Lawtalk 826

LawTalk 30 August 2013 路 826

THE DEFENDER T H E C O M M U N I C AT O R T H E C A P TA I N THE LOCAL THE REFEREE L I V E S I N T H E L AW F E AT U R E . PA G E 0 4

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Contents.

It doesn’t really matter whether I’m acting as a Crown prosecutor or a defence lawyer. All my job requires is to ask the right question, at the right time and in the right way. — Mina Wharepouri, Defence Counsel

Regulars The DefenDer

People in the Law

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Moving towards CPD

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At the heart of the Law Society’s lawyer-centred Continuing Professional Development is the CPD Plan and Record.

Practising Well

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When working in therapy with clients who are unsure about how satisfied they are with life the miracle question is often posed: “if a miracle happened and you woke up tomorrow and your life was perfect what would it look like?”

Inspectors’ briefcase

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Gallavin on litigation

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As part of the wider regulatory framework associated with the Anti-Money Laundering and Countering of Financing Terrorism Act 2009 (AML/CFT Act), lawyers need to be aware of the requirements and ramifications stemming from the Identity Verification Code of Practice 2011.

The litigator as artist – a rather bold title that is sure to endear me to litigators while inducing a cough or choke in those of you who have the happy/necessary/tedious/begrudging pleasure (circle applicable) to work with or alongside the said litigator[s].

Technology

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Managing Continuing Professional Development.

Courtroom practice

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Testing the evidence of children in the criminal courts is a perennial problem, but one the English bar and the English Court of Appeal are getting much closer to solving.

Branch News

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Corporate Challenge

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Lawyers have shone year after year in a major sporting event which will be held for the 20th time this year – the Fidelity Life Corporate Challenge. This annual five-kilometre road race will take place in Christchurch on 6 November, in Wellington on 13 November and in Auckland on 27 November.

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NZLS CLE upcoming programmes Lawyers Complaints Service Classified Advertising

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The referee L i v e s i n T h e L aw

Feature

A life in the law Turei Mackey To celebrate the character of New Zealand’s legal profession, LawTalk journalist Turei Mackey talked to a diverse group of lawyers. We share their stories.

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LawTalk 826 · 30 August 2013 ·

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From the Law Society Chris Moore Section 65(e) of the Lawyers and Conveyancers Act 2006 says: “The regulatory functions of the New Zealand Law Society are – (e) to assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law.”

So far in 2013, the New Zealand Law Society has made 59 submissions on bills which have been introduced to Parliament plus discussion documents and other proposals for making changes to the law.

Some of these proposed changes have met with widespread discussion and controversy. The Government Communications Security Bureau and Related Legislation Amendment Bill springs to mind. Others will become law with little public awareness of the change.

Few New Zealanders will have a viewpoint on the Electronic Transactions (Contract Formation) Amendment Bill. In fulfilling its role to assist with reform of our law, the Law Society has made submissions on both.

The 59 submissions we have made are not unusual. The Law Society has been a major participant in law reform for a long time. In 1971 we made submissions on 18 bills. In 2001 we made 37 submissions (including one on the Government Communications Security Bill, in which we pointed to a possible conflict with the New Zealand Bill of Rights Act 1990 and the adequacy of the limits

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on the Bureau’s powers). Last year we prepared and delivered 90 submissions.

Our participation in the law reform process has clear limits. Our annual report for 1952 says: “It is not the function of the Society to criticise policy legislation but representations to the Government have been made where the principles of justice appear to be infringed in a bill, or it appears that a bill might be made more workable or improved by amendment.”

Sixty years later, this statement is still our guiding principle. Our focus is on looking at how the policy behind a particular piece of legislation can be implemented and how the legislation can be made to achieve its purpose better.

This emphasis becomes secondary, however, when the legislation in question may breach a fundamental element of New Zealand’s constitution or the New Zealand Bill of Rights Act 1990, or may be at odds with upholding the rule of law.

When this occurs, the Law Society believes it is obliged to draw this breach to the attention of all New Zealanders. We will continue to do so.

Our submissions are developed through consultation with all lawyers, which is then turned into a submission by the members of our law reform committees. The time and intellectual input they give has ensured we are able to meet the mandate we have through section 65(e).

I am proud of the contribution the New Zealand Law Society makes to maintaining an effective justice system in New Zealand and in ensuring the rule of law is upheld. We achieve this through the dedicated work of our committee members and I would like to thank them all for their very important work over the past two years.

Chris Moore New Zealand Law Society President

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.

26 Waring Taylor Street, Wellington

DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand Edi t o r: Frank Neill 04 463 2982 editor@lawsociety.org.nz Wri t ers : Elliot Sim 04 463 2902 elliot.sim@lawsociety.org.nz Turei Mackey 04 463 2910 turei.mackey@lawsociety.org.nz Advert i s ing: Christine Wilson 04 463 2905 advertising@lawsociety.org.nz S ubscript ion I nq u iries : subscriptions@lawsociety.org.nz Desig n: Andrew Jacombs 04 463 2981 andrew.jacombs@lawsociety.org.nz Print ing: Lithoprint, Wellington

ISSN 0114-989X

News Points Fiji sentences condemned Sentences imposed by Fiji’s High Court on a non-political Suva organisation are a serious restriction on the right to free speech, the New Zealand Law Society says.

“The New Zealand Law Society sees the moves by the Fijian government to pursue this matter as evidence of a continued erosion of the rule of law in one of our closest neighbours,” the convenor of the Law Society’s Rule of Law Committee, Austin Forbes QC, says. The Citizens Constitutional Forum Ltd (CCF) and its director, Reverend Akuila

Alcohol-monitoring bracelets closer Cabinet has approved changing the law to allow alcohol-monitoring bracelets to be introduced, Corrections Minister Anne Tolley has announced. The ankle bracelets, which detect the presence of alcohol through the skin, will initially be fitted to 475 offenders and bailees per year who are considered at

Prison reform benefits society Abolishing imprisonment for pure property offences is gaining traction in Great Britain. The proposal was originally put forward in a pamphlet by Oxford law Professor Andrew Ashworth, who was the 2012 New Zealand Law Foundation Distinguished Visiting Fellow. The Howard League for Penal Reform has picked it up as a campaign, saying that Professor Ashworth’s proposal would save the country £230 million a year.

This month a well-known criminal litigator

Yabaki, were found guilty of contempt of court by publishing an article which contained excerpts from an English report critical of Fiji’s justice system.

The English report which was quoted was prepared by an English Law Society organisation, Law Society Charity. Among its conclusions was a finding that the independence of the Fijian judiciary was in doubt.

After charges were brought by the government, Fijian High Court Judge William Calanchini found CCF and Rev Yabaki guilty of contempt “scandalising the court”. Justice Calanchini has now passed sentence.

Mr Forbes says the Law Society of England and Wales has also condemned the court action and sentences in strong terms.

high risk of causing harm in the community, Ms Tolley said. A signal is sent to a central monitoring system, and if alcohol is detected then action will be taken against the offender, such as arrest or a breach charge being laid in court. The minister also announced that legislation will be introduced into the House later this year allowing Corrections and Police to carry out alcohol and drug testing on offenders and bailees who are subject to a court order or Parole Board condition prohibiting them from using alcohol and drugs.

and Corker Binning partner Robert Brown joined the voices seeking law reform. He warned the government that it could not afford to ignore the proposals during a time of scarce resources. “Firstly there is lots of evidence that prison doesn’t work,” Mr Brown said. “Secondly it is incredibly expensive and thirdly there are alternatives available that are more effective.

Tackling the root causes of repeat offending for property crimes such as addiction would be a more effective way of dealing with the problem,” he said. “Education, rehabilitation and treatment is more beneficial to society.

It is a hot potato, but the government should grow up and be more magisterial about what are sensible proposals.”

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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.

LawTalk 826 · 30 August 2013 ·

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A LIFE IN THE L AW New Zealand’s 11,600 lawyers come from a wide range of backgrounds and with varying aspirations. Some become judges, some famous outside the law, and many enter a career which takes them in directions they never imagined.

LawTalk would like to celebrate the character of New Zealand’s legal profession. LawTalk journalist Turei Mackey talked to a diverse group of lawyers, and we share their stories over the next few pages.

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MINA WHAREPOU

THE DE It’s a bit like being an outsider “What I have noticed now I’m on my own is I do the same job without the level of support I once had, and rely now on my own initiative to get by. But this is no different for any other barrister, criminal law or civil.

You’ve chosen to go it alone,” says barrister Mina Wharepouri.

In 2012 Mr Wharepouri moved from the role of Crown prosecutor to defence counsel. Involved in several high profile cases while serving as senior Crown prosecutor for Meredith Connell, the 41-year-old is enjoying seeing criminal law from the other side of the court.

“The problem of course is prosecuting is only half of the job and there are certain limitations that a career faces if you remain only as a prosecutor. If you want to develop the full well-rounded set of skills then I think you have to go to the defence bar and become a barrister.”

He maintains a good relationship with former Crown colleagues but sometimes views the relationship as opposing sides coming head on at a problem. “I’m more aware of that feeling now I’m on the other side of the bench. Now as a defence lawyer it is a bit like being an outsider looking in while they’re standing next to the fire and I’m outside in the elements.”

Mr Wharepouri’s law ambitions started back in the late 1980s while still at Otahuhu College in South Auckland. While being at a school with a more notable reputation for producing top athletes than top trial lawyers, his parents – of

prosecut the heart

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FENDER Māori and Tongan heritage – placed a high emphasis on their son to succeed in education.

But there were stumbles along the way.

His university entrance exam scores were not sufficient to gain general admission into law school at Auckland University and Mina was made to go through on the targeted Māori admission scheme to gain entrance.

“I remember there was, at that time at least, a certain stigma attached to Māori students who had to utilise the Māori quota system.

It meant I was keen to ensure that while I might have needed to use the quota system to enter law school, it was really going to be how I left law school. Were it not for the system I wouldn’t have graduated from Auckland University with honours and I wouldn’t have been able to go on to Cambridge University.”

Stints with both Kensington Swan and Russell McVeagh in the 1990s allowed Mina the possibility of furthering his academic study.

“Joe Williams (now Justice) was the litigation partner at Kensington Swan and recruited me right out of law school. At that time he had established the treaty issues team which had a number of people supportive in my career progressing.”

One of the people on that team was Christian Whata, now a High Court judge in Christchurch, who convinced Mina to earn his master’s degree in law at Cambridge in 1999.

“As a former Cambridge graduate himself he was really supportive and felt I would benefit from the experience. He helped me to complete all the paperwork and submit the application form and placed me in touch by way of email with his former teaching professors.”

After graduating from Cambridge, Mr

Regardless of ion or defence, truth sits at the of the criminal justice system.

Wharepouri joined London-based firm Devonshires where the Saville inquiry into the Bloody Sunday shootings in Derry in 1972 made him consider criminal law as his chosen legal pathway.

“At the time one of their biggest clients was the Ministry of Defence and we were to assist the parachute regiment which was subject to the inquiry. I helped brief a number of barristers involved in that period, also a number of key witnesses. So I spent a lot of time between London, Derry, Belfast and Dublin,” he says.

“That whole experience made me think about what I was doing with my legal career at that point as I was growing tired of civil law.”

He returned to New Zealand in 2005 and joined Meredith Connell where he worked for eight years doing jury trials in the District and High Courts with cases ranging from drug charges to serious violence and sex charges.

“At the end of the day I didn’t know I was going to end up at the criminal defence bar. I had this inclination that was where my career was going to head. My reason for going to Meredith Connell and the Crown was it was the best place for a young lawyer to acquire the most experience in the shortest amount Continued on following page ...

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E M M A V A ’A I

THE COMMUN Using native languages enhances communication Although law covers a vast array of areas, one of the recurring features in all is the art of communication – particularly with one’s clients. And while interpreters can assist lawyers when a client is not fluent in the New Zealand English language, the benefit of being able to converse in a person’s native language allows a lawyer to work better with their client.

There are 298 lawyers in the country currently registered as being fluent in two or more languages.

Emma Va’ai, a family law specialist at Tania Davis Law in Porirua, is one of only two lawyers registered on the New Zealand Law Society’s “Find a lawyer” search page as being fluent in New Zealand Sign Language, or NZSL, one of

T H E D E F E N D E R Continued of time,” Mr Wharepouri says. “You couldn’t beat the training and exposure they gave a person who aspired to be a criminal lawyer.”

Mr Wharepouri says the role of the defence lawyer in the public’s eye is a badly typecast one but what they don’t realise is regardless of prosecution or defence, the truth sits at the heart of the criminal justice system.

“It doesn’t really matter whether I’m acting as a Crown prosecutor or a defence lawyer. All my job requires is to ask the right question, at the right time and in the right way. And provided I do that the hope will be that the truth emerges.”

Many defence lawyers can attest to the challenge of dealing with clients and their added stresses. Mr Wharepouri believes understanding and breaking down the process is the best way to interact. “What I try and do is distil the language, legal concepts and

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the country’s three official languages approved under the New Zealand Sign Language Act 2006.

