LawTalk 926 by New Zealand Law Society

ISSUE 926 · March 2019

Auckland

Most lawyers – 5,889

Kawerau

Fewest lawyers per capita – 1 lawyer per 3656 people

Te Awamutu

Highest proportion of female lawyers – 65.5%

Snapshot of the Profession 2019 Page 27

Wellington

Highest proportion of in-house lawyers – 49.3%

Greymouth

Highest proportion of male lawyers – 69.2%

Alexandra

Largest annual increase in lawyers – 23.1%

Unsatisfactory conducts vs misconduct

AI and the law: an update

Why co-operating with the media is good advice

Lawyers and social media

Page 23

Page 62

Page 76

Page 79

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52 9

6 · From The

82 68

Law Society

People In The Law

8 · On the move 13 · Michael Robinson was not struck off 14 · Battling cancer to become a lawyer ▹ BY ANGHARAD O’FLYNN 15 · Representing those who have escaped from the worst that life can throw up ▹ BY NICK BUTCHER 16 · Revamped website heralds new outlook at the Māori Law Society ▹ BY NICK BUTCHER 17 · Technology helping to overcome barriers at work ▹ BY CRAIG STEPHEN 18 · The Innovators: Renee Knake ▹ BY ANDREW KING

19 · New Zealand Law Society 23 · Principles and practice – publications, penalties and prosecutions ▹ BY MATT FOGARTY 27 · Snapshot

of the Profession 2019

Update 42 · ACC and the Woodhouse Principles: Real Compensation ▹ BY DON RENNIE 46 · Competition law and the removal of exceptions for intellectual property rights ▹ BY JOHN LAND 50 · Regulating fake news and video ▹ BY LYNDA HAGEN 51 · The search for body corporate maintenance ▹ BY THOMAS GIBBONS

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Contents 68 · Mindfulness for New Zealand lawyers ▹ BY ASHIKA BALI 70 · Eating healthy ▹ BY RAEWYN NG

Practice 74 · What does it take to be a partner or a director… And is it right for you? ▹ BY EMILY MORROW 76 · Why co-operating with media is usually the best advice ▹ BY PETE BURDON 79 · Lawyers and social media ▹ BY JONATHAN SUTTON 82 · Focus on Oamaru ▹ BY JOCK ANDERSON 87 · An innovative approach to school property investment ▹ BY REBECCA ROBERTSHAWE 89 · He aha ngā mea nui o te ao nei? Ngā awa, ngā roto me te kotahitanga ▹ BY DONNA LLEWELL

95 · Will notices 96 · Legal Jobs 98 · CPD Calendar

Alternative Dispute Resolution

56 · Dispute prevention: using mediation as a business tool ▹ BY PAUL SILLS 58 · Families at war (and not in the Family Court) ▹ BY CAROLE SMITH

Future Of Law

60 · Beyond the hype: AI and the law ▹ BY JOY LIDDICOAT, COLIN GAVAGHAN AND ALISTAIR KNOTT

Practising Well

64 · Talking about mental health: A utopia of lawyer mental health ▹ BY KATIE COWAN

Complaints decision summaries

52 · Bethell v Bethell: Third party ante-nuptial trust amounts to nuptial settlement ▹ BY RHONDA POWELL

Classifieds

Lifestyle 101 · A New Zealand Legal Crossword ▹ SET BY MĀYĀ 102 · Berlin ▹ BY JOHN BISHOP 106 · Tail

end

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From the Law Society It’s been almost one year since the New Zealand Law Society introduced the Gender Equality Charter to the legal community. There’s been a good response with 112 signatories – including many of the largest firms in the country – committing to this important workplace initiative. We want to see 30% of the profession covered by the Charter by 12 April. If you haven’t committed your workplace, perhaps consider why you’d want to miss out on the many long-term benefits to being a signatory. 112 signatories is the equivalent of over 2900 lawyers. These are workplaces that are striving for balance, fairness and equality for all employees. Over the past year, you’ve told us that is the type of work environment that you want. Many of you want to see change in your current workplace culture; a conclusion evident from the compelling results published in our Workplace Environment Survey. They were damning figures – onethird of female lawyers sexually harassed during their working life and more than half of all lawyers bullied at some stage during their career. Perhaps it’s not surprising that one third of people want culture change in the legal community? The Gender Equality Charter complements the work being done by the Culture Change Taskforce, which is addressing the issues starkly identified by the survey. If you’re serious about being part of a culture change in the legal profession, the Charter is a tool that will help drive and achieve that. The commitments of the Charter are challenging because they’re asking you to take a thorough look at every part of your workplace and how it operates. Take for example the requirement to implement ‘unconscious bias’ training. No-one wants to be confronted with a realisation that they may hold certain biases. But knowledge is power and working 6

