Page 1

LawTalk 28 March 2014 路 838

TH E LEGAL CON SU M E R The client as customer mindset and its role in your legal business


WITH A MAS PERSONAL LOAN, WE’LL HAND THE CONTROL BACK TO YOU.

When your spending gets a little out of hand, it can start to feel like your credit card is controlling you. So, with your best interests in mind, we would like to offer you an alternative: A MAS unsecured personal loan. With it, you can consolidate your existing debt and pay it off in manageable instalments and, because you have up to five years to pay, you can decide on a structured repayment plan that works for you. Talk to us today and discover just how simple it can be to get back in the black.

Personal loan

13.95 %

P.A.*

• Easily arranged over the phone • No hidden costs • No application fees • No early repayment penalty

Call us today:

0800 800 627 Email loans@mas.co.nz Visit us online at mas.co.nz *Interest rates are subject to change. Medical Securities Limited’s (MSL’s) normal lending criteria apply for all credit and loans, and your application is subject to acceptance by MSL. This offer is available for new loans only.


Contents. Let’s be honest, we’re in this because it’s a business. It might be a calling also, but it’s at its essence a business and one where the margins are becoming tighter and tighter. — Tracey Edmonds, Principal of Edmonds Law

Regulars ..................................................................

10

..................................................................................

14

Our Profession, Our People Practising Well

A happy life as a lawyer is much less about grades, affluence and prestige than about finding work that is interesting, engaging, personally meaningful and is focused on providing needed help to others.

Effective practice

...............................................................................

16

Maybe I shouldn’t have done that … Some legal cautionary tales.

Welcome to CPD

................................................................................

18

Continuing Professional Development (CPD) begins on 1 April following a six-month transitional period. ..........................................................

21

..............................................................................

22

...................................................................................

24

NZLS CLE introduces Online CPD Law reform report The Bookshelf

Early Resolution Service

......................................................................

25

The Law Society’s new Early Resolution Service (ERS) has proven very successful. In its first full year of operation nationwide, the ERS was able to conclude more than one third of the complaints the Lawyers Complaints Service received.

Courtroom practice

............................................................................

26

Feature The legal consumer

Revocation of Employment Court practice direction. Electronic casebooks for Court of Appeal criminal appeals.

From the Courts

.................................................................................

27

Although Santa Claus, or Father Christmas, as I like to call him, is strongly linked with The Coca-Cola Company thanks to its regular advertising featuring him since the 1930s, the High Court did not give Coca-Cola the Christmas present it was probably hoping for. ........................................................................

28

.......................................................................................

29

Family justice reforms Technology

Financial market law

.........................................................

30

..........................................................................

32

................................................................

35

.........................................................................

36

Lawyers Complaints Service Classified Advertising

A look into the business aspect of lawyering, with a particular emphasis on the client as a consumer, or customer.

Page 04

LegalTech brings together key judicial figures, lawyers, barristers, litigation support professionals and technology and service providers from around the globe.

NZLS CLE upcoming programmes

Elliot Sim and Turei Mackey

LawTalk 838 · 28 March 2014 ·

01


From the Law Society Mark Wilton Of the few things that are certain in life, one is change. Those of us who have been providing legal services for a while will be all too aware of this, particularly as it relates to the business side of practice. Change has not only happened, it is continuing to happen. And there are some commentators who have predicted that keeping up to date with how things are changing and moving to suit will become ever more important to success and even survival for law firms. It is not really all that long ago, after all, that the rules were changed so that lawyers could advertise their services. Before that change, all a firm or sole practitioner could do in the way of advertising was to “hang up their shingle”. Today we have more and more firms advertising regularly, and advertising in ways that were not even dreamed of a couple of decades ago. Law firm websites is an example. In this issue of LawTalk, we look at the business side of practice. It is vital to the modern practice of law that we are aware of what it requires to be successful as legal businesses. Lawyers now should use all the business tools at their disposal, whether that is – to name just a few areas – developing a business plan,

02

· LawTalk 838 · 28 March 2014

managing cash flow, managing credit control or effective marketing. LawTalk has just begun a series called The Business of Law, which will take a continuing look at many of the issues around the business side of practice. The main feature in this issue looks at some issues that are vital to marketing. It is critical to the modern practice of law that practitioners develop a strong focus on their clients. This is reflected in the legislation that covers our profession, the Lawyers and Conveyancers Act 2006. It has a strong focus on “client care”. For legal businesses to thrive, that client orientation needs to be given a very high place on all our agendas. That is just as true for those who are in-house lawyers as for those in sole practice or law firms. In house lawyers have – as marketing gurus have identified – both internal and external “customers”. Indeed, much of their daily interaction is with internal “customers”. They therefore need to have a customer orientation. Just how much more important that is for in-house counsel who work for organisations who do have customers is obvious. So, whether working in-house, for a law firm or in sole practice, client orientation is a vital part of building your practice as a lawyer. Indeed, it can be argued that to be truly successful, a lawyer needs to be even more than client-focused. They need to be client-driven. Mark Wilton New Zealand Law Society Wellington branch 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 04 472 7837

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 Protests against legal aid cuts Thousands of criminal lawyers in England and Wales staged a second round of protests against the government’s legal aid cuts on 7 March. In London over 2,000 barristers and solicitors demonstrated outside Parliament before marching to the Ministry of Justice.

Concern about rule of law in Malaysia The New Zealand Law Society says it shares the serious disquiet expressed by LAWASIA about developments in the Anwar and Karpal Singh cases in Malaysia. LAWASIA says it is deeply concerned to learn of the undue haste with which the recent appeal over sodomy charges against Dato’ Seri Anwar Ibrahim concluded on 7 March. LAWASIA noted the views of the International Commission of Jurists that: “This decision certainly casts doubts on the independence and impartiality of the Malaysian judiciary and tarnishes the reputation of the country’s legal system.” Malaysian opposition leader, Karpal Singh, has also been sentenced on charges

Paul Harris, former president of the London Criminal Courts Solicitors’ Association, told the rally the justice system was in “meltdown”. The Legal Aid, Sentencing and Punishment of Offenders Act was having a “devastating effect” on access to justice, the family courts were grinding to a halt and fees were at an “irreducible minimum”. Chairman of the Criminal Bar Association, Nigel Lithman QC, accused Secretary of State for Justice Chris Grayling of “killing” the criminal justice system.

of sedition which may see him unable to continue in his parliamentary role. LAWASIA says it “fears for the future of the rule of law in Malaysia under circumstances that give an appearance that outmoded provisions in the legal system may be used as a tool to hinder the democratic processes to which the Malaysian people have a right.” The Law Society is a member of LAWASIA.

Palace of Justice, Putrajaya, Malaysia. Photo by Uwe Aranas

New Trusts Act needed “The Government agrees with the Law Commission’s recommendation to replace the Trustee Act 1956 with a new Trusts Act,” Justice Minister Judith Collins says. “Trust law is a key part of New Zealand’s legal infrastructure that governs an important component of our economy,” she says.

“Introducing a new Trusts Act will make the law clearer and more accessible.” The Government will undertake a more detailed analysis of the potential scope of the new act and the commission’s 50 other recommendations before developing new legislation.

Lawtalk is printed on an environmentally responsible paper, produced using Elemental Chlorine Free (ECF), FSC® Certified Mixed Source pulp sourced from Well Managed & Legally Harvested Forests. 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 838 · 28 March 2014 ·

03


THE LE G A L CO NS UM E R

04

路 LawTalk 838 路 28 March 2014


Business focus vital for law firms By Elliot Sim Edmonds Law Principal Tracey Edmonds believes focusing on the business side of a law firm is “absolutely essential”. Lawyers, she says, no longer have a monopoly on information as the landscape of legal services has transformed with the technological advances that have brought knowledge to the masses with a single click of a mouse. Ms Edmonds obsessively reads every book she can from business leaders she respects with the “proviso that they’re not lawyers”. She attributes the lack of focus on the business of law, at least in part, to law schools failing to teach students about the realities of legal practice at all. “Looking back, it’s as if the business of law was a dirty concept, detracting from the ‘purity’ of learning about the law. The traditional model was working just fine, for equity partners. Let’s be honest, we’re in this because it’s a business. It might be a calling also, but it’s at its essence a business and one where the margins are becoming tighter and tighter. “We are often so busy practising law and chasing the ‘billable hour’ that we leave the work required to run a legal business – whether you are a business owner or looking to develop your practice within a firm – until we have spare time,” Ms Edmonds says. It is widely acknowledged that lawyers don’t have the luxury of spare time. However, Ms Edmonds says the profession is lagging on the uptake of innovative business practices, which inevitably frustrates clients. She is under no illusion that strategy is particularly important. It forms the basis of a firm’s overall direction, firm culture and pervades to the essence of a firm’s service offering.

“It also forms a point of reference for your employees to make the best decisions they can in their work without you.” Law’s traditional roots cannot be ignored, Ms Edmonds says. The pursuit of excellence, upholding standards and collegiality will always underpin the profession. “These traits should be pursued and valued. In other areas, though, tradition can arrest the development of a legal business.” Ms Edmonds says there are many downsides to being a sole practitioner but one benefit is that her business is agile and more equipped to adaptation. “We can meet changing business requirements if we are determined to. My research shows that the business of law will be unrecognisable within a decade. So we may as well change now and think and act like entrepreneurs.” Nowadays, clients expect more for less, paying for the quality of service they receive.

LawTalk 838 · 28 March 2014 ·

05


CLIENT Ms Edmonds feels many lawyers struggle with the realisation that the business of law requires different skills, character and approach than the practice of law, making it quite an uncomfortable transition. “It shouldn’t be so surprising really. How can we provide advice on the law relating to business without understanding on a deep level what makes a business fly?”

APPROPRIATE

“So much of the terminology we use is nonsensical to lay people. We need to look at communication from the outside in and make the effort to translate it. How do prospects or clients know that our services – or services they haven’t used yet – would suit them if it’s marketed using legal terminology.” Ms Edmonds says simple touches such as meeting a client at their house in the evening or office can make all the difference. “Clients, like us, are time poor. Taking pressure off where you can makes a huge difference to the relationship. “Our advertising and marketing strategies are tailored to the clients we work best for. My strategy is to expand my offering to clients we have, rather than generating large numbers of clients.” This is key to Edmond Law’s client-centred model; investing time to understand how clients like to be communicated with, on what matters and their philosophy on issues. “Some loathe emails, some want to communicate by phone, some like meetings. Some people (mostly the entrepreneurs), avoid written communication altogether. My intent is to focus on understanding that for each client, so we as a team can deliver our service to our clients in exactly the way they like it.” This strategy helps in Ms Edmonds’ pursuit to create a firm that is her clients’ “go-to for legal needs and business strategic needs within the

MARKETING & ADVERTISING

IS EXTREMELY IMPORTANT

FOR MAKING A PROFIT

As in all businesses, before someone becomes a client, people require an incentive to take that all important step of engaging a new or their first firm. Therefore, client appropriate marketing and advertising is extremely important for making a profit. “I think that with lawyers, the marketing process starts with reputation. You must ask yourself, ‘do I act consistently and in a way that demonstrates I have integrity? Am I fair and practical and sensitive to the needs of the client and people in general? Am I prepared to adapt to what they need? Can people trust me?’” If the answers to all those questions are “yes”, Ms Edmonds says, that tends to get around organically and new work follows. Her interpretation is that fundamental to the marketing process for firms is demonstrating to clients and potential clients that the firm understands what “service” actually is and how the client’s specific needs can be met, in a language that people understand.

PE RCE P T I O N O F VA LU E People are increasingly looking for value in legal information, Otago University marketing lecturer Dr Tony Garry says. Dr Garry says the perceived value of legal information hinges on the speciality of the advice and sophistication of the client. Law is a credence service, he says, where laypeople use proxies to gauge value – the quality of interaction or even how someone is dressed – to gauge how valuable the service was that they paid for. “By the same token, it’s very difficult to make any price comparisons. And so for that reason we often tend to have an ongoing relationship with our solicitor because we trust them or they’re friendly to us – and that’s what the economists would call a

06

· LawTalk 838 · 28 March 2014

difficult barrier to break down, if you were a competitor,” Dr Garry says. “But then you have the more sophisticated client like the blue chip companies or the more educated managing directors and so on. They’re able to make a much better judgement of like-for-like.” Mr Garry says the commodification of the market means larger companies are demanding more from their law firms for a fixed fee. Small to medium business, however, would require less sophisticated advice, placing more emphasis on trust and assurance. “Small to medium – or the sole trader who’s playing with his life work – he tends to be a bit more cautious, and there is room

for a long-term relationship to continue.” Dr Garry says one could view the service in terms of the number of components it has. He says if legal advice is the technical component, then the ability to gauge the quality of that is often related to the sophistication of the client; such as educational level and life experience. “Then surrounding that you have the way the service is delivered. For example, how reliable the solicitor or law firm is in delivering that advice, how timely and how responsive they are and so on. “I guess it’s ‘horses for courses’, deciding where value is added for particular clients (the core or the way it is delivered) and adjusting your service accordingly,” he says.


confines of the law”. To make them feel valued and looked after for the entire relationship is important, not just in the engagement phase. “I am told sometimes by new clients who move to us from other practices, that they have previously felt that, once they were ‘reeled in’, they were relegated down the chain while their initial partner contact moved onto the next prospect. I would be horrified if a client felt like that about our practice. It is equally important to facilitate trust transference, so that clients can ask your staff for help, too, and feel that they know what’s happening – at least on a general level – regardless of who they call. “My orientation is towards clients as individuals or individuals within entities and their needs. That’s why getting the back end administrative and compliance aspects as streamlined as possible is critical. As a strategy I want to workflow as many of our functions as possible to reduce the administrative time taken and complexity in providing our service. This is the only way small firms will survive the next decade.” Ms Edmonds says her referrers know the firm genuinely has a client-centric philosophy. She tracks her billable hours and still mainly bills clients in a “value-based fee structure”. “I encourage clients to call me and chat with me so that the trust and depth of knowledge is enhanced. That’s not something you bill for. It’s part of marketing. It’s part of strengthening a relationship.” When the relationship is strong and true, clients treat you as a business partner rather than just another service, Ms Edmonds says. “They are far less likely to replace you with a new, flasher model. At the end of the day, I still think for most matters, except for the truly transactional, law is a deeply personal offering.” Other forms of marketing – that most firms should have cottoned on to by now – include web presence and digital marketing, as well as attendance at professional functions and forming strong networking relationships within the industry with other practitioners. Ms Edmonds says it all goes to ascertaining exactly who the firm wants to act for and then determining what channels to use to get to them. “Referrals are always the best clients. They come pre-qualified, usually from people we trust. Mostly that ensures we are well matched. “To continue to grow, we will need to expand our channels. For now, we are taking one step at a time, honing our offering, so that customer service can be maintained while we develop the business aspect,” the law firm principal/business entrepreneur says. LawTalk 838 · 28 March 2014 ·

07


Securing the ongoing health of your practice By Turei Mackey “When I was a lawyer I admit to having had a general negative attitude to salesmanship and salespeople. It was only after getting into a selling role for a legal publisher that I realised I needed to challenge my perceptions,” says Law Tune-Up founder and director Paul Steele. Law Tune-Up provides consultancy services on selling, customer service, and marketing to legal businesses, and also on law libraries and legal research systems. “There is a lot of commentary about change in the profession, and I think it’s really happening at an ever increasing pace now. Attitudes often need to be shaken up if the ongoing health of a practice is to be secured. “Looking back at my own experiences as a lawyer, I realised that a mistake I often made was to preempt the discussion. Good selling is about putting the client or prospect at their ease and then ‘opening them up’ with great open questions. “This makes it much more likely that the outcome is really in the other person’s interests, and may mean a quite different process than either lawyer or client may have first envisaged. By ‘selling’ in this context, I mean the soft and technical skills that are employed totally within the profession’s ethical standards and rules of conduct.”