Mrs Va’ai finds herself from time to time assisting in legal matters for one of the 24,000 New Zealanders who use NZSL as a form of communication. She says while Deaf clients are often happy to communicate via email she generally will meet with them in person and without the aid of an interpreter.

“It is more difficult to convey some of the legal ideas into sign language but because of my knowledge of New Zealand Sign Language I know when some concepts don’t translate easily and I can give extra explanation when needed,” she says.

“Although I have been quite cautious in that

the court process to their very essence and explain that to the client. And it is surprising, many of the clients I have dealt with, despite their backgrounds, are exceptionally bright people. It doesn’t take them long to grasp the process.

“But I’ve found that most of the people who come into contact with the criminal justice system are Māori or Pacific Islander and from low socio-economic backgrounds. And I know sometimes they want a lawyer, but sometimes they want a social worker, sometimes they want a confidant and sometimes they just want to have a conversation with somebody who understands where they’re coming from.

“There is a lot of tension between what the client expects from you and your duty to the court and as an officer of the court. But many of the people we engage with have never really had someone who is prepared to stand up, argue and defend them.

Provided you’re prepared to do that they’re quite happy regardless of the outcome.”

The b abl a lan lawye

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benefit of being

if it gets to a point of swearing an affidavit or signing a relationship property agreement, then I will have an interpreter present because I need to be absolutely sure that it is explained properly.

“But often I find I’m watching what they (the interpreter) are interpreting and if they misunderstand something, and accidentally get the wrong end of the stick in what I have been trying to explain, I can simply correct and clarify that point as we go.”

She assisted Victoria University in 2011 when it held an exercise for students undertaking NZSL training in interpreting in legal forums.

The exercise involved lawyers performing mock proceedings for the students to interpret and later critique.

“I went over the details of a relationship property agreement so they could go through the different aspects. And because I know how it is to interpret such language I intentionally made sure it was difficult, and explained the agreement as most lawyers would to help highlight

e to converse in

person’s native guage allows a r to work better with their client

the issues for the students.”

As with many Kiwis who are bilingual, Emma was introduced to sign language as a young child. “My parents were friends with our neighbours who had a deaf son the same age as me. His mother was learning a version of sign language, which was slightly different to NZSL, and my mum learnt a little bit as she would babysit him. So myself and my siblings learnt bits and pieces and I probably learnt a bit more due to being the same age and picking this up in the first five years of my life.”

While studying law and commerce at Victoria University, Emma took papers in Deaf Studies to revisit her interest in sign language and help understand the intrinsic workings of the Deaf community.

“The papers I studied also dealt with Deaf culture because there is a distinct culture. Understanding this has helped me when dealing with Deaf clients.”

Since studying NZSL at university Emma has continued to refresh her skills by attending a term of night classes most years and attending biannual weekendlong “silent camps”. She also now attends NZSL playgroups with her young son.

There is a distinct culture.

Understanding this has helped me when dealing with Deaf clients.

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MARK ASPDEN

T H E C A P TA I N the chief executive position in July.

The Harrison Stone partner has been serving on the New Zealand Football board since 2008 and before that was a board member and subsequently chairman of the Auckland Football Federation from 2003 to 2008.

“With having a commercial law background, something which often stands out as being a career path is sitting on various boards. So when the Auckland Football Federation board opportunity came up, which was in a sport I’m keen on and have played since I was a kid, I was interested as it was an area where I felt I could help more due to my legal skills,” Mr Aspden says.

“Being CEO wasn’t something that had been in my mind at all really, but when the New Zealand Football board sat down and thought about it we realised it was not easy to find someone who had a background in this area and was available to help out on a short-term basis.

“I’ve been involved in the organisation and in football for over a decade so I know a lot of the staff, business and key stakeholders involved with New Zealand Football.”

It is a different direction for Mr Aspden from his usual work at Harrison Stone law firm. While New Zealand Football is the national organisation for the sport in this country, it is reliant on a strong volunteer and grass-roots base.

“I think it is always important to remember that while national teams get the media profile, for 98% of those in football their main interest is making sure they have got a field to play on Saturday and opposition to play against.

“People discuss whether sports are a business. Sports are simply sports although there are business and legal principles you need to apply a lot of the time, but you always have to keep in mind that most of the people involved are volunteers. So it is not a chain of command

Taking on a leadership role Commercial lawyer Mark Aspden has been asked, figuratively speaking, to put on the captain’s armband in an important year for the sport of football.

The national men’s team, known commonly as the All Whites, will be playing for a spot in next year’s FIFA World Cup in November against a yet to be confirmed opponent. (They will play the fourth-placed team in the North/Central America Federation, currently Honduras).

Meanwhile Mr Aspden has taken the role as interim chief executive of the sport’s governing body after Grant McKavanagh resigned from

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B A R B A R A VA G U E

THE LOCAL I fell in love with the place Moving one’s practice from the busy urban environment of Auckland to a more serene lifestyle in rural North Canterbury is an idyllic dream but one tempered with the realities of major change.

Having to build up new business contacts in a rural area where the client base is small, and not to mention the difficultly of relocating, seems only possible if everything falls into place – as it did for Barbara Vague back in 2003.

She is the only practising lawyer in the small town of Hanmer Springs with a population of under a thousand.

“I was practising in Auckland and approaching a time when I was looking at alternative forms of practice and so I was looking into the possibility of practising in a small rural area,” she says.

“One of my children owned property in Mount Lyford and consequently I got to visit Hanmer Springs. I simply fell in love with the place as so many people do.”

Buying a property in 2003, Barbara set out

T H E C A P TA I N Continued system. We have to work hard to keep everyone interested and wanting to be involved in the game.”

Mr Aspden grew up in North Otago near the town of Kurow, “probably known best for the fact that Richie McCaw grew up there”. He played for North Otago and for Otago University while studying there and these days enjoys the game as coach of his young son’s club football team.

“The three things I tell them are try to win because that’s what you do in sport, show sportsmanship and of course have fun. All three are as important as the other. I think team sports really give good lessons in life: relying on other people, them relying on you and the pleasure of shared success.

a five-year plan for relocating her practice from Auckland to Hanmer Springs. This was completed in 2009 when she sold her Auckland-based practice to another law firm and began working exclusively in the small North Canterbury town.

“From 2004 I was doing a shuttle between Auckland and Hanmer Springs, just building up the contacts and getting a very small clientele base while continuing my practice in Auckland.

“Back in Auckland I did some litigation, mainly Family Court and tribunal work, but I also had a general practice in property conveyancing and commercial work.

“There was a shift of that kind of practice down to Hanmer Springs although subsequent to the Christchurch earthquakes I now don’t do any court work. It was simply not cost effective for me, so now it is pretty much commercial, property conveyancing and estate work.”

The closure of Queen Mary Hospital in Continued on following page ...

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KEITH BROWN

THE REFEREE Rugby refereeing and the law Southland lawyer Keith Brown probably has an advantage over fellow colleagues when it comes to a good yarn or two. The former international rugby referee has stood in the middle of many of the most famous rugby stadia in the world plus some of the less traditional grounds.

“I once had to referee an international game in Port Moresby (Manu Samoa vs Papua New Guinea). That was a real experience. We were basically playing inside a cage of barbwire and the fans were just on the other side of it.”

Mr Brown took to the whistle in 1993 while studying law at Otago University, after realising he was a “wee guy trying to play in a big guy’s game”. His rise up the refereeing ranks saw

the Cruickshank Pryde partner control 111 first class matches and eight international test matches.

It saw him deal with some of the most opinionated people in the world – rugby fans.

“Some of the games in South Africa were an experience due to the passionate supporters. You sometimes needed a police escort to the match which is something we don’t deal with in New Zealand. I loved refereeing over there on those grounds because we think we’re passionate about rugby, but we have nothing on South African fans.

“After calling a penalty you could often hear the reaction (by the fans) but you’re tied up in the moment, and you have so many things on your mind, you just have to work hard to mentally shut the reaction out.

“The practice of law is about dealing with

We think we’re passionate about rugby, but we have nothing on South African fans

T H E L O C A L Continued Hanmer Springs in 2003 was a catalyst for Barbara’s almost instant involvement with the community.

“The Queen Mary Hospital was iconic for being a place of recovery and wellness. But economically speaking it was also a key part of the community in Hanmer Springs. Generally there was a fear that, with the closure of the hospital and loss of jobs in the community, the beautiful buildings and grounds would be abandoned,” she says.

“So although at first I worried I might not be well received as being the ultimate outsider coming from Auckland, in fact I was welcomed by the founding trustees of the Queen Mary Reserve Trust as an additional member to support the process of keeping the land in public ownership.’’

The Queen Mary Reserve Trust successfully lobbied the then

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Labour Government from 2003 to 2008 to keep the northern six hectares of the Queen Mary Hospital land as a historic reserve.

“That has been my real engagement with the town. Sometimes it has been easy, sometimes it has not. But it is certainly something that I have been proud to be involved with.”

While the five-year plan begun in 2003 for continuing in her profession in a different way has been successful, Ms Vague believes much of it was serendipitous.

“I don’t know if the circumstances I have experienced here could be repeated elsewhere.

“It would depend on what your interests were and law has become so broad now that if you have a concept of ‘the law is my life’, these are my interests and ‘can I mould these around what I love and enjoy?’ then you will find a place.”

In rugby the referee is given a lot of licence as to when to apply the law.

That doesn’t happen in the practice of law

people and that is what refereeing really is as well, relating to people,” he says.

“I’m not sure there are too many parallels between the practice of law and refereeing rugby. In rugby the referee is given a lot of licence as to when to apply the law. That doesn’t happen in the practice of law.”

Since 1994 Mr Brown had built a career in commercial and rural law. A year after he was made a partner in 2001, a secondary career came calling when the New Zealand Rugby Union selected him for its national referee squad. In 2009 Mr Brown was made a full-time professional referee with the NZRU, a position he held until 2012 when he retired to spend more time with his young family and return to his practice.

“The practice here in Invercargill on a Friday

is fairly busy and that is often the day referees need to be moving around the country or further afield. Modern technology did make it easier for me early on in that clients didn’t need to meet me in the office all the time.

“But in 2009, and until last year, I was employed full-time as a referee so I needed to take a leave of absence from the firm although I would come into work when I was back in town.

“Initially I signed a one-year contract with the NZRU, and I thought that would be enough to get the refereeing bug out of my system.

But it ended up taking four years. Thankfully my partners at Cruickshank Pryde, my family and my clients were all incredibly supportive.”

Mr Brown still referees lower club games and school rugby but is happy to now focus again on being a lawyer and on weekends an ardent fan.

“I wanted to retire at the right time. The last thing I wanted was to be bitter and twisted when I left refereeing at that level and that certainly wasn’t the case. I loved every moment of it. I do miss some aspects of it but I enjoy being able to put my feet up on a Friday night and just watch the game.”

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People Auckland barrister Maria Dew of Bankside Chambers has been appointed deputy chair of the New Zealand Health Practitioners Disciplinary Tribunal. She will take up the position for a three-year term to 30 June 2016.

Auckland barrister Robin Arthur has been appointed as a member of the Employment Relations Authority (ERA). His employment law practice specialised in independent investigations and he previously served on the ERA from June 2005 to June 2012.

Palmerston North Crown solicitor Ben Vanderkolk has joined the Universal College of Learning (UCOL) Council as a ministerial appointee. Mr Vanderkolk practises criminal, private and commercial litigation.

He has been a member of the Law Practitioners Disciplinary Tribunal and the Faculty of the NZLS CLE Litigation Skills Programme.

The Chief Justice, Dame Sian Elias, has approved a number of changes to the Commercial List Judges, with effect from 13 August. Justice Heath, Justice Courtney and Justice Gilbert have been appointed as Commercial List Judges. The changes are part of the normal rotation of the members of the Commercial List. Judges based in the High Court at Wellington have also been appointed as Commercial List Judges. From 13 August, the Commercial List Judges are: Justice Winkelmann (Supervising Judge), Justice Rodney Hansen, Justice Heath, Justice Venning, Justice MacKenzie, Justice Courtney, Justice Asher, Justice Clifford and Justice Gilbert.

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On the Move Bianca Tree has been appointed a partner of Heimsath Alexander. Bianca practises environmental and resource management law. She has experience across a broad range of development projects and in planning policy.

Bianca joined Heimsath Alexander in March this year, and previously worked at two large commercial firms and a boutique practice.

Parvez Akbar has been appointed Head of Employment Relations, Safety and Wellbeing at NZ Post Group. Parvez provides strategic advice and leadership on all matters pertaining to employment law and health and safety.

Setareh Masoud-Ansari has joined Corban Revell Lawyers as special counsel. Setareh joins the firm to lead the local government, resource management, environment and infrastructure team. She is experienced in advising local authorities, developers and infrastructure providers.

Simpson Grierson has appointed three new senior associates. Ashton Welsh joins the firm’s sales and marketing law team bringing with him experience in staging major international events, bid processes/procurement, the exploitation of commercial rights

(including sponsorship/media rights), licensing and venues.

Ashton advises a range of clients in relation to the sports/media industries. Marc Cropper re-joins Simpson Ashton Welsh Grierson after five years with London-based Addleshaw Goddard.

