose and was really about ensuring owners get value for money. All judges who found in favour of a duty held that the Building Act 1991 anticipated council tort liability but established no distinction according to building use. Justice Chambers went further and engaged in a lengthy analysis of Commonwealth case law, following which he concluded that no case prior to 1991 clearly negated liability on the basis that the building was commercial (although no case established it either) and no jurisdiction had subsequently recognised a distinction between residential and non-residential buildings. Of course, our own Court of Appeal had, but those cases were dismissed as wrongly decided. Unlike the Chief Justice, he saw his approach as consistent with Hamlin. He was also concerned about the anomalies which would result if
FROM THE COURTS there was an attempt to distinguish between types of building: any distinction would be neither principled nor workable. It is of particular interest that Justices Tipping, Chambers and McGrath accepted that reliance or vulnerability will not be present in all cases. They also accepted reliance had been an important part of the reasoning in Hamlin. Nonetheless, they held that reliance or its absence was not significant in deciding if the duty exists, although it is important to the tort of negligent misstatement. Instead, they held that council control of the inspection process was highly significant. Justice Tipping also saw it as important for reasons of efficiency that councils owe a duty, otherwise building owners would need to engage someone else to carry out essentially the same function. The council made much of the cost and insurance implications of a duty. Chief Justice Elias and Justice Chambers essentially saw these arguments as speculative at the striking out stage, although at [203] Justice Chambers suggests it is fair enough that ratepayers carry the burden of liability as everyone benefits from safe and healthy buildings. Justice Tipping said it would be reasonable for councils to get insurance (although the possibility of obtaining insurance for past breaches was not considered). He also stated that the duty would provide an incentive for council to exercise appropriate care, which would help fulfil the statutory purpose of ensuring the safety and health of buildings. Finally, the Court rejected the claims that imposing a duty of care meant councils were effectively providing a warranty of quality, as councils would only be liable insofar as they failed to discharge their own functions. It should be noted that the Supreme Court has only upheld a duty of care, which is no guarantee that councils will be liable on the facts. As Justice William Young noted, all this duty requires is for councils to be satisfied on reasonable grounds that the Code was complied with. It may well be that those engaged in the design and construction of the building may have supplied producer statements and that it was reasonable in the circumstances for the council to rely on them. *Barry Allan is a former litigator who now teaches contract, tort and civil procedure at the Faculty of Law, Otago University.
Review of District Court Rules 2009 update By Judge Susan Thomas, Judge Brooke Gibson and Judge Paul Kellar of the District Court Civil Committee. In the 8 June 2012 issue of LawTalk, the sub-committee of Judges Susan Thomas, Brooke Gibson and Paul Kellar discussed amendments to the District Court Rules 2009 and an upcoming review of the rules in their entirety. Since then, the sub-committee has met with practitioners throughout the country to hear their thoughts on the operation of the rules. There was further opportunity for feedback to be sent directly to their research counsel. The sub-committee found the process extremely useful. Practitioners seemed generally to support some aspects of the rules, in particular the different forms of trial and the recent reintroduction of summary judgment. Suggested improvements focused primarily on the perceived need to return to formal pleadings to ensure the clarification of issues, and to enable earlier access to a judge. At the sub-committee’s request, the Ministry of Justice has conducted an in-depth analysis of case statistics. This has revealed that numbers of truly self-represented litigants are much lower than previously advised, as debt collecting agencies, banks and the IRD had been included in the earlier figures. Most initially self-represented litigants engage counsel as the case progresses. As a result of the consultation, the analysis of statistics and the guidance of the Rules Committee, the sub-committee proposes retaining the best features of the rules, while amending the rules to address concerns. The sub-committee is working with co-opted members of the profession to create a set of recommended reforms to present to the Rules Committee in early 2013. In the week of 29 April 2013, the sub-committee will again conduct meetings across the country so practitioners can provide direct feedback on the proposals. The subcommittee would like to thank all practitioners who have provided input thus far and hopes that you will continue to be involved throughout the rest of the review. If you would like further information or to contribute your point of view, please contact the judges’ research counsel, Jeff Simpson at jeff.simpson@justice.govt.nz. LT
New prison policy The Department of Corrections is phasing in a nationally consistent prisoner property process. Until recently, the department has allowed prisoners to store a vast array of items. Some prisons are housing large pieces of carvings and paintings, for example. Prisons do not have the space or the resources to keep storing such items. One significant change is that the total volume of personal items a prisoner may have in their cell has to fit into a standard plastic container sized 500x400x300mm. The department will only accept excess property in exceptional circumstances, for transients for example. The department has asked the New Zealand Law Society to inform its members about these changes. It recommends that lawyers tell their clients to show up to court in only what they are wearing, with any prescribed mediation they may require. The prison will provide their clients with everything they need and once the client is in custody, will let them know what friends and family can send them in prison. Prisons have been managing prisoner property for new arrivals and inter-prison transfers under the new policy since 3 September. The department is gradually phasing in the new policy for existing prisoners and expects all sites will be fully compliant from 4 March 2013. LT
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PROFESSIONAL DEVELOPMENT Writing persuasive opinions By Elliot Sim Convoluted and jargonladen opinions could become history for those attending a new workshop which began this year. The first ever NZLS CLE Writing Persuasive Opinions workshop provides lawyers with skills to construct persuasive opinions that are clear, succinct, jargon-free, cogently structured, legally acute and tailored to the needs of the client or other reader. The third and final course for this year is coming up on 12 December in Auckland. Judge John Adams who has a Masters in Creative Writing, is one of three presenters of the course. He says the course has been well received in Wellington and Auckland. “We’ve had pretty good feedback from participants … and it’s pretty clear we are meeting a need. “Lawyers’ writing tends to be technical, stuffy, convoluted and they fall back on legal jargon.” From his 40-years of reading legal writing, he says writing quality is often adequate, but most lawyers’ written work can be improved and that skill can be taught. He says clear communication builds strong relationships with clients.
opinion will address,” he says.
the intended reader, it doesn’t work.”
Course presenter Margot Schwass examines the “interior architecture” of opinions and how to organise material in ways that help the reader.
Simon Cunliffe is a journalist, playwright and tutor, and guides participants through the use of various elements of sentence construction, language and punctuation.
A partner in Words@Work, Ms Schwass provides writing training to decision-makers, tribunal members, commissioners and intelligence analysts, and has been a faculty member of the Institute of Judicial Studies judgment-writing programme for the past seven years. “In a legal opinion – unlike an academic essay, for example, where you can develop an argument more organically and discursively – your organisation needs to be quite explicit. “You need to tell your reader what you’re going to say, why you’re saying it, and where you’re going to say it.” To achieve this, she recommends crafting effective headings that allow the reader to navigate the document and also keep reminding them of key issues and conclusions. Ms Schwass says it’s essential to write coherent and well-disciplined paragraphs, with each one building on a strong topic sentence that encapsulates the main point.
“Clients will understand from a written opinion whether the lawyer has comprehended their needs.
Paying attention to “crucial connections within and between paragraphs” (using words like “however”, “similarly” and “thus”), helps signal the steps and turns in legal reasoning.
Judge Adams starts the workshop with attention to the architecture of the opinion.
“Explicit writing is all about ensuring that what’s on the page clearly conveys what’s in your head to the reader.
“Participants are set their first task of ‘situating’ their opinion with a narrative (not more than one page) of material facts leading into the questions that the
“In opinion writing, the reader is the only judge that matters. No matter how well-informed, comprehensive or clever your opinion is, if it doesn’t work for
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He says the faults in lawyers’ writing styles, like those of most other professions, are perpetuated through tradition. “Such modes of expression are usually carried over into the public domain regardless of audience. “Our courses return the often forgotten ‘reader’ to the centre of the communication process. And to this end we try to teach focus, clarity, simplicity, elegance, lack of jargon, and impact through the use of plain language.” Writing simply and effectively is “deceptively difficult” according to Mr Cunliffe, and “when charged with the task of conveying complex legal issues it is even more so”. He says concisely delivering “strictly necessary” information, helps to create a succinct argument. So does deploying short sentences, using the active voice, being careful with punctuation, using adjectives sparingly and avoiding jargon. “If the point of the writing is to persuade, then the greater the clarity, the greater will be the impact and, arguably, the more successful the eventual opinion.” LT
facebook.com /mylawsociety
Draft CPD rules circulated for comment The New Zealand Law Society has released draft rules for a mandatory continuing professional development (CPD) initiative which would require all lawyers to prepare a CPD plan and complete 10 hours of CPD activities annually.
FACULTY OF LAW
The draft Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education) Rules are based on the discussion paper on mandatory CPD which was circulated earlier this year. This outlined, in some detail, what might be required of lawyers. Following comments and very positive feedback, some changes were made to the proposal.
Postgraduate legal study
The changes included:
Public and International Law
•
the ability to carry forward up to five hours of CPD activities into the next CPD year;
•
the ability for organisations with suitable administrative structures to apply for self-reviewing status; and
•
the introduction of a CPD year to run from 1 April to 31 March in the following year, rather than coinciding with the practice year, which runs from 1 July to 30 June.
The proposal that compliance with the CPD Rules should be a condition of eligibility for holding a practising certificate remains. However, the introduction of the CPD year offers a three-month window of opportunity in which to identify and assist “stragglers” to comply before their practising certificates are due for renewal on 30 June. The Law Society is also seeking an amendment to the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008. This will provide that compliance with the relevant CPD requirements is one of the criteria for eligibility to hold a practising certificate. The draft rules are intended to: •
promote a culture of lifelong learning;
•
be learner-centred rather than prescriptive and encourage lawyers to take responsibility for their own individual CPD in line with accepted adult education practice;
•
focus on outcomes;
•
be flexible enough to allow for all lawyers to complete requirements regardless of their areas of practice, location and experience, and to enable them to take account of their preferred learning styles;
•
be cost-effective and affordable for both the regulator and for individual lawyers; and
•
provide a transparent accountability mechanism.