through these issues, including finding solutions to them, can only have a positive influence on your workplace environment. Over 60% of our law school graduates are women, which might suggest to some that the Gender Equality Charter is there only to serve the needs of women who practise law. But the Charter is about creating inclusive workplace cultures for all genders. It’s about saying that this lawyer will be afforded the same opportunities and professional development as their colleague. For the Gender Equality Charter to become a benchmark, support from the entire profession is needed. While I know that will not happen overnight, it is the ultimate goal that we will continue to strive for. Next month I step down as president and Tiana Epati takes the reins as the 31st elected president from 10 April. Much of what we set in play last year will continue to develop under her leadership, along with many other new initiatives. My focus will shift to chairing the Culture Change Taskforce. Another significant event this year is that we celebrate the 150th year of the Law Society. It’s a time to reflect on how we practise law, to celebrate our professional successes but also to look out for each other in the workplace. This can be a year of much progress for the legal profession. For that to happen we all must contribute. A good start is committing to the Gender Equality Charter. Kathryn Beck President, New Zealand Law Society.

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PEOPLE IN THE LAW

ON THE MOVE

New Court of Appeal Judge appointed Justice Patricia Courtney has been appointed a Judge of the Court of Appeal. She graduated LLB from the University of Auckland in 1982 and spent some time as an investigation officer with the Department of Trade and Industry before joining the firm of Heaney Jones and Mason as a staff solicitor in 1983. Justice Courtney joined McElroy Milne in 1986, becoming a partner in 1989. She was one of the founding partners of the firm of McElroys in 1992, specialising in insurance law with particular expertise in professional negligence cases. She became the senior partner of McElroys in 1998. Justice Courtney was appointed a Judge of the High Court in 2004. The vacancy on the Court of Appeal was created by the appointment of Justice Helen Winkelmann as chief justice and to the Supreme Court.

Justice Raynor Asher retires A final sitting was held in the Court of Appeal on 7 March for Justice Raynor Asher to mark his retirement. After graduating BA, LLB(Hons) from the University of Auckland in 1972, Justice Asher obtained an LLM from the University of California (Berkley). He returned to work at the firm which is now Kensington Swan, where he was a partner from 1976 until 1986 when he became a barrister sole. He was appointed Queen’s Counsel in 1992. President of the

New Zealand Bar Association from 1996 to 1998, he was Vice President, Auckland of the New Zealand Law Society from 2003 to 2005. Justice Asher was appointed to the High Court bench on 17 August 2005. He was appointed to the Court of Appeal on 22 July 2016.

Two new partners at Fee Langstone Fee Langstone has announced the appointment of two partners, from 1 February. Virginia Wethey was admitted in 1999 and joined Fee Langstone’s predecessor firm, Jones Fee, as a graduate. She moved to London in 2001 and worked for two insurance practices. After returning to New Zealand, Virginia rejoined the firm in 2011. She has extensive insurance and civil litigation experience. Her specialities include liability claims (particularly profession indemnity), fire and general insurance (including earthquake claims) and policy coverage. After working for two years in a large commercial firm in Au c k l a n d , Ru s s e l l Stewart practised in Sydney for over 10 years in a leading Australian commercial and insurance firm. He returned to New Zealand in 2010 and joined Jones Fee. Russell has extensive experience in conducting

complex, high-value commercial litigation. He has a particular expertise in acting for the insurers of chartered accountants and auditors defending civil claims and disciplinary complaints.