A member of the corporate and commercial group, his experience includes commercial transactions, structuring and regulatory comMarc Cropper pliance issues. He specialises in technology, telecommunications, outsourcing, payments (including mobile/ digital payments), insurance distribution, loyalty programmes and commercialisation of Rebecca Rendle data. Rebecca Rendle has been promoted to senior associate in the firm’s employment law group. Experienced in all aspects of employment law, she advises clients in a range of sectors including health, banking and finance, engineering, retail and forestry. She regularly acts for clients on personal grievance claims, corporate restructures, disciplinary and performance management processes.

BRIAN LATIMOUR now practices as a Barrister from chambers in Auckland.

Before going to the Bar earlier this year Brian was the senior litigation partner in Bell Gully.

Brian has more than 38 years of experience handling major and complex matters and has conducted cases in virtually all areas of civil and commercial litigation of which more than 50 decisions are reported. He has also appeared as counsel before many specialist Tribunals, Authorities and Commissions on a wide range of matters.

For further information and contact details please refer: www.latimour.co.nz.

People in the law

Bamyan’s Legal System: Room for Growth

By Major Andy Taylor In late 2011 I deployed to Afghanistan for 12 months as part of the New Zealand Provincial Reconstruction Team (NZPRT). My role was to help develop the rule of law and promote good governance in the Kahmard District of Bamyan Province. This would be a daunting task in almost any location, but something that promised to be a monumental undertaking in a country like Afghanistan.

As with the rest of Afghanistan, Bamyan’s justice system suffered terribly at the hands of the Taliban. Years of constant warring, political upheaval and crippling poverty all but destroyed the governmental infrastructure. These conditions left a law and order vacuum that the Afghan National Police and judiciary have struggled to fill ever since.

Consequently, the NZPRT has focused its rule of law programme on developing human capacity within the justice system to help the Afghans create a robust legal structure which will hopefully bring much needed security to Afghanistan.

In my role, I mentored and assisted Kahmard’s Governor, one and only judge, prosecutors, police and security agencies.

I would have relished the opportunity to assist with mentoring defence lawyers, but unfortunately Kahmard does not have any!

The aim of my involvement was to provide these key players with the information and examples they needed to help improve their performance and boost public confidence in the legal system. However, I soon realised that educating officials had its limitations, and that I needed to directly educate the community to get further traction. To that end, we established informational workshops run by Afghans for community leaders, focused on civil and legal rights. These gatherings proved to be a great success and helped communities help themselves During my 12-month deployment, I was primarily based out of Combat Outpost Romero accommodating between 10 and 50 soldiers from Kiwi Company. The outpost at Romero was a small remote base located close to the District capital of Ru Ye Sang.

The environmental conditions in Kahmard were just one of the many challenges we faced.

With temperatures dropping as low as minus 30s in winter and well into the 40s in summer, it was

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a testing place to live and work.

These extremes in temperature also brought with them devastating floods, snowdrifts and Major Andy Taylor flying in a US Blackhawk helicopter to meet with Afghan tribal landslides that representatives from the disputed Kahmard/Baghlan border region. further isolated Romero from the rest of Bamyan. Romero’s which effectively bar women from justice and isolation necessitated resupply from helicopallow the tragic situation of baad to continue. ters and airdrops from International Security Baad is the practice of gifting young girls to Assistance Force coalition partners. resolve conflicts. Sadly, I was aware of cases The constant threat from insurgents made where girls as young as five were gifted as safety a key issue and further added to the brides to settle disputes. challenges of the role. To stay safe I was To tackle this issue, we arranged conflict provided with a protection team for all my resolution training to help elders settle meetings and, as is the invariable practice disputes without relying on their more in Afghanistan, I went armed. traditional and illegal methods. I can only The protection team did an excellent job hope that having been provided with an keeping me safe in trying and dangerous example of dispute resolution which is not conditions. The insidious threat of roadside dependant on depriving the innocent of their bombs and ambushes made travel dangerous human rights, that the concept takes root and turned a casual cup of tea discussion with and develops among the leaders. the judge into a three-hour saga involving up One of the more disturbing areas of injusto 20 soldiers and four armoured vehicles. The tice in Bamyan is the widespread sexual fact that the NZPRT was willing to dedicate abuse of young children – a tragedy that these resources and the soldiers so ready the local communities seemed practically to put themselves at risk, demonstrates the numb to. Dealing with the rape and murder commitment of the New Zealand team to the of young children was one of the most difdevelopment of the rule of law in this area. ficult elements of my role, and I know I There are many challenges facing the was aware of only a fraction of the cases. justice system in Bamyan. Pervasive corThankfully with the influence of the NZPRT, ruption, endemic violence towards women cases of child abuse are now being reported and tribal divides combine to inhibit justice and, most importantly, being investigated and rob the system of credibility. by the Afghan Police, which is a dramatic Criminal trials rely heavily on character step towards protecting Bamyan’s children. testimonials from mullahs, which often stand My year in Afghanistan was a unique and in stark contrast to the actual evidence in challenging, yet exciting and rewarding the case. Civil trials are plagued by bribery experience. I was able to work with lawyers and often see decisions “bought”. To further from around the world and be part of a process exacerbate the situation, Kahmard faces that will demonstrably improve the lives of the additional challenge of being the cenAfghans. There are many brave Afghans who tral focus of insurgent attacks in Bamyan, risk their lives attempting to improve their something that became all too clear to the justice system in Kahmard and with New NZPRT in August 2012.

Zealand’s support, improvements in law To fill the justice void, Mullahs and village and order were made and change initiated. elders provide traditional informal dispute These changes will hopefully see the rule of resolution. Although this informal process law replace the rule of the fear. would seem to be the solution that Kahmard so desperately needs, it is impeded by the Major Andy Taylor is Assistant Director of uneducated and highly conservative elders Military Prosecutions at NZDF. People interested who control the process. in finding out more about the role of NZDF lawyers This process is founded on social customs can contact him at andrew.taylor@nzdf.mil.nz.

Moving Towards CPD

CPD Plan and Record (CPDPR) refresher At the heart of the Law Society’s lawyer-centred CPD initiative is your CPDPR. This is your record of your own unique learning needs, your proposed action plan, and the activities you choose to put your plan into effect. It includes your: • learning needs; • action plan; • activities record; • reflections; and • documentation verifying your attendance.

What should your CPDPR look like?

There is no set format for your CPDPR. We’ve created a sample plan for a lawyer in private

practice with around 3-5 years’ experience.

The lawyer hopes to use a variety of learning methods and to develop some personal management skills, as well as keeping up to date with the law and areas of practice. Your CPDPR could be kept in hard copy format or it could be kept electronically, or a bit of both.

Your CPDPR may change

Your CPDPR is a living document. Your learning needs may change during the course of a CPD year (which runs from 1 April to 30 March) or your priorities may change. There may be an important new piece of legislation you need to know about, or you may be about

to become a partner or director and need to complete the Stepping Up programme.

Your activities are also changeable

The lawyer in our sample plan has not set out specified activities at the start. Instead, the lawyer has recorded some ideas of what actions they would like to take to meet each identified learning need. These can change.

New or previously unknown learning opportunities may arise during the year. Alternatively, you may become aware of a better opportunity in the next CPD year and decide to put off a particular activity until then.

Sample CPD Plan for a Lawyer in General Practice Learning Needs & Reason for Them

Date

CPD Hours

Reflections

Proposed Actions

Activities & Details

Time management – how to organise my work more efficiently and increase productivity

Enrol in a short course specifically aimed at legal practice, and new lawyers in particular.

In-house training session Be more efficient and effective.

Bring myself up to date with changes to the e-dealing practice guidelines.

Attend a seminar.

NZLS CLE Property Law Section webinar.

E-dealing practice – new guidelines.

31 June 2014

1

Refresh my knowledge of the key compliance requirements for Landonline e-dealing. Refer to the updated NZLS Property Transactions Practice Guidelines.

I am increasingly appearing in relationship property cases and I need to improve my litigation skills.

Take a suitable course, focusing first on crossexamination.

Half day Toolbox Time workshop, CLE Family Law crossexamination skills.

NZLS CLE Ltd

20 Oct 2014

3

Techniques for preparing for crossexamination, better questioning skills. Will ask more closed questions.

Working with expert witnesses.

How the new e-discovery rules will affect my practice – how to advise clients under the new rules.

Attend a seminar session.

E-discovery – questions and answers, Wgtn branch lunchtime seminar

1 Feb 2015

1

Learned how to run a file under the new tules.

Will use resources and checklist to operate files under the new rules.

None at this time.

Write article on recent trust case law

Research and write article.

1500 word article for LawTalk.

10 March 2015

7

Worked out how two major C of A and Supreme Court cases affect the application of the new trust regime. Will set up new internal processes and check lists for client advice.

1 May 2014

2014 – 2015 CPD year 4

CPD hours required

10

CPD hours completed

16

CPD hours carried forward

Outcomes / Evaluation / What I Learned / Will Do differently

Further learning needs

How to use technology more efficiently. I will establish online email and use Outlook bringups and reminders to complement my online calendar.

Make better use of technology to organise calendar and plan ahead for completion of required tasks (see below).

How to identify and manage partners’ priorities. I will use a classification system I have developed.

5

Note: Documentation verifying participation in the recorded activities has been kept separate

LawTalk 826 · 30 August 2013 ·

15

Practising Well

Is life satisfaction possible in the modern world?

By Melanie Shaw We often hear people talk about “living the dream” and seeking more “life satisfaction and happiness”. But happiness and life satisfaction are quite separate things.

Happiness is a positive emotional state which can occur at any given point in time.

Life satisfaction, on the other hand, is more representative of how someone feels about their whole life – not just a moment in it – as well as where life is heading in the future.

We often find that we are so wrapped up in the world of here and now that it can be difficult to think about where we fit within the life satisfaction spectrum. Are we really happy with our lives? Do we love the work we do?

When working in therapy with clients who are unsure about how satisfied they are with life the miracle question is often posed: “if a miracle happened and you woke up tomorrow and your life was perfect what would it look like?”

For many people this is a difficult question to answer fully. Knowing what we truly want in life and what would truly make us feel happy and satisfied is not something we ask ourselves enough. Spending time to reflect on our lives, including past, present and future can be a really useful tool in working towards life satisfaction which, in turn, brings with it more happiness.

Here are some tips to help guide you through the maze and aid your reflections on your own and your client’s life satisfaction.

Slow down

It is the modern world view that to achieve is to do more and do it faster. We have time pressures placed on us by others and by ourselves.

Technology was sold to us as a way to improve our life and help us be more efficient and while there is a place for this it has also meant that we are even more contactable and have even less down time. Who hasn’t answered work emails while sitting on the bus home or while at the beach with your family?

We are under more time pressure than ever it would seem and this has an impact

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on the other areas of our life as we dash from a busy work day to a busy supermarket, though rush hour traffic to a busy home life.

When do we actually take time to slow this down or even stop to look around us and really think about what we are doing and experience the activity fully?

By taking things at a slower pace and really experiencing the moment we can actually enjoy what we are doing more.

Yes, even the supermarket shopping can be enjoyable if we just slow things down and embrace the moment.

Practise mindfulness

This sounds like the easiest thing in the world but how often do we actually really notice things?

Do we get to a destination and not know anything about what happened on the journey, sit at our desk and do our work but not really have a full awareness of our surroundings.

These are classic examples of our auto pilot way of life. The conflicting pressure on our time makes it easier to lose awareness of the moment and the finer details of our lives. We quite often will not notice the good things in life, and we miss the messages and signals that are all around us which could lead us to be living a more satisfied life.

Mindfulness is a way of developing your skills around “being present” and paying more attention to your world and the wonders in it. Practising mindfulness allows us to be more present in our life and work and improve our quality of life. It will not take

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away the pressure of a deadline but it will help you handle the pressure differently.

Play more

“What!” I hear you exclaim, “but playing is just for kids”. Well you may be surprised to hear that playing and having fun is essential in our mission to enjoy life and be more satisfied.

We are often so engaged in our work and the grown up world that we lose touch with the innocence of play and having fun. How great does it feel to truly let yourself go and run around, or play on the swings in the local park? Workplaces are not usually designed with too much fun in mind, especially when the job you do is one of a serious nature. But there are ways to re-introduce fun into the office.

In the office I work in we have “Bob”. He is the ugliest cactus you have ever seen and I really do mean ugly. Bob gets nominated to those staff members who have either done something amazing or incredibly stupid. For example, my boss drove her car into a wall at work, and needless to say Bob sat on her desk for a while after that.

Fun can be introduced in many ways. It doesn’t have to be big and noisy. Small fun is still good for us.

Be positive

Is your glass half empty or half full? The way in which you answer this question may well reflect your outlook on life in general as well as your attitude towards yourself.

There has been a lot of research over the years on the optimistic and pessimistic personalities and how these affect our health and wellbeing. The person who can find a positive in most things is often the person who can handle stress in a healthier way and report more life satisfaction in general.

Being positive isn’t about ignoring the negative things life throws our way. It is more

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about how we approach the negative aspects of life and trying to find solutions along with accepting that we can’t always get what we want and things don’t always go our way.