Lawyers are being invited to comment on the draft rules by 30 November 2012. This can be done by emailing inquiries@ lawsociety.org.nz or posting comments to The Executive Director, New Zealand Law Society, PO Box 5041, Wellington 6145. The draft rules and a commentary have been approved by the Law Society’s Board for circulation and are available on www. lawsociety.org.nz/home/forlawyers/regulatory/ continuing professional development. It is proposed that the final version of the rules will come before the Law Society’s Council at its meeting on 19 April 2013 before being forwarded to the Minister of Justice for her approval. If approved, the rules would come into force on 1 October 2013. The first CPD year would run from 1 April 2014 until 31 March 2015. During this period lawyers would need to maintain a CPD plan and complete 10 hours of CPD activities. A transitional period will run from 1 October 2013 to 31 March 2014. During this period, lawyers will be entitled to earn up to five hours of CPD and to carry those hours forward into the first full CPD year. LT
The VUW Law School offers a range of postgraduate courses that can be credited towards either an LLM or a Graduate Certificate of Law. Wellington is the city where law is made. The Law School has long made major contributions to public and international law. Professor Susy Frankel is a globally recognised authority on international intellectual property law. Professor Frankel has recently published a co-edited book Indigenous Peoples’ Innovation: Intellectual Property Pathways to Development (ANU epress 2012) and has a forthcoming book Test Tubes for Global Intellectual Property Issues: The Small Market Economy (Cambridge University Press). In 2013 Professor Frankel will teach Global Issues in Intellectual Property. Professor Claudia Geiringer is the recently appointed Chair of Public Law, created in recognition of the importance of public law and its significance in the country’s capital. She is one of New Zealand’s leading experts on the New Zealand Bill of Rights and co-author of What’s the Hurry?: Urgency in the NZ Legislative Process 1987-2010. Published in late 2011, it has already resulted in changes to Parliament’s Standing Orders. In 2013, Professor Geiringer will teach Human Rights. Professor Campbell McLachlan QC is a leading authority on international law. He is the prizewinning author of International Investment Arbitration: Substantive Principles (Oxford University Press) and the recipient of the 2010 NZ Law Foundation International Research Fellowship, which involved spending 2011 as a Visiting Fellow at All Souls College, Oxford, writing his forthcoming book Foreign Relations Law (Cambridge University Press). In 2013 Professor McLachlan will teach International Arbitration and Dispute Settlement.
Find out more... To find out about postgraduate Law programmes and courses for 2013, see www.victoria.ac.nz/law/study/postgraduate. For any further enquiries, contact: Jonathan Dempsey, Faculty of Law Postgraduate Administrator, phone 04-463 6341, email jonathan.dempsey@vuw.ac.nz Professor Gordon Anderson, Director of Postgraduate Studies, email gordon.anderson@vuw.ac.nz Enrol by 10 December 2012, at www.victoria.ac.nz/home/ admisenrol/enrol For more information call 0800 VIC UNI, email course-advice@vuw.ac.nz
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Fine line between settlement discussions and blackmail By Cameron Loughlin and Greg King* When faced with criminal conduct by an employee in the workplace, the employer will probably want to bring the employment relationship to a swift end but may not necessarily wish to involve the Police. In this scenario, the employer, and their lawyer, will need to avoid suggesting to the employee that criminal proceedings can be avoided if the employee resigns and agrees not to bring any employment claims – as this could comprise unlawful blackmail. An obvious example of criminal conduct by an employee is the offence “theft by person in special relationship” (previously “theft as a servant”). This requires: “...receiving, possession or control over property, on terms or in circumstances that the person knows requires: the person to account to any other person for the property (or its proceeds), or to deal with the property in accordance with the requirements of any other person; and, that person fails to account to the other person as so required or intentionally deals with the property otherwise than in accordance with those requirements” (emphasis added). There are some shortfalls in this offence. For example, an employee who does not have legal access to funds is unlikely to have “received” those funds, even if in practice the employee can gain access to the funds by deceiving superiors (Butcher v R CA59/97, 30 July 1997). However, the offence does not require dishonesty. Intentionally failing to perform one’s obligations is sufficient (R v Sizemore CA290/05, 5 December 2005). Another example is forgery or the use of forged documents by an employee, which are offences under ss256 and 257 of the Crimes Act 1961. The offence of forgery occurs at the time the false document is made (Walsh v R [2007] 2 NZLR 109). Though use of the document is not required for the charge to be made out, intention that the forged document will be used is required (R v Li [2008] 1 NZLR 554),
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with the accused attempting to obtain or retain a benefit. Examples in the employment context include the use of fake degrees, which is not just an overseas phenomenon. Recently 10 people from New Zealand spent more than $20,400 buying qualifications from a United States “degree mill”. Forgery can also be found within a CV – with Hawkes Bay School Principal Maira Haronga Lewis being found guilty of fabricating a very detailed job reference when applying for a previous position.
“
LAWYERS MUST TAKE CARE ... WHERE ... NEGOTIATIONS COULD DECLARE AN INTENTION TO EXPOSE WRONGDOING.
”
Then there are the “physical” crimes, such as assaulting co-workers or customers, or causing damage to the employer’s premises or equipment. Possession of unlawful drugs at work is yet another example. Criminal conduct at work will undoubtedly comprise serious misconduct that justifies the employee being dismissed. But even so, a dismissed employee could still bring an employment claim, particularly where their adviser sees a “procedural” flaw in the dismissal process. This can lead to significant expense for the employer, in the time and legal fees involved in defending such a claim. For this reason, an “agreed exit” can be a sensible solution for an employer who becomes aware of such conduct by an employee. But the employer needs to
take care about the basis upon which this is suggested to the employee, as it would not be difficult for the employer to fall foul of blackmail laws. The same can be said for the employer’s lawyer, who may be directly involved in any negotiations with the employee or their representative. So what is blackmail? Blackmail occurs where one person makes it clear that they will reveal information about any person that may cause benefit or loss to that person, with an intention that this person will then be beholden to the blackmailer. Section 237 of the Crimes Act states: “Every one commits blackmail who threatens, expressly or by implication, to make any accusation against another person (whether living or dead), to disclose something about any other person (whether living or dead) ... with intent ... to obtain any benefit or to cause loss to any other person” (emphasis added). The words “threatens”, “disclose”, and “benefit” from s237 all have wide definitions, meaning that blackmail has a wider application than might be generally presumed. This presents a problem for employers, who may not realise that their conduct could be a breach of this provision. “Threatens”, simply means “make clear an intention to...” (R v Wyatt (1922) 16 Cr. App. R. 57) and “disclose” is not limited to specific allegations or accusations, and will include revealing information which may lead others to begin an investigation from which charges may ensue (R v Beattie (1994) 12 CRNZ 613 (HC)). A range of strategies that are used in employment exit negotiations could be caught by these definitions. For example, an employer faced with an employee who is accused of fraud may attempt to negotiate to end the employment relationship quickly, with the employee waiving any ability to bring an employment claim in exchange for the employer not informing the authorities – “Our accountant has confirmed that you have been stealing money from the company. If you leave
today and sign this document saying that you won’t bring an employment claim, then the Police won’t need to be involved.” The clear implication in this example is that if the employee fails to agree to waive their right to bring a personal grievance claim, the employer will reveal the employee’s conduct or even make a criminal complaint. It is easy to see how such behaviour could be blackmail under the Crimes Act. Likewise, advising the employee that the employer won’t sue the employee to recover the stolen money if they leave quietly, would comprise blackmail. Though these examples may sound farfetched, in 2011 the Employment Relations Authority removed a case to the Employment Court where, during mediation, the employer presented the employee with a document containing allegations that the employer advised, by implication, that it would refrain from disclosing to the Health and Disability Commissioner
How do alcohol interlocks work? An alcohol interlock sentence is now available to courts dealing with people convicted of certain drink-driving offences. Licence holders who have been given an alcohol interlock sentence will be required to take part in an alcohol interlock programme if they wish to drive. This means they will be required to have an alcohol interlock device, similar to a breathalyser, fitted into their vehicle’s starting system. The purpose of the interlock is to prevent the vehicle from starting if the driver has been drinking. In order to start the vehicle, the driver must record a zero breath alcohol reading and also perform random breath tests during their journey.
if the employee resigned Clewley v Featherston Street Medical Centre [2011] NZERA Wellington 182). Similarly, a recent Employment Relations Authority determination noted a “without prejudice” offer that had stated: “Subject to further advice the Police may need to be notified of the fraud” and the subsequent settlement agreement stated: “The Board considered reporting the matter to the Police but will refrain from that as a result of [the employee’s] acceptance of the seriousness of the matter and his resignation”. In this instance, the authority did not believe the employer had “threatened” in the initial settlement agreement to an extent that the Crimes Act was breached, but it seems to have come fairly close to that line (Hansen v Bream Bay College [2012] NZERA Auckland 28).
To conclude, employers and their lawyers must take care when seeking to negotiate an employee’s exit where such negotiations could declare an intention to expose wrongdoing if the employee doesn’t agree with what is proposed by the employer. While this is a far cry from grainy in situ photographs that naughty high-profilers lose sleep over, the above examples show how such behaviour can easily border on, or even become, blackmail.
More recently, a decision of the Employment Court (Judge Inglis) in July of this year concerned such a fact situation in the context of enforceability
*Cameron Loughlin is an intern at Minter Ellison Rudd Watts, transitioning to a full-time law clerk in February, and Greg King is a Lower Hutt criminal barrister.
reliable alcohol interlock device within the Australian/NZ market”.
identify anyone who has recorded a violation.
This unit can be combined with the photo ID camera module, which is a small camera that is mounted to the inside of the driver’s side windscreen. The camera option will not be required as part of the interlock programme.
Other features of the SSI-20/20 unit are:
Unlike a hand held breathalyzer, this device is installed into a vehicle to measure the breath alcohol concentration of the intended driver. It will prevent the vehicle being started or operated if the alcohol concentration is over the preset limit. The SSI-20/20 has built-in anticircumvention features which prevent the driver from trying to override the unit. The SSI-20/20 includes a rolling retest requirement on a random time basis to ensure that the driver has not been drinking since the vehicle was first started.