Four promoted to senior associate at Simpson Grierson Simpson Grierson has promoted four lawyers to senior associate. Anastasiya Gutorova is a member of the firm’s Auckland corporate team. She was admitted in May 2012 and has BA, LLB and LLM degrees. A specialist corporate and commercial lawyer, Anastasiya has extensive experience in M&A, equity capital markets and corporate governance. Matthew Piper is a specialist in the Auckland employment law group. He was admitted in December 2010 after graduating BA and LLB. Matthew’s focus areas include disciplinary and termination issues, disputes between unions and employers, and restructuring and acquisitions. Calina Tataru is a family law expert. Calina was admitted

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as a barrister and solicitor in September 2010. Based in the Auckland commercial litigation team, she also specialises in lease and trust litigation, and maintains a general civil litigation practice. Nicole Taylor is a member of the firm’s Wellington commercial litigation group. She has BA and LLB degrees and was admitted in October 2009. Nicole acts for local authority and corporate clients and has experience in “leaky building” litigation, securities enforcement, and commercial leasing disputes. The firm has also promoted five team members to senior solicitor: Meghan Bolwell (litigation) and Mike Mercer (employment) in Wellington, Miranda Gray (litigation) in Christchurch, and Mary Breckon (employment) and Henry Holmes (litigation/family) in Auckland.

Bell Gully announces senior appointments Bell Gully has announced the appointment of four new partners. Liz Coats was admitted in 2008 after graduating BA, LLB(Hons) from the University of Auckland. She specialises in employment law and regularly advises employers on redundancy and restructuring issues, managing poor performance, disciplinary processes, investigations and restraints of trade. Ian Becke graduated BA and LLB(Hons) from the University of Sydney and was admitted in 2009 in New South Wales and

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2014 in New Zealand. He worked for two Sydney law firms until 2014 and advises on construction contracts, infrastructure projects and property development projects across a wide range of industry sectors. Natasha Garvan graduated BA, LLB(Hons) from the University of Otago and was admitted as a barrister and solicitor in 2009. She provides environmental, policy and resource management advice to infrastructure providers, commercial entities, property and land developers, and community interest groups. Natasha regularly appears as counsel at mediations and hearings. Angela Harford was admitted in 2008 after graduating BCom and LLB(Hons) from the University of Canterbury. She has a strong focus on infrastructure and projects and her practice mainly consists of acting for public sector and private sector clients on a broad range of corporate and commercial matters. Angela worked in the corporate team of London law firm Slaughter and May from 2013 to 2017. The firm has also appointed Sooyun Lee as a new special counsel. Admitted in 2006 after graduating with BA, BSc and LLM(Hons) degrees from the University of Auckland, she runs the trade mark practice of the wider Bell Gully IP team.

Morrison Kent and East Brewster merge Morrison Kent and Rotorua firm East Brewster Lawyers have merged from 1 January. East Brewster now operates under the name Morrison Kent – Rotorua and is still located in Pukuatua Street.

Claire Mansell becomes Martelli McKegg senior associate Martelli McKegg has promoted Claire Mansell to senior associate. Claire was admitted as a barrister and solicitor in June 2009 after graduating with BA and LLB degrees at Victoria University. She works in the firm’s litigation team and her practice includes civil litigation, employment and insolvency. Claire has appeared in court at all levels, including the Supreme Court and Court of Appeal.

Solicitors join EIS Legal EIS Legal, the in-house team within the Ministry of Education’s Education Infrastructure Service, has welcomed two new lawyers. Both are based in Wellington. Hugo Chisholm was admitted in October 2009 and has joined the team as a senior construction solicitor. Tracy Finlayson was admitted as a barrister and solicitor in March 2015 and is a property solicitor.

New senior associate joins Morrison Kent Caroline Rieger has joined Morrison Kent’s Wellington office as a senior associate. Caroline was admitted as a barrister and solicitor in October 2010 and was previously a senior solicitor at DLA Piper. She specialises in employment law and acts for both employer and employee. Caroline acts in mediations and has appeared in the ERA, District Court, High Court and Court of Appeal.

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Samuel Hood appointed Norris Ward McKinnon Managing Partner Hamilton firm Norris Ward McKinnon has appointed its litigation partner Samuel Hood as Managing Partner. Sam was admitted to the bar in 2004 and joined the firm in 2007 after practising in the Cook Islands. He specialises in civil litigation and employment law. Sam has just completed a nine-year stint on a Lawyers Standards Committee and is a trustee of The Decision Reachout (Toro Mai) Trust.