Our internal self talk is also a factor in the way we see the world. If we have more positive self and affirming self talk then we are more likely to see the world in a more positive way. It takes effort to switch negative self talk into more positive versions but it is well worth the effort as this can help shift our focus from negative aspects of a situation to the more positive ones.

By having a more positive outlook on life we are not only reducing our stress levels but we are increasing our life span and improving our physical and emotion health.

So as you can see the above steps towards improved life satisfaction sound simple and in many ways they are. The major obstacle to doing them though is time, yes that dreaded thing we never have enough of and we all want more off. But maybe it’s really about making the most of the time we have and using it more wisely that will benefit us more.

Melanie Shaw has 20 years’ experience of working in the mental health field and has

Photo by Flickr user Lauren Rushing cbnd

specialised in trauma therapy work in the United Kingdom where she has spent most of her career. While in New Zealand, Melanie has worked in in-patient settings as a senior clinician specialising in mental health rehabilitation and recovery with service users with high and

MIND ALTERING

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LawTalk 826 · 30 August 2013 ·

17

Inspectors’ Briefcase

Certifying Identity Verification

•

is the donor’s place of business in reasonable proximity to the attorney’s office?

If so, then enquire into whether the donor has adequate PI insurance and whether the attorney’s PI insurance covers the attorney acting in this capacity.

In order to further assess the risk or appointment the attorney should consider: • asking the donor to disclose his/her past and present complaints/disciplinary matters; • asking the donor to disclose past trust account inspection reports; • possibly checking through a sample of client files to ensure there is adequate reporting to clients and all correspondence is filed in an orderly manner; • his/her level of comfort with the manner in which the donor operates the business and related matters; and • discretely ascertaining the personal health of the donor (not easy).

Lawyers who are sole practitioners are encouraged to establish reciprocal attorney arrangements. Lawyers are reminded to review these arrangements to ensure that they have not become over committed in the unlikely event of being called upon to act.

Links to further guidelines are available with the online version of this article at www.lawsociety.org.nz/lawtalk/issue-826/ certifying-identity-verification.

By Jeremy F Kennerley, Financial Assurance Manager As part of the wider regulatory framework associated with the Anti-Money Laundering and Countering of Financing Terrorism Act 2009 (AML/CFT Act), lawyers need to be aware of the requirements and ramifications stemming from the Identity Verification Code of Practice 2011 (the Code).

Although lawyers are not yet covered under the AML/CFT Act, they should comply with the requirements of the Code when certifying identity verification.

New Code of Practice

From 30 June 2013 the Code came into effect, having been gazetted on 1 September 2011 under s64 of the AML/CFT Act. The code was issued by the three supervisory bodies under the AML/CFT legislation: Department of Internal Affairs, Financial Markets Authority and Reserve Bank of New Zealand.

The Code can be located at www.fma. govt.nz/keep-updated/reports-and-papers/ identity-verification-code-of-practice-2011.

Codes of practice are intended to provide a statement of practice to assist reporting entities to comply with certain AML/CFT Act obligations. They come under subpart 5 of the AML/CFT Act and set out suggested best practice for meeting all necessary obligations.

Compliance with a code of practice is not mandatory. However, if a reporting entity opts out of a code of practice then it must still comply with the relevant statutory obligation by some other equally effective

means. The reporting entity must provide written notification to its AML/CFT Act supervisor that it has opted out of compliance with a code of practice and intends to satisfy its obligations by some other equally effective means. Lawyers are not yet reporting entities.

Powers of Attorney

Every sole practitioner and sole director of an incorporated law firm is required, pursuant to s44 of the Lawyers and Conveyancers Act 2006 (LCA), to comply with Schedule 1 of the LCA. This requires granting a power of attorney in favour of a barrister or solicitor entitled to practise on his or her own account (an attorney) and an alternate, to conduct the sole practice, or act as the board of the incorporated firm, should certain circumstances as set out in the Schedule arise.

The power of attorney document enables the attorney to conduct the donor’s practice, operate the trust account, dispose of the donor’s practice (in certain situations) and do all things necessary or incidental to the above. What are some of the key matters to be considered before accepting an attorneyship?

Firstly: • does the attorney have experience of the donor’s area of practice?

• realistically, could the attorney cope being called upon to act with no or little warning in a worst case scenario?

If anyone has further questions or requires any assistance please contact the Law Society’s Inspectorate through the Financial Assurance Manager jeremy.kennerley@lawsociety.org.nz phone (04) 463 2936.

Certification of Identity Verification The Code is prescriptive over the certification of identity verification documents.

Verification of identity can be carried out using copies of documents that are certified by a trusted referee, as opposed to securing the original documentation itself.

Under the Code, lawyers are specifically included on the list of trusted referees that may undertake the certification of identity verification. Lawyers who are undertake this work need to be cognisant of the following: 1. The Code requires a trusted referee to

18

· LawTalk 826 · 30 August 2013

sight the original documentary identification, make a statement to the effect that the documents provided are a true copy and represent the identity of the named individual.

2. Certification must include the name, occupation and signature of the trusted referee and the date of certification. This date must be within the three months preceding the presentation of the copied documents to a reporting entity.

When lawyers are certifying documentation,

they must state their name, date and a specific statement that the documents represent the identity of the person. This differs from how lawyers have traditionally certified documentation, being that the document is a true copy of the original.

The traditional “true copy” wording is not consistent with the requirements of the code of practice. Compliance with the Code in this respect is neither onerous nor difficult, but does require careful attention to the detail.

Gallavin on Litigation

Litigator as Artist

By Dr Chris Gallavin The litigator as artist – a rather bold title that is sure to endear me to litigators while inducing a cough or choke in those of you who have the happy/necessary/tedious/ begrudging pleasure (circle applicable) to work with or alongside the said litigator[s].

The litigator ego is large enough you may say, without me proclaiming them to be artists. That said, I do think there are a number of parallels between the litigator and artist that are worth pursuing, at least for the benefit of the young litigator if not the artist. Much is often said about the litigator as a story teller and it is within this narrow context of particular skill that I would like here to focus my attention.

There is more than meets the eye in the skill of story-telling, let alone the array of other skills in which a litigator must be proficient.

I want to focus on the artist analogy via the following two points. The first I will refer to as the “over-egg” phenomena. The second, “finding your own voice”.

The ‘over-egg’ phenomena

The attributes of a good case theory are often said to be clarity, simplicity, engagement with as much of the evidence as is possible, and believability. In order to devise a good case theory a litigator must, I believe, understand the human condition in much the same way as a painter, writer, sculptor or even a dancer.

Not only does litigation deal with the real – real people, real emotions, real materials, real consequences – but it does so in the parameters of the unreal – truth, standards of proof, counter perspectives, conflicting facts, unclear evidence. With this in mind there are two very real dangers that may arise at the stage of formulating a case theory, the first being the conspiracy theory and the second, the over-working of a component of a theory. Both of these dangers come within the notion of the “over-egg” phenomena.

A conspiracy theory can be defined as the formulation of a theory insufficiently supported by evidence. As tantalising and interesting as

such theories are, they must be avoided in litigation irrespective of whether you believe them to be true or not. The overworking of an element of a theory is to be avoided for many of the same reasons although the overworking of a fact can have a more insidious effect upon an otherwise measured and robust theory. Much the same as in the art world, to over-egg an argument is to overwork a piece in part or whole to a point of artificiality (this latter point being something I overheard a clearly “arty” couple say at an exhibition I stumbled upon last week). This phenomena will often arise where a litigator, whether he or she be a prosecutor, or counsel for defence, plaintiff or respondent, has become so bound with their case that they fail to see where savings in a theory can and should be made or mistake believability for being clever. One need not spell out absolutely everything every time in every case – to do so may introduce an element of the unbelievable into a case theory ultimately undermining chances of success. Is it necessary, you ought to ask, to provide an explanation of every aspect of a case or is the point made despite or perhaps because of the ambiguity in what happened at a particular moment? At the risk of sounding utterly pretentious, it was Mies van der Rohe who stated that ‘less is more’ and while not talking about the art of litigation Mies’ line is often, I feel, of equal application to litigation. To use the work of the German Bauhaus movement as an analogy: litigation is utilitarian – functional while not altogether unpleasant to the eye. In short, masters know when not to speak.

Finding your own voice

“boundary setters”, or “boundary destroyers”.

However, for the vast majority of artists their “voice” will often mirror or borrow from the voice of such innovators. There is absolutely nothing wrong with that. Whether one is Francis Bacon setting the parameters of a brave new world, or a proponent of a particular style in which fine works have been produced and exhibited, the fact remains that to be a great artist you must find your own voice. I suggest that the same applies to the litigator. As an orator, a litigator must quite literally find their “voice”. This may take quite some time – the journey for which may only effectively begin after university study has been completed.

But how on earth does one find their voice?

To continue with the gratuitous use of clichés, imitation is the best form of flattery. We all need mentors and must never think that we have finished learning. For young litigators in particular the effect of a mentor may be exponentially great. Not only can they guide and instruct but they can provide a model for replication. Finding one’s own voice often involves the task of imitation, modification and finally personalising the style of others.

Like a second-hand suit – with a nip and tuck here and there one may never know that it was previously owned by anyone but you. So, the litigator as artist – a bold title but an analogy that I believe is there to be made.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

The key to success for any artist begins with finding their own voice.

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LawTalk 826 · 30 August 2013 ·

19

Technology

Managing Continuing Professional Development

By Brad Booysen The New Zealand Law Society has developed new rules for the Continuing Professional Development (CPD) of all lawyers in New Zealand. The basic requirement is far from onerous. In fact, many lawyers are likely already exceeding the guideline’s minimums in the professional development path they are already following.

The requirements have been kept flexible to allow compliance with the Law Society’s objective “to build on the culture of lifetime learning which exists in the New Zealand legal profession”. The greatest change in the Law Society’s guidelines will be the requirement for documentation and declaration.

The learning activities and goals are designed to be “learner centred rather than prescriptive”. This is to say that each lawyer, and ideally in consultation with their organisation, should be able to determine for themselves the areas of professional education that will serve them best.

According to the Law Society’s website: “The requirement is a minimum requirement.

A sizeable proportion of New Zealand lawyers already complete more than 10 hours of CPD each year, and there is no maximum or limit for particular CPD activities.”

CPD Plan and Record

The new guidelines call for each lawyer to create a Continuing Professional Development Plan and Record, or CPDPR. The CPDPR should be updated annually. The planning part of the CPDPR should include identifying and prioritising the learning needs for the year ahead, and devising an action plan to meet those needs.

Although each lawyer will have an individual CPDPR, sessions may be conducted jointly, perhaps as part of an in-house training session at the firm’s premises. Activities that fulfil the Law Society’s requirements will be up to each lawyer to determine.

Suggested activities include legal education programmes such as conferences, seminars, coaching sessions or study groups.

Lawyers may also consider distance learning

20

· LawTalk 826 · 30 August 2013

programmes and webinars, teaching or lecturing, or writing law related articles or books. The Law Society is leaving the format of the CPDPR to the discretion of the individual lawyer.

Managing your CPDPR

The CPDPR can be created using Microsoft Word and following the Law Society’s guidelines. You’ll save yourself lots of frustration by updating your plan after every activity you attend. Set yourself a calendar reminder the day after an activity to update your plan.

Verification is an important part of the new CPD rules. There are a number of ways you can verify your attendance such as completion certificates, attendance records and assessment results. Scan and save the documents to your computer and/or use your smart phone’s camera. See the Law Society’s website for more ways to verify attendance.

declaration that is more than five days late will signal to the society that the lawyer was not able to complete the requirements.

Managing documentation

Setup a file on your computer to store all receipts, documents and certificates that relate to your CPD activities. In the case of an audit, you’ll need to provide the necessary documentation. Records must be kept for a minimum of three years so make sure this file is backed up regularly.

Brad Booysen is the founder of Storkk (www. getstorkk.com), a New Zealand based startup that’s helping lawyers move their practice to the cloud. He is passionate about technology and how it can transform the way we work and play.

Declaration of compliance

The biggest change will be the requirement for documentation of the activities and declaration of their accomplishment. Under the new CPD rules, each lawyer will be required to submit a declaration of compliance for every year or partial year that they practise. The declaration will be filed at the end of the CDP year (1 April to 31 March).

The declaration may be submitted before 31 March if the minimum requirements have been met and the CDPRP is up to date, but a

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Courtroom Practice

Cross-examining Children English Lawyers Move the Goalposts

By Dr Emily Henderson Testing the evidence of children in the criminal courts is a perennial problem, but one the English bar and the English Court of Appeal are getting much closer to solving.

It is worth considering just how they are managing – and taking a peek at the tools they use.

The problem: lawyers and communication

The hard truth is that, whatever we may believe, most of us are not very good at communicating with children in court.

While most lawyers have infinite faith in conventional cross-examination techniques, a vast number of studies over the last 30 years, including reasonably recent ones in New Zealand,1 suggest it is, in fact, a peculiarly poor method of testing children.