Customer service for the client Mr Steele says many legal businesses don’t profile their clients into groups beginning with the most valued, instead opting to treat every client the same. “Anyone who has been involved in marketing or business will know this is not the best way to operate. “You need to classify your clients from A to E with the As being the highest profitable users of your services or who are otherwise strategically important, especially those who refer other people to you. In return you treat these as your top clients

08

· LawTalk 838 · 28 March 2014

because in some cases they will represent 100% or more of your profitability. “In other words, clients in the D or E areas may be loss makers. Some practices may be surprised when things aren’t so profitable even though everyone is flat out with work and the client list appears high.” He says it is also important that every staff member, from receptionist to other lawyers, knows who the top clients are when they walk through the doors. “If you have had a good experience you are more likely to return to a restaurant and you would be expecting a high level of customer service from front of house to the actual meal. To me that is no different to walking into a law firm. “You’re hoping to be treated well and even that you feel you’re the only person the lawyer is seeing on that date. If you’re still in the waiting room beyond the actual meeting time appointed, you should be regularly communicated with by staff. And from when the client meets the lawyer to the finish, there should be zero surprises, which includes the bill.


“No surprises, all expectations realised or exceeded, everything is understood by the client.”

The personal touch “It is important to make sure there isn’t a huge imbalance of power between lawyer and client. As soon as that occurs, the communication flow may falter between both sides.” While digital communication is common practice for most professions, Mr Steele says, adding personal touches when possible can improve business/client relationships. “It sounds so basic but in today’s world people are generally blown away if you call them or send a letter or personal note, because it says that you actually view them more than just a client. And don’t get me started on the use and abuse of email.” He recommends keeping a record of key clients’ birthdays and interests like fishing or rugby to improve the personal factor. If the client is a group or company, Mr Steele says the approach is to develop multi-layered relationships. “Apart from opening up opportunities to cross-sell other services the firm may offer, the advantage is it becomes very hard for the group or company to switch legal providers because of the number and depth of relationships between people in both organisations,’’ he says. “I am often asked about how to talk price with prospects or clients. Many lawyers are nervous about this and this is often because they haven’t appreciated how selling skills include the ability to establish rapport and value first. “To try to encapsulate why all of this is important I think it’s about the broader picture where the client is at ease, the communication flows better and therefore it is more likely lawyer and client will have a better expectation about the value and the outcome.”

Online presence “It is essential for a law firm to have a website. Barristers are the only type of lawyer who possibly could get away with only a social media presence.” Mr Steele says a professional website shouldn’t resemble a mere digital form of a lawyer’s business card, it must be kept up to date with current content and be seen as delivering valuable information, not just as self-promotional. “It needs to be an effective communication of your brand as you would like people to be talking about you if you were not in the room,” he says. “A number of firms see their website as just a digital business card and claim that they receive

all their clients via word of mouth. While that basic premise may be true much of the time, there is an increasing number of customers who are now seeking validation online and will not pander solely to the voices of friends, family and colleagues as to who they should seek out for professional advice.” If done properly the website can also provide an internal perspective for the firm. Mr Steele says it helps a firm address internal issues and overall culture. “Your website must be in sync with your brand, values and culture, or your reputation will likely take a hit.” When it comes to social media, LinkedIn is the most common with New Zealand lawyers and is arguably the best tool for networking with fellow lawyers and business/organisations, but most will stay away from social media when it comes to marketing. “Apart from the big law firms, I see very few examples of law firms embracing social media although there are some fine examples of lawyers who are doing it very well. But most firms find it hard to keep their websites up to date with new content so struggle to see how they could operate a Twitter or Facebook presence. “This is a whole subject in itself but it’s my belief that law firms need to take the development of social media seriously and work out plans to embrace it.”

Reviews and complaints “There are positives to be gained through providing the client a short questionnaire at the end of a matter to get their response as to whether expectations were met or not. “Specific client surveys should also be run on an irregular basis,’’ he says. Mr Steele identifies a problem with many online surveys. There are often only four or five options, with three being either “satisfied” or better and only one “not satisfied”. “Which is fine, but the reality is a ‘satisfied’ customer can easily move to another lawyer or firm.” When dealing with complaints about customer service the firm needs to be supportive of any complaints or suggestions for improvement. “If the complaint isn’t responded to quickly or transparently the client will simply view the firm as not genuinely interested.” Once a complaint is received it needs to be handled by someone other than the lawyers and staff involved. “The most important thing is an apology is issued immediately. Even if the apology is not in regards to a lawyer’s performance or the fee, the fact a complaint was made means there must have been a communication breakdown.”

LawTalk 838 · 28 March 2014 ·

09


Our Profession, Our People Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. Submissions may be sent to editorial.lawtalk@lawsociety.org.nz. If possible, please include colour photographs of any persons mentioned. Image files should ideally be print resolution of 300dpi, and must be a minimum of 500 pixels wide for headshots, 2000 pixels wide for group shots. You can find the dimensions of an image in Windows by right clicking on an image file, going to ‘Properties’, and clicking on ‘Details’, or on a Mac by right clicking on the image file in the Finder and clicking ‘Get Info’. JPEG or TIFF formats are acceptable, BMP or GIF are unacceptable. If digital files are unavailable, hardcopy photographic prints of minimum 10cm x 15cm may be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145. We will endeavour to return hardcopy photographs, provided a return address is included.

10

· LawTalk 838 · 28 March 2014

P E O P L E I N T H E L AW

The Institute of Professional Legal Studies (IPLS) has appointed 12 new instructors. The new Auckland instructors are: Glenn Satherley, a litigator who has, for the past six years, been practising as a barrister sole; Justin Kleinbaum who is a team leader, Legal and Technical Services with the IRD; Stephanie Mead, a PhD candidate at Auckland University and a barrister who undertakes dispute resolution and provides advice on property, resource management, environmental and planning law matters and Davida Dunphy, a former senior associate at Bell Gully who practised in commercial property with particular focus on large-scale commercial development, acquisitions/ disposals and leasing/portfolio management. The new Wellington instructors are: Maria Deligiannis who recently worked as the team leader/ Crown Counsel in the tax and commercial team at Crown Law; Louise Elder, a litigator whose areas of practice include criminal law, family law, youth work, civil litigation and compliance prosecutions;

Michael Wilson, who was a litigator in Auckland for a number of years and has served as senior advisor to the Minister of Immigration and the Attorney-General; and Peter Foster, a barrister specialising in Criminal and Family law. Rebecca Chisholm, who joined the Hamilton team, has been working with Beattie Rickman Legal on family law matters, including parenting matters under the Care of Children Act, domestic violence, relationship property, adoption, paternity and protection of personal and property rights. Before joining the Christchurch team, Anne Toohey worked as a Crown prosecutor, as Crown Counsel acting in appellate and international law jurisdictions and for private clients in civil and employment litigation. In Dunedin the new team members are: Kate Lash, who specialises in Family Court litigation and works with Aspinall Joel as well as undertaking work on behalf of the Dunedin Women’s Refuge and other community organisations; and Maree McDonald who started her legal career working for the Ministry of Justice in the Family Court. She has a special interest in complex relationship property cases and international family law.

Former Dean given Distinguished Alumni Award The first woman in 550 years to become Oxford University’s Registrar, Dr Julie Maxton has been presented a Distinguished Alumni Award from Auckland University. Dr Maxton was, while at Auckland University, Professor of Law from 1993 and Dean of the Law Faculty from 2000. She left Auckland in 2006 to become Registrar at the University of Oxford, where she is now an Honorary Fellow of University College. Since 2011 Dr Maxton has been Executive Director of the Royal Society of London. “I never set out to attain any institutional firsts, and I would certainly not like to be the last woman in any of the roles I have held,” she says. “It’s important to do the very best you can and take opportunities as they come up. In a way it’s a bit like sport, which has always been a big interest in my life. You keep doing your best in every part of the game, whether it is going well for you or not.” Born in Scotland, Dr Maxton represented Scotland in lacrosse and hockey as a school girl. She won a scholarship to University College in

Dr Julie Maxton

London where she gained an LLB (Hons) and was admitted at Middle Temple. Dr Maxton was appointed to a lectureship at Canterbury University, and after marrying a New Zealander moved to the University of Auckland. Dr Maxton is also a Trustee of the UK Friends of the University of Auckland and is on the Board of the University’s Creative Thinking Project. She was one of six University of Auckland Distinguished Alumni to receive the award this year.


Making a difference in people’s lives LawTalk spoke to Inna Zadorozhnaya, Community Lawyer with Community Law Wellington & Hutt Valley. Here are her answers to our questions. Why did you choose a career in law: what attracted you to the law? I have always had an interest in justice and the law, but it took me a while to pursue it as a career. As a child I moved with my family from Russia to Germany. Then shortly after the wall came down, we relocated to New Zealand. I went to university and obtained a BA (Hons) in German. I then travelled back to Germany and spent some time in Berlin and Hamburg. Upon my return to New Zealand I decided to pursue a career in law. Being from an immigrant family, I had witnessed my parents deal with legal bureaucracy and I wanted to be able to use the law to make a difference in people’s lives.

GRANT ALLAN

What do you like most about working in the law? I like the client interaction and being able to use the law to help people who find themselves in difficult situations. I also enjoy being able to share my knowledge of the law with other groups who also seek to assist others.

and Hutt Valley as one of their community lawyers. At Community Law, I look after the Refugee and Immigration Legal Advice Service. My main portfolio is working with former refugees with family reunification. I also supervise a team of volunteer lawyers who assist with the case management.

What has your career encompassed? I had a number of contract roles at the New Zealand Transport Agency, the New Zealand Treasury and a major insurance and wealth management company. While studying law, I became a volunteer at the local community law centre. Once I had finished my studies, I was hired by Community Law Wellington

What are the highlights of your career to date? My clients. There is always varied and interesting work, and the very real opportunity to make a real difference in people’s lives.

LLB

Mediator

Over 250 lawyer referred mediations No charge for travel costs or time to mediations anywhere in NZ

www.grantallan.co.nz E: mediator@grantallan.co.nz P: 0800 400 411

Do you have any hobbies/interests outside of work? I enjoy spending time outdoors, walking and cycling, and skiing in the winter. I enjoy practising yoga. I have an ever growing collection of cookbooks, and I also have a passion for animal welfare. My next pursuit is to improve my skill in playing golf. How do you see the future of law: what are the biggest challenges the profession faces? I think the biggest challenge is to stay current and accessible. Breaking barriers between the public and the legal profession, to educate and empower the public about the law. LawTalk 838 · 28 March 2014 ·

11


ON THE MOVE

Sandra Heney has been appointed an associate of Fletcher Vautier Moore. Sandra joined the firm in 2012 after having practised for many years on her own account. Sandra, Sandra Heney who is based in Nelson, is a family law specialist. Antoinette Besier has also been appointed an associate of Fletcher Vautier Moore. Antoinette joined the firm in 2010 and works in the RichAntoinette Besier mond office specialising in resource management and public law. Marie Evans, a litigation and dispute resolution lawyer with an international reputation, has been made a partner of DLA Phillips Fox. Marie has worked at DLA Phillips Fox for over two years, after moving from the United Kingdom, where she headed a commercial dispute resolution team of a top tier firm. She has worked with blue chip companies, utilities, hospital trusts, major pharmaceutical companies, large engineering firms, and major retailers. In New Zealand, her work has also encompassed complex insurance claims, and in DLA Phillips Fox’s healthcare team, utilising her specialist medico-legal expertise.

Callum Vessey

Amy Gulbransen

12

Callum Vessey and Amy Gulbransen have joined Zindels of Nelson. Callum was sent to Zindels by ACC after suffering injuries in a motor vehicle accident. He had never practised law before but his legal skills could not be suppressed and he was persuaded to give up his former occupation (truck driving) and join the firm. Amy moved from Nelson Bays Community Law Service where she had

· LawTalk 838 · 28 March 2014

been working for the past year. Callum and Amy will be practising in the full range of litigation, including criminal, family, employment and ACC work.

Kate Dillon

Catherine Goode

Andrew Hough

Brett Martelli

Charlotta Harpur

Rachel Karalus

Heaney & Partners have appointed four senior associates and two associates. The new senior associates are Kate Dillon, Catherine Goode, Andrew Hough and Brett Martelli. The new associates are Charlotta Harpur and Rachel Karalus. Sue Golds, a registered legal executive and New Zealand Institute of Legal Executives member, has been made an associate of Harmans Lawyers. The partners of Harmans believe that associate status is due recognition for excellence in client service, loyalty and building a substantial practice, whether a lawyer or not. Sue is the second non-lawyer to be appointed an associate at Harmans. The trail-blazer was Deidre Fell, who is the firm’s estates manager and who became an associate in 2006. Trina Lincoln has been appointed a partner of Anthony Harper. Trina leads the firm’s construction team and works closely with clients in both Auckland and Christchurch, advising at all stages of construction projects with a

particular focus on the Christchurch rebuild. Trina is involved with many industry groups including as board member of Prefab and National Association of Women in Construction, Trina Lincoln and is a regular guest speaker at seminars for the construction industry.

Honorary doctorate for legal scholar International law, human rights and criminal law scholar, Professor Roger Clark, will receive an honorary Doctor of Laws at Victoria University’s May graduation. The first member of his family to go to university, Professor Clark graduated from Victoria in 1964 with a BA LLB. He added an LLM in 1967, and has since gained a further three degrees: a Doctor of Laws from Victoria in 1997, along with an LLM and a Doctorate in Juridical Science from Columbia University in New York. Professor Clark has written or edited 12 books, authored and co-authored more than 130 articles and book chapters, and played a significant role in international human rights law – especially in helping to establish the International Criminal Court in The Hague. Professor Clark taught at Rutgers University-Camden for over 40 years, where he insisted on the inclusion of a course on the international protection of human rights, an uncommon part of the law school curriculum in the United States at the time. By the mid-1980s his focus had shifted to teaching international criminal law, a topic also just beginning to be taught in law schools. He has helped to shape that discipline which is now taught at the majority of law schools across the United States and is the subject of specialty programmes worldwide. In 1998, Professor Clark was named a Rutgers Board of Governors Professor. This honorary professorship is awarded by Rutgers University’s governing board to faculty members for substantial contributions to teaching and research.