To find out, LawTalk contacted one of the two NZTA-approved providers of alcohol interlock devices, Smart Start NZ. The other provider is Draeger Safety Pacific Pty Ltd, phone 0800 372 437.
The photo ID unit captures a picture of the breath test subject at the time any breath test is undertaken. The unit stores the pictures electronically and it also records the date and time in combination with the interlock unit’s logger. This camera operates in any light conditions, whether day time or night time.
Smart Start offers a model called the SSI-20/20 unit. The company describes the SSI-20/20 as the “newest, most
By using the photo ID module unit, Smart Start can positively identify the user of the device and positively
How does an alcohol interlock device work?
of settlement agreements. Judge Inglis did not accept, on the evidence, that the alleged threat had actually occurred; but if it had, there was consensus between Her Honour and counsel that the agreement would not be enforceable (Tinkler v Fugro PMS Pty Ltd & Pavement Management Services Ltd [2012] NZEmpC 102).
• small convenient size; • a numeric keypad, allowing easy recall of appointment time and date; • it allows entry of a lockout code to temporarily extend service appointment after lockout, preventing the extra cost of a towing charge; • fully programmable options, including restricted drive times, if required; and • a built-in microchip which records all test results, engine starts, engine stops, disconnections and tampering for later review and reporting. Applying for an alcohol interlock device is the second stage of the Alcohol Interlock Programme. Stage one is completing a disqualification period, as sentences generally include a threemonth driving disqualification before starting the programme. The third stage is the actual installation of the alcohol interlock device. For more information, including the remaining stages of the programme, see www.nzta.govt.nz/ alcoholinterlock. LT
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Lawyers can help people turn their lives around By FRANK NEILL Lawyers can play an important and invaluable role in helping a significant group of New Zealanders turn their lives around. They can do this by keeping an eye Judge Carolyn Henwood out for people who may have been in State care and referring them to the Confidential Listening and Assistance Service, Ratongo Matatapu mō te Rongo me te Āwhina. “At the moment, there’s just a handful of lawyers know about us,” the chair of the service, Judge Carolyn Henwood, told LawTalk. “My motivation in wanting to talk to the legal profession is to put out an appeal for lawyers to become part of this project, to help us identify and encourage New Zealanders to come forward. “Because we perceive this service to be successful beyond our wildest dreams, we are really keen to reach out and find these people.” By early this month, 1,162 people were registered with the service and around 660 had met with the service’s panel. Feedback from participants has shown that the service is proving very worthwhile for the people who were in State care before 1992 and experienced physical, sexual or emotional abuse. “No-one has come forward out of all these 1,000-plus people with a trivial matter,” Judge Henwood says. “At the beginning, I thought maybe people would come to lodge some complaints on some minor things, but that has not been the case. “We’ve been struck by the dignity of people who have come forward, and come to tell us some of the most horrific things. “The oldest person we have seen is 90, so there’s a huge age range. The youngest … would be about 23. “One of the things that has struck us is
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the high level of sexual abuse – not just molestation, but serious allegations of rape reported by our participants. “Another has been reports of a high level of violence, a very high level of violence … [and] in some cases allegations of torture. The service has also gone into prisons to hear the stories, and has discovered that “some of the worst offenders, who have committed some heinous crimes, have themselves described an horrific care and protection background”.
“
Foster care is really valuable for the country when it is done well, because it means this person is going to flourish ... get educated ... get a career and they Are going to be a normal New Zealander.
”
Judge Carolyn Henwood “Why I think the lawyers can help us is that they know a lot of the people who qualify (for assistance from the service). They can also help by supporting people through the process. “There will be lawyers working in the Family Court, for example, who will have historic knowledge of the families, and they will know how to identify and get the information out to these people that they have this opportunity. “Also, the criminal bar will know many offenders who have a care and
protection background. They can get the information out to these people. “Criminal lawyers may also know people who are currently in prison who may benefit from the service.” The percentage of criminal lawyers’ clients who were in State care before 1992 could be quite high, too. The Department of Corrections has estimated that a significant part of the prison population has come from this cohort. Judge Henwood estimates the percentage to be between 20% and 40%. Even on the lower figure, it could be that around one out of every five clients a criminal lawyer assists comes from a State care background. “We are really keen to identify the people who qualify, so they don’t miss out on this,” Judge Henwood says. “It is a wonderful opportunity for the legal profession to help. “We have the ability to support them in their life now, organising counselling, organising getting their files, looking at other ways they can be assisted. “What we try and do is increase their sense of well-being and from the feedback that we get from counsellors, we definitely do.” The service has proved to be “hugely beneficial”, Judge Henwood says. “Foster care is really valuable for the country when it is done well, because it means this person is going to flourish. They are going to get educated, they are going to get a career and they are going to be a normal New Zealander. “But when it’s done poorly, you get a legacy effect of damaged persons who can end up as offenders, creating victims and so on.” Another big contribution lawyers can make has arisen from the lessons the Confidential Listening and Assistance Service has learned. Some trends have emerged around placements that have potential to harm: such as children being moved a long way from their home, children being placed in families or facilities where there are offenders (including children who are offending), and children having
a high turnover of placements. “Lawyers are crucial in the process in my opinion. They can prevent or fight against a poor placement decision. “An example might be if a person is from a whānau in the far north, they can try and resist sending them to an institution in the South Island. That sort of thing has happened in the past when people are moved a long, long way from where they actually started. They lose touch with their families and identity issues can develop as a result.” Identity issues also arise with children who are moved from placement to placement “because their names can get changed every time they are shifted”. Other changes can happen too, such as a change of religion. “This is where lawyers play a role. They need to get some continuity of care, bearing in mind this person has an identity and will be struggling with identity all their life.” This issue has become clear to people in the confidential service, having listened to the 600-plus stories, and one of the lessons has been that identity and placement issues perhaps don’t come into the minds of lawyers as much as they should.
provided in the 20th century (up to 1992) in New Zealand. The response was recovery focused and aimed to get to the bottom of the claims, while rebuilding trust and doing the right thing for each person. The range of needs is wide: from just being heard, to being re-connected with services (some people’s experiences led to them not seeking the help they needed), to understanding what had happened to them, or getting a personal apology and financial payment. The service is largely based on the Confidential Forum for Former InPatients of Psychiatric Hospitals, established in 2004 to provide an opportunity for former in-patients to speak about their experiences. Given the success of the Confidential Forum, the Government decided to extend the listening and assistance services to all forms of residential State care – psychiatric hospitals and wards, health camps, child welfare care and special education homes before 1992. The service was established in late
The service engages a panel of appropriately qualified individuals who meet with people who were in State care and hear about their experiences and concerns. Members of the panel are selected because they are familiar with State care in New Zealand, and have a significant and respected community profile. The panel travels around New Zealand to hear people’s concerns. A facilitator is available to provide people with support and advice through the process of the panel meeting and implement any assistance the panel offers. Concerns are heard in a comfortable, confidential and private setting. Contact details for the service are: email info@listening.govt.nz; phone 0800 356 567; postal address Confidential Listening and Assistance Service, The Department of Internal Affairs, PO Box 5939, Wellington 6145. LT
CONFIDENTIAL LISTENING & ASSISTANCE SERVICE
Some memories never fade.
“The long-term impact of that kind of confusion on a person is very, very serious. It can affect their married life or their relationship with their children or so many things. “We’ve heard this so many times: identity, trust – these are the things people have lost.
If you were in the care of the State before 1992 and have concerns about your experiences ….
“Lawyers might not be able to change everything, but they can work hard to consider the identity of the child and evaluate the placement, whether it is right for the child. It’s all about ‘what does the child need: not what do mum and dad want?’
You now have the chance to be heard, in confidence, by a panel of qualified people who will be visiting your area. nity Talking with the Panel will provide an opportunity for you to share your concerns. The Panel will listen and where needed a tailored package of assistance can be offered.
“The lawyer needs to say ‘this is what’s good for the child’ and not just in theory but in practice,” Judge Henwood says.
e, State care includes child welfare, foster care, the special education sector, health camps and other residential health facilities.
AFF10067
The Confidential Listening and Assistance Service is a body established by the Government to listen to the experiences of and to provide assistance to anyone who has concerns or alleges abuse or neglect while in State care. The Ministries of Social Development, Health, Education, and Justice, working in consultation with other agencies, designed and implemented a whole-of-government response to historic concerns about State care
2008 and has been hearing from people who wish to tell of their experiences and concerns since early 2009.
For more information call our freephone: 0800 356 567 visit www.listening.govt.nz or write to us at PO Box 5939 Lambton Quay, Wellington 6145.