Cross-examination’s traditional emphasis on controlling and leading may (or may not) serve a purpose in preventing robust adult witnesses evading the point, but with children numerous studies have found there is a high risk that they simply comply with the examiner’s suggestions. Thus the evidence produced is often seriously unreliable.

Further, study after study (including recent New Zealand ones) have found that the language cross-examiners use with children is frequently inappropriate. While many of us in the criminal court pride ourselves on our ability to adapt (after all, many of us were children once ourselves) the sad fact is that the research shows we are often quite deluded about our skills.

A recent study of language in New Zealand criminal trials showed a high proportion of the questions were unsuited to their recipients.

There was an overwhelming preponderance of highly suggestive questions, questions containing multiple embedded clauses (or hidden assumptions); two (or three, or four) -in-one questions; a high proportion of highly suggestive tagged questions (“he didn’t do it, did he?”) and a tremendous amount of developmentally inappropriate vocabulary and good old legalese.

English cross-examination has been found

to be at least as bad as the Kiwi variety. There are well-respected studies which suggest as much as 50% of questions asked of children are incomprehensible.2 Not only this, but, unfortunately, research also shows that judges and prosecutors very rarely intervene, even where the cross-examination has slid completely off the rails. The likely reason is not only are judges and prosecutors wary of appearing over-protective of the witness but also most of us, at the bench or the bar, really know very little about spotting inappropriate questions.

The problem is not only with children.

Studies also suggest a far higher proportion than previously realised of adult witnesses and especially adult defendants have significant undiagnosed learning disorders which interfere with their ability to communicate in court. Autism, Asperger’s, stroke victims, people with Downs Syndrome, the Deaf, those with serious speech impediments – there are numerous obvious and not-so-obvious witnesses and defendants who struggle to understand and to make themselves understood in court.

Unreliable evidence helps no one.

It doesn’t help the jury to get evidence it can’t make head or tail of. It doesn’t help a child to be confused and baffled. It doesn’t help the innocent defendant. A prosecutor can always fall back on the “How can you pay any attention to that retraction given the way it was obtained? Rely on what she said to the nice evidential interviewer who could at least ask a question a kid could understand.”

Nor does it help the legal profession in its struggle for economic survival if the media and academics (or politicians) can attack us for incompetence or even cruelty. Poor cross-examination hurts us all.

English reforms: judicial guidance and advocacy training

However, in the last three years the English courts and the English legal profession have made massive strides to turn things around – and they have done so off their own bat.

Since 2011 the English Court of Appeal has released a game-changing series of decisions identifying and cracking down

on a variety of inappropriate tactics and endorsing judges who keep proper control of their courtrooms.3 The Court of Appeal has repeatedly said that these changes aren’t about bleeding hearts. This is about developing a style of cross-examination which is rigorous but also reliable: a method of testing which gets results and doesn’t rely on simply creating confusion.

The legal profession has also poured massive efforts (on a very restricted budget) into training barristers to cross-examine properly.

The equivalent to NZLS CLE’s Litigation Skills course, the Keble advocacy training week on the South Eastern Circuit in England devotes two days to examining vulnerable witnesses.

The UK Criminal Bar Association has produced an excellent how-to DVD just this year.4 There is also a remarkable free website, run through the Bar’s Advocacy Training Council, developed by senior academics and endorsed by no lesser person than the (ex-defence counsel) Lord Chief Justice, giving clear advice and tips on cross-examining everyone from very young children to autistic adults, all of which can be printed off on a sheet of A4 and taken into court with you. Did I mention the free bit – and the bit where Kiwi lawyers can access it too?5 Several English barristers and judges to whom I have spoken recently even make the point that the ability to deal well with vulnerable witnesses can be part of the Bar’s USP: a unique selling point in a world of cost cutting.

Training and judicial guidance – could they be the keys to better trials for vulnerable witnesses and defendants? And could New Zealand apply the same methods?

Dr Emily Henderson is the New Zealand Law Foundation International Research Fellow and Visiting Fellow, Clare Hall, Cambridge.

1

Hanna, K., Davies, E., Crothers, C, & Henderson, E. Questioning child witnesses in New Zealand’s criminal justice system: Is cross-examination fair? [2011] (www.tandfonline. com/doi/abs/10.1080/13218719.2011.615813#.UgVCqKzy9VU); Psychiatry, Psychology & Law; Zajac R.

2

Plotnikoff J & Woolfson R. Measuring up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings. NSPCC [2009] (www.nspcc.org.uk/ measuringup); Spencer J & Lamb M Cross-examination: Time for a Change? Hart [2012].

3

R v Barker [2010] EWCA Crim 4; R v W & M [2010] EWCA Crim 1926; R v Edwards [2011] EWCA Crim 3028; R v Butt [2005] EWCA Crim 805; Wills v R [2011] EWCA Crim 1938.

4

Criminal Bar Association. A Question of Practice. [2013]. A training film on the questioning of vulnerable witnesses and defendants, introduced by the Lord Chief Justice, released April 2013.

5

The Advocate’s Gateway at www.theadvocatesgateway.org/

LawTalk 826 · 30 August 2013 ·

21

Branch News Hawke’s Bay

Bar dinner

The Hawke’s Bay branch held a very successful bar dinner on Friday 9 August, with 93 lawyers, honorary members and members of the judiciary attending. The dinner was held to honour three former Hawke’s Bay practitioners who are now District Court Judges: Judge Max Courtney, who sits in New Plymouth; Judge Dugald Matheson, who sits in Whanganui; and Judge Russell Collins, who sits in Auckland. The dinner was extremely well received by those attending, and the venue – Black Barn Winery in Havelock North – also proved highly popular.

The move to the new premises came as a result of ensuring safety in the event of an earthquake. In the case of the Mooney’s Building, an evaluation gave a very low rating for safety in an earthquake. In the case of the library, it had to be moved at very short notice in 2011 when the Dunedin Court building where it was located was deemed earthquake prone.

Auckland

Southland

Mid-winter mingle

The Southland branch’s mid-winter mingle on 2 August was very well received by the 80 people who attended.

The event was a dinner and “trip the light fantastic”, and was held at the White Heron Function Centre, Invercargill.

Otago

Office opening

After the Otago Council meeting on Tuesday 6 August, a small branch opening was held for members to come and have a drink and look around the new premises.

The branch shifted offices last month, moving from its former premises in the Mooney’s Building to its new offices and library on the 4th floor of John Wickliffe House in The Exchange.

Canterbury-Westland

The Great Debate

The Junior Practitioners’ Committee and the Canterbury-Westland branch present The Great Debate on 3 September.

This event – featuring males versus females debating the question Who Does it (the Law) Better? – will be held at 7:30pm at Elmwood Theatre. Drinks and nibbles will be from 7pm.

Phil Shamy of Raymond Donnelly, Duncan Webb of Lane Neave and Jeremy Johnson of Wynn Willams comprise “the boys”. The (junior practitioners’) girls team is Fiona McMillan of Lane Neave, Sarah Hoffman of Wynn Williams and Renee Powell of Helmore, Bowron & Scott. Judge Raoul Neave is presiding.

Nelson Sarah-Jane Lawson (left) and Fiona Eagles with Kevin Biggar and two of his books.

Performance at the next level

Kevin Biggar presented an excellent session entitled Taking Performance to the Next Level at the Auckland branch function room on 14 August. The event was very well attended, with 34 at the presentation, which was sponsored by Fuji Xerox. Drawing on learnings from his adventures and professional career, Mr Biggar shared proven tips and techniques on recognising performance plateaus, confronting unspoken doubts head-on and finding circuit breakers. He also provided tools and realistic strategies to help refocus team members on what they can control, build resilience, create momentum and achieve success.

The expert in professional liability and discipline

Meeting with justice spokesperson

At the instigation of the Labour Party’s justice spokesperson Andrew Little, a meeting with Nelson lawyers was facilitated by the branch.

About eight lawyers attended the meeting on 15 August, starting at 5:30pm. A wide variety of topics was discussed, including legal aid, counsel of choice, fixed fees and other court fees, including the newly introduced Family Court user charge.

A portion of the discussion happened in the dark, as a power outage hit at around 5:50pm. The talk continued, however, while candles were organised.

Surf to summit, at work by 2 Book a half-day’s leave, conquer the waves and mountain, back to your desk by 2 - legend. We will also give you the half-day on us.

LANE NEAVE LAWYERS CONTACT DUNCAN WEBB:

T 03 3793 720 M 021 244 3346 E duncan.webb@laneneave.co.nz

www.laneneave.co.nz

22

· LawTalk 826 · 30 August 2013

Treadwell Gordon – people first Treadwell Gordon – people first Contact Jacqui Powell 06 349 0570

Wairere House, Cnr Somme Pde & Bates St, Whanganui

Corporate Challenge

Corporate Challenge coming soon Lawyers have shone year after year in a major sporting event which will be held for the 20th time this year – the Fidelity Life Corporate Challenge.

This annual five-kilometre road race will take place in Christchurch’s Hagley Park on 6 November, at Frank Kitts Park in Wellington on 13 November and the Auckland Domain on 27 November. All races start at 6:30pm.

Part of the event is the New Zealand Law Society Legal Challenge.

For a number of years now, lawyers have comprised the biggest industry group taking part in the Corporate Challenge. The percentage of lawyers has grown steadily over the years and by last year lawyers made up nearly half the entries.

This level of participation fits well with the ethos of the event, where the main emphasis is not on results. It is on mass participation, health and fitness, and team building. Most enter more for the fun than the competition and lawyers, law firm teams and Law Society staff are no exception.

Along with the great participation by the profession, there were also some great performances in last year’s corporate challenge.

Women lawyers were especially to the fore in the 2012 event, crossing the line first in both Wellington and Auckland.

Clocking the fastest time of any woman competitor in the country, Natalie Gaskin of Johnston Lawrence Ltd was first in the capital with a time of 18 minutes 42 seconds. Just seven seconds in her wake was Genevieve Stark of Buddle Findlay, the 2011 winner.

Barrister Catherine Garvey, of Quay Chambers, was the first woman to finish in Auckland, clocking 21 minutes 9 seconds.

In Christchurch, Tori Sumner of Duncan Cotterill was second in a time of 21 minutes 30 seconds.

Matt Harrop of Buddle Findlay was second in the Wellington event, clocking 17 minutes 12 seconds, while Conrad Grimshaw of Grimshaw & Co was third in Auckland.

Legal CEOs won five of the six events across the three centres. In the only event a law firm CEO didn’t win, a lawyer came second. In Christchurch, Matthew Jones was the first male CEO and Annabel Sheppard was the first female CEO. Both are from Wynn

The Duncan Cotterill entrants in the 2012 Christchurch Corporate Challenge. Duncan Cotterill Bolters was first equal in the women’s teams event and third in the mixed teams race. And Tori Sumner was the second woman to cross the line in Christchurch.

Williams & Co. In Wellington, Nigel Stirling from Gibson Sheat Lawyers won the men’s CEO event while Margaret Powell of Cuba Family Law won the women’s race. Tony Johnson from Martelli McKegg won the men’s CEO race in Auckland, while Melissa Clark, also from Martelli McKegg, was second in the women’s event.

Duncan Cotterill Bolters and Wynn Williams made a real race out of the Christchurch women’s teams event. They could not be separated after their first four runners clocked exactly the same aggregate time of 1 hour 33 minutes 28 seconds for first equal. In the mixed teams race, Wynn Williams took out second place and Duncan Cotterill Bolters finished third.

Chapman Tripp won the women’s team race in Wellington, with Crown Law also gaining a win in the mixed team race, ahead of Gibson Sheat. Gibson Sheat was also second in the men’s team race while Buddle Findlay was third.

DLA Phillips Fox rounded out a very good series of lawyer performances in the teams races with second placing in the Auckland women’s event.

The Corporate Challenge was first held

in 1994 and has taken place annually ever since. The race was created by New Zealand middle distance running legend, Dick Quax.

Mr Quax, a former 5,000m world record holder, is now the serving Auckland councillor for the ward of Howick.

The Fidelity Life Corporate Challenge promotes health and wellness among corporates with an achievable goal distance, a participation friendly mid-week date and a series of superb CBD running, or walking, routes. In addition, in this special anniversary year, every finisher in the 2013 series will receive a specially minted 20th anniversary medal.

As well as the commemorative medals, the new owners, Running Events, have proposed several enhancements for the 2013 series.

All events will now start and finish in the same location and feature an accurately measured 5km course. Electronic timing of the race starts will ensure all competitors receive their personal time and amended courses in Auckland and Wellington aim to provide a better race experience for all.

Information of the 20th anniversary series is on www.corporatechallenge.co.nz.

LawTalk 826 · 30 August 2013 ·

23

CPD CalenDar Programme

Presenters

Content

Where

When

Auckland 1 Wellington Auckland 2

14-15 Oct 29-30 Oct 25-26 Nov

Civil introduction to High Court Civil litigation Skills

Sandra Grant Judge Joyce QC or Niki Pender Paul Radich

Mediating Dangerously

This two-day workshop is an excellent opportunity for recently admitted practitioners to develop practical skills in civil litigation in an intense small-group workshop. Don’t miss this chance to ensure that you will be able to face a court case with confidence! You will improve your advocacy skills while you learn how to handle a single file from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation files, competently and confidently. see listing under General

CoMMerCial overseas investment act – process, documentation and latest developments

Annelies McClure

Extended from the presentation at the recent Commercial Law Intensive, this webinar will give an overview of the application process and documentation required, and an update of recent developments – in particular how the 2012 Tiroa E (Crafar farms) High Court decision impacted on the drafting and assessment of sensitive land applications.