New honours board unveiled

At the recent unveiling of Victoria University’s new student competition honours board (from left) Justices Clifford, O’Regan, France, Arnold, Wild and Collins.

Judicial alumni of Victoria University have clubbed together and paid for an honours board for the Law Students’ Society which records the results of student law competitions. The new plaque is named in honour of George Barton QC, an alumnus and former professor at the faculty. The wooden board is made of a mix of Fijian kauri and New Zealand kauri. It has been made by the Centre for Fine Woodworking in Nelson.

Letters to the Editor Women in higher levels of the law It seems that there is a groundswell of interest that has arisen from the AttorneyGeneral’s call for more female barristers to apply for the position of QC and to this end, the article by Rachel Dewar and the associated statistics in the recent LawTalk make for interesting reading. I notice that today (3 March) the National Business Review (NBR) published an article on the same theme referring to the recent study spearheaded by Auckland Women Lawyers’ Association and authored by AUT titled Women’s Career Progression in Auckland Law Firms. I was aware of this study, although was never surveyed as part of it despite being a partner in a busy central Auckland commercial litigation practice, having undertaken six years of voluntary work on the Council of the ADLS (and on its committees), having served for three years on an NZLS Standards Committee, having completed an LLM at Auckland University while also raising a child the entire (nearly) 10 years I have been in practice. Understanding the place of women in the law profession and how to improve the experience so we retain more at senior levels must be applauded. However, I question whether we are, in fact, searching for answers we already have. It seems the “old boys network” label or proposition that women are too timid to apply for higher appointment are too often trotted out as reasons for women not advancing in the law. On both counts I take issue. The NBR article applauded Simon Moore SC and Chris Moore, who clearly have been very supportive of female progression in the law. However, they are but two male lawyers who support and encourage female

practitioners as colleagues in the profession. All of the senior lawyers who have mentored and supported my advancement throughout the last 10 years have been men. I have often found that the worst harvesters of tall poppies have been other female lawyers and I know of other female colleagues who have had similar experiences yet this barely registers a mention. It might be difficult to swallow but it is unsurprising the practice of law is tough particularly if you want to be good. Layer on top of that the rigours of motherhood, keeping in shape and having a social life, it is no wonder many female practitioners opt for in-house positions, part-time legal practice or a career outside the law. Mothers cannot be replaced. If you work and you are a mother you just sleep less than those mothers lucky enough not to have to work. To my mind, the real problem is driven by the nature of what lawyers do and who we serve. Law is a service driven profession and we service the greatest need at any one time in a person’s life. Thus, necessarily, the needs of the lawyer become secondary. Only last year I was in the middle of running a week-long trial in the High Court when my nine-year-old son broke his fingers. Not only could I not go to assist him at the time of the accident during school hours, I then had to spend a sleepless night with him while preparing my cross-examination for the next day. This is the life of a working mother (and no doubt many fathers) in the law, particularly in litigation. Litigation is a personal practice. Clients engage barristers and litigation solicitors for their personal skill as an advocate,

particularly at a senior level. Change the attitude of clients and there may be a sea change although commercial imperatives and human nature mean this is unlikely. The reality of this means that at the most senior level of the profession the number of not only women, but all lawyers, who can operate with that sort of pressure is much reduced. When viewed like this, it does not seem difficult to understand why so few female practitioners apply for the rank of QC. Added to that is the obvious issue that a good deal of talented female litigation lawyers practise in firms rather than as barristers. If this rule was changed, the Attorney-General would have a much larger pool of potential female contenders. I certainly owe much to my male colleagues in the law, although acknowledge there is an element of luck in the fact I have had the benefit of working for and with talented and encouraging male practitioners. Success and elevation in the profession comes with hard work and perseverance, no matter what your gender, and a good healthy dose of realism. It is trite to suppose that there will ever be true work/life balance in the law particularly for women wanting to do it all. We do need to strive to do all we can to make the law an attractive and fulfilling place for women to spend their careers but we also need to be positive about the fact there is an ever-increasing number of females at the most senior levels of the profession and the judiciary. Jacque Lethbridge Partner, Grove Darlow & Partners, Auckland LawTalk 838 · 28 March 2014 ·

13


Practising Well

What makes lawyers happy? By Frank Neill A happy life as a lawyer is much less about grades, affluence and prestige than about finding work that is interesting, engaging, personally meaningful and is focused on providing needed help to others. This is what the data from a recent major research project in the United States showed. Law Professor Lawrence Krieger and psychology Professor Kennon Sheldon analysed data from 6,226 lawyers in four states. The data was obtained through surveys run with the co-operation of the state bar associations. Data was analysed to determine which factors predicted well-being and the extent of their apparent impacts.

The results This showed that psychological factors were far more important for the well-being of lawyers than various external factors, such as income and law school class rank. The four factors that had the most beneficial correlation with well-being were: • autonomy (including authenticity); • relatedness; • competence; and • internal motivation. Kreiger and Sheldon placed these four in their “tier 1” category of factors having primary importance for lawyer well-being. The first three of these, they said, had such a large correlation with well-being, to the extent “that it may not be possible to attain thriving without relative satisfaction of all of these needs”. In terms of competence, an interesting point emerged from the data. Although “prestige” lawyers (those with high pays from large firms) had substantially higher law school grades than any other group, they reported significantly lower satisfaction of the competence need than the group with the lowest grades and pay, the “service” lawyers. “This suggests a core dissonance between ‘competence’ as measured in law school (largely by grade performance) and a lawyer’s ability to feel competent in actual practice,” the researchers said. Indeed, the data continued to indicate a

14

· LawTalk 838 · 28 March 2014

“quite limited value” of grades and prestige for well-being. Choosing work for internally-motivated reasons – that is for enjoyment, interest or meaning within subjects’ belief systems – was also “very highly predictive of well-being”. The “tier 2” category comprised two factors: • autonomy-supportive supervision; and • intrinsic values. Autonomy-supportive supervision of attorneys in the workplace (provision of understanding, respect, and choices, as opposed to control) strongly predicted well-being. “Autonomy support also appeared to increase the critical experiences of autonomy, competence, and relatedness, suggesting itself as an effective intervention for promot-

Choosing work for internallymotivated reasons was very highly predictive of well-being ing well-being,” the researchers said. “Seen from the contrary perspective, this also suggests that controlling supervisors who are not trained to be supportive will exert a number of avoidable negative effects on their employees and their organisational morale and efficiency.” Intrinsic values (for self-improvement, intimacy, and altruism/community), as compared to extrinsic values (for affluence, power, or recognition), had the next highest correlation. The “tier 3” category comprised four external factors: income, law school debt, class rank and law review membership. These four constituted a “distinctly subordinate” tier of apparent benefits for well-being. Class rank, perhaps the most emphasised and stress-inducing factor in law school,

correlated rather weakly with well-being, while law review membership had a zero correlation. “These results suggest a core reorientation of priorities, to de-emphasize grades, credentials, and money as foundations of happiness in the legal profession,” the researchers said. Important secondary analysis further supported this conclusion. For example, “prestige” job lawyers, with the highest grades and income of all groups analysed, were not as happy as the “service” lawyers, the group with the lowest pay and law school grades. Although income increased very strongly with law firm size, well-being decreased at the same time. Higher law school ranking was associated with increased income but only negligibly with well-being. Surprisingly, the researchers said, wellbeing did not vary significantly with the absolute number of hours worked. However, the data concerning billable hours was “telling”. As billable hours increased, income increased, but important psychological predictors of well-being decreased: autonomy satisfaction, internal motivation and relatedness satisfaction. In fact, billable hours were the “strongest negative predictor” of well-being studied, despite a positive association with increased income. An increase in billable hours was also accompanied by increased alcohol use. Some other results from the survey were: • subjects reporting regular exercise had greater well-being than others; • the number of vacation days correlated moderately with aggregate well-being; • subjects engaging in prayer when affiliated with a religious group were slightly happier than others, while there was no relationship between well-being and practising tai chi, yoga, unaffiliated prayer, meditation or mindfulness; and • as city or town population decreased, there was very slightly increased well-being. “The correlation strength of vacation days and exercise with well-being are noteworthy, because they equal and in some cases greatly exceed the effect size for well-being of increasing income, decreasing debt, better


can adequately compensate a lawyer who has not secured autonomy, integrity, meaningful/ close relationships, and interest and meaning in her work. The data therefore suggests fundamental changes in the belief system shared by many law students, lawyers, and their teachers and employers. In particular, the shared understanding of “success” needs to be amended so that talented students and lawyers more regularly avoid self-defeating behaviours in the pursuit of success.

S U BJ ECTI V E W EL L B EI NG CO RRE L ATE S r = .66

Autonomy Relatedness

r = .65

Competence

r = .63

Internal Motivation

r = .55

Autonomy Support r = .30

Intrinsic Values Attorney Income

r = .19

School Debt

r = .19 r = .12

Class Rank Law Review

Are lawyers different?

r = .46

r = .00

grades, law review participation or law school ranking.” The survey showed that improved wellbeing leads to improved productivity, ethics and professionalism.

Happier lawyers more productive “The current data demonstrates that lawyers who are more engaged by interest and meaning in their work are much more likely to be happy than others. Such engagement also makes high productivity more likely. “Conversely, previous research indicates that motivation based on external factors such as increased financial incentives can actually result in decreased performance and productivity, likely by displacing (‘crowding out’) more salutary internal motivation for work. “These facts, coupled with the current data showing a very large correlation of internal motivation with well-being, support the conclusion that increased well-being and productivity will tend to associate with each other, mediated in large part by the extent of workers’ sense of autonomy and internal (versus external) motivation.”

Professionalism

Those factors also included the strongest predictors of well-being. That suggested that “one powerful approach to raise the level of professional behaviour among lawyers is to teach law students and lawyers to maximise their own happiness”. The survey data contradicts beliefs that prestige, income, and other external benefits

All this raises a very interesting question. Are lawyers different from other people with regard to their happiness and satisfaction? “Simply stated, there is nothing in these data to suggest that attorneys differ from non-attorneys with regard to their prerequisites for feeling good and feeling satisfied with life,” the researchers say. “Thus it would appear that lawyers, and their teachers and employers, should banish any notions that law-trained people are somehow special in this important regard. In order to thrive we need the same authenticity, autonomy, close relationships, supportive teaching and supervision, altruistic values, and focus on self-understanding and growth that promotes thriving in others.” The survey, What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers, is published as Florida State University Public Law Research Paper No 667.

the advanced

business skills series

The College of Law New Zealand is offering advanced workshops in: • Commercial Acumen • Courtroom Confidence • Governance Essentials • Investigative Interviewing • Legal Project Management • Negotiation Skills

• Practical Tax for Lawyers - Tax Traps for Lawyers - Tax Compliance - Tax Disputes - GST and Land • Resilience

“Enlightening and thought provoking...Personally and professionally invaluable.”

Call (09) 300 3151, email cle@collaw.ac.nz or download from www.collaw.ac.nz

Although the survey did not seek to measure professionalism or ethics, it did measure psychological factors that were virtually certain to be important sources of ethical and professional behaviour for lawyers. LawTalk 838 · 28 March 2014 ·

15


Effective Practice

Maybe I shouldn’t have done that … Some legal cautionary tales By Geoff Adlam

1. Actually, Facebook isn’t all that private In 2013 a Mareva injunction was awarded against lawyer Gabriele Giambrone. This followed proceedings against him related to failed investments made through his law firm. After one hearing Giambrone posted the following comments on his Facebook site: “They thought they knocked me down, now they will see the full scale of my reaction. F*** them, just f*** them. They will be left with nothing.” The plaintiffs spotted the post. Because the Mareva injunction restricted Giambrone from dissipating his assets, they sought to make use of the Facebook comments in their proceedings. They were included in the plaintiffs’ List of Documents. Giambrone sought an order that they could not be used and could not be disclosed to the judge dealing with the Mareva injunction. He claimed that his comments were confidential as his Facebook site was restricted to communications to his friends only, and those friends would have known that it was confidential. “He claims that use of the document would constitute a breach of confidence. He told the court that he had deliberately instructed his colleague, Ian Buchan, who has some experience in software matters to ensure that only his friends could access his comments,” Justice Horner stated in his decision on the matter in Northern Ireland’s Queens’ Bench Division (Martin v Giambrone p/a Giambrone & Law, Solicitors and European Lawyers, [2013] NIQB 48). The essence of the court’s decision was as succinct as Mr Giambrone’s comments. “I should say that anyone who uses Facebook does so at his or her peril,” said Justice Horner. “There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore it is difficult to see how information can remain

16

· LawTalk 838 · 28 March 2014

confidential if a Facebook user shares it with all his friends and yet no control is placed on the further dissemination of that information by those friends. “If there was any argument that it was confidential or private, that argument was destroyed by the posting on Facebook to which the general public had, I find, unfettered access.”

2. Careful with that bean bag, Christopher… Rhode Island lawyer Christopher Millea may have thought he had a brilliant way of making his point in his closing address. However, his words and actions ended with him accused of contempt of court. The Providence Journal of 25 February 2014 reports that Millea threw two bean bags (small ones, it is assumed) at a box placed before the courtroom door while addressing the jury as follows: “You see, all of this has to do with the throwing of faeces. The state want to throw as much against the wall to see what sticks, just like Michael Drepaul throwing his faeces…” (Mr Drepaul was a key state witness and prison inmate who had cast offensive matter at a prison guard). Millea then continued: “I would suggest to you, ladies and gentlemen, that after the state has thrown the faeces against the wall …” That was as far as he got. Counsel for the other side objected, the judge ordered the jury from the room and advised that he was initiating a contempt action against Millea. However, after a hearing on the matter and an apology, the judge decided not to hold Millea in contempt – but stressed how important it was to maintain decorum in court.

3. Thoroughly check your client’s identity A scam which started with a forged information request from the Inland Revenue Department almost resulted in the sale of a house in New Zealand unbeknown to the overseas-based owner. This happened at the end of 2013. The facts are given to warn

lawyers that the scammers are active, and also to stress the need to thoroughly check client identity. Names and identifying details have been changed. The prelude Jill Smith lived in Canada but owned some rental properties in New Zealand. She employed a property manager to administer one. The manager received a scam fax purporting to be from IRD. This asked customers to complete and return a property disclosure form. Ignorant of warnings from IRD (see “Inland Revenue warns customers to ignore fraudulent faxes”, IRD website, 30 July 2013) the manager sent the form to Jill. Jill filled out the form and faxed it with a copy of her passport to the fax number on the form (not IRD, of course). A few weeks later the property manager advised her that it had discovered that the fax was a scam and she shouldn’t respond. Too late, but Jill wasn’t worried as she could not see any dangers. The action Jill’s New Zealand bank rang her, asking what she wanted to do with the proceeds from the sale of her house. When Jill said the house had not been sold, the bank said that it had, and settlement was in three days’ time. The bank told her to contact the property manager, and said they would not release the mortgage to let the sale go through. A quick phone call to the property manager brought the news that they had received instructions to sell the house and had managed to do so after an auction. The manager had been a bit surprised at the low price Jill was asking, and also at being advised that Jill had shifted to the United States and was now at a new address. The tenants had been moved out pending settlement. The property manager referred Jill to WXYZ Lawyers who were acting for the “vendor”. Jill rang WXYZ Lawyers who confirmed they were acting for the “vendor” and the purchaser. After some anxious discussion they agreed not to settle the transaction. A key lesson here is the need to ensure


clients are properly identified. The LINZ Standard for verification of identity for a high risk transaction is relevant.