An independent agency supported by the Department of Internal Affairs
LAWTALK 808 / 9 NOVEMBER 2012
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THE BOOKSHELF PUBLIC INTEREST AND PRIVATE RIGHTS IN SOCIAL MEDIA Edited by Cornelis Reiman A collection of widely varied perspectives on the use of social media around the world, ranging from metaphysics to the rule of law and how flash mobs fit with the United States First Amendment. Anyone who has contemplated the rising importance of social media in business or personal life will find many interesting ideas in this book. (Chandos Publishing, September 2012, 978-1-843346-93-7, 220 pages, paperback, £49.50). EXPLORING THE MANDATORY LIFE SENTENCE FOR MURDER By Barry Mitchell and Julian V Roberts The authors report findings from a large United Kingdom qualitative and quantitative survey of public attitudes to the mandatory life sentence for murder – claimed to be the first such survey for any common law jurisdiction. As murder and the obligatory life sentence come as a “package deal”, the authors look at the legal nature of the offence and how the mandatory life sentence operates. (Hart Publishing, October 2012, 9781-849462-28-0, 196 pages, paperback, £30). WRITING FOR DOLLARS, WRITING TO PLEASE By Joseph Kimble Reviewed by Frank Neill* If you would like some help to find out how much money you can save your firm by using plain language in
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legal documents and communications generally, Joseph Kimble has produced a gold mine. Just over a third of his book Writing for Dollars, Writing to Please looks at what the author calls “the extraordinary benefits” of using plain language. The two big benefits are saving time and money. Professor Kimble presents 50 case studies, many of them showing the dollar savings. For larger organisations in the United States, these savings ran into the millions. When the Veterans Benefits Administration, for example, revised just one form letter, the updated version saved an estimated $4,430,000. Perhaps even more useful than outlining the savings, and how they were achieved, the section has some “before” and “after” examples that clearly show what can be done. Professor Kimble is a leading international expert on plain legal writing. A past President of Clarity, the international organisation that promotes plain legal language (Sir Kenneth Keith is one of Clarity’s three patrons), Professor Kimble has taught legal writing for 30 years at Thomas Cooley Law School. Writing for Dollars, Writing to Please rounds out a large part of his life’s work, he explains in the preface. The book is in five parts. The first part, less than four pages, is Professor Kimble’s personal story. Part two outlines the elements of plain language. In a mere 5½ pages, Professor Kimble provides a wealth of information. He has a caveat, too: “Of course, bare guidelines are not enough: they need to be explained and illustrated, and applied with an eye for possible exceptions and occasional tension between them. For that depth of understanding, writers need to consult the plain-language literature.” The guidelines provide readers precisely the framework they need to explore a full understanding of plain language.
In part three, Professor Kimble answers critics of plain language by dispelling myths opponents have invented. It is a section loaded with gems. One, for example, is a quote from Robert Benson’s book The End of Legalese: The Game is Over. “[A] good writer – or a good lawyer – should not panic or flail about under pressure, grabbing onto … 100-word sentences, illogical organization, and the absurd medieval style of legalese, for comfort. A good lawyer – one who deserves to earn a paycheck [sic] for practicing [sic] this craft – will admit occasional compromises with reality, but will maintain level-headed writing and thinking under pressure.” It is an important section, too, because the myths need debunking, as plain English advocates in law firms have discovered over the years. Part four provides some historical highlights, another good source of information that plain English advocates in law firms can use. Used well, the book is a resource that can both enhance the practice of law and the dollars that this practice brings in. It’s well written, too. WRITING FOR DOLLARS, WRITING TO PLEASE by Joseph Kimble, Carolina Academic Press, May 2012, 978-1-611631-91-3, 184 pages, hardback, US$23 (shipping excl). *Frank Neill is Editor of LawTalk and a member of Plain English Power, an organisation that is lobbying to make plain language a permanent, government-wide legal requirement, comparable to the US Plain Writing Act 2010.
@mylawsociety
SECTION NEWS PROPERTY LAW SECTION NEW ZEALAND LAW SOCIETY
NZLS EST 1869
The members’ content of the Property Law section’s website, www. propertylawyers.org.nz has moved to the my.lawsociety website as a result of the NZLS website upgrade. However, the Property Transactions and E-dealing Practice Guidelines are still available to everyone at propertylawyers.org.nz. The PLS-LINZ “Lunch and Learn” mini-seminar was held in Dunedin on 10 October, in partnership with the Otago branch. Robbie Muir, RegistrarGeneral of Land and LINZ Principal Titles Advisory, Ashley Wright, gave presentations on compliance review watch points, requisitions versus rejections, enhancements to Landonline and the LINZ “first point of contact review”. The section announced three new Property Transactions Committee members: Daniel Kelleher, a partner of Buddle Findlay in Auckland; Justin March, a partner of DLA Phillips Fox in Auckland; and Thomas Gibbons, director of McCaw Lewis in Hamilton. The PLS has drafted a submission on the Joint Family Homes Repeal Bill, following a request from the Justice and Electoral Select Committee. The submission addresses transitional arrangements for current registrations under the Joint Family Homes Act 1964, with particular regard to the protection from creditors. The submission agrees with the Law Commission’s view that leaving existing protections in place for existing joint family homes would mean the statute would continue to apply to some couples for many years to come. It says deferring the coming into force of the Repeal Bill would give owners of joint family homes time to reorganise their affairs if necessary. The PLS is working in partnership with the Real Estate Institute of New Zealand, on the publication of A Best Practice Guide – Property Information
Packs. The guide is being prepared for lawyers and real estate licensees to assist them in addressing some of the practical difficulties that may arise from the Real Estate Agents Disciplinary Tribunal’s decision in LB and QB v The Real Estate Agents Authority and Li. Executive committee and regional meetings will be held in Invercargill on 22 November.
Children’s Bill will be introduced to implement these initiatives towards the end of 2013. Dinners were held in Auckland, Wellington, Christchurch and Dunedin to farewell Judge Peter Boshier as the Principal Family Court Judge. A dinner will be held in Auckland on 16 November to mark the retirement of Judge David Mather from the Family Court.
FAMILY LAW SECTION
CLANZ
NEW ZEALAND LAW SOCIETY
IN-HOUSE LAWYERS
NZLS EST 1869
Work and meetings continue with the Ministry of Justice to monitor and resolve the issues arising from the implementation of the Auckland Services Delivery Programme (ASDP). The ministry has established a highlevel governance board to meet on a weekly basis in Auckland to provide a governance and advisory function, receiving and reviewing reports against action plans. Family Law Section members Sharyn Otene and Allan Cooke have been appointed as FLS representatives on the board, with the Minister of Justice Judith Collins and Minister for Courts Chester Borrows being briefed weekly on progress. FLS executive committee members have attended a series of regional meetings across the country to inform members about the review of the Family Court. The FLS Chair, Garry Collin, and executive members have also met with the Minister of Justice and the ministry’s policy and operations staff to discuss aspects of the review. An FLS executive meeting was held in Wellington on 26 September and a series of teleconferences have been held to discuss the Family Court review. There was an executive face-to-face meeting on 31 October with another to be held at the end of this month. The White Paper for Vulnerable Children was released on 12 October and the FLS will be considering its many proposals. A Vulnerable
NZLS EST 1869
Last month, CLANZ launched a comprehensive report which outlines the behaviours found in leading inhouse legal practice. The report, 2012 ACLA/CLANZ Inhouse Counsel Report: Benchmarks and Leading Practices, is a joint initiative between CLANZ and the Australian Corporate Lawyers Association (ACLA). CLANZ and ACLA surveyed 346 organisations with in-house lawyers across New Zealand and Australia. The resulting report provides crucial benchmarking data, detailed analysis and practical tips for creating a leading in-house practice. More information about the guide can be viewed at www. clanzonline.org. The section, with its valued partner Kensington Swan, launched a new seminar and legal update series for members in employment law and dispute resolution. Seminars in Auckland and Wellington on Dealing with Difficult Employees were well attended. CLANZ member events scheduled to the end of the year include a CLANZBell Gully General Counsel forum with Sean Hughes of the Financial Markets Authority, CLANZ-Kensington Swan seminars on Effective Negotiation, a Working Parents lunch with Celia Lashlie and social Christmas functions in Auckland, Wellington and Christchurch. LT LAWTALK 808 / 9 NOVEMBER 2012
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BRANCH NEWS Two types of hearing The Wellington branch Criminal Law Committee held a successful panel discussion on the Criminal Procedure (Mentally Impaired Persons) Act 2003 on 25 October. The discussion focused on s9 hearings to determine facts and s14 hearings to determine if a defendant is unfit to stand trial. The speakers were Tony Ellis, Bryan Yeoman, Chris Tennet and Lynda Stevens.
Recovering the common good At the bar dinner to honour Justice David Collins QC (from left) Courts Minister Chester Borrows, Justice Collins and Wellington branch President Mark Wilton.
WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869
Bar dinner honours Justice Collins A very successful bar dinner to honour the appointment of Justice David Collins QC to the High Court bench was held at the Wellington Club on 26 October.
Tim Costello AO, one of Australia’s leading voices on social justice, leadership and ethics, was the keynote speaker at the Wellington Christian Lawyers Association’s inaugural conference, co-hosted with the University of Otago. The conference was held at Parliament on 26 and 27 October. The theme was Recovering the Common Good and the conference featured well-known speakers from the fields of law, politics, journalism and ethics. Principal Youth Court Judge Andrew Becroft and Victoria University senior law lecturer Māmari Stephens were among the speakers.
Around 70 people attended the dinner, including the Minister for Courts Chester Borrows, Justice Mallon, Associate Judge Gendall and Judge Walsh. In his speech, Wellington branch President Mark Wilton paid tribute to the “significant contribution” Justice Collins has made to the legal profession. He served on the Wellington District Law Society Council from 1993 to 2000, including being Vice-President in 2000 and President in 2001. Justice Collins was a member of a number of committees from 1985 to 1998, including University Liaison, Library, Legal Education, High Court, District Court, Ethics, Courts and Complaints. In 1997, he chaired the NZLS CLE one-day intensive Compensation at the margin of ACC and in 2002 he was a presenter and co-author for the seminar Personal Injury Litigation – a practical approach. Justice Collins’ considerable involvement at a national level included being the Wellington District Law Society delegate to the NZLS in 1999, a Law Society Board member from 20002003 and a Law Society Vice-President in 2002. Mr Wilton also said that in Justice Collins’ 30 years as a lawyer, commentators had said that “he has forged a reputation as one of the world’s top medical law minds”, with health cases forming around half his practice.
HAWKE’S BAY NEW ZEALAND LAW SOCIETY NZLS EST 1869
Ebbett Cup Golf Tournament The Ebbett Cup Golf Tournament will be held at the Hastings Golf Club in Bridge Pa on Monday 26 November. The annual event began in 1937, when George Ebbett, from Hastings firm Ebbett & Gifford donated a cup to be played for between combined terms of lawyers and bank clerks. Play will be in fours and, where possible, teams should be comprised of two bankers and two members of Hawke’s Bay law firms. The team with the most Stableford points calculated on the best three Stableford points per team per hole will win the Ebbett Cup. There will also be a prize for the best individual Stableford and many other prizes, including novelty prizes such as closest to the pin. For more information and the entry form see http:// my.lawsociety.org.nz/branches/hawkes_bay/events/ ebbett_cup_golf_tournament. nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety
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BR ANCH NEWS
At the 2012 Harkness Henry Lecture (from left) Owen Culliney, Joan Forret and Rodney Lewis.