Takeovers intensive

Chair: David Jones MNZM

The intensive starts with an introduction to some of the recent changes and developments, followed by an interactive case study in which the presenters will scrutinise a case from the point of view of the different market participants who may be involved in a takeover. This is a must to improve your understanding of the Code, and its application in a practical environment.

Criminal appellate advocacy

Dr Mathew Downs Warren Pyke

Attend this seminar to receive a valuable insight into how to prepare and present appeals to the Dunedin High Court, the Court of Appeal and the Supreme Court. This seminar will benefit you as a criminal Christchurch lawyer regardless of whether you are new to the profession or have reasonable experience.

Wellington Auckland

Webinar

Wellington Auckland

18 Sep

23 October 24 October

CriMinal 21 Oct 22 Oct 29 Oct 30 Oct

Duty lawyer Training Programme

Centre

Intro

Assessment

Practice Court

Duty lawyers are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty lawyer • learn about penalties, tariffs and sentencing options • observe experienced duty lawyers (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty lawyer at a practice court • be observed and assessed while appearing as a duty lawyer (a full day).

Wellington Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

16 August 9 August 16 August 16 August 16 August 13 September 13 September

27 September 27 September (in Wgtn) 27 September (in Wgtn) 27 September (in Wgtn) 27 September (in Wgtn) 18 October 18 October (in Mnku)

28 September 28 September (in Wgtn) 28 September (in Wgtn) 28 September (in Wgtn) 28 September (in Wgtn) 19 October 19 October (in Mnku)

FaMilY introduction to Family law advocacy and Practice

Judge Adams Usha Patel

In following through a case you will learn how to master the core tasks, methods, strategies and documentary and non-documentary procedures you need to know if you are to represent your client in a competent and professional manner. Put the jigsaw together and get the total picture. Through precedents, videos, a book of materials, and performance critique, this course, recommended by the Legal Services Agency, is sound, participatory and proven.

Family law Conference

Chair: Antony Mahon

The 2013 Family Law Conference is a not-to-be-missed event providing practitioners with two Auckland days of the latest updates and research in family law.

21-22 Nov

As an adjunct to the conference, two concurrently run half-day pre-conference workshops have Auckland been added for a more in-depth look at Lawyer for the Child in the brave new world of Family Court reforms and Drafting s 21 settlement agreements. (An additional charge applies for the workshops.)

20 Nov

Mediating Dangerously

Christchurch Auckland Wellington

7-8 Oct 10-11 Oct 14-15 Oct

see listing under General

ProPerTY earthquake Strengthening requirements – impact on commercial buildings

Paul Calder Karen Overend

There is an increasing need to consider the earthquake status of a building when your clients are buying or selling a commercial building, or when entering into a new lease. This webinar provides you with an opportunity to gain a heightened awareness of earthquake-related issues pertaining to commercial buildings.

The Difficult Property File

Linda Fox Peter Wright

All residential property files are not equal. Some proceed very smoothly and others just go wrong.

Potential problem signals are easily missed or overlooked. This seminar will go through the three stages of the sale and purchase process, negotiation, contract and settlement, looking at how to avoid issues and, if unavoidable, what to do when the file hits the wall.

Webinar for smaller centres.

Webinar

Dunedin Christchurch Wellington Auckland Webinar

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.

24

· LawTalk 826 · 30 August 2013

3 Sep

14 Oct 15 Oct 16 Oct 17 Oct 16 Oct

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, in partnership, in an Wellington incorporated practice or as a barrister, will be required to complete this course. (Note: From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up).

Developed with the support of the New Zealand Law Foundation.

7-9 Nov

Tax Conference

Chair: Neil Russ

The 2013 Conference will focus on topical issues delivered by an impressive line-up of speakers.

Topics include an update on Sale and Purchase agreements, current GST issues, operating structures and tax avoidance. Attendance will help you keep up with the daily challenge of assisting clients to minimise tax risk against a backdrop of constant change.

Auckland

5 Sep

Trust account Supervisor Training Programme

Mark Anderson David Littlefair and David Chapman Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments. Make sure you register in time to do the preparatory work before the assessment day as listed on the right.

Wellington Auckland 2 Christchurch

18 Sep 20 Nov 27 Nov

Tax Snapshot for non-specialists

Barney Cumberland

This seminar will provide an update covering four areas: tax drivers in structuring foreign investment into New Zealand, latest charity and not-for-profit developments, topical tax compliance and enforcement issues, and current tax issues in relation to property.

Christchurch Wellington Auckland

16 Sep 17 Sep 18 Sep

Webinar

17 Sep

General

Webinar for smaller centres. logic for lawyers

Prof Douglas Lind

Attend this workshop to learn a practical framework and gain specific analytical tools for working Wellington with legal arguments. The workshop provides sufficiently complete, but short and concise Auckland descriptions of those argument forms and logical fallacies (errors of reasoning) most relevant to legal practice.

17 Sep 19 Sep

ethics – Confidentiality and Disclosure

Jenny Beck Dr Duncan Webb

A client needs to have confidence that their lawyer’s advice is confidential and that they are able to receive free and frank advice. However, the law in this area has continued to evolve with issues of disclosure coming under particular scrutiny. What is a lawyer’s duty in terms of disclosure to both their clients and the courts? Attend this webinar to ensure you are well versed in these matters.

23 Sep

The nZlS CPD rules – a practical guide

Neil Gold Christine Grice Chris Moore

This interactive free, succinct and practical seminar is to show you how to apply the rules to maintain and improve your competency and get the best value from your CPD for you, for your firm and for your clients. This seminar is free of charge, but you must register!

Visit www.lawyerseducation.co.nz for full details.

Update on Contract

Paul David

Contract law is at the heart of commercial law and practice. A sound up-to-date knowledge of the area is essential for all lawyers. This seminar will cover recent court decisions and legislative changes in a practical way. Topics include: formation, interpretation, implied terms, exclusion clauses, cancellation, frustration, the assessment of damages, liquidated damages and penalties and concurrent liability.

Webinar

Visiting 13 centres around NZ Webinar

17 Oct

Auckland Dunedin Christchurch Wellington Hamilton

31 Oct 4 Nov 5 Nov 6 Nov 7 Nov 6 Nov

Webinar

Webinar for smaller centres.

11-23 Oct

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.

Auckland Hamilton Wellington Christchurch

5-6 Nov 11-12 Nov 18-19 Nov 20-21 Nov

lawyer as negotiator

Jane Chart

Building on your own experience, this one and a half day workshop provides hands-on practice Wellington 2 and feedback, as well as a conceptual framework for preparing for and undertaking negotiations. Auckland 2 It examines different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, and for addressing specific issues which you might wish to raise.

12-13 Nov 19-20 Nov

Mediating Dangerously

Prof Kenneth Cloke

Ken is a world authority on mediation and was the inaugural President of the international organisation Mediators Beyond Borders. He specialises in resolving conflicts in all contexts and at all levels – complex multiparty disputes, commercial grievances, family matters, employment problems and public policy disputes. His transformative approach to mediation has become synonymous with the title of this workshop and of his well-known textbook Mediating Dangerously.

Auckland Wellington

15 Nov 18 Nov

in SHorT SeMinar SerieS – aUCklanD employee Fraud: suspicions, investigations and actions

Campbell Mckenzie Gillian Service

Lawyers as business owners need to consider the extent and ramifications of the trust they invest in employees in certain positions. What would happen if that trust is breached; how do you find out, and what steps should you take?

Auckland

5 Sep

infrastructure Projects; Water Conservation & rMa act Developments

Allison Arthur-Young Daniel Minhinnick

Understand how Auckland city’s progress will be mapped out by the Auckland Council’s unitary plan and upcoming Resource Management Act amendments; how will this affect your clients? Presenters will cover intensification, port expansion, heritage, and transport issues affecting all Aucklanders.

Auckland

17 Sep

Online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz LawTalk 826 · 30 August 2013 ·

25

Need Research?

Use us as your legal research provider

The NZLS Library, legal research and document delivery service is fast, efficient and thorough.

With our extensive resources we can provide comprehensive cost-effective searches of case law and commentary both in New Zealand and internationally.

F O R M O R E I N F O R M AT I O N A B O U T O U R S E R V I C E S :

www.lawsociety.org.nz/home/for-lawyers/law-library/services

A U C K L A N D auckland@nzlslibrary.org.nz 09 304 1020 W E L L I N G T O N wellington@nzlslibrary.org.nz 04 473 6202 C A N T E R B U R Y canterbury@nzlslibrary.org.nz 03 377 1852 O TA G O otago@nzlslibrary.org.nz 03 477 0596

Lawyers Complaints Service

High Court substitutes suspension for strike off Hans Timothy Sorensen of Auckland has appealed successfully to the High Court ([2013] NZHC 1630) against being struck off the roll of barristers and solicitors by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in 2012.

The High Court instead substituted a two year suspension for Mr Sorensen, effective from 24 August 2012, for knowingly facilitating a dishonest scheme in respect of a client’s will.

In 2011, Mr Sorensen appealed the tribunal’s finding that his actions had amounted to misconduct to the High Court. Justice Winkelmann dismissed that appeal in 2012. The results of the High Court’s findings in respect of misconduct, and a fuller description of the surrounding facts, were summarised in LawTalk 811 on 1 February 2013, which is available on the New Zealand Law Society’s website.

After a client of Mr Sorensen, Ms D, died, he acted in administration of her will, which he had prepared for her the previous year.

The testatrix’s brothers (who were the executors of the will) were not happy with the bequests and instructed Mr Sorensen to make significant changes to the sums paid out and to whom. $120,000 was to be diverted in this way.

KON GRES 2013 WELLINGTON Come and see leading dispute resolution experts Bernie Mayer and Myrna Lewis at ‘‘kon gres, LEADR’s two-day conference in Wellington on 5-6 September.

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Mr Sorensen advised the executor brothers that this was in breach of the law and could lead to proceedings against them.

Nevertheless the executors instructed Mr Sorensen to proceed, including not informing the legatees of the contents of the will.

Despite Mr Sorensen having given advice that such actions were wrong, the disciplinary tribunal found that Mr Sorensen had proceeded to help the executors implement the scheme and was complicit in ensuring the legatees had little chance of finding out what had occurred.

When questioned during these proceedings about why he had acted as he did, despite his misgivings, and despite an otherwise unblemished record as a lawyer, Mr Sorensen said that he believed he was obliged to follow their instructions, and had allowed himself to be persuaded by the brothers. He indicated that he had allowed cultural considerations of seniority and tradition, in the ethnic community to which they all belonged, to sway his judgement. He accepted, however, that he acted wrongly, and said in hindsight he was “astounded” that he had not realised that at the time.

The tribunal determined on 24 August 2012 ([2012] NZLCDT 23) that Mr Sorensen should be struck off for the protection of the public and other members of the profession, and after considering whether the practitioner was a fit and proper person to be a lawyer.

Mr Sorensen appealed that decision to the High Court.

In her decision, Justice Peters, without

disputing the importance of the principle of protection of the public and the profession, nonetheless reached a different conclusion from the tribunal on whether striking Mr Sorensen off the roll was necessary to give such protection, and whether Mr Sorensen was a fit and proper person to be a lawyer.

The nature of the charge, she said, was serious. However, “[T]he appellant’s lack of disciplinary history and the evidence contained in the references indicate that this was a ‘one off ’ incident.” The references in support of him were significant and all expressed astonishment at Mr Sorensen’s lapse. The references came from all levels of the profession, including those from both sides of transactions, and included senior members of the profession and the judiciary.

She noted that it was clear that he had been mistaken as to his obligation to follow his client’s instructions in the circumstances, and that he now realised this. He had not personally benefitted in any way from his actions. He had since this time sold his practice and was now employed outside the legal profession.

All these factors led her to conclude that it could not be said that Mr Sorensen was not a fit and proper person to be a practitioner. Suspension was sufficient in the circumstances.

Apart from the suspension, the court ordered that Mr Sorensen should not be permitted to practise on his own account until approved to do so by the disciplinary tribunal. The High Court did not alter previous orders for compensation.

JUSTITIA Providing professional indemnity and specialist insurance products to the legal profession Visit our website www.justitia.co.nz for further information and application forms or contact:

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LawTalk 826 · 30 August 2013 ·

27

Lawyers Complaints Service

Threatening proceedings inappropriately can be unsatisfactory conduct For a lawyer to make a threat of legal proceedings against an opposing law firm acting for clients in a dispute, when any proceedings should properly be brought against those with a beneficial interest in the disputed funds, has been held to amount to unsatisfactory conduct by a lawyers’ standards committee.