4. Do you really think you should put this in email? Email is a wonderful invention, but it’s recognised that if you want to keep something quiet it’s best not to email it to someone. The United States Securities and Exchange Commission (SEC) is alleging that some of the people in the failed global law firm Dewey & LeBoeuf were surprisingly careless with their emailings. The 1,000-lawyer Dewey & LeBoeuf was the result of a merger in 2007 between wellestablished New York firms Dewey Ballantine and LeBoeuf Lamb. The timing was poor and the new firm was quickly in trouble from the merger costs and the global financial crisis. It filed for bankruptcy on 28 May 2012. Earlier this month the SEC charged five executives and finance professionals from the former firm with facilitating a $150 million fraudulent bond offering. The SEC alleges the fraud arose when the firm needed money to keep credit lines open in the face of declining revenues. It says those charged went through the financial statements line by line and devised ways to artificially inflate income and distort financial performance. Investors were led to believe that they were purchasing bonds in a prestigious law firm which was poised for growth and had come through the financial crisis unscathed. “Dewey & LeBoeuf’s senior-most finance personnel used a grab bag of accounting gimmicks to create that illusion and top executives green-lighted the decision to sell $150 million in bonds to investors as a desperate grasp for cash on the basis of blatantly falsified financial results,” an SEC statement says. The proceedings will be fascinating. What

is also interesting is the civil complaint filed by the SEC in the United States District Court. Some extracts: “So pervasive was the culture of financial chicanery at Dewey’s top levels that its highest ranking officials – including the defendants – had no qualms about referring among themselves in various emails to ‘fake income’, ‘accounting tricks’, ‘cooking the books’, and deceiving what they described as a ‘clueless auditor’.” The SEC says a scheme was hatched to falsify numerous entries in Dewey’s books and records to increase net profit. The strategy was outlined in a detailed spreadsheet entitled “Master Plan”. After the fraudulent adjustments were made, the SEC says an (unnamed) collections manager who had been promised a bonus emailed one of the defendants: “Hey man, I don’t know where you come up with some of this stuff, but you save the day. It’s been a rough year but it’s been damn good. Nice work dude. Let’s get paid!” The subject line of the email was apparently “Great job dude. We kicked ass! Time to get paid.” The SEC says the defendants “took a certain degree of comfort in what they viewed to be the ineptitude of the auditors”. When the regular auditor was fired (for reasons unrelated to the audit work at Dewey & LeBoeuf) one of the defendants emailed the news to another, adding “I assume you [k]new this but just in case. Can you find another clueless auditor for next year?” The response was: “That’s the plan. Worked perfect this year.” If the trial proceeds, defence lawyers are tipped to attack the prosecution’s reliance on emails.

juniorPartner

5. Don’t take the argument outside the courthouse: it could cost your life Respectful and reasoned argument in court is fine, but letting it escalate cost

The long apprenticeship Applications closed on 14 March and the 2014 round of Queen’s Counsel appointments is expected to be announced in May. The appointment is seen as recognition of a career of excellence in litigation. As the Crown Law Office says, the standard is high and will not be reached by merely completing a certain number of years in practice. Analysis of all 169 QC appointments since 1984 (65% of all appointments made since the first in 1907) shows an average of 26.2 years between

one of New Zealand’s first lawyers his life. Just over 170 years ago William Brewer and Hugh Ross apparently had a difference of opinion on the law while appearing in court. The New Zealand Gazette and Wellington Spectator of 6 March 1844 carried a short account of the unfortunate outcome: “On Monday week last, a meeting took place, in Wellington, between W V Brewer Esq and H Ross Esq, both members of the legal profession. The quarrel originated in some legal difference which arose in the County Court. Upon the first exchange of shots Mr Brewer was seriously wounded; he was immediately conveyed to a friend’s house. During the first few days it was hoped that his life was safe, but appearances afterwards became unfavourable, and on Monday last, about six in the evening Mr Brewer breathed his last.” In keeping with the discretion which surrounded “affairs of honour” (and ignoring the newspaper report), the subsequent coroner’s jury verdict was: “Died of a gunshot wound, by whom inflicted there is no evidence to prove.” The duel was fought on 26 February 1844 in Wellington’s Sydney Street West, behind where Parliament Buildings now stand. Brewer and his brother Charles were among the first lawyers to come to New Zealand, arriving in the Bay of Islands in February 1840. Their names are among the first 12 lawyers deemed to be admitted to practice in New Zealand on 31 January 1842.

admission as lawyers and their appointment as QC. The shortest time between admission and QC appointment is 13 years, and the longest has been 42 years. There had been fewer than 20 years between admission and appointment in only 14% of the appointments in the period. The data showed a slight variance based on gender. The average time between admission and appointment for women has been 23.3 years, while the average time for men is 26.6 years.

Practice Management Software you can Trust for Sole Practitioners & Small & Medium-sized firms Affordable Time Recording, Trust Accounting, Debtor Control Office Account, GST, Deeds, Marketing, NZLS Registers &c. For a free illustrated booklet or demo contact:

Client Care, Legal Aid Billing, Performance Reports (New) Internet Banking & Document Management (New) Record time on iPhone, Android, iPad etc with iPartner

jPartner Systems Ltd Ph: (09) 445 4476 Fax: (09) 445 4474

www.jpartner.co.nz enquiries@jpartner.co.nz

Visit our website for testimonials from firms just like yours. Easy to learn, easy to use Save time & increase profits That’s what users say!

LawTalk 838 · 28 March 2014 ·

17


Welc Identify your own learning needs

1

Maintain a CPD plan and record (CPDPR)

2

Complete and reflect on 10 hours of CPD activities in line with your CPDPR

3

File a declaration of compliance with CPD requirements each year

4

18

路 LawTalk 838 路 28 March 2014


come, CPD! The 1st of April sees the beginning of an era for New Zealand’s legal profession – the introduction of mandatory Continuing Professional Development. For a lot of lawyers, little will change. But all lawyers need to be aware of the new requirements.

W HAT IS A C P D P L A N & R E COR D (C P D P R) ? The CPDPR is the heart of your CPD activities. It is where you plan what activities you will do, record which activities you have done, and reflect on the outcomes and your learning needs. A CPDPR is a living, ongoing document – there is no start or end date – it forms a continuous record of your professional development, reviewed and amended over time. There is no prescribed format, you can use whatever system or platform you feel comfortable with. Your CPDPR should include: • your learning needs • an action plan • an activities record • reflections on outcomes • thoughts on future learning needs • verification of attendance

There is no set format a CPDPR must come in. However, if you are stuck for ideas on how to set yours up, there is a sample CPDPR for a lawyer in general practice, as well as an Excel template, available at www.lawsociety.org.nz/cpd.

Visit www.lawsociety.org.nz/cpd for more information and resources, including a sample CPDPR and a CPDPR template.

1 OCTOBER 2013 — 1 APRIL 2014 Transition Period. 5 hours CPD from this voluntary period can be carried forward. 1 APRIL 2014 — 31 MARCH 2015 First full year of CPD regime. 31 MARCH 2015 First annual declaration of compliance with CPD requirements due. LawTalk 838 · 28 March 2014 ·

19


Professional Development

First CPD year about to begin 1 April 2014 marks the beginning of the first CPD year which, under the CPD Rules, will finish on 31 March of the following year. What will happen on 1 April? From 1 April all lawyers will need to prepare and keep under review their own Continuing Professional Development Plan and Record, their CPDPR. This will include: • identifying and prioritising their current learning needs; • the activities they intend to undertake to fulfil those learning needs; and • the details of and reflections on the CPD activities they undertake, as they undertake them. Lawyers providing regulated legal services will need to complete 10 hours of CPD activities in each CPD year which are aimed at meeting these learning needs. The requirement is descriptive not prescriptive and lawyers may choose their activities from a broad range of activity types and topics. They must meet the requirements set out in CPD Rule 3.1(b), that is, they must be: • verifiable;

Professional forensic accounting services in civil and commercial matters.

Investigative Accounting Economic Loss Assessment Relationship Property Valuations

• •

provide for interaction/feedback; be planned and structured with stated outcomes; and • not be part of a lawyer’s day-to-day work. Flexibility is the key. The CPD Rules are lawyer centred and build on each lawyer’s insights and reflective practices. The selected activities must be aimed at maintaining or improving participants’ competency by helping them to meet their identified learning needs. Some activities may assist some lawyers but not others. One size does not fit all. What about the CPD hours I did during the transitional period? 1 October 2013-31 March 2014 was a transitional period. During this period, lawyers did not need to complete a CPDPR but they could complete up to five CPD hours to include in their CPDPR for the first CPD year. Lawyers do not need to relate these hours to their learning needs or reflect on them, just note them in their CPD Plan. They must be documented. What will happen on March 31 2015 – the end of the CPD year? All lawyers will need to file a declaration of compliance with the CPD Rules within five working days. Declarations will be made online and ample notice will be given along with guidance on how to do it. Should a lawyer decide their CPDPR is completely up to date and they have completed their CPD activities they may make their declaration before 31 March. This could be useful for lawyers planning to be away in March, or who do not intend to practise for a full year.

Will there be checks? Rule 8 of the CPD Rules allows the Law Society to audit a lawyer to verify their compliance with the CPD Rules. Audits may be random, cause driven or risk based. They will be supportive rather than punitive but should a lawyer appear to have knowingly made a false declaration they will be reported to a lawyers standards committee.

Self-auditing Rule 9 of the CPD Rules allows organisations to apply to the Law Society for self-auditing status. To be eligible, an organisation must have effective processes and procedures in place to ensure all lawyers in the organisation comply with the CPD Rules. They must also appoint a lawyer of suitable standing and seniority as CPD officer to monitor the organisation’s compliance with the Rules. The Law Society Board believes selfauditing can promote efficiency and keep costs down by helping organisations to avoid duplication of effort. It is aware that a number of organisations, particularly larger ones, already have these sorts of systems and processes in place, perhaps as part of a performance review and monitoring process. Initially the Law Society will consider applications for self-auditing status from organisations with 20 or more lawyers, but this will be kept under review. Organisations wishing to apply for self-auditing status should complete the application form which may be found on the Law Society website www.lawsociety.org. nz or email CPDinquiries@lawsociety.org.nz.

Further information Further information about the CPD Rules, how to develop your CPDPR, and a range of useful information as follows may be found

Paul Moriarty BSc FCA MInstD

Level 27, PwC Tower, 188 Quay Street, Auckland 1010 P:09 363 3700 M:022 107 5787 E:paul@moriartyassociates.co.nz www.moriartyassociates.co.nz

20

· LawTalk 838 · 28 March 2014

Does your garden oasis need some fresh ideas? Have a chat with Marla

021 158 1722

marla@gardenescape.co.nz


NZLS CLE introduces Online CPD Online CPD – allowing users to learn on demand anytime, anywhere – has been introduced by NZLS CLE Ltd. Around 20 courses on a broad range of topics are currently available, and more are being added each week. The courses are interactive and CPD compliant. Some are 60 minutes long, other 90 minutes and currently the longest are two hours. They range in CPD value from one to two hours. The courses can be purchased online at NZLS CLE’s website, www.lawyerseducation. co.nz. Once bought, a course can be accessed at any time using a computer, a tablet or a smart phone. All a participant needs is an internet connection. There are no apps that need to be downloaded, as the programmes are accessed directly via the web. If a participant needs to interrupt the course for any reason, they can do so and then simply pick up where they left off. They don’t need to use the same device, either.

They could, for example, pick up a course they began on a desktop on their tablet. The format is simple. Short video segments – featuring the presenter’s voice along with PowerPoint slides – are followed by questions with multi-choice answers. “The idea of being able to complete some of your CPD on the go or at any time is really appealing,” says NZLS CLE’s Chief Executive, Hellen Papadopoulos.

on the NZLS website www.lawsociety.org.nz: • Link to the CPD Rules. • Guidelines to the CPD Rules. • CPD Rules in a nutshell. • FAQ’s. • Guidelines for providers – includes a sample to help participants reflect on a completed CPD activity. • Study group guidelines and guidelines for study group facilitators. • How to complete your own continuing development plan and record your CPDPR. This material, prepared by Emeritus Professor

Neil Gold for the NZLS seminar on the CPD Rules held around NZ in October 2013 contains a number of forms and examples to help you identify your learning needs and choose and articulate suitable learning activities. There is information on reflective practice as well as an example of a CPDPR template. An example of a CPDPR for a lawyer in general practice as well as downloadable CPDPR templates in Word and Excel. Self-auditing requirements and an application form.

• •

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:

Mr Ross Meijer, Aon New Zealand

 (04) 819 4000 • fax (04) 819 4106 email: ross.meijer@aon.com

“Another attraction is the fact that participants will have less time out of the office to participate in a CPD activity. This is particularly the case for lawyers who are not based in the main centres. “Also, having purchased an online CPD course, you have permanent access. That means you can go back and revise or refresh what you have already learned.” The online CPD programmes can be accessed by visiting the NZLS CLE website and clicking on the “Online CPD” link on the home page. Alternatively, people can access the courses by going to the relevant practice area link on the home page. At the completion of a course, a certificate of verification automatically becomes available on the participant’s “Online CPD” page. The certificate will be available to download, save or print for three years from the date it was completed. People who have any questions can contact NZLS CLE during work hours on 0800 333 111.

IN TROD U C TORY O F F ER NZLS CLE is off ering 50% off any Online CPD course purchased in April. To redeem this offer, simply enter the following voucher code at the checkout: CPD2014. Alternatively, you can phone 0800 333 111 to take up this offer. This offer is valid until 30 April 2014 and there is a limit of one half price Online CPD course per person.

LawTalk 838 · 28 March 2014 ·

21


Law Reform Report

Immigration powers raise Bill of Rights issues The Immigration Amendment Bill (No 2) triggers Bill of Rights issues, the New Zealand Law Society says. One of the bill’s key aims is to address the exploitation of migrant workers, with a proposed s277A used to expand the power of immigration officers to do so. The Law Society is disquieted about the proposed extension of immigration officers’ powers to conduct a search without a warrant to include the search of any premises such as houses, and the ability to demand answers to questions in certain circumstances. The Law Society says the conferral of these powers breaches the right to be free from unreasonable search and seizure and

to remain silent, guaranteed by the New Zealand Bill of Rights Act 1990. The bill allows an immigration officer, upon entering premises, the power to require certain categories of person to answer questions about immigration status and legality of employment. This may make the person a “detainee”, potentially exposing the person questioned to criminal prosecution. Law Society spokesperson Dr Rodney Harrison QC told the select committee considering the bill that powers to search private premises without a warrant should be granted only in exceptional cases where the need is clearly justified.