At the first Auckland branch Film Club event, Sandy Callanan (left) and Michael Black.
AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869
First film night The first in a series of film premieres for the Auckland branch Film Club was held at the Bridgeway Theatre, Northcote Point, on 15 October.
Cheryl Simes, Sarah Rawcliffe, Wendy Ball and Sally Millar.
All Auckland lawyers were invited and they could bring along friends and family. The speaker was Sandy Callanan, a member of the Auckland branch Council and a lawyer practising on the North Shore, where the event was held. She introduced the film and updated attendees on Auckland branch news – in particular the opening of new function and meeting rooms at the branch’s offices on Shortland Street. Attendees had the opportunity to mix and mingle over a glass of wine before the movie, and to meet Sandy Callanan, Glenda Macdonald, the Law Society’s General Manager Representative and Auckland branch Manager and other Auckland branch staff. The movie was a pre-release screening of Arbitrage, a thriller starring Richard Gere and Susan Sarandon. The next film night is on Tuesday 13 November with a screening of Skyfall, the latest Bond instalment.
A new record Juliet Chevalier-Watts, Simon Menzies, Paul Middlemiss and Nicolette Barrett.
WAIKATO BAY OF PLENTY
More than 130 certificate of character applicants came through the Auckland branch for admission at the October ceremonies, a record number for this time of year. The ceremonies were held at the Auckland High Court on 18 and 19 October.
NEW ZEALAND LAW SOCIETY
GISBORNE
NZLS EST 1869
Harkness Henry Lecture Judge Sir David Carruthers delivered an engaging and at times humorous talk on Restorative Justice: lessons from the past, pointers for the future at this year’s Harkness Henry Lecture. The lecture was held on 25 September at Waikato University following a social function in the Academy foyer. Sir David is currently the chair of the Independent Police Conduct Authority (IPCA) and has been the Principal Youth Court Judge, Chief District Court Judge and chair of the New Zealand Parole Board.
NEW ZEALAND LAW SOCIETY NZLS EST 1869
Annual volunteers dinner The Gisborne branch annual volunteers dinner was “a lovely evening”, branch manager Zaria Weatherhead says. Standards Committee, branch Council, and Practice on Own Account interview panel members enjoyed a “nice meal” at Ussco restaurant on 25 October. “The Gisborne branch is grateful to its volunteer members, who help to keep the branch running smoothly,” Ms Weatherhead says. LT
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UPCOMING PROGRAMMES Programme
Presenters
Content
Where
When
Introduction to High Court Civil Litigation Skills
Sandra Grant John Hardie Judge Rod Joyce QC Nikki Pender Paul Radich Tom Weston QC
Junior practitioners should not miss this opportunity to develop practical Auckland litigation skills in an intensive, small-group workshop which will take you Christchurch through a summary judgement claim in the High Court to demonstrate how to handle a file from beginning to end. It will include how to draft pleadings, evidence and submissions, how to present an argument – and much more. Skills taught in this two-day workshop are transferrable to the District Court and other High Court cases.
12-13 Nov (full) 19-20 Nov
Evidence Act for Civil Litigators
Andrew Beck
This seminar will take a close look at a number of thorny issues raised in Hamilton recent cases, including the ongoing concern in respect of the relationship Auckland between the common law and the Evidence Act. In particular, whether the common law continues in relation to events that occurred before the Act; the extent of without prejudice privilege; the scope of other privileges and their exceptions; the role of experts, and the limits of expert evidence; and the admissibility of briefs and what to do with inadmissible evidence.
12 Nov 13 Nov
CIVIL
COMMERICAL/COMPANY Practical Enforcement of Judgments
Bob Hollyman
Working through several common scenarios, this practical seminar will consider step-by-step the various enforcement mechanisms available to creditors once they have a judgment in hand, including: identifying the assets, the nature of the different options, assessing their merits and when to apply, pitfalls and problems, difficulties that arise, and how the court officers and bailiffs work. Webinar for smaller centres
Dunedin Christchurch Wellington Hamilton Auckland Webinar
12 Nov 13 Nov 14 Nov 19 Nov 20 Nov 14 Nov
EMPLOYMENT A Beginners Guide to the Employment Court
Chief Judge Graeme Colgan Peter Cullen
It’s more than just putting on a gown. This webinar is a must for junior Your computer lawyers who appear, or are likely to appear, in the Employment Court. To Webinar help with your confidence, the presenters will run through the basics of pleadings, judicial settlement conferences, interlocutories and hearings.
22 Nov
FAMILY Understanding Mediation – mediation for lawyers Part A
Virginia Goldblatt Geoff Sharp
Mediation knowledge and skills are an increasingly important adjunct to Wellington legal practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition practice as a mediator extends the service that lawyers can offer the public.
16-18 Nov
The PRA in the GFC – uncertainty in uncertain times
Chair: Margaret Casey
As with the very successful 2010 “Big Day Out” intensive, this intensive Auckland will be a programme for senior and experienced practitioners that will be Wellington intellectually challenging and informative. It will focus on how legal advice in the sphere of family law has been affected by the Global Financial Crisis to provide a relevant and stimulating day out of the office.
20 Feb 2013 22 Feb 2013
PROPERTY Trusts for Property Lawyers
Andrew Watkins Simon Weil
A practical seminar focussing on what property lawyers need to know about trusts and the use of trusts. To include; why a trust? – their various uses – their set up, drafting, and legislative requirements, trust busting – inherent weaknesses – what to look for – how to make trusts stronger – the bundle of rights as it affects property lawyers. Webinar for smaller centres
The PRA in the GFC – uncertainty in uncertain times
Chair: Margaret Casey
Dunedin Christchurch Wellington Hamilton Auckland Webinar
As with the very successful 2010 “Big Day Out” intensive, this intensive Auckland will be a programme for senior and experienced practitioners that will be Wellington intellectually challenging and informative. It will focus on how legal advice in the sphere of family law has been affected by the Global Financial Crisis to provide a relevant and stimulating day out of the office.
19 Nov 20 Nov 21 Nov 26 Nov 27 Nov 21 Nov 20 Feb 2013 22 Feb 2013
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 cle@lawyerseducation.co.nz or contact CLE information, tel 0800 333 111.
Online registration and payment can be made at www.lawyerseducation.co.nz
Programme
Presenters
Content
Where
When
Stepping Up foundation for practising on own account
Director: John Mackintosh
All lawyers wishing to practise on their own account whether alone, Auckland in partnership, in an incorporated practice or as a barrister, will be Christchurch required to complete this course. (Note: From 1 October 2012 all lawyers applying to be barristers sole will be required to complete Stepping Up). Developed with the support of the New Zealand Law Foundation.
14-16 Mar 2013 13-15 Jun 2013
Trust Account Supervisor Training Programme
Mark Anderson, John Hicks or David Littlefair, and David Chapman, Bob Eades or Lindsay Lloyd
To qualify as a trust account supervisor, you must complete Auckland 40-55 hours’ preparation, attend the assessment day and pass Christchurch all assessments. Make sure you register in time to do the preparatory work before the assessment day as listed on the right.
14 Nov 21 Nov
Understanding Mediation – mediation for lawyers Part A
Virginia Goldblatt Geoff Sharp
Mediation knowledge and skills are an increasingly important adjunct Wellington to legal practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition practice as a mediator extends the service that lawyers can offer the public.
16-18 Nov
Reading Accounts and Balance Sheets
Lloyd Austin
While it is not necessary for you to have the financial insight that might be expected of an accountant, you should know how financial statements are put together and know how to ask the right questions and identify warning signs, discuss financial statements intelligently with a client, and know when to call in specialist assistance. This workshop will enable you to unlock the mysteries of financial documents.
13-14 Nov 19-20 Nov 26-27 Nov 28-29 Nov
Writing Persuasive Opinions
Judge John Adams Simon Cunliffe Margot Schwass
Successful opinions are persuasive. Persuasive opinions are Auckland clear, succinct, jargon-free, cogently structured, legally acute and tailored to the needs of your reader/client. Comprising a mix of presentations and small-group work, this workshop will demystify the practice of writing complex legal opinions. It will provide the chance to practise and receive feedback on your writing from experienced tutors in a supportive, creative and enjoyable setting.
Practical Enforcement of Judgments
Bob Hollyman
Working through several common scenarios, this practical seminar will consider step-by-step the various enforcement mechanisms available to creditors once they have a judgment in hand, including: identifying the assets, the nature of the different options, assessing their merits and when to apply, pitfalls and problems, difficulties that arise, and how the court officers and bailiffs work.
GENERAL
Webinar
Webinar for smaller centres
Auckland Hamilton Wellington Christchurch
12 Dec
Dunedin 12 Nov Christchurch 13 Nov Webinar Wellington 14 Nov Hamilton 19 Nov Auckland 20 Nov Webinar
14 Nov
ARCHIVE WEBINARS AVAILABLE FOR PURCHASE Care and Protection Orders and CYFS
Dr Nicola Atwool Tracey Gunn
Risk Management for John Waller Boards Michael Webb
Care and protection cases can be problematical so lawyers need Your computer a good understanding of how the statute works and interlinks with Webinar Webinar the moving goalposts of CYFS’ policy. Lawyers need to understand the reality of issues for children in care and what happens when CYFS intervenes and why they intervene. This webinar will provide you with practical advice for dealing with care and protection cases.
At your convenience
All business is risk – it’s how much and how it is managed that is the Your computer issue. Based on the Risk Management session from the successful Webinar Webinar Corporate Governance Intensive, this webinar will focus on the risk issues facing the boards for smaller and unlisted companies as well as large corporates and financial institutions.
At your convenience
Programme brochures, online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz
OVERSEAS Iranian lawyer wins human rights award
Collaboration to enhance legal frameworks
Imprisoned Iranian lawyer and human rights defender Abdolfattah Soltani is the winner of the 2012 International Bar Association (IBA) Human Rights Award.