The complaint in this case was made by another lawyer, D, after C had threatened to issue a Statutory Demand under the Companies Act against D’s incorporated firm, D Ltd, during the course of a dispute between C’s and D’s clients as to who was entitled to access sums held in D Ltd’s trust account.

D had acted for three siblings who claimed shares of the proceeds of the sale of a property. D held the sale proceeds as

stakeholder pending resolution of issues between the siblings.

One of the siblings had a purchase transaction pending for which he required a portion of the sale proceeds. He consulted C when settlement of his purchase transaction was imminent.

C corresponded with D, seeking payment of his client’s share of the sale proceeds. In the course of that correspondence, C wrote (among other things): “Kindly ensure that [my client] receives a full one third share of proceeds of sale. Failure to ensure that this is done will result in additional proceedings against your company, including the issue of a Statutory Demand under the Companies Act.” C explained to the standards committee that his correspondence urging the release of

the funds was intended to be robust, which several previous standards committees had noted was not a breach of the rules when legitimate, and further that he had not acted on his threat in any event.

The standards committee however said it considered that a threat to serve a statutory demand seeking to liquidate an incorporated law firm because of a dispute that related not to the business of that firm, but to the business of a client of the firm, amounted to misuse of legal processes, and as such, was unsatisfactory conduct on the part of the practitioner making the threat. There was no basis to issue the statutory demand, and so as such it was not a legitimate threat.

C was fined $1,000 and ordered to pay $1,000 costs.

Strike off follows taking $500,000 from clients Edward Errol Johnston of Auckland has been struck off the roll of barristers and solicitors of the High Court of New Zealand.

Mr Johnston was struck off by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal ([2013] NZLCDT 30) after admitting charges of misconduct and breaches of the regulations governing law practitioners.

The specific charges arose when Mr Johnston provided legal advice to a family trust. The trustees and beneficiaries had been longstanding friends of his.

The clients gave Mr Johnston two payments of $250,000 each. Mr Johnston told them one payment was to buy shares but the purchase was never completed. The other payment, Mr Johnston told the clients, was for a loan to a company to allow the purchase of a property. The money was never used to fund any such purchase.

Ultimately the bulk of all of these funds has been lost to the clients, the tribunal noted. Although Mr Johnston has signed acknowledgments of debt in relation to each of the advances, he is now an undischarged bankrupt and is currently unable to meet his obligations.

“In undertaking these transactions and in his representation of these clients, Mr

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Johnston has broken almost every rule one could imagine in representing a client wishing to make a financial investment,” the tribunal said.

“He failed to obtain independent legal advice for them. He did not provide proper advice on the risks entailed in the investments. He failed to provide any or proper documentation. Furthermore he painted what has been described as a very rosy picture of the investment.”

There was no possibility of him repaying.

As detailed in a report filed by a Law Society inspector, the monies had been committed elsewhere. “Mr Johnston expressed enormous regret at what had occurred, and furthermore expressed a determination to eventually put things right with his former clients,” the tribunal said.

“Mr Johnston accepted that strike off was inevitable given his repeated failures, particularly in the area of acting in conflict of interest both between clients, and between himself and clients.”

Since August 2008, when the new disciplinary legislation came into force, Mr Johnston has also had a finding of misconduct by the Legal Complaints Review Officer, and four findings of unsatisfactory conduct by

Auckland standards committees.

In a previous decision before the tribunal, Mr Johnston had not been candid about his activities. This, the tribunal noted, had resulted in the tribunal being more lenient with him in the previous decision than he deserved, and had impacted on the circumstances leading to the current complaint. “Such blatant disregard of the strong professional obligation for openness in dealing with the institutions involved in the disciplinary process is absolutely unacceptable”, the tribunal said.

“The oft-quoted extract from Bolton v Law Society [1994] 2 All ER 486 that a client must be able to trust his lawyer ‘to the ends of the earth’ was never more apt than in the present case,” the tribunal said.

“Sadly, the now deceased and longtime friend of the practitioner trusted him implicitly. Mr Johnston did not well repay that trust. He breached the fundamental principle that a lawyer must always put the interests of his clients ahead of his own.”

As well as the strike off, the tribunal made an award of $14,689.73 costs against Mr Johnston, “notwithstanding his bankruptcy” and ordered him to pay the Law Society $3,320 tribunal costs.

Coming Up ...

South Pacific Lawyers’ Conference T h e S o u t h Pa c i f i c L aw y e r s ’ Association, together with the Vanuatu Law Society, is hosting the inaugural South Pacific Lawyers’ Conference on 14 and 15 November in Port Vila, Vanuatu.

Also supported by the New Zealand Law Society, the Law Council of Australia and the University of the South Pacific, the two-day conference will gather lawyers, judges, barristers, solicitors, leaders from international legal bodies, policy makers, service providers, researchers, law students and many other stakeholders to tackle the key issues facing the legal profession in the South Pacific region.

See www.southpacificlawyers.org/southpacific-lawyers-conference-2013. To register your interest, please email conference@ southpacificlawyers.org.

The art of presenting Simon Tupman is running a workshop entitled The Art of Presenting at ADLS Inc, Auckland, on 6 September.

The workshop, which runs from 9:30am to 4pm, is for professionals wanting to learn the secrets of presenting confidently and dynamically.

This is an interactive workshop which gives participants the opportunity to practise their presentation style in a supportive, non-threatening environment.

Spaces are limited to 12 people. See www. simontupman.com.

Mediation conference LEADR’s annual conference, entitled ‘kon-gres 2013, will be held in Wellington on

5 and 6 September.

One of the first mediation trainers in New Zealand, following the first LEADR workshop in 1993, Professor Bernie Mayer will present at this year’s conference.

United States-based Professor Mayer is an icon in the world of conflict resolution, working since the late 1970s as a mediator, facilitator, trainer, researcher and consultant.

See www.leadr.com.au/kon-gres-home or contact Ava Gibson (04) 470 0110, email leadr@leadr.co.nz.

Sports law conference The Australian and New Zealand Sports Law Association Conference will be held in Brisbane on 17 and 18 October.

The conference theme is iSport: Innovation; Integrity; Interaction. See www.anzsla.com/ content/annual-conference.

Legal aid debtors should contact MoJ People with legal aid debt are being encouraged to contact the Ministry of Justice to update their details and make arrangements for repaying their debt.

Legal Services Commissioner Nigel Fyfe says the Legal Services Amendment Act, which comes into force on 2 September 2013, makes a number of changes to legal aid cases, including the introduction of interest on legal aid debt.

“Due to the income thresholds that apply, most people – 75% – don’t have to repay their legal aid debt,” Mr Fyfe says. “However, there are around 50,000 people who are required to pay their legal aid back. The ministry will be writing to these people to tell them about the changes and how they affect them, and to discuss their options for repayment.”

People who have legal aid debt should know who they are because they are currently making repayments, or they have been contacted by the ministry about their debt, Mr Fyfe says.

“However, because of the changes the ministry is going to extra efforts to communicate

with people who have legal aid debt. By giving us a call and checking their details with us we can work with them to arrange repayments in a way that works for them and us.”

No interest will be charged on legal aid debt from when the law comes into effect, on 2 September, until at least 2 March 2014. Interest will then be charged at the government’s capital charge rate, currently 8%.

“It’s important to make sure we have the right information so that we can actively engage with people to properly manage their debt repayments,” Mr Fyfe says.

Legal aid lawyers will also be receiving information about what the Legal Services

Amendment Act means for them and their clients.

People with legal aid debt can call 0800 600 090 to discuss repayments and set up a repayment plan.

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The Classifieds WI L L S

P U B LI C N OT I CE

PHILIP GARRETT EDWARD COSTELLO Would any lawyer holding a will for the above-named, late of Whangaparaoa, beneficiary, who died on 23 July 2013 at Auckland, please contact Nola McGowan, Vlatkovich & McGowan: nola@vlatkovichmcgowan.co.nz Ph 09 424 8146 · Fax 09 424 7189 PO Box 120, Whangaparaoa 0943 · DX BP60502

YUK FUNG SZETO Would any lawyer holding a will for the above-named, late of 12 Franco Lane, Dannemora, Auckland, retired, born on 17 September 1921, who died on or about 27 March 2013, please contact Phillip Wong, Wong & Bong Law Office: phil@wongbong.co.nz Ph 09 538 0272 · Fax 09 535 5947 PO Box 51454, Pakuranga, Auckland 2140

MELBA VICTORIA MUNDY

ROBERT HENRY CL ARK Would any lawyer holding a will for the above-named, late of Whangaparaoa, Auckland, born on 26 April 1953, who died on 7 August 2013 at Auckland, please contact Sarah Martin, Simpson Western:

Born 15 January 1926. Died on 17 June 2011. Would any lawyer knowing the whereabouts of Carol (aka Coral) Jane Lyndon, Peter Walter Lyndon or Dennis Raymond Lyndon of Pakuranga, please contact Susan Golds, Harmans Lawyers:

sarahm@simpsonwestern.co.nz Ph 0 9 488 1466 · Fax 09 489 2235 Private Bag 93533, Takapuna, Auckland 0740

sue.gold@harmans.co.nz Ph 03 962 2815, | Fax 03 352 2274 PO Box 5496, Christchurch 8542

BARRY PETER GEORGE FANE Would any lawyer holding a will for the above-named, late of 6 Geoffrey Road, Torbay, Auckland, Electronics Engineer, born on 1 March 1951, who died on 6 July 2013, please contact Anne Beeson, Stevenson Campbell lawyers: anne@baylaw.co.nz Ph 09 477 1025 · Fax 09 478 7077 PO Box 35-077, Browns Bay, Auckland 0753

WI LLS

H E N I H AU KO PA Would any lawyer holding a will for the above-named, late of 131 Buckland Road, Mangere, Auckland, housewife, who died on 14 June 2013, please contact Mary F Hackshaw: maryhackshaw@paradise.net.nz Ph 09 278 8192 · Fax 09 278 8545 · DX EP75002 PO Box 200-138, Papatoetoe, Auckland 2156

B E V I N P E T E R VA N D E R G U L I K

PING PUI WONG

ALAN LEWIS BUDGEN

Would any lawyer holding a will for the above-named, late of 70C Insoll Avenue, Enderley, Hamilton, who died on 25 July 2013, please contact Vernon Woodhams, Vosper Law:

Would any lawyer holding a will for the above-named, late of Highland Park, Auckland, born on 9 January 1930, who died on 8 January 2013, please contact Annette Woodroffe, Woodroffe Lawyers:

Would any lawyer holding a will for the above-named, late of Titirangi, Auckland, contractor, who died on 25 June 2013 aged 78 years, please contact Graeme Stanton, Auckland Family Law:

vernon@vosperlaw.co.nz Ph 07 827 6140 · Fax 07 827 4953 PO Box 489, Cambrige 3450 · DX GA27509

annette@woodroffe-law.co.nz Ph 09 366 6276 · Fax 09 366 6274 Unit 1F, 9 Upper Queen Street, Auckland 1010

Graeme@aucklandfamilylaw.co.nz Ph 09 927 4990 or 0800 FAMLAW · Fax 09 973 0650 PO Box 106 775, Auckland City 1143

R EGISTRY A D M I SS I O N

under Part 3 of the Lawyers and Conveyancers Act 2006 Gibbs Rebecca Margaret Gifford Sarah Leigh Gordon Michael Peter Gould Jonothan Arthur Austen Leadbetter Lucy Elizabeth

Marshall Joel Ryan Pryor Benjamin James Smith Jana Elle Thorne Kylie Antonia Nee Lepper Thorner Patricia Maria

The following people have applied to the New Zealand Law Society for certificates or approvals

A PPR OVA L TO PRACT IS E ON OWN ACCOUNT under s 30 of the Lawyers and Conveyancers Act 2006

Russell Nicholas John Scott Vicki Anne Sinclair Moana Lynette Sutton Richard Paul

Vesty Michael Joseph Wallace Andrew James Waugh Catherine Louise

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 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 5 September 2013. Any submissions should be given on the understanding that they may be disclosed to the candidate.

LI SA AT T R I L L , R EGIST RY M A N AGER lisa.attrill@lawsociety.org.nz 04 463 2916 0800 22 30 30, 04 463 2989

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WI L L S

SIT UAT IO N S VACA N T

G E O RG E P I TA F LO O D Would any lawyer holding a will for the above-named, late of 39 Edith Street, Masterton, who died on 3 August 2013 at Masterton, please contact Ainslie Hewton, Solicitors: Ph 06 377 5537 · Fax 06 370 8688 PO Box 382, Masterton 5840 · DX PA89049

Specialist Environmental Lawyer

STA N L E Y WA H A ROA Would any lawyer holding a will for the above-named, late of the Auckland area, born on 2 February 1952, who died on 28 February 2007 or 2008 at Auckland hospital, please contact Allan Ngamo: rangiz@hotmail.com Ph 06 355 5892 or 022 341 4461

JOHN HENRY CECIL THOMP SON Would any lawyer holding a will for the above-named, who died on28 July 2013 aged 99 years, please contact Howard Alloo, Albert Alloo & Sons: howard@all-legal.co.nz Ph 03 477 3940 · Fax 03 474 1249 PO Box 292, Dunedin 9054

B E N J A M I N S T E P H E N LY A L L Z I M M E R M A N Would any lawyer holding a will for the above-named, late of Auckland, who died on 11 July 2013, aged 34, please contact Graham O’Brien, Insight Legal, Solicitors: gobrien@insightlegal.co.nz Ph 09 295 0113 · Fax 09 298 8925 PO Box 72153, Papakura 2244 · DX EP76513

N G ATO KOA T E I N A

The partners of Berry Simons are seeking a senior specialist who loves working on dynamic and complex projects to join our boutique Environmental law firm.