“Without these circumstances, any intrusion should occur only with prior and independent authorisation,” Dr Harrison says. The Law Society recommends that the proposed s277A ensures any questions put by an immigration officer cannot be used in proceedings against the person interviewed and that it expressly specifies matters that can be addressed. The bill also proposes that if a visa is pending, an applicant must inform of any relevant fact or material change in circumstances. Under the proposed bill the minister could deport an immigrant worker for any relevant information that is concealed, leaving no room for innocent omissions.

Drink-driving infringement regime lacks fundamental safeguard The New Zealand Law Society agrees with the Attorney-General that a provision in the Land Transport Amendment Bill is inconsistent with the right to be presumed innocent, affirmed under the Bill of Rights Act 1990. The bill creates new infringement offences, punishable by fines and demerit points, for adults driving with a breath alcohol level of 251 to 400 micrograms/L or a blood alcohol level of 51 to 80 milligrams/100mL. Law Society spokesperson Graeme Edgeler has told Parliament’s Transport and Industrial Relations Committee that clause 9 of the Bill removes an important safeguard by

22

· LawTalk 838 · 28 March 2014

denying those who receive a breath alcohol reading of 251 to 400 micrograms/L the option of a blood test. “The Supreme Court has noted the importance of the right to a blood test, because it allows human error to be challenged and the accuracy of the scientific evidence to be tested,” he says. “For someone who already has demerits, the consequences of an infringement notice and a further 50 demerits may be serious.” Mr Edgeler says the reliability of evidential breathalysers is good, but not infallible. “If someone blows just over 250mcg/L

and believes they are below that level, they should be permitted to choose a blood test.” The Law Society agrees with the AttorneyGeneral that unless the right to choose a blood test is available, the proposed infringement regime for drivers with breath alcohol levels of 251 to 400 mcg/L would represent an unreasonable limitation on the right to be presumed innocent. The select committee was urged to pay close attention to the Attorney-General’s report on the bill, with a view to making amendments to recognise the right to be presumed innocent.


New legislation to modernise courts may have unintended consequences The Judicature Modernisation Bill may unintentionally compromise the public interest in the effective and expeditious disposal of litigation, the New Zealand Law Society says. Law Society spokesperson Liesle Theron has told Parliament’s Justice and Electoral Committee that clause 169 of the proposed bill, which would allow people other than a barrister or solicitor to support selfrepresented litigants, may undermine the safeguards put in place by the Lawyers and Conveyancers Act 2006 in relation to appearing in court as an advocate for another person. The Law Society recommends that clause 169 be amended to specify that any person supporting a self-represented litigant does not have the right to be heard.

“The involvement of additional unregulated participants would increase the burden on the court system from unrepresented litigants,” Ms Theron says. The Law Society suggests a number of technical changes to the bill. It also supports the Law Commission’s call for more transparent criteria for the appointment of judges. The Law Society supports the Law Commission’s recommendations requiring consultation with the legal profession and the judiciary before making judicial appointments and specifying appropriate minimum criteria for selection but without identifying specific categories of diversity. “Stating these basic requirements explicitly would engender public confidence and transparency,” Ms Theron says.

The bill also proposes expanding the power of individual judges in the Court of Appeal, allowing two judges to determine applications for leave to appeal and to extend time. At present, at least three judges are required to decide a matter that will determine an appeal. The Law Society says if the judges disagree, the applicant will be denied relief. This means that one judge effectively determines the application against the applicant if there is a disagreement. The Law Society recommends that any application which determines the proceeding or disposes of a question or an issue that is before the court in the proceeding should be heard and determined by at least two judges.

Bill targeting child pornography offenders needs fine-tuning The New Zealand Law Society has told Parliament’s Justice and Electoral select committee that some aspects of the Objectionable Publications and Indecency Legislation Bill need further consideration. Law Society spokesperson Graeme Edgeler says the principal aim of the bill is to increase penalties applying to images of child sexual exploitation. “But the range of objectionable publications targeted by the bill is much broader, and can include material that is not about sex or child sexual exploitation at all,” he says.

The bill proposes to increase the maximum sentence for making or supplying objectionable material from 10 to 14 years, and possession of objectionable material involving knowledge from 5 to 10 years. “The Law Society questions whether the proposed increases in maximum sentence should be restricted to cases involving images of child sexual exploitation, since this is the principal concern behind the bill.” The Law Society also questions whether the proposed presumption in favour of imprisonment for repeat offenders relating

to images of child sexual exploitation is required. “The Sentencing Act 2002 already provides that previous convictions are an aggravating factor when determining sentences and it is doubtful the new proposal would have much impact in practice,” Mr Edgeler says. Clause 7 of the bill would produce the same outcome as current sentencing principles, which require sentencing judges dealing with repeat offenders to consider the circumstances of the offence and the offender.

RECENT SUBMISSIONS The Law Society recently addressed the following select committees: • Transport and Industrial Relations Committee on 20 February 2014, on the Immigration Amendment Bill (No 2); • Transport and Industrial Relations Committee on 6 March 2014, on the Land Transport Amendment Bill; • Justice and Electoral Committee on 6 March 2014, on the Objectionable Publications Bill; and

Justice and Electoral Committee on 13 March 2014, on the Judicature Modernisation Bill. The Law Society recently filed submissions on: • Local Government Act 2002 Amendment Bill (No. 3); • Review of the Health and Disability Commission Act 1994 and Code of Health and Disability Consumers’ Rights; • Land Transport Amendment Bill; • Judicature Modernisation Bill;

• •

Parliamentary Privilege Bill; Family legal aid fixed fees – review: Family Law Section and practitioners’ feedback; and • International Covenant on Civil and Political Rights (ICCPR) – New Zealand’s 6th periodic report – information relevant to List of Issues Prior to Reporting. The submissions are available at www. lawsociety.org.nz/news-and-communications/ law-reform-submissions.

LawTalk 838 · 28 March 2014 ·

23


The Bookshelf

New Zealand Trust Reports Volume 1 (Part 1), 1965-2003 NEW ZEALAND TRUST REPORTS

Reviewed by Andrew Butler

NEW ZEALAND TRUST REPORTS

unreported in the Volume 1 (Part 1) New Zealand Law 1965–2003 1 Reports, although a number of those have been reported in some of the specialist report series, such as the various family law reports series. But for trust practitioners, there is real value in having important cases in the trust jurisdiction reported in a single volume. It very much puts relevant New Zealand case law at our fingertips. Your reviewer understands that reflecting the significant growth in trust-related litigation this millennium, cases decided from 2003 onwards may well require two volumes of the NZTR. Turning from the comprehensiveness of coverage to quality of the product, as all busy practitioners know, there is a great scourge in the modern phenomenon of the electronic dissemination of all superior court decisions, good, bad and indifferent, involving high principle or no principle. The cascade of judgments available in unvarnished electronic form has increased, rather than decreased, the importance of law reports and the role of good headnoting. CCH were very fortunate in their choice of editor. John Brown, who has been very active as a trusts practitioner, teacher, and author, has taken on the role of overseeing (Part 1)

1965–2003

The recent publication of Volume 1 of the New Zealand Trust Reports (NZTR) is to be welcomed. Published by CCH New Zealand Ltd, the first volume in the paperback report series covers the period 1965 to 2003. At almost 950 pages the volume packs in well over 100 cases, many of which were previously unreported and not readily accessible to practitioners. For example, the very first case reported in the volume is Re Estate Whatman, a decision of the then Supreme Court at Wellington in respect of an ultimately unsuccessful proposed scheme of variation under Part 3 of the Charitable Trusts Act 1957. This decision of Justice Tompkins is often referred to in subsequent cases, but obtaining a copy of it is not straightforward. Of the cases reported in this volume, by your reviewer’s calculation approximately 70 of the cases have been previously

DIGITAL AUDIO TRANSCRIPTION SERVICE

With over 25 years’ legal secretarial/ personal assistant experience in all areas of law, and three years’ courtreporting experience, I have been providing a digital audio secretarial/ transcription service to legal and medical practitioners since January 2012. Many of my clients use me on a daily basis, but I am available for one-offs as well. An overnight service is also provided. My rate is $30 per hour.

Call Amanda 027 634 2517 or email cairnstranscription@hotmail.com

24

· LawTalk 838 · 28 March 2014

CCH NEW ZEALAND LIMITED

The Liberty of NonCitizens

BY RAYNER THWAITES University of Sydney legal academic Rayner Thwaites examines the legality of indefinite detention in Australia, the United Kingdom and Canada. His book analyses the legal context, reasoning and implications of the case law on indefinite detention, arguing that the law of each jurisdiction contains ample resources to support a ruling that indefinite detention is illegal. Hart Publishing, February 2014, 978-1-849464-31-4, 352 pages, hardback, £55.00 (p&h excluded).

the editing of the headnotes and has written many of them himself. As one would expect, therefore, the quality of the headnotes is excellent. All of them do a good job of identifying key principles articulated in the reported decisions and helpfully summarise how those principles are applied on the facts of each case. The care and precision with which the headnoting has been done is of real assistance to busy readers who want to get a quick overview for the relevance of a reported decision to their particular circumstances, as well as enabling readers to understand how relevant principles are being articulated in the courts. To practitioners active in the area of trusts NZTR will be a very welcome addition to the library. And at the GST-inclusive price of $287.50 it surely represents good value for money. New Zealand Trust Reports Volume 1 (Part 1) 1965-2003, CCH New Zealand Ltd, February 2014, ISSN 2324-5123, 944 pages, paperback, $250.00 (excludes GST and p&h). Andrew Butler is a partner of Russell McVeagh and is based in Wellington. He is General Editor of Equity and Trusts in New Zealand (Brookers Ltd), the second edition of which was published in 2009, and was a member of the advisory group to the Law Commission’s report on the law of trusts.

Information on books in The Bookshelf The information in these pages is intended to assist New Zealand lawyers by providing advice on new sources of legal information which may help them in their work. It does not constitute an endorsement by the New Zealand Law Society. Books are listed upon receipt of a review copy from the publisher. All of the major legal publishers have been informed several times of this opportunity, and other publishers are invited to send a review copy to: Geoff Adlam, New Zealand Law Society, PO Box 5041, Wellington 6145. Books which are written by lawyers on non-legal subjects are not included. For information relating to content or to purchase the book, please contact the publisher directly.


Regulatory

Early Resolution Service proves very successful The Law Society’s new Early Resolution Service (ERS) has proven very successful. In its first full year of operation nationwide, the ERS was able to conclude more than one third of the complaints the Lawyers Complaints Service received. The ERS was established with the aim of resolving those complaints that are not serious and suitable for resolution in a timely and more flexible manner. It was initially trialled with complaints received in four centres from November 2011. The improved resolution rates and higher satisfaction levels resulted in the service being implemented nationally. The first full year of national operation ended on 31 January 2014. In that year, the Lawyers Complaints Service received 1,742 complaints. Of these, 785 were finally accepted into the ERS, 614 (or 35.2% of total complaints) were concluded, 66 were still open at 31 January and 105 were referred back to the standard track process for complaints. For the complaints closed in the year to 31 January 2014, it took an average of 35 days to close a complaint that was accepted into the ERS, compared with 188 days for complaints that followed the standard track. The extra time required on the standard track is due to the statutory process requirements. This success of the ERS has brought a series of benefits to the profession. Three important benefits are: • less stress for lawyers facing a complaint when it is accepted into the ERS; • the opportunity for client-lawyer relationships to be repaired; and • more timely resolution.

How ERS works The Early Resolution System (ERS) is an initiative to promote timely resolution of complaints where appropriate. The ERS staff also contact the parties by phone in certain cases when there is no further action to explain the process outcome and other options. All complaints, or concerns, received by the Lawyers Complaints Service come to a single point in the Law Society. At that point, Complaints Service staff conduct a “first

triage”, where complaints are channelled either to the standard track, or accepted for submission to the “second triage”. This encourages consistency in treatment of complaints as well as providing information about the nature of complaints which is used in looking at system improvements. The “second triage” stage is actually dealt with by one of two specialist ERS Standards Committees. A small number of complaints including “own motion investigations” which are instigated by the committee, and some matters subject to a Board resolution do not go through the triage system. The aim of the early review of cases is to identify and deal with complaints that are capable of being quickly resolved. The system also enables the service to deal with complaints which are likely to result in no further action in a timelier manner and to provide early information to the complainant. This is more difficult to do in the standard track process. Complaints which involve any form of dishonesty or a significant breach of any trust account rules would not be considered suitable for ERS. The standards committee decides whether the complaints are suitable for ERS or if the complaint should be dealt with on the standard track. The committee may consider that the complaint is capable of being resolved by negotiation or some form of settlement process. Both the complainant and the lawyer need to agree on the matter going down the ERS track. There have been times when the lawyer has not agreed to the complaint going down the ERS path. In some cases, the complaint has been about fees and the lawyer has said that the fees were, in their opinion, fair and reasonable and so they do not want to go into a negotiation. They preferred the matter to be processed following the longer process of the standard track.

Outcomes Of the 785 complaints (45% of all complaints received) accepted into the ERS in the year to January 31, the outcomes were:

• • • •

resolved by no further action, 387 (49.3% or 22.2% of all complaints); resolved by negotiation, agreed settlement or withdrawn, 227 (28.9% or 13% of all complaints); unable to be resolved and referred back to the standard track process, 105 (13.3% or 6% of all complaints); and still open, 66 (8.5% or 3.7% of all complaints).

Applications for review Of the 614 complaints concluded by the ERS, 77 (or 12.5%) complaints which had resulted in no further action being taken (not resolution) were referred for review to the Legal Complaints Review Officer.

Concerns form The Lawyers Complaint Service has also introduced a “concerns form”, which is available for people to fill out on the website: www.lawsociety.org.nz. Anyone who has a concern about a lawyer may provide contact details and a Legal Standards Officer will call the person within five working days at the person’s preferred time to discuss the concern. This is proving to be a good way of resolving minor concerns early outside of the formal complaints process. Clients may be given options and information. This may result in the client feeling confident about discussing the issue with their lawyer before it matures into a full-blown complaint. During its first year, around 400 concerns were lodged. In the main these related to trusts and estates, property and family law. They concerned charging, competency and general inquiries.