The International Bar Association (IBA) and the Organisation for Economic Co-operation and Development (OECD) have announced they will collaborate on improving legal frameworks, expertise, and development across a number of sectors.
The award was announced at the IBA Annual Conference in Dublin, Ireland, where Mr Soltani’s daughter, Maede Soltani, and fellow Iranian lawyer, Mahnaz Parakand, accepted it on his behalf. A co-founder of the Defenders of Human Rights Centre (DHRC) with Nobel Peace Prize winner Shirin Ebadi, Mr Soltani has been conferred with the title for his outstanding contribution as a legal practitioner to human rights. He has worked courageously and determinedly throughout his career to provide pro bono legal Human Rights award winner’s daughter Maede counsel to those Soltani addressing the IBA rule of law symposium in in need and, as a Dublin last month. result of his human rights defence work, has endured persistent persecution from the Iranian government and has been imprisoned on several occasions. Mr Soltani is currently in the notorious Evin Prison in Iran serving a 13-year sentence that stems from a number of charges including co-founding the DHRC, spreading antigovernment propaganda and endangering national security. The imprisonment began on 4 March 2012. During her acceptance speech, Maede Soltani said that the Iranian establishment had attempted to depict her father as a person unfit “to join the board of the Iranian Bar Council”, and that there had been a variety of accusations against him, threats, and arrests all designed to make him feel intimidated. She added that her mother was also imprisoned and that during the six-day long solitary confinement, “my mother was pressured to confess lies against my father.” This happened in 2009 when Mrs Soltani collected, on her husband’s behalf, an award from the city of Nuremberg in recognition of his continuous activities in the field of civil rights. Mr Soltani had been prevented from leaving Iran and collecting the award in person. Shortly afterwards he was imprisoned and his sentence extended because he accepted the City of Nuremberg Award.
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The sectors include employment, energy, environment and natural resources, financial services, migration, trade and investment, and the rule of law and democratic values. Among the projects detailed, the IBA will assist in training initiatives and drafting guidelines for the G20 High-level Principles on Financial Consumer Protection, contribute to the OECD policy-making process, and promote the standard-setting role of the OECD with legal practitioners worldwide, while the OECD will participate in the IBA Human Rights Institute Task Force on Illicit Financial Flows, Poverty and Human Rights, in IBA conferences and other briefings and consultations with the legal profession, and in joint fact-finding missions and reports. OECD Secretary-General Angel Gurría and IBA President Akira Kawamura signed a memorandum of understanding on 9 October to formalise the relationship between the OECD and the IBA.
Criminal legal aid lawyers ‘endangered species’ Criminal legal aid solicitors in England will be such an endangered species by 2015 that Labour would not need to take forward plans for price-competitive tendering in the sector. This was stated by Labour’s shadow justice secretary Sadiq Khan in an October interview with The Gazette, journal of the Law Society of England and Wales. The coalition intends to begin consulting on tendering for criminal legal aid next year, after the previous administration abandoned the plan in the face of lawyer opposition. But Mr Khan does not expect this to be taken forward in the event Labour wins the next election, because there will be “far fewer” criminal solicitors by 2015, he said. A former human rights solicitor, Mr Khan also voiced fears of a “lost generation” as the reforms in the Legal Aid, Sentencing and Punishment of Offenders Act drive women and black and minority ethnic (BME) solicitors out of the profession. A disproportionate number of women and BME lawyers work in legal aid. “There has been real progress made in increasing access to the profession and diversity,” he said. “I fear that will all be undermined.” He expects the ramifications to be felt in the judiciary, where progress towards greater diversity will be rolled back. “These solicitors are tomorrow’s judges and we could see a generation lost,” he added. More on the interview is at www. lawgazette.co.uk/features/interview-sadiq-khanshadow-boxer. LT
LAWYERS COMPLAINTS SERVICE Lawyer ordered to refund fees after failing to progress case Barry Hart, who was struck off in September this year, was also found guilty of unsatisfactory conduct by the Legal Complaints Review Officer (LCRO) in July after failing to progress a client’s case over four and a half years.
Facts and complaint In April 2006 the client, B, had instructed Mr Hart to act for her against medical professionals involved in the alleged mishandling of her daughter’s biopsy samples. B believed her daughter had unnecessarily undergone invasive medical procedures after a sample had been confused with that of another person. B paid Mr Hart $15,000 as a retainer. Although he assured B she had “a good case”, Mr Hart made little or no progress over several years. His activity was focused on attempting to obtain further medical evidence, but nothing was achieved. Only draft generic proceedings were prepared, and no proceedings were filed. B had been frustrated at the lack of progress as the years went by, and had become more anxious as December 2010 approached, for she had mistakenly believed that proceedings had to be brought within five years of the events in question. In fact, a claim can be brought within six years with the leave of the court. Although B had repeatedly conveyed her concerns to Mr Hart, he did not at any time correct her misunderstanding, nor did he apply to file proceedings within the six-year period. In November 2010, B complained to the Law Society that Mr Hart had failed to adequately represent her and her daughter, had failed to act in her daughter’s best interests, had failed to initiate proceedings, and had misled B about the basis for the $15,000 payment, which she had understood to be a contingency fee. She also claimed Mr Hart had not advised her
about the relationship between the ACC legislation and the types of civil proceedings that could be brought.
Standards committee decision A Lawyers Standards Committee decided to take no action on the complaint. It found that the emails Mr Hart had sent to the client explaining the lack of progress had addressed any concerns it had. The committee also concluded that “it was reasonable in [sic] circumstances that the complainant, a health provider with 10 years’ experience, ought to have been aware of the ACC limitations on civil proceedings.” B applied to the LCRO.
On review The LCRO reversed the decision, finding Mr Hart guilty of unsatisfactory conduct on the basis of numerous breaches of the Conduct and Client Care Rules. The LCRO described Mr Hart’s emails to his client as “often self-serving” and as containing “continual excuses”. He said that a “close examination of the email correspondence reveals that it contained little more than ongoing reasons why other matters being dealt with by Mr Hart and [the lawyer assisting him] were taking priority over [B’s] instructions.” The LCRO added that “one gains the overall impression that much of the activity that did occur was designed to give the impression that some activity was occurring on the file, when in reality little of substance was being achieved. I consider, for example, that the draft Statement of Claim was little more than a generic document.”
The rules The LCRO examined the issues of complaint in relation to the relevant rules, commenting that this “results in a more focused consideration of the issues” and noting that the standards committee had not taken this approach. He found a series of breaches. “It is hard to see that Mr Hart has fulfilled the obligations imposed by Rule 3 to provide the services in a
timely manner, consistent with the terms of the retainer. There were times when Mr Hart did not promptly answer requests for information or other enquiries by [B] (Rule 7.2). There was no comprehensive summary of the position or advice provided to [B] to enable her to provide informed instructions in terms of Rule 13.3 and in generally failing to progress the proceedings, Mr Hart did not act in the best interests of [B] and/or her daughter (Rule 13) or generally protect and promote his client’s interests. “In failing to make any progress in respect of [B’s] instructions for a period of four and a half years (which involved periods of nearly one year in total when nothing was done at all), Mr Hart has failed to promote and maintain the standards of professionalism in breach of Rule 10. “Although Mr Hart and [his assistant] appear to have complied with Rule 3.3 in advising [B] of the ongoing delays being occasioned in progressing this file, the reasons provided were in the main that they were otherwise occupied. This destroyed [B’s] trust and confidence in them (Rule 5.1) and did nothing to enhance the reputation of the legal profession (Rule 11). It is difficult to see why [B] would be interested in the details of the trials and other matters in which they were engaged when her own matters were not being attended to. “… It is evident that Mr Hart did not complete the services for which he had been retained (Rule 4.2) and there were certainly occasions when there were delays in providing information to [B] (Rule 7).” However, the LCRO didn’t accept B’s allegations that Mr Hart was guilty of manipulation, threats and deliberate delay. He also found Mr Hart had not misled B about the nature of the $15,000 retainer.
ACC and civil proceedings The LCRO referred to the “many emails from [B] expressing her concern that proceedings had to be brought within five years of the date on which the cause of action arose”, and he noted Mr Hart
LAWTALK 808 / 9 NOVEMBER 2012
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L AW YERS COMPL AINTS SERVICE had not commented on or corrected this misunderstanding. The LCRO said that while B had no doubt been aware of the ACC legislation, her comments indicated no awareness of what civil proceedings could be brought or the time limitations that existed.
The LCRO took into account that the lawyer assisting Mr Hart had been responsible for a large part of the conduct complained of, but he found Mr Hart had overall responsibility for the file and for the other lawyer’s conduct.
The LCRO disagreed with the standards committee that it had been acceptable for Mr Hart to assume his client had knowledge of the impact of the ACC scheme on potential court proceedings.
The LCRO said he had given “serious thought” to laying charges with the Lawyers and Conveyancers Disciplinary Tribunal but had decided not to do so, “if for no other reason than to bring some finality to this for [B] and her daughter.”
“Most medical practitioners would hope that they do not need to concern themselves with limitations imposed by ACC legislation on their exposure to legal proceedings during the course of their careers. For the Standards Committee to determine that [B] ‘ought to have been aware of the ACC limitations on civil proceedings’ is a striking assumption for the committee to make.” The LCRO found that “it is Mr Hart who had the responsibility to at least ascertain whether [B] had the knowledge that the committee determined she ‘ought’ to have had.” The LCRO also noted that B had qualified overseas and had presumably emigrated to New Zealand. Mr Hart claimed he had, in fact, advised the client about the relationship between ACC and civil proceedings, but the LCRO said that in that case “it would be reasonable to expect some fairly detailed advice in writing would have been provided” to the client. The LCRO found Mr Hart could not point to any such written advice. Mr Hart had noted that the client had not wanted to deal with ACC, but the LCRO found that regardless of this she should have been advised to lodge an ACC claim, as the issue of ACC coverage was apparently critical to the nature of the proceedings that could be brought and the heads of potential damages.