We are looking for someone with extensive experience as a specialist Environmental lawyer and someone has worked with range of public and private sector clients on environmental and Resource management law and local government matters.

Candidates for this position MUST have substantive environmental litigation experience with a strong foundation of success for their clients.

In addition to a depth of experience, we seek an energetic and enthusiastic lawyer with a focused long term view who relishes taking responsibility for client management.

Candidates must have • An excellent academic record • Minimum of 6 years relevant work experience • Comprehensive and diverse experience and expertise • Love of innovation - passionate, driven and able to coach and mentor junior staff in the future • Excellent interpersonal skills, both written and oral, including the ability to strategise and convey ideas and positions clearly • Willingness to travel and work out of town.

Please send your CV to Annie Ackerman Practice Manager annie@berrysimons.co.nz

Would any lawyer holding a will for the above-named, late of 9 Hawick Street, Tokoroa, who died on 1 July 2013, please contact J A Hassall, Hassall, Gordon, O’Connor & Newton: tok.law@clear.net.nz Ph 07 886 6279 · Fax 07 886 8231 PO Box 76, Tokoroa 3444 · DX GA28501

L E GAL SERV IC ES

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

PROPERTY John Phillips

00 44 (0)1483 540841

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Exciting opportunity for new or junior lawyer Impact Legal is a Wellington law firm, specialising in property, commercial and corporate law. We provide specialised legal services to a broad client base of large corporations, small/medium sized businesses and private clients.

We have an immediate vacancy for a new or junior lawyer who wishes to be involved in property, commercial and corporate law at the highest and best level.

We expect the successful applicant to have a very good academic record, to be friendly, outgoing and decisive. We will train you to be an excellent lawyer, and will give you immediate contact with the firm’s clients.

There are excellent future prospects here.

If you are interested, you should fforward your CV no later than 13 September 2013 to: Jade Aislabi Impact Legal PO Box 10-660 Wellington jade@impactlegal.co.nz

Regulated by the Solicitors Regulation Authority of England and Wales

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31

TO L ET

S I T UAT I O N S VACA N T

Barrister’s Room Available in Guardian Chambers - Auckland Central

Manager Client Services (Legal Counsel)

• Full Time Secretarial Support & Reception • Furnished or Unfurnished • Active Established Website An exciting opportunity for a Criminal Barrister to join an established and well respected Criminal Chambers.

We pride ourselves on our open door policy to assist in gaining experience with senior members of Chambers.

For Further Details Please Contact Lester Cordwell or Hugh Leabourn 09 300 7307 / guardian.chambers@justice.co.nz See our website for details of Guardian Chambers www.guardianchambers.co.nz

Southpac Trust Limited, a private licensed trust company operating in the Cook Islands (Rarotonga) has a vacancy in the role of Manager – Client Services.

Southpac is the premier Trust Company in the Cook Islands specializing in offshore asset protection. We establish and administer client structures including Trusts, Companies and Bank Accounts.

P UBLIC NOTIC E

This is a legal based role and would be suitable for qualified Lawyers with a minimum of four years experience in a commercial legal practice or in an established trustee company.

ADAMS & HORSLEY Barristers & Solicitors Tauranga announce that as of 30 September 2013 the current partnership is to be dissolved.

Southpac offers a challenging international career opportunity in a professional environment on a beautiful tropical island. We will provide an attractive remuneration according to experience for the position.

RACHAEL ADAMS will be continuing in practice in the existing premises, joined in partnership by our Senior Associate REBEKAH WEBBY, in the new firm of ADAMS LAW. All contact details remain the same.

To apply for this position, please submit your application and curriculum vitae to twhite@southpac.co.ck

ADAMS LAW will continue to offer specialist Court and litigation services with a particular focus on criminal defence, family and relationship property, estates and employment, and civil.

CRAIG HORSLEY will be practising as a Barrister Sole, contact 021712-221 (further details to be advised).

Inspector W E L L I N GTO N B AS E D The New Zealand Law Society is responsible for the regulation of the legal profession. NZLS Inspectors enable the Law Society to meet its objectives of the financial Assurance Scheme through undertaking the following key tasks: · ensuring relevant compliance with the Lawyers and Conveyancers Act 2006, accompanying regulations and any practice rules · seeking to detect theft or other behaviour likely to result in loss of client money · discouraging improper practices in the handling of money entrusted to lawyers · reviewing law firms’ trust account operations · carrying out the wider functions as set out in regulation 25 of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.

This role will suit individuals with the following experience and skills: · Preferably a Chartered Accountant or Lawyer with significant practical accounting experience · Previous investigating experience from accounting, gaming,

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· · · · · · · · · ·

charities, legal, Police, Serious Fraud Office, IRD or similar background Diversity of experience with organisations and roles Familiarity and comfort working with a risk framework assessment model Polished communication skills and technical report writing Strong team player but with a high level of ability to work independently in the field Self-starter with an active and energetic approach to work Independence of thought IT literate and mobile technology conversant Good judgement, discretion and the ability to successfully deliver constructive critique Flexibility and willingness to undertake a variety of work Willingness to travel and work nationally.

To register your interest, request a position description or to apply (together with a covering letter and your current CV) please contact Fiona Rogers, HR Administrator, on human.resources@lawsociety.org.nz Closing date for applications is 5pm on Monday 9 September 2013.

SI TUATIONS VAC ANT

Intermediate Criminal Lawyer, Category 2 Public Defence Service, Auckland Vacancy 24690 The Public Defence Service has a commitment to providing independent, high quality, timely, legal advice and representation in a full range of criminal cases including providing professional leadership of the Duty Lawyer service.

Reporting to the Deputy Public Defender, Auckland, your enthusiasm and skills will contribute to the delivery of high quality Public Defence Services in the summary and trial jurisdiction within the Auckland Courts.

This position presents an opportunity to contribute to a significant development in criminal defence services in New Zealand. You will have strong advocacy skills, will be able to work in a team, relate well to people from diverse backgrounds and to manage a high caseload.

As an Intermediate lawyer you will have category 2 approval rating.

This is an opportunity to advance your legal career in a busy, challenging and supportive environment. The Public Defence Service can offer you a commitment to your ongoing professional development, a competitive salary and the opportunity to make a contribution to the legal profession in New Zealand.

To apply, please go to the Ministry of Justice vacancies website http://careers.justice.govt.nz/Pages/Vacancies.aspx click on the position job title and follow the instructions.

Applications close Monday, 9 September 2013.

Crown Law Office Call for Applications

Crown Solicitor Warrant / Rotorua

The position of Crown Solicitor for Rotorua has become vacant. Accordingly the Solicitor-General invites applicants from suitably qualified law practitioners who wish to be considered for appointment to the office of Crown Solicitor for Rotorua.

The person appointed will have the responsibility for, and oversight of, the prosecution of cases for which the Crown is responsible in the area covered by the warrant.

The warrant holder will also be expected to have the capacity to give legal advice as to prosecution issues to the Police and Government agencies as well as the ability to appear in public law litigation relevant to the conduct of ciminal prosecutions.

It is a requirement that applicants have held a New Zealand practising certificate for at least seven years.

Appointment to the position will be based on merit. For further information please visit our website at www.crownlaw.govt.nz or email Dean Winter at ppu@crownlaw.govt.nz. ppu@crownlaw.govt.nz Those interested in being considered for appointment as Crown Solicitor for Rotorua should forward their application to the Solicitor-General, marked for the Applications, marked private and confidential, should be addressed to:

Solicitor-General C/- Public Prosecutions Unit Crown Law PO Box 2858 Wellington

Crown Law is committed to the principles of equal employment opportunity

PITCAIRN, HENDERSON, DUCIE AND OENO ISLANDS EXPRESSIONS OF INTEREST TO SERVE AS A JUSTICE OF THE PITCAIRN ISLANDS SUPREME COURT Pitcairn, Henderson, Ducie and Oeno Islands are a United Kingdom Overseas Territory. Pitcairn Island, the only inhabited island in the group, has a population of about 65 people.

The Pitcairn Constitution establishes a Pitcairn Supreme Court and Court of Appeal. There is a right of appeal to the Judicial Committee of the Privy Council. There is also a Magistrates’ Court with limited jurisdiction.

The Pitcairn judiciary are, with the exception of the onIsland Magistrate and the Privy Council, resident in New Zealand. So, too, are the Pitcairn Public Prosecutor and Public Defender.

The Supreme Court has a jurisdiction broadly similar to that of the New Zealand High Court. It has original and unlimited jurisdiction in civil cases and serious criminal cases. It also has an appellate jurisdiction from the Magistrate’s Court.

Expressions of interest in appointment as a Pitcairn Islands Supreme Court judge are sought from suitably qualified persons. The minimum qualifications are: 1. being, or having been, a judge of a court with unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in Ireland, or a court having jurisdiction in appeals from such court; or 2. being entitled to practice as an advocate in such a court, and having been so entitled for not less than seven years.

An appointee would need to demonstrate: • High performance as a lawyer • Honesty, integrity, impartiality, and good judgement.

• Excellent communication skills.

• Ability to absorb and analyse facts and law in a diverse range of cases.

• Awareness of cultural and gender issues.

Cases in the Pitcairn Island Supreme Court can be expected to be infrequent. They may be conducted by way of video-link from New Zealand but could also, depending on the nature of the case, require travel to the Island. Travel to the Island (typically for a three day or a 10 day stay) involves an absence from New Zealand for either 12 or 19 days, which includes a 36 hour open sea voyage on the ship Claymore II with transfer to the Island by longboat. There is a doctor on the Island.

Remuneration is on the basis of a daily rate while performing judicial duties, and travel allowances.

Expressions of interest (with a full curriculum vitae) may be made electronically to the Deputy Governor of Pitcairn Islands, Kevin Lynch, at Kevin.Lynch2@ fco.gov.uk by 14 September 2013.

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SI TUATIONS VAC ANT

FINANCIAL SERVICES LAWYER

Consultant or Partner Opportunity Wellington

Rare opportunity to join one of NZ’s leading managed funds and financial services teams.

With a focus on managed funds and financial services regulation, you will work across a wide range of investment products including equity and debt offerings, unit trusts, KiwiSaver and superannuation schemes, and securities and companies law. The leading partner is recognised as one of the key financial services experts in NZ, and as a key part of the team you will predominantly work with major banks, fund managers, and trustee companies. The client base is impressive and growing and will see you develop extensive experience with the main industry players.

Are you getting what you want out of your current practice?

With recently refurbished offices in the heart of Wellington, this firm offers a collegial working environment, the latest technology and experienced support staff and solicitors. Coming on board as a partner or consultant, you will be able to spend your time where it is most valuable and gain the greatest level of productivity from your practice.

Our client takes pride in offering a flexible and positive work environment, and this role offers you the chance to gain experience that will see you well placed to advance your career.

This opportunity might appeal to: • A senior partner who would like to wind back their hours and have more flexibility and autonomy.

The team size provides scale and critical mass, which attracts quality clientele and provides development and career opportunities.

Ideally you will have around 4 – 5 years experience within a solid boutique or top tier environment, however applications will also be considered from slightly more or less experienced practitioners. An enquiring mind, client focussed approach and a desire to build sustained relationships over time will enable you to flourish in this role.

• A sole practitioner who would like to reduce their overheads and be part of a larger firm.

For further information please call Meryn Hemmingsen on 09 306 5500. To apply please email your cv to: merynhemmingsen@momentum.co.nz.

We appreciate that every situation is unique and we are happy to discuss your particular needs and how you could benefit from this opportunity.

191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

• A senior associate with a loyal following, yet a lack of partnership opportunities at their current firm.

For further information in strict confidence please contact Ben Traynor on 04 471 1423 or email ben.traynor@nicherecruitment.co.nz

M O M E N T U M .C O. N Z

SIMPSON GRIERSON CHRISTCHURCH Construction lawyer wanted We have a fantastic opportunity for a solicitor to join our growing Christchurch office.

What you’ll get • To work for the leading construction and infrastructure team in New Zealand and with some of the biggest players in the city’s rebuild; • Involved with day to day advice and key projects – including drafting and negotiating contracts and dispute resolution; • Excellent training and development to help grow your career.

What you’ll need • 2 – 5 years experience • A passion for construction and infrastructure paired with a background in litigation, commercial property or commercial law; • Demonstrated client relationship focus; • A hardworking attitude and practical approach.

If you want all the benefits of working for a small Christchurch firm and a big national firm rolled into one, call Madeline Bower, Human Resources Manager on +64 9 977 5242 or email madeline.bower@simpsongrierson.com.

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