0800 Complaints Inquiry Line The Lawyers Complaints Service provides a telephone line dedicated to receiving and responding to inquiries concerning complaints and the complaints service. This is provided in Reg 6(3) of the LCA (Lawyers: Complaints Service and Standards Committees) Regulations. Approximately 55 calls a week are received and from 1 February 2014 the 0800 complaints line has been based in Canterbury-Westland branch. This is an initiative which is intended to promote consistency, monitoring of clients’ concerns and provide better information to analyse the causes of complaints. LawTalk 838 · 28 March 2014 ·

25


Courtoom Practice

Revocation of practice direction The Employment Court Judges propose revoking the Court Practice Direction of 29 April 2005, the court’s Chief Judge Graeme Colgan says. This Practice Direction relates to the entitlement of defendants to file and serve cross-challenges to determinations of the Employment Relations Authority with the

period for filing and serving statements of defence, even if this is beyond the 28-day limit under s179(2) of the Employment Relations Act 2000 for filing a challenge. The Judges consider that the Practice Direction may breach s179(2) and so is ultra vires. The court’s practice cannot be in breach of a statutory provision, and the judges

Electronic casebooks for Court of Appeal criminal appeals The Court of Appeal has introduced a new process for criminal appeals and applications for leave to appeal. The Court of Appeal Registry will now provide counsel with casebooks in electronic form rather than in hard copy, and counsel are encouraged to file their submissions and bundles of authorities in electronic form. An electronic casebook protocol has been developed to explain how electronic documents will be used in court. Casebooks are prepared in searchable PDF format. The PDF versions will contain all the material that would be included in the hard copy of the document and will share the same pagination. Judges will view electronic documents in court on iPads or PCs. The protocol also explains the process that the registry follows for compiling and indexing electronic documents and sets out how electronic submissions and bundles of authorities should be presented. The court believes that counsel will find it more convenient to work with electronic documents. However their use is not mandatory. Counsel who prefer paper may print a copy of the casebook for their own use and the court will not insist that counsel file submissions and authorities electronically. Where counsel file electronically, they need not file four paper copies of documents. They must file one paper copy and one electronic copy, which must be searchable PDF. Counsel who do not file electronically must comply with the rules of the court regarding paper filings, including the prescribed number of copies.

26

· LawTalk 838 · 28 March 2014

The court expects that most counsel will agree to exchange submissions and authorities electronically. Opposing parties or counsel are entitled to service of paper copies of submissions and authorities, and counsel should bear in mind that some parties, notably self-represented parties who are in custody, may not have ready access to computers. The Registry will continue to provide self-represented parties with paper copies.

therefore consider that it should be revoked. Aware that lawyers and parties rely on this provision, the judges propose that the revocation will come into effect only from 1 May 2014. Parties who would have relied on this Practice Direction will still be entitled to apply to extend the time for filing a challenge in appropriate circumstances.

The protocol is at www.courtsofnz.govt.nz/ business/guidelines/court-of-appeal-electroniccasebooks-protocol/Court%20of%20Appeal%20 Electronic%20Casebooks%20Protocol.pdf and will be provided to counsel when an appeal is filed. The new process relates only to criminal appeals, in respect of which the court has responsibility to prepare the case on appeal. The court intends to introduce analogous processes for civil appeals later. Until it does so, counsel in civil appeals and applications for leave to appeal should continue to file all documents relating to the appeal or application in hard copy.

DX OVERNIGHT

Significant cost savings Closed and private network Tracking of important items Mail delivered before 9:30am Mon - Fri Conditions apply Contact us today to find out more 0800 800 230 | www.dxmail.co.nz


From the Courts

Did Coca-Cola get what it wanted for Christmas? By Kate Duckworth Although Santa Claus, or Father Christmas, as I like to call him, is strongly linked with The Coca-Cola Company thanks to its regular advertising featuring him since the 1930s, the High Court did not give Coca-Cola the Christmas present it was probably hoping for in its decision issued on 10 December 2013 – The Coca-Cola Company v Frucor Soft Drinks Limited and Pepsico Inc [2013] NZHC 3282. In 2010 Coca-Cola issued proceedings against Frucor Soft Drinks Limited and Pepsico Inc. Frucor is the current bottler and distributor of Pepsi products in New Zealand. The proceedings related to the release of the following bottles, known as the “Carolina” design, in New Zealand in October 2009:

Coca-Cola had also issued proceedings in Germany and Australia. The proceedings are still to be heard in Australia and are under appeal by Coca-Cola after it lost in Germany. Coca-Cola is the market leader for cola drinks in New Zealand. It holds 91% of the market share. The actual sales figures are confidential, but sales are in the tens of millions of bottles in New Zealand every year. Pepsi’s market was not disclosed, but it is obviously less than 9% and was described by the judge as “very low”. In terms of the Carolina bottle, as at October 2013, a mere 600,000 bottles had been sold since October 2009. Coca-Cola claimed trade mark infringement, passing off and a breach of the Fair Trading Act. Coca-Cola relied on the following trade mark registrations:

It relied on the following bottle shapes as the basis for its passing off and Fair Trading Act claims:

Apart from the usual considerations of similarity of trade marks and the goods and services involved, the more interesting aspect of the judgment is whether Frucor and Pepsi have been using the Carolina bottle itself as a trade mark. What does acting “as a trade mark” mean? The purpose of a trade mark is to aid consumers in distinguishing different goods and services from one other. Trade marks act as a short cut to customers when making purchasing decisions. The problem with shapes as trade marks is that it is more difficult to distinguish products on the basis of shape alone, absent any other branding. Normally logos, fonts and particular colour schemes are used to provide the cues to customers. Shapes are a normally an ancillary consideration. In finding that the shape was acting as a trade mark, the judge took note of Pepsi’s evidence that the Carolina bottle had been specifically designed to appeal to customers,

Pepsi’s own applications for registration of various bottle shapes as trade marks, and to the 90 or so existing trade mark registrations for bottles. While a shape alone can act as a trade mark, this is typically only the case where there are extensive sales over a long period of time, as well as evidence from consumers indicating that they recognise the shape per se as a trade mark, neither of which appeared to exist in this case. It is probably fair to say that the Carolina bottle has the ability to function as a trade mark at some point in the future, provided it received the right promotion and achieved an increase in sales, but does not function as a trade mark in its own right at the present point in time. The judge then went on to consider whether the Carolina bottle was confusingly similar to Coca-Cola’s registered trade marks, and to Coca-Cola’s bottles as they are presented in trade. Coca-Cola placed a lot of emphasis on the waist of its bottle. The waist was said to be the primary, and probably only, feature in common with the Carolina bottle. Despite the fact that both sets of bottles have a waisted shape, it was noted that a waist is a common feature in bottles, the waists were not the same anyway, and in particular there is no band around the waist of the Carolina bottle as there is in the Coca-Cola bottles. Key differences were the horizontal wave pattern on the lower section of the Carolina bottle and no vertical fluting or bulging sides on the Carolina bottle. Even though Frucor’s New Zealand sales were modest, the judge considered that they were sufficient that any confusion or deception with CocaCola’s bottles would have surfaced. It was a decisive loss for Coca-Cola, but not surprising given the differences in the bottles, and the challenges that shape trade marks present. The decision has been appealed to the Court of Appeal.

It was a decisive loss for Coca-Cola, but not surprising

Kate Duckworth is a partner of Catalyst Intellectual Property in Wellington. LawTalk 838 · 28 March 2014 ·

27


Family Law

Family justice reforms By Andrew Bridgman The Government’s family justice reforms are the most significant change to the system since the establishment of the Family Court 33 years ago. It has been a huge job for the Ministry of Justice to get ready for these changes with new processes, systems, training and information. You all know the reasons for these changes. The reforms give more options for parents to resolve disputes about the care of their children without resorting to adversarial court proceedings, minimising the stress children face when their parents separate. They are designed to encourage mediation and out-of-court settlements and place the needs of children and vulnerable people at the centre of people’s thinking. They also allow the Family Court to focus on those areas where the expertise of judges and lawyers is needed. Generally, the reforms move the focus of family justice away from the court to a system where it is reserved for serious cases, especially those involving domestic violence, and to resolve more intractable disputes. So our task has been – along with many others, including the legal profession – to put in place a completely new regime. For three years, delivering a new family justice system has been a key focus for the ministry. In April 2011 we began the review of the Family Court and with Parliament passing the legislation in September last year, we’ve been busy building new systems to support the wider family justice system. This has included developing the new Family Court Rules to enable these changes, which were promulgated by Order in Council in January.

Transition rules for care of child cases With the upcoming changes to the family justice system due to come into effect there have been a number of queries regarding the transition of existing cases where a judicial conference has been scheduled. Any COCA applications filed before 31 March

28

· LawTalk 838 · 28 March 2014

To enable parents to resolve disputes about the care of their children out-of-court we have had to establish a new Family Dispute Resolution Service. As Secretary for Justice, I have approved the Law Society as one of three organisations responsible for appointing individuals as FDR providers. It has also required us to develop new contracts, operating guidelines and new IT systems to allow us and the court to be connected with out-of-court service providers. To support these out-of-court processes, we’ve expanded the Parenting Through Separation (PTS) courses so everyone can make use of this successful programme free of charge. We’ve also created a new Family Legal Advice Service and almost 600 lawyers have contracted to deliver it. We have formally consulted the profession on this service. A new website has been created for the whole of the family justice system. Along with a new 0800 helpline, the website will be one of the entry point options for those who work in and need to use the family justice system. It is packed with information along with new and revised court forms for care of child matters. With all this change, we’ve also been busy with training and engaging with those who will make the system work. At the end of last year, seminars were held in 14 centres to talk to judges, lawyers and providers. This year, through February and March, we’ve supported training for judges, about 100 family court staff and 45 call centre staff, hundreds of family legal assistance lawyers, and 60 PTS providers as well as FDR mediators. Beginning in late March there will be a public education campaign on radio, sites and magazines to inform the community about the changes

2014 that have a judicial conference set down will continue as scheduled. At the start of that conference the judge will direct that it proceed as a directions conference. Counsel should be aware that they should be prepared to make submissions with reference to the requirements in Rules 416Z and 416ZA. At this conference the proceedings will be assigned by the judge to the appropriate track under the new rules. Any COCA application filed but not set down for a judicial event will be transitioned

and to direct people to the family justice website. And we’ve distributed factsheets to citizen’s advice bureaux, community law centres and MPs’ offices. A lot of the talk is, understandably, about change but some processes aren’t changing at all. Lawyers will still play a crucial role in this new system. They will be central to delivering the family legal assistance service, providing separating couples with legal advice on their rights and responsibilities and assisting to complete forms if they need to go to court. For those parents and couples who meet the criteria, this service will be government-funded. Many lawyers also work as professional mediators and will play a role in the family dispute resolution. Lawyers will also continue to play an important role in proceedings before the Family Court. Where a judge directs that parties at a settlement conference need to be legally represented, they can apply for legal aid. Likewise, if a dispute between the couples gets to a formal hearing, both parties are entitled to legal representation and can apply for legal aid. In urgent cases, such as those involving domestic violence, which continue to go straight to the court, legal representation remains available. We have invested heavily in making the new family justice system will work well. Ensuring it delivers to the people who need it requires the support of everyone working in family justice. We recognise that, despite our very best endeavours, there may be some glitches. We have a team monitoring the implementation and if you experience problems, let us know, and we’ll sort it out. We want to ensure this system works well, because, like you, we want the best for New Zealand families and children. Andrew Bridgman is the Secretary for Justice.

and scheduled to a new track by the registrar as soon as possible. If urgent matters, such as immediate safety concerns, are identified a case will be referred directly to a judge in chambers for appropriate direction, as happens now. Lawyers should have received case allocation guidelines providing more detail on the transition of cases. Those yet to receive these should contact the New Zealand Law Society, the New Zealand Bar Association or ADLS Inc.


Technology

World’s largest legal technology event By Andrew King In February, as most New Zealanders were heading to the beach, I was making my annual trek through the snow and freezing temperatures to New York where all of the legal technology community converge for the annual LegalTech show. Legal Tech is the largest and most prestigious event on the legal technology calendar, held annually at the New York Hilton in Midtown Manhattan. The event attracts in excess of 13,000 attendees, in addition to the 300 exhibition booths with providers showcasing their products and services. This is without considering the other providers who hire out additional rooms in the Hilton and adjacent hotels for further meetings and demos. A New Zealand audience would be blown away with the numbers and the scale of an event just showcasing legal technology and eDiscovery – I know I was the first time I ever attended, which is many years ago now. eDiscovery has now become a multi-billion dollar industry and continues to increase year on year. The event brings together key judicial figures, lawyers, barristers, litigation support professionals and technology and service providers from around the globe. The event itself has 21 educational tracks, looking at many legal technology issues, including eDiscovery, information governance, Risk and Compliance, Big Data, the evolution of lawyering and many more. Anybody who is anybody in the legal technology space is at LegalTech in some capacity. I was the sole representative from the New Zealand eDiscovery and legal technology industry.

Why attend? With technology evolving at an alarming rate it is now more important than ever to continue to develop knowledge in this area of the law where the technology and practices are constantly evolving. Globally most organisations and their law firms are struggling to cope with the exponential increase in the sources and volumes of information, as well as the increasing costs associated with the eDiscovery process. It is

now essential that the most effective tools and practices are embraced to help reduce the cost and burden of the discovery process. LegalTech provides the opportunity to network with fellow industry professionals and learn more about the latest developments in technology and practices to combat the challenges in managing electronic information. LegalTech 2014 was my busiest yet, with endless meetings away from the show as well as numerous demos and discussions about the latest developments – not to mention the many parties long into the night. Each year LegalTech sets the global agenda for what is happening in the legal technology space. The show provides the opportunity to

requirements to New Zealand, which all place greater importance on the upfront investment to ensure the discovery process can be carried out in a proportionate and reasonable manner, with the various technologies being the tools to help facilitate this. Since the New Zealand discovery rules came into force in 2012, it is now essential to invest more time at the outset of a matter to strategically plan the best approach. This approach will include understanding what information your client has, in addition to the potential costs involved as well as the best practices and tools available to enable the legal team to get to the most important information quickly and cost effectively.

The event brings together key judicial figures, lawyers, barristers, litigation support professionals and technology and service providers from around the globe

Bringing latest developments to NZ

find out about the latest trends as LegalTech is when many of the providers launch new releases of their products.

Common themes The underlying theme of the event is the focus on the tools and practices that can assist legal professionals manage information more effectively in today’s digital world. The focus is on moving away from manual processes of the past, especially when it comes to reviewing documents. There is now industry acceptance that solely human review is no longer possible if we want to reduce the burden and cost of the process. The focus is on technology that maximises the expertise of lawyers to make decisions better. Options like predictive coding (as explained in LawTalk 835, 14 February 2014), data analytics and other tools that assist lawyers to get to the important documents quickly and cost effectively are becoming more commonplace. Most jurisdictions have similar

Attending events like LegalTech help me ensure New Zealand clients benefit from the most up-to-date advice and guidance around the most effective industry practices and tools available. The exposure to the latest developments and practices will provide greater options for New Zealand firms to help them reduce the burden and cost of eDiscovery. Often New Zealand law firms are isolated from the key developments in this fast changing industry, which can lead to many unnecessary costs. Embracing some of these options will help to simplify the exercise for New Zealand lawyers. To assist the process, one significant trend is the annual software licences of many in-house products, which provide the opportunity for organisations to re-evaluate their options on an annual basis. To do this it is important to be aware of the latest developments as technology can evolve considerably in 12 months. An opportunity to keep up with all the latest developments in technology and practices cannot be missed. I already have next year’s LegalTech show in my diary. Andrew King is a litigation support consultant at E-Discovery Consulting (www.e-discovery. co.nz), where he advises on strategies and tools to simplify the discovery process, as well as providing the option to manage the entire eDiscovery process – including providing independent eDiscovery software advice. Andrew can be contacted on 027 247 2011 or andrew.king@e-discovery.co.nz LawTalk 838 · 28 March 2014 ·

29


CPDcalendar Programme

Presenters

Content

Where

When

Introduction to High Court Civil Litigation Skills

Sandra Grant John Hardie Judge Joyce QC Nikki Pender Paul Radich Tom Weston QC

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.