Finding The LCRO found Mr Hart guilty of “unsatisfactory conduct” under three separate limbs of the definition in the Lawyers and Conveyancers Act 2006 (LCA): his conduct fell short of the standard of competence and diligence the public is entitled to expect of a reasonably competent lawyer (s12(a)); it was conduct that would be regarded by lawyers of good standing as being unacceptable (s12(b)); and it was conduct that contravened either the LCA, regulations made under it, or the rules (s12(c)).
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Penalty The complainant sought the return of the $15,000 retainer and also extensive damages. Taking what he called a “broad brush” approach, and focusing on what was achieved for the client, the LCRO ordered Mr Hart’s $15,000 retainer fee to be reduced to $5,000. In deciding the appropriate fee, the LCRO said it was necessary to “take a step back and assess the fee in the round” (quoting Chean & Lovett v Kensington Swan (High Court, Auckland, CIV 2006-4041047, 7 June 2006)). B was also awarded $5,000 in compensation for anxiety and distress, which the LCRO said was “self evident from a reading of the correspondence from her.” Mr Hart was also censured. The LCRO ordered Mr Hart to pay costs of $2,400, commenting that the review process had been “made particularly difficult by the lack of co-operation from Mr Hart”.
Publication The LCRO determined that it was in the public interest for Mr Hart’s name to be published (under s206(4), LCA). Arguing against publication, Mr Hart had pointed to the extreme divergence between the LCRO’s findings and those of the standards committee. The LCRO said, however, that he was expected to form an independent view and the fact that his findings were different from those of the committee did not in any way diminish his decision. Mr Hart also submitted that his conduct had not been deliberate. The LCRO said this was relevant to whether charges should be laid with the tribunal but was not a significant factor when considering publication: “The important facts for the public are that Mr Hart received payment of $15,000 from [B] and failed to deliver the
service that he had been retained for. Whether that conduct was deliberate or not is irrelevant to the client.” The LCRO also rejected as irrelevant Mr Hart’s submission that, in general, publication will be more appropriate to findings of misconduct rather than unsatisfactory conduct. The LCRO said that if he was satisfied that the statutory criteria for publication were met, then the frequency with which publication is ordered by either the tribunal or the LCRO’s office was not relevant. LT
Lawyer fined for breaching legal aid obligations A lawyer, B, was found guilty of unsatisfactory conduct and fined after he failed to inform the Legal Services Agency that a client who had earlier been receiving legal aid had not disclosed more than $500,000 worth of assets. As a listed legal aid provider, B had also breached his obligations by billing the client privately once he believed her legal aid grant no longer applied.
Facts and complaint B’s staff solicitor had begun acting for the client on legal aid in October 2007, and B took over the file when the staff solicitor resigned in April 2009. After the client’s case was settled in September 2010, B billed her directly for the work he had done since taking over her case, which came to around $23,000. B believed he was acting for the client privately and that the legal aid grant no longer applied. This was because he had discovered when he had begun acting for her that she had not disclosed substantial assets in her original legal aid application, including an apartment worth $580,000. However, he had not informed the Legal Services Agency of this. The Ministry of Justice, which took over the legal aid scheme in July 2011, complained to the Law Society that B had breached two requirements under the Legal Services Act 2000, along with equivalent provisions in his legal aid provider contract. Legal aid lawyers are barred from taking payments directly from legally aided clients without authorisation (s66; now s105 of the Legal Services Act 2011). They are also required to disclose any increase in a client’s income or disposable capital
L AW YERS COMPL AINTS SERVICE
Threatening a police complaint breaks the rules
Lawyer fined for not keeping proper legal aid records
A Lawyers Standards Committee has once again ruled that lawyers may not threaten to complain to the Police in an effort to gain an advantage in a civil dispute.
A lawyer, C, whose legal aid listing approval was cancelled for breaches of his contract and the Conduct and Client Care Rules has been fined by a Lawyers’ Standards Committee after a complaint from the Ministry of Justice.
The committee specifically referred to an earlier case published in LawTalk 791, 16 March 2012, p30, when ordering publication of the facts. The committee found a lawyer, A, guilty of unsatisfactory conduct for making a threat in writing. It also ordered him to pay $1,000 costs. A wrote to the lawyer representing the other party in a relationship property dispute (lawyer B), saying he understood lawyer B’s client may have committed an offence under ss220 and 240 of the Crimes Act 1961. A’s letter also said “that they are willing to pursue the matter (which may include a referral to the IRD) … If your client fails to respond fully to and satisfactorily explain the issues … our client has advised us that she will ask the Police to investigate and take whatever action they see fit.” Both lawyer B and a partner of her firm replied to A on 26 September 2011, reminding him of his obligations under rule 2.7 of the Rules of Conduct and Client Care not to make a threat for an improper purpose.
The complaint alleged that C had not maintained full and complete records of all services supplied under his legal aid contract, including time records. C acknowledged this, but submitted that dealing with South Auckland clients required a non-traditional approach to communication, one based around telephone contact rather than writing letters, because most of these clients had a low literacy level and no fixed address. He said he kept time records from memory. The committee found that the failure to keep proper records was unsatisfactory conduct under s12(b) of the Lawyers and Conveyancers Act 2006, in that it would be regarded by lawyers of good standing as unacceptable. By not keeping proper records, C had also breached the requirements under his legal aid contract (clauses 4.1 and 4.2) to comply with statutory and professional obligations and with the Ministry’s policies and procedures. Again, the committee found this amounted to unsatisfactory conduct under s12(b).
When A had not responded some 4½ months later, the partner reported the matter to the Lawyers Complaints Service. A partner of the firm that employs A responded on his behalf saying there was no intention to breach the relevant rules, but accepted that parts of the letter complained of may breach rule 2.7. The partner also acknowledged that A’s decision not to reply to the letter of 26 September 2011 “was incorrect”. Accordingly, the firm unreservedly apologised both to lawyer B’s firm and its client. In response to a request for submissions, the firm employing A said that A had no malicious or deliberate intent to breach rule 2.7. The firm said it assumed responsibility and had taken steps to educate all staff on the rule. LT
Registry The following people have applied to the NZLS for certificates or approvals. Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Hawkes Bay Branch O’REILLY Laurence Bunny Otago Branch CULPEPER Karen Bernadette MEAGER James Rawiri
Wellington Branch GRAY Shani Lianne HUA Sarah Jane Pei Ling SAWYER Caroline Ann TANGAERE Mahinarangi Robin previously LOOSE / TIMMS
that could affect the client’s eligibility for legal aid (s22; now s25).
Waikato Bay of Plenty Branch NOORT Nicola Louise
Response and decision
Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006
B accepted that, given he was a listed provider, he had breached the act and his contract by billing privately without the LSA’s approval. However, he disagreed that he had breached his obligations by not disclosing his client’s real financial position.
Auckland Branch ALLEN Gregory Neale PATEL Manoj Kumar WRIGHT Jane Victoria
The Standards Committee thought B’s defence of his nondisclosure had some merit, since he had obtained the information confidentially from his client. However, it found that his duty to disclose the information applied regardless of this and that he had therefore breached that duty. The committee found that B’s conduct would be seen as unacceptable by lawyers of good standing and that it therefore amounted to unsatisfactory conduct under s12(b) of the Lawyers and Conveyancers Act 2006. The committee censured the lawyer, fined him $3,000, and ordered him to pay $1,000 costs to the Law Society. LT
Hawkes Bay Branch ROSS Philip Nicholas
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 15 November 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate. Lisa Attrill, Registry Manager Email: lisa.attrill@lawsociety.org.nz, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989
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Fearon & Co 56x100 ad_BW.qxd:Layout 1
LEGAL SERVICES C had also failed to submit accurate payment claims to the ministry, contrary to his contract. The committee accepted his explanation that this was unintentional and that the claims had been inaccurate because of the lack of adequate records, but it found that nevertheless this had breached his contract and amounted to unsatisfactory conduct under s12(b). C had also failed to provide his clients with terms of engagement and other client service information required by the Conduct and Client Care Rules (3.4 and 3.5). The committee found that by breaching those rules he was guilty of unsatisfactory conduct under s12(c). It said the fact that a client is legally aided does not exempt a lawyer from those requirements. The committee fined C $2,000, and ordered him to pay $1,200 costs to the Law Society. LT
Changing your LawTalk delivery address If you want to change the address that your copy of LawTalk is sent to, you need to contact the New Zealand Law Society Registry. The LawTalk address labels are generated from the Registry database. If you change your address with Registry, it automatically changes your LawTalk delivery address. There is a form on the Law Society website to do this. It is at www.lawsociety.org.nz/home/ for_lawyers/forms/forms/registry_ lawyer_change_of_details. You can contact Registry at registry@ lawsociety.org.nz.
ENGLISH LAW AGENCY SERVICES SOLICITORS Established 1825
Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations
VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: enquiries@fearonlaw.com
LITIGATION
Martin Williams 00 44 (0)1483 540843
mw@fearonlaw.com
WILLS
PROPERTY John Phillips
00 44 (0)1483 540841
ajp@fearonlaw.com
PROBATE
Francesca Nash 00 44 (0)1483 540842
fn@fearonlaw.com
Regulated by the Solicitors Regulation Authority of England and Wales
LAI LIN CHENG LEUNG
LESINA KALAVA
Would any lawyer holding a will for the above-named, also known as Lillian Cheng, late of 12A Rosedale Avenue, Mt Eden, Auckland, who died on 25 September 2012 at Auckland, please contact Christina Keil at Keil & Associates, PO Box 8124, Symonds Street, Auckland 1150, ph 09 379 9898, fax 09 379 9897, email christina@keil-law.co.nz.
Would any lawyer holding a will for the above-named, late of Ranui, Auckland, housewife, who died on 26 August 2012, please contact Willem Strauss, Teei & Associates, DX DP92504, PO Box 21 247, Henderson, Auckland 0650, ph 09 837 3207, fax 09 837 3259, email wstrauss@teeilaw.com.