Promotions and appointment at Dean & Associates Oamaru firm Dean & Associates has announced two promotions and a new appointment. Emma Middlemass has been promoted to associate. Emma joined the firm in 2011 as a law clerk before being admitted to the bar and beginning her role as a solicitor in 2012 following graduation from Otago University. An Oamaruvian educated at Waitaki Girls’ High School, she practises predominantly in the areas of property law, dispute resolution and a range of private client work whilst maintaining a criminal law clientele. Wayne Todd has been promoted to senior solicitor. Wayne graduated with an

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LLB from the University of Canterbury in 2013 and joined the firm shortly after. He has broad experience in the property, commercial, rural, trusts and dispute resolution spaces. Before practising law Wayne gained extensive experience in both the public and private sectors including the manufacturing industry and the New Zealand Police. Carol Robertson joins the firm as a senior solicitor with over six years’ experience in all aspects of property and transactional law together with private client work including commercial acquisitions and dispositions, residential, rural and business sales and purchases, leasing, due diligence investigations, easements and encumbrances, subdivisions, trusts, wills and estates. Carol graduated from Auckland University in 2005 with a Master of Management and in 2012 with an LLB. Originally from Otago, Carol has returned from Waiheke Island where she practised in a property focused law firm.

Nigel Hampton QC elected to international disciplinary board Christchurch Queen’s Counsel Nigel Hampton QC has been elected to sit for a four-year term as a permanent member of the Disciplinary Board for counsel of the

International Criminal Court. Mr Hampton was admitted as a barrister and solicitor in February 1965. He was appointed Queen’s Counsel in May 1989. His appointment to the Disciplinary Board took effect on 8 December 2018.

Jared Ormsby establishes Plymouth Chambers After moving to the independent bar in November 2018, Jared Ormsby has established Plymouth Chambers in Christchurch. Jared acts on complex trust, public law and civil litigation matters. He was at Wynn Williams from 2003 to 2018 and Executive Chair/National Managing Partner from 2012 to 2018. Jared is convenor of the Canterbury-Westland Trusts Committee and a member of the New Zealand Law Society Culture Change Taskforce. He is a contributing author to Equity and Trusts in New Zealand, 2nd edition (Thomson Reuters New Zealand Ltd).

MinterEllisonRuddWatts announces promotions MinterEllisonRuddWatts has promoted six lawyers into senior positions and also promoted seven senior solicitors. All are effective from 1 January 2019. Sonya Forbes has been promoted to special counsel, Corporate, Auckland. Sonya joined the firm in 2017 as a senior associate in the firm’s corporate technology

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team. She is a highly experienced practitioner, having worked in both private practice and in-house roles in New Zealand and London. Tanya Wood has been promoted to special counsel, Construction, Auckland. She joined the firm in 2016 and specialises in construction litigation with particular expertise in property based insurance claims and dispute resolution. Tanya has also worked in-house for Vero Insurance where she helped resolve complex losses arising from the Christchurch earthquakes. Olivia de Pont has been promoted to senior associate, Dispute Resolution, Auckland. Olivia joined the firm as a senior solicitor in 2017 from another large law firm. Olivia has particular expertise in insurance law, and has represented a number of major insurers and insureds on disputes relating to house insurance policies. Alastair Gatt has been promoted to senior associate, Real Estate and Property, Auckland. Alastair joined the team as a senior solicitor in late 2015 having worked in private practice and in-house legal roles for a number of years in Scotland before moving to New Zealand. Suzy McMillan has been promoted to senior associate, Corporate, Auckland. She joined the firm in 2016 on her return to New Zealand. She has a mix of in-house and public sector experience in both New Zealand and the UK. Along with Suzy’s general commercial skills, she has made an important contribution to the firm in the specialty area of privacy. Sarah Moore has been promoted to senior associate, Dispute Resolution,

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Auckland. With a background in private practice in Melbourne, Sarah joined the firm in late 2017. She advises clients on all property and financial matters arising from separation including claims under the Property (Relationships) Act 1976, trust claims and spousal maintenance. The firm has also promoted seven senior solicitors: Phillip Chrisp (corporate, Auckland), Jonathan Embling (dispute resolution, Auckland), Joshua Kimpton (employment, Auckland), David Kraitzick (dispute resolution, Auckland), Kate Muldrew (construction, Auckland), Shukti Mokkapati