Auckland 1 Wellington Auckland 2 Christchurch

26 - 27 May 20 - 21 Oct 10 - 11 Nov 24 - 25 Nov

Dr Kathleen Callaghan The new Health & Safety Reform Bill will replace the current Act, bringing in the most significant reforms in 20 years and, with WorkSafe, there is now a new and very different Simon Mitchell agency practitioners will need to understand and work with. This seminar will aim to provide Penny Swarbrick a heightened awareness of the new Act, its wide ranging implications and its significantly increased penalty regime.

Dunedin Christchurch Wellington Hamilton Auckland

CIVIL LItIgatIon & EmPLoymEnt

Health and Safety Reforms

Using Human Rights Law in Litigation Expert Witness

Litigation Skills Programme

Chair: Prof Paul Rishworth

Susan Hughes QC

Director: David Clark

9

CPD HRS

3 Jun 4 Jun 10 Jun 11 Jun 12 Jun

3.5*

CPD HRS

It is becoming increasingly important to know how Human Rights can properly be used to Wellington influence the outcome of a case. This intensive will provide practical advice and guidance that will help the litigator to know when to play the Human Rights card and how to do so to best effect.

25 Jun

This two-day day programme follows the same learning-by-doing methods that have proved Wellington so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. It is entirely focussed on working with expert witnesses and you will also receive mentoring from experienced faculty members. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.

26 - 27 Jun

6

CPD HRS

13.5

CPD HRS

This highly regarded residential week-long advocacy training course is open to applicants Christchurch 24 - 30 Aug with at least two years’ litigation experience. Selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. It’s hard work, great fun and most participants say it’s the most effective value-for-money 55 CPD HRS course they’ve ever attended! applications close Friday 6 June 2014

ComPany, CommERCIaL & tax Consumer Law Susie Kilty Reform Rae Nield

The most significant changes in consumer-related legislation for 20 years will be in force soon and will bring a keener focus on consumer protection. The Fair Trading Act and Consumer Guarantees Act have been significantly amended. If you advise businesses on trading activities or are an in-house counsel for a manufacturer, you can’t afford to miss this seminar.

Dunedin Christchurch Wellington Hamilton Auckland Webinar

Introduction to Company Law

John Horner Ben Johnston Andrew Leete Mark Odlin Graeme Switzer Daniel Wong

31 Mar 1 Apr 2 Apr 7 Apr 8 Apr 2 Apr

3.5*

CPD HRS

12 - 13 May This practical “transaction” based two-day workshop will equip you with the knowledge and Auckland 19 - 20 May understanding to deal with the purchase, establishment, operation and sale of a business. Wellington Christchurch 26 - 27 May

13

CPD HRS

CRImInaL Introduction to Criminal Law Practice Duty Lawyer training Programme

Noel Sainsbury

Local Presenters

Revised to include the Criminal Law Procedure Act, this practical two-day workshop will Wellington cover the fundamentals of being an effective criminal lawyer. The course addresses the Auckland steps that young lawyers need to know about to prepare for and run a Judge-alone trial in the District Court.

31 Mar - 1 Apr 3 - 4 Apr

Duty lawyers are critical to the smooth running of a District Court list. Here is a way to gain more Visiting of the knowledge and skills you need to join this important group. This workshop is made up of centres several parts. around NZ

Feb - Nov

13

CPD HRS

Visit www.lawyerseducation.co.nz for full course description, dates and locations.

11*

CPD HRS

EnVIRonmEntaL Environmental Law Intensive

Chair: Derek Nolan

There have been a number of important developments in the environmental law field. This Christchurch 1 Apr 2 Apr intensive will update you on recent significant cases and their ramifications; look at the new Auckland “planning paradigm” within which lawyers practising under RMA must learn to operate and provide value to clients; and gaining the interest of the higher courts.

6

CPD HRS

FamILy mediation for Lawyers: Part B – Family Law

Virginia Goldblatt Denise Evans

For those with recent approved prior mediation training, including our Part A course. This Auckland 1 2 - 4 May programme will be an opportunity to practise mediation skills in the family law area and then Wellington 2 22 - 24 Aug Auckland 2 10 - 12 Oct to be assessed on them. Strictly limited numbers with pre-course work required.

15

CPD HRS

Online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz


Online registration and payment can be made at www.lawyerseducation.co.nz

Programme

Presenters

Content

Where

Understanding mediation – mediation for lawyers Part a

Virginia Goldblatt Geoff Sharp

Mediation knowledge and skills are an increasingly important adjunct to legal practice. Wellington Many more clients are taking disputes to mediation (because it works) and the more that Auckland 2 their legal advisers know about how it works the better. In addition, practice as a mediator extends the service that lawyers can offer the public.

When

FamILy 25 - 27 Jul 31 Oct - 2 Nov

14.5

CPD HRS

FDR training for mediators

Denise Evans Bryan King

Those mediators wanting to be appointed as an FDR provider by NZLS need to Wellington 2 2 Apr complete this one-day workshop to add to their current mediation knowledge and skills.

International Surrogacy and adoption – family formation in the 21st Century

Chair: Paul von Dadelszen

As international adoption involving surrogacy becomes more common, NZ jurisprudence Christchurch 8 Apr cancelled in this area inevitably will be influenced by international legislation and cases, together Wellington 9 Apr with information gained from studies of the effects of adoption and surrogacy on the Auckland 11 Apr A children and their sense of identity. Medical frontiers are expanding possibilities for IVF and further legal complexity. Where is it all heading? This one-day conference will pull together contributions from overseas, leading practitioners, relevant ministries, 6.5 CPD HRS academia and Fertility Associates.

Property Law Conference

Chair: John Greenwood

The ever-changing pace of property law places new demands on practioners. We Wellington recommend you attend this year’s conference and take the opportunity to indulge yourself by up-skilling your knowledge. The programme will provide you with two days of stimulating engagement on topics of importance and interest concerning property law. Areas for discussion include: leases, ethics, developer’s expectations, property relationship agreements, health and safety reforms, unit titles, insurance, dispute resolution and much more. Register now!

23 - 24 Jun

Lawyers acting in complex property, business and finance transactions often work for multiple parties and it is important to be alive to conflict issues. Attend this webinar to learn about successfully managing problems where a conflict of interest arises.

7 Apr

6

CPD HRS

PRoPERty & tRUStS

12.5

CPD HRS

Ethics - conflict of interest for property lawyers

Duncan Webb

Elder Law Intensive

Chair: Attend this intensive to be updated on the constantly evolving issues in elder law. The Christchurch 7 May 14 May Catherine Atchison presenters will discuss: capacity; enduring powers of attorney; elder abuse; privacy; Wellington 21 May trusts; new relationships; and they will look at future housing options for an ever- Auckland increasing and diverse elderly population.

Webinar

1

CPD HRS

6

CPD HRS

PRaCtICE & PRoFESSIonaL SkILLS 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 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.

Christchurch Auckland 2 Wellington Auckland 3

15 - 17 May 3 - 5 Jul 4 - 6 Sep 6 - 8 Nov 18.5 CPD HRS

Lawyer as negotiator

Jane Chart

Building on your own experience, this one-and-a-half day workshop provides handson practice and feedback, as well as a conceptual framework for preparing for and undertaking negotiations. 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.

Christchurch Auckland 1 Wellington 1 Wellington 2 Auckland 2

2 - 3 Apr 7 - 8 May 20 - 21 May 11 - 12 Nov 11.5 18 - 19 Nov CPD HRS

Jeremy Kennerley trust account Supervisor training David Littlefair David Chapman Programme Bob Eades Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, Auckland 1 attend the assessment day and pass all assessments. Hamilton Wellington Auckland 2 Christchurch

9 Apr 16 Jul 18 Sep 19 Nov 26 Nov

Secrets of Success

Understand the factors which make small to medium size firms successful, analyse Napier how well your firm measures up and how to start implementing changes to improve Dunedin Christchurch your firm’s success. Wellington Hamilton Auckland

10 Apr 30 Apr 1 May 14 May 29 May 5 Jun

Irene Joyce

*CPD HRS may vary – please see brochure on website

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.

10*

CPD HRS

3.5*

CPD HRS


Financial Market Law

Growing market confidence through fair conduct and dealing standards By Liam Mason 2014 marks the start of a new era for New Zealand’s financial markets – an ambitious and exciting period of change for market participants and for investors. This is the fourth article in a series outlining the key changes, the impact they will have on the future of our financial markets, and the role lawyers can play in helping achieve that change. In this article we discuss the importance of fair conduct and dealing standards and our new role in handling financial market conduct complaints.

Fair dealing Market participants have a responsibility to act with integrity in their dealings with investors. This integrity is crucial to building customer trust and confidence, promoting the long term success of participants and growing New Zealand’s capital base. Underpinning this relationship is the obligation not to engage in conduct that is misleading or deceptive, or is likely to mislead or deceive investors. This obligation is set out in Part 2 of the Financial Markets Conduct (FMC) Act 2013 and largely replicates parts of the Fair Trading Act 1986.

Managing conduct and fair dealing complaints From 1 April, FMA will replace the Commerce Commission as the primary regulator of conduct in financial product and financial services (excluding credit contracts). Currently the Fair Trading Act 1986 regulates conduct in these areas. Practically what this means is that from 1 April market participants should contact FMA with any complaints of misleading or deceptive conduct relating to financial products or financial services (excluding credit contracts). For any complaint about credit contracts, consumers should continue to contact the Commerce Commission who remains the primary regulator of this service under the Fair Trading Act.

32

· LawTalk 838 · 28 March 2014

The definition of financial services is broad and is defined in s5 of the FMC Act. With the exception of credit contracts, these have been imported from the definition of financial services under the Financial Service Providers (Registration and Dispute Resolution) Act 2008. It is also important to clarify that any complaints that relate to pre-1 April conduct will remain within the current jurisdiction of the Commerce Commission. However, if given consent by FMA, the Commission may also take regulatory action in relation to financial services and products under the Fair Trading Act. The FMA and the commission will put in place and publish arrangements setting out how the two organisations will work together in this area.

Reporting inappropriate conduct Tips and complaints are an important source of information for FMA and we encourage market participants and the wider investor community to advise FMA of any poor conduct or behaviour that comes to their attention. Regulated participants should have processes in place to facilitate and encourage internal whistleblowing if an employee believes there is inappropriate conduct within an organisation. Processes should deal fairly with those employees and ensure prompt investigation. In some circumstances, employees can also make protected disclosures directly to FMA. FMA’s website explains more about this and how anonymous tip-offs can be made. www.fma.govt.nz/ about-us/contact-us/other-enquiries/ make-a-complaint-or-report-misconduct/.

Changing our regulatory approach The FMC Act defines four types of financial products: debt, equity, managed investment products, and derivatives. A key change in the future regime is the ability for FMA to designate or “call in” certain unregulated financial products so they are classed as one of the four defined

types. This will mean that the financial product falls within FMA’s regulatory and enforcement framework. FMA will also be able to “designate” products that fall within one class of financial product to be in another. An example of this could be defining a specific type of equity investment as a managed investment product. The legislation sets out detailed considerations and consultation requirements that FMA will undertake prior to making any designations. These changes ensure that the regime is flexible enough to deal with novel product types in the market and importantly that investors are protected from conduct that is potentially misleading or deceptive, or is likely to mislead or deceive. This change will also lower the incentives for market participants to seek legal loopholes.

Where to get more information Keep an eye on our website for more details www.fma.govt.nz or sign up to our engagement site www.talktous.fma.govt.nz to receive regular updates. Liam Mason is Head of Legal at the Financial Markets Authority.

Key Dates 1 April – Phase 1 Regulations and relevant parts of the FMC Act come into effect, FMA becomes the primary regulator of conduct in financial markets 17 June – Sections 23 to 27 of FMC Act comes into effect (unsubstantiated representations provisions) 1 December – Remaining fair dealing and conduct obligations come into effect For more details about the timeline for change go to www.fma.govt.nz/keepupdated/the-future-of-financial-markets/ timeline-for-change/


Coming Up... Legal ethics A conference entitled Ethics and the legal professional in the 21st century: A multi-jurisdictional perspective will be held in Buenos Aires on 10 and 11 April. This conference is presented by the IBA Professional Ethics Committee and Colegio Publico de Abogados de la Capital Federal, supported by the IBA Closely Held and Growing Business Enterprises Committee and the IBA Latin American Regional Forum. See www.ibanet.org/Conferences/ conferences_home.aspx.

Mediation workshop The World Intellectual Property Organisation (WIPO) workshop for mediators in intellectual property disputes will be held on 22 and 23 May in Geneva. Presented by Professors Robert Mnookin (Harvard Law School) and Gary Friedman (The Center for Mediation in Law, Mill Valley, California), this intensive two-day course is designed for lawyers, business executives, patent and trademark attorneys, and others wishing to familiarise themselves with the mediation process and to receive training as mediators. See www.wipo. int/amc/en/events/workshops/2014/mediation/.

REGISTRY A D MISS IO N

APPROVAL TO PRACT ISE O N OWN ACCO UNT

Under Part 3 of the Lawyers and Conveyancers Act 2006

Under s30 of the Lawyers and Conveyancers Act 2006

Anderson Kelsi Emma Louise Coates Natalie Ramarihia Courtney Margaret Atawhai Fox Sandra Denise Hurdle David Matthew Smith Natalie Jayne Taniwha Serenity Variava Mahafrin Freddie Wethey Samuel James

Becroft Fenella Louise Chang Daniel Hart Darrell Warren Hill Ashley William Little Sarah Elizabeth McIndoe Nicola Munro Mark Campbell Patterson Ross Henry Sly Ross Alexander Yeoman Kent James

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 3 April 2014. Any submissions should be given on the understanding that they may be disclosed to the candidate. 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/ for-lawyers/law-society-registry/applications-for-approval.

L ISA ATTRI LL, REGI STRY MANAGER lisa.attrill@lawsociety.org.nz04 463 29160800 22 30 30,04 463 2989

ON OFF

On 1 APRIL 2014, THERE will be

two KINDS OF LAWYERS WHICH KIND WILL YOU BE? Make sure you’re switched on from 1 April, when the mandatory CPD year commences. To get started, create your CPD plan and book your CPD activities online now, using ADLSI’s one-stop-shop online CPD Plan and Record.

Special features include prompts to save you time, automatic logging and verification of CPD hours for completed ADLSI CPD activities, and the option to add non ADLSI activities to your plan. Plus, purchase an ADLSI on demand CPD activity, and not only will you be able to do your CPD anytime, anywhere, but you’ll get the chance to win an iPad to do it on.*

*Terms and conditions of prize draw: To be eligible to go into the draw for the chance to win one Apple iPad, entrants must purchase an ADLSI on demand CPD activity from the current calendar featured on the ADLSI website at www.adls.org.nz/cpd/cpd-on-demand between Wednesday 19 March and Friday 2 May 2014. One winner will be drawn at random and advised by email the week of 5 May 2014. Judges’ decision is final. Competition open to NZ lawyers practising in New Zealand only. ADLSI on demand CPD activities are accessible from most portable devices.

www.adls.org.nz/cpd

LawTalk 838 · 28 March 2014 ·

33


HELP IS AT HAND To provide a service for lawyers seeking independent help with an issue in their life, the New Zealand Law Society has signed an agreement with Lifeline Aotearoa. Lifeline offers a discounted rate to New Zealand Law Society members and their families. Lifeline’s team of qualified professional counsellors is experienced in working with clients across a broad range of issues. They can help with day to day issues such as stress, anxiety, burnout, depression, relationship issues, grief, trauma and addiction. Phone lifeline Aotearoa: (09) 909 8750 email: face2face@lifeline.org.nz

PRACTISING WELL Supporting lawyers since 2009.

my.lawsociety.org.nz/practising-well


Lawyers Complaints Service

Counsel must always treat court staff with respect A standards committee found a lawyer, R’s, conduct was unsatisfactory, when he was alleged to have spoken rudely to a Registrar in court, to have grabbed her arm, and to have acted like a bully. R was fined $1,500, and ordered to pay costs of $500. R claimed that he had been frustrated by apparently inconsistent methods being applied by various criminal courts and the manner in which matters were being called. The allegations were upheld by the

standards committee after evidence from the Court Registrar and others in the court on that day. The committee found that Rules 10, 12, 13.2, and 13.2.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 had not been complied with. These Rules are concerned with promoting and maintaining proper standards of professionalism, dealing with others with respect and courtesy, and the protection of court processes. The committee noted that on the evidence,

it was not clear just how close R had got to the Registrar, and whether in fact he grabbed her arm. Despite the lack of clarity on this point, the committee said it was clear that R had “overstepped the mark, and was at the least intimidating towards an officer of the court”. The committee found this constituted unsatisfactory conduct. An apology was considered appropriate but had already been given, and was therefore not part of the orders.

More inquiries needed by lawyer before acting for person with dementia A lawyer, W, had been engaged to assist an 84-year-old woman, Mrs D, to revoke an existing enduring power of attorney (EPA) and to prepare a new one. Mrs D had Alzheimer’s Disease, but after spending time with her, W decided she appeared to be lucid, and he would accept the instructions. He drafted and sent her a new EPA. A lawyers standards committee has found this to be unsatisfactory conduct, and fined W $3,000. W refused to accept he may have made an error. Mrs D had previously executed a power of attorney in favour of her daughter. Mrs D had recently made friends with a Ms F, whom the daughter believed was extracting money from her mother. Because of this there was a trespass notice and police warning against Ms F. Mrs D, however, decided she wanted to revoke the existing EPA in favour of her daughter, and to issue a new one in favour of Ms F, because she believed her daughter had frozen her bank accounts, taken her car, and was going through her mail. She was referred by a social agency to W, and she asked him to act for her.

W spent 50 minutes with Mrs D, and listened to her carefully. Mrs D provided him with a letter from her doctor, and he asked Mrs D about the contents of the letter. The letter said she had dementia, with a declining ability to care for herself, and she was “prone to drawing unsupported conclusions”. W formed the opinion however that Mrs D was lucid and competent, and had capacity to revoke the previous EPA and to execute a new one. He said that Mrs D’s answers to his questions were very clear, considered, and showed no evidence of disordered or illogical thinking. He accepted her statements that her daughter was abusing the existing EPA. As a result he drafted the revocation and new EPA, and posted the documents to Mrs D. An hour after he posted it, W received an email from a law firm who were Mrs D and her daughter’s lawyers. The email, which had medical reports attached, confirmed Mrs D was diagnosed with Alzheimer’s, and she did not have capacity to revoke the EPA. It added that her condition had deteriorated several months before. W said he accepted this email did place a

different cast on the matter, and immediately posted Mrs D a copy of the email, asking that he contact her with instructions. She did not do so. The new EPA came to light when it was given to Mrs D’s bank, although the bank refused to act on it. The daughter complained to the Law Society. The standards committee said that though W had received some information about Mrs D’s mental condition after he had prepared the documentation, he had received enough before it to raise obvious concerns about Mrs D’s mental capacity. The committee considered this should have at least made him consider making further enquiries before carrying out the instructions. The committee said W’s actions were negligent, but not dishonest. However he refused to accept that he made a mistake, or to apologise. As well as fining W, the committee censured him, ordered him to pay $500 to the daughter for her costs, and ordered him to pay the Law Society $1,000 costs. LawTalk 838 · 28 March 2014 ·

35


P R ACTIC E NOTIC E

The partners of Morrison Kent, Wellington and the directors of Peterson Law Limited announce that as from 1 April 2014 Peterson Law will be merging with Morrison Kent. Richard Peterson and John Hoggard will both be joining Morrison Kent on a full time basis as from that date and all enquiries and correspondence should be directed to the following address:

PO Box 10035 Wellington 6143

WI LLS

Level 19 Morrison Kent House 105 The Terrace Wellington 6011

REI KAURANGA MAIREROA

Richard Peterson DDI: (04) 495 9940 John Hoggard DDI: (04) 495 8931

Would any lawyer holding a will for the above-named, late of 48 Sharland Avenue, Manurewa, Auckland, born on 22 September 1935, who died on 11 February 2014, please contact Ashima Budgoojar, Kenton Chambers Lawyers: ashima@kentonlaw.co.nz Ph 09 358 1900 | Fax 09 358 1903 DX CP20545, Auckland

WI L L S

VERNON JOHN WARD

J O H N SAV E A SA M I S O N I

Would any lawyer holding a will for the above-named, late of 148 Awakino Road, Dargaville, who died on 10 January 2014 , please contact Ron Warne, Hammonds Law, Solicitors:

Would any lawyer holding a will for the above-named, late of 1/15 Solveig Place, Randwick Park, Auckland, who died on 29 July 2013 aged 18 years, please contact PS Pabla (Jamie), Pabla Law:

ron@hamondslaw.co.nz Ph 09 439 7099 | Fax 09 439 6464 PO Box 16, Dargaville 0340 | DX AA23502

jamie@pablslaw.co.nz Ph 09 213 8858 | Fax 09 261 2471 | DX EP75504 PO Box 76484, Manukau City, Auckland 2241

CO N STA N C E M I N N I E E DWA R D S

SIEW THONG MOOK

Would any lawyer holding a will for the above-named, aka Connie Minnie Edwards, late of Meadowbank, Auckland, who died on or about 23 February 2014, please contact Ros Morshead, Morshead Shaw Legal Ltd:

Would any lawyer holding a will for the above-named, late of Auckland, formerly Tiler, born on 17 May 1966, who died on 10 August 2012 at Auckland aged 46 years, please contact Jeanna Wu, Wong & Bong Law Office:

ros@morsheadshaw.co.nz Ph 07 347 0079 PO Box 894, Rotorua 3040

jeanna@wongbong.co.nz Ph 09 535 5886 | Fax 09 535 5947 PO Box 51454, Pakuranga, Auckland 2140

LINDA MARGARET PATERSON (NEE HEY) Would any lawyer holding a will for the above-named, late of Helensville, Accounts Clerk who died on the 17th of November 2013, please contact David Towle, Bruce Dell Law, PO Box 14224, Panmure, DX EP80508, (09) 570 5036, fax (09) 527 1669, email: david@brucedell.co.nz

N I TA R A E OX B O R ROW Would any lawyer holding a will for the above-named, late of Nook Road, Parua Bay, Northland, Retired, who died on 4 January 2014 at Whangarei, please contact Sally McLeod at Thomson Wilson Lawyers, Whangarei: sam@thomsonwilson.co.nz | Ph 09 430 4380 | Fax 09 438 9473 PO Box 1042, Whangarei 0140

H R I S T O T O D O R O F F V A LT C H E F F Would any lawyer holding a will for the above-named, late of 43 Target Street, Christ Hospital, Pt Chevalier, Auckland, born on 7 November 1923, who died on 25 January 2014, please contact Robert Barnes, Solicitor: Ph 09 418 0763 | Fax 09 418 0332 | DX BP65501 PO Box 34154, Birkenhead, Auckland 0746

JUN XIE Would any lawyer holding a will for the above-named, Company Director, born on 13 October 1962, who died on 10 August 2013 at Inner Mongolia’s Galaxy City, China, please contact Royal Reed, Prestige Lawyers: royal@prestigelawyers.co.nz | Ph 09 303 4400 | Fax 09 303 4411 PO Box 305379, Triton Plaza, North Shore City 0757

SA RWA N L ATA S I N G H Would any lawyer holding a will for the above-named, late of 14B Kenwood Drive, Woodridge, Wellington, born on 1 January 1975, who died on 26 November 2013 in Wellington, please contact Frances Ah Mu, Strachan O’Connor: frances@justlaw.co.nz | Ph 04 939 2233 | DX SP 31503 PO Box 13135, Wellington 6440

J O S E P H SAT H I A S OT H Y Would any lawyer holding a will for the above-named, late of Panmure, Auckland, Engineer, who died on or about 24 May 2013 aged 67 years, please contact Graeme Stanton, Auckland Family Law: Graeme@aucklandfamilylaw.co.nz | Ph 09 927 4990 | Fax 09 973 0650 PO Box 106775, Auckland City 1143

E M M A M A RG A R AT E M E R R I N Would any lawyer holding a will for the above-named, aka Emma Margaret Merrin, late of One Tree Point, Whangarei, formerly of Otorohanga, Waikato, who died on 11 November 2013, please contact Nicky Dreadon, Henderson Reeves Connell Rishworth: nickydreadon@hendersonreeves.co.nz | Ph 09 430 4350 | Fax 09 438 6420 PO Box 11, Whangarei 0140

36

· LawTalk 838 · 28 March 2014

S I T UAT I O N S VACA N T

McCarthy Law EXPERIENCED FAMILY LAWYER McCarthy Law is a progressive small sized firm with an expanding local and national client base. Our modern office is situated in the heart of the Blenheim CBD in beautiful Marlborough. We are looking for an intermediate to senior solicitor with 3+ years PQE to become part of our legal team. The successful applicant will be practical, well organized, have a sense of humour and have experience in any or all of the following areas: • Family Law – including experience appearing in the Family Court; • Civil litigation • Commercial and Property • Trusts and Estates Marlborough is an exciting and progressive community offering unique work and lifestyle opportunities. Part time employment is an option. If you are looking for a challenge and a change in your career and lifestyle please forward your CV to: The Office Manager McCarthy Law Limited PO Box 339 Blenheim 7240 Email: ryan@mccarthylaw.co.nz


WI L L S

SIT UAT IO N S VACA N T

PAO O I T U R E R E Would any lawyer particularly in the Auckland region, holding a will for the above-named, late of 37 Pearl Baker Drive, Otara, Auckland, who died on 20 October 2006, please contact Ilsaad Razak, West City Law Limited: irazak@xtra.co.nz Ph 09 838 6353 | Fax 09 838 6350 PO Box 21176, Henderson, Auckland 0650

PAO O J U N I O R R E R E Would any lawyer particularly in the Auckland region, holding a will for the above-named, late of 37 Pearl Baker Drive, Otara, Auckland, who died on 14 February 2012, please contact Ilsaad Razak, West City Law Limited: irazak@xtra.co.nz Ph 09 838 6353 | Fax 09 838 6350 PO Box 21176, Henderson, Auckland 0650

J O H N RO B E RT S O N WAT T Would any lawyer holding a will for the abovenamed, late of 36 Mountbatten Place, Tokoroa, retired photographer, born on 17 May 1943, who died on 7 March 2014 at Tokoroa, please contact Hassall Gordon O’Connor & Newton, Solicitors: tok.law@clear.net.nz Ph 07 886 6279 | Fax 07 886 8231 PO Box 76, Tokoroa 3444 | DX GA28501

Volunteer Service Abroad Connecting people - transforming lives

Legal Advisers for the Pacific VSA is recruiting volunteers to provide legal advice to strengthen provincial governments and promote good governance in the Solomon Islands, and other Pacific Islands. We are seeking qualified lawyers with a minimum of two years post-admission experience. Please register your interest for these and other legal roles. Email volunteer@vsa.org.nz Phone (04) 472 5759 for more information on these and other jobs visit

www.vsa.org.nz

AU D R E Y L AU R I TA N A N E T T E L E E S E Would any lawyer holding a will for the above-named, late of Apartment GA/171 Hurstmere Road, Takapuna, Auckland, Retired, who died on 7 March 2014, please contact Christine Taylor, TGT Legal: christine.taylor@tgtlegal.com Ph 09 920 8667 PO Box 4039, Shortland Street, Auckland 1140

VSA is supported by the New Zealand Aid Programme, together with private and corporate donations. VSA volunteers must be currently living in New Zealand, and have citizenship or permanent residency status. Airfares, medicals, insurance, allowances and other costs are arranged and paid by VSA.

Registered as a charity (CC36739) under the Charities Act 2005

Donate to www.vsa.org.nz

SI TUATIONS VAC ANT

TRADE MARK SOLICITOR

Wellington City • • • • •

Opportunity in established practice Working with a friendly team Prestigious international clientele Interesting variety of work Potential to participate in expansion of the practice • Wellington City We are looking for a solicitor with at least three (3) years experience in handling trade mark, copyright and related matters. You will work as part of a team servicing a broad range of domestic and international clients across different industries, and assist with both dispute work (including court proceedings) and non-contentious work. Applications may be sent to Barbara Sullivan (b.sullivan@henryhughes.co.nz) by the end of business 17 April 2014. Barbara Sullivan, Henry Hughes, P O Box 356, Wellington 6140 www.henryhughes.co.nz

Junior Criminal Lawyer – Fixed Term 11 – 13 Months Fixed Term Public Defence Service, Manukau Vacancy 25352 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, Manukau, your enthusiasm and skills will contribute to the delivery of high quality public defence services within the South Auckland Courts. This position presents an opportunity to contribute to a significant development in criminal defence services in New Zealand. We are seeking a person for a fixed term appointment to cover for a parental leave absence. This appointment is for an 11 – 13 month period commencing May 2014. This role will enable you to advance your legal career in a busy, challenging and supportive environment. As a junior lawyer, you will have completed the duty solicitor training and have a PAL 1 (category 1) listing with Legal Aid Services (or be able to obtain such a listing in the immediate future). This is not a graduate level position but is ideal for someone who already has 6 – 12+ months experience in criminal law. 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 Sunday, 6 April 2014.

LawTalk 838 · 28 March 2014 ·

37


Your legal search and recruitment partner 021 611 416 / www.jlrnz.com

Your legal search and recruitment partner 021 611 416 / www.jlrnz.com

Here, there and everywhere. With offices around the world, our client base and candidate reach is both extensive and impressive. For a confidential discussion contact Damian Hanna at damian.hanna@jlegal.com

JLegal – Your Global Career Strategists. new zealand level 1, 124 willis street, wellington t | +64 4 499 5949

38

· LawTalk 838 · 28 March 2014

www.jlegal.com find jlegal on new zealand melbourne sydney london singapore uae hong kong

Lawtalk 838  

Lawtalk 838