KEVIN JOHN WEAL
Would any lawyer holding a will for the above-named, late of 25 Cheshire Street, Porirua, retired, born on 15 April 1942, who died on 15 October 2012, please contact Sally Harrow, The Law Connection Ltd, DX RP60303, PO Box 2079, Raumati Beach, Paraparaumu 5255, ph 04 299 3192, fax 04 299 7686, email sally@lawconnect.co.nz.
Would any lawyer holding a will for the above-named, late of Cambridge, who died on 2 October 2012, aged 52, please contact Lynne Revell, Vosper Law, DX GA27509, PO Box 489, Cambridge 3450, ph 07 827 6140, fax 07 827 4953, email lynne@ vosperlaw.co.nz.
REX THOMAS PRESTON
KATHRYN NOREEN TAPLING
Would any lawyer holding a will for the above-named, late of 25 Opanuku Road, Henderson, who died on 14 October 2012, please contact John R Holmes of HDA Lawyers, DX CX10019, PO Box 147 419, Auckland 1144, ph 09 309 2551, fax 09 376 3761, email john@hda.co.nz.
LAURENCE CARTER
Would any lawyer holding a will for the above-named, who died on or about 3 October 2012, please contact Malcolm S Lake, 1140 Tutanekai Street, PO Box 560, Rotorua 3040, ph 07 349 4348, fax 07 349 2698, email malcolmlake@xtra.co.nz.
GWENDOLINE ARMINE JOHNSON
Would any lawyer holding a will for the above-named, late of Wellington, who died on 13 April 1983, please contact Amanda Egden, The Property Group Limited, PO Box 2874, Wellington 6140, ph 04 470 6114, fax 04 470 6101, email aegden@propertygroup.co.nz.
MICHAEL STEPHEN LA HOOD
Would any lawyer, particularly in the Christchurch area, holding a will for the above-named also known as Mike La Hood, late of 213 Westminster Street, St Albans, Christchurch, electrical engineer, born on 28 January 1953, who died bet-ween 14 July 2012 and 17 August 2012, aged 59, please contact Jason La Hood of Van Aart Sycamore Lawyers, PO Box 5589, Dunedin 9058, ph 03 477 8863, fax 03 477 7558, email mail@jasonhood.com. 32
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WILLS KENNETH IAN BULLOCK
Would any lawyer holding a will for the above-named, late of 59 Sentinel Road, Herne Bay, Barrister, who died on 31 July 2012, aged 75 years, please contact Don Wackrow of Wackrow Williams & Davies Limited, Solicitors, DX CP20503, Auckland, PO Box 461, Shortland Street, Auckland 1140, ph 09 379 5026, fax 09 377 6553, email don@ wwandd.co.nz.
SITUATIONS VACANT
Property/General Practice Superstar We are a unique property and commercial firm with offices in Auckland CBD and Warkworth. We are growing and we need an accomplished and enthusiastic lawyer with approx. 3-5 years PQE to join our busy team. If you are passionate about the law, committed to excellence and want to work in an environment which celebrates and grows your talents then you sound like just the person we are looking for.
Manager Litigation and Regulatory Auckland Central We are New Zealand’s largest local authority providing essential services and facilities to nearly 1.5 million people. We need people who share our dedication to Auckland. With over 8,500 staff fulfilling a diverse range of roles, there are always plenty of career choices with room to move. Are you ready for a new challenge? We are on the hunt for a highly skilled RMA, civil and regulatory litigation practitioner to lead Auckland Council’s respected Litigation and Regulatory team. As a talented people manager, you will utilise your experience gained from both in-house, private practice and local government environments to lead this large team of specialists. This is your chance to make a difference in your community as an integral part of the council’s growing Legal team. This role will offer you variety, the opportunity to make an impact and profile yourself within the organisation coupled with genuine work-life balance. This talented Legal Services team within the council are a high performing team who are Finalists in the 2012 NZ Law awards ‘In-House Counsel Team of the Year’ category. To apply, please go to our job site www.aucklandcouncil.govt.nz/careers and enter the job code 40374. For further information, please contact Julie Moir in strict confidence on (09) 348 5805. Applications close Sunday, 18 November 2012.
Please forward your CV and cover letter in confidence to constance@ppetal.co.nz.
Intermediate Insolvency Litigator Litigation Solicitor, 4-5 years’ PQE, Wellington This well-known and respected mid-tier law firm is seeking an experienced litigator to join its successful team. You will be a clever and talented litigator, with between 4-5 years’ post admission experience in commercial or civil litigation ideally with some exposure to insurance and construction matters. You will have had significant experience within a top legal environment in a civil or commercial litigation and dispute resolution role. You will have court and mediation experience and be able to proactively manage and complete a file from start to finish. This will be an interesting and challenging role for the right person and an opportunity to gain invaluable litigation experience. For the right person this is a chance to become fully immersed in litigation, so would ideally suit someone looking to build on their existing experience with the support of accessible and experienced partners. We are looking to move quickly on this role and interviews are available immediately for the right people. For further information in strict confidence contact Ben Traynor or Jane Temel on 04 471 1423 or email admin@nicherecruitment.co.nz Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz
Meredith Connell is New Zealand’s largest litigation firm. It is the office of the Crown Solicitor for Auckland and also has considerable expertise in corporate law, commercial property and regulatory and commercial law. Based in Auckland’s CBD, we are looking for an experienced insolvency litigator to join our specialist insolvency team. The team acts for liquidators, receivers, the Official Assignee and a variety of government and corporate clients and prides itself on providing good practical advice and excellent advocacy. The successful applicant will deal with a wide range of contentious insolvency issues. In addition, that person will act on a range of other matters, spanning the spectrum from commercial disputes to regulatory enforcement. In order to be successful, you must have at least 5 years experience with a strong focus on insolvency work, strong academics, highly developed analytical skills and organisational capabilities. Experience in acting for liquidators and receivers will be an advantage. Meredith Connell offers a great work environment, it’s fun, friendly and values the contribution made by every member of the firm. To apply, please email your CV and academic transcript to Alana Podbielski by email: alana.podbielski@ meredithconnell.co.nz. LAWTALK 808 / 9 NOVEMBER 2012
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SITUATIONS VACANT
Train the lawyers of tomorrow The Institute of Professional Legal Studies invites applications from lawyers with more than seven years’ practical legal experience to join its network of casual instructors. You will be outgoing, organised, efficient and enjoy: ■ The challenge of moulding law graduates into great lawyers ■ Working as part of a highly motivated team You must have: ■ Recent NZ litigation experience (a wider range of experience is preferable) ■ Demonstrated leadership skills ■ A genuine desire to pass on your knowledge ■ The ability to adapt to new situations ■ A sense of humour! If this sounds like you, email your resume and covering letter to careers@ipls.org.nz
TOO MANY ROLES TO LIST Banking & finance solicitor: This top tier firm is looking for a lawyer with between three and five years’ experience. You will be reporting to a very personable and highly regarded partner. The work on offer is a broad range of banking and finance matters and you will fill a very important gap between the junior and senior members of the team. You will be involved in some of the most interesting work around and will receive a salary package at the top end of the market. Ref: 29886 Government, procurement and contracting: The legal contracting market is picking up. We have a number of contracting roles in government in particular. The contracts are generally at least 12 months’ duration and desired skills tend to be in the areas of investigations, public law and legislation, contracting and procurement. Call us for a general chat about the contracting market or to apply. Ref: 31778 To apply, please send your CV to wellingtonjobs@momentum.co.nz quoting the relevant reference number. For a confidential chat, please contact Carla Wellington or Marissa Barnao on 04 499 6161. 191 Queen Street Auckland P +64 9 306 5500
40 Mercer Street Wellington P +64 4 499 6161
M O M E N T U M .C O. N Z
Deputy Public Defender
Specialist Advisor (Fixed term for 12 months)
Public Defence Service, North Shore Vacancy 23491
Legal Aid Services, Wellington or Auckland Based • Criminal law expert • Wellington or Auckland-based
The Public Defence Service (PDS) provides high quality legal advice and representation in a full range of legally aided criminal cases, aimed at helping people access justice, and promotes the values of integrity, fairness, consistency and high quality service to its clients. It also provides professional leadership of the duty lawyer service.
Legal Aid Services is a division of the Ministry of Justice that is responsible for promoting legal aid services and access to justice for all New Zealanders. The Ministry is currently looking for a senior lawyer to join a small group of specialist advisors at Legal Aid Services on a 12 month fixed term basis.
We are seeking a Deputy Public Defender who will develop and lead a high quality criminal legal aid defence service in the Northern Region. As part of a professional and dynamic service you will report to the Public Defender, Northern, be part of the Northern Regional Management team and lead a team of committed lawyers.
You will be able to demonstrate:
We are seeking applications from well respected lawyers who have proven credibility with judges, peers and others in the legal community with a speciality in criminal advocacy. Your professional leadership and expertise in mentoring, coaching, training and criminal advocacy will ensure that lawyers within the North Shore Public Defence Service are effective and well supported. To apply, please visit our website, http://careers.justice.govt.nz/Pages/Vacancies Applications close Friday, 16 November 2012.
You will be able to provide specialist expert advice in decisionmaking on complex legal aid cases and will have particular expertise in the New Zealand criminal law jurisdictions. Some knowledge of New Zealand civil and family law would also be desirable. • Expertise in the area of criminal law, with a minimum of seven years recent litigation experience in this area. • An ability to apply the principles of the Legal Services Act 2011 and related policy and regulations. • That you hold a current practising certificate from the New Zealand Law Society or are eligible to obtain a certificate. • Excellent relationship management skills to work within a legal team environment also involving contracted external specialist advisors and legal aid lawyers. • Awareness, acumen and ability to deal with complex matters when they arise and an understanding of the public environment in which the Ministry must operate. • Proven decision-making ability in a complex environment. To apply, please visit our website, http://careers.justice.govt.nz/Pages/Vacancies. Applications close Friday, 23 November 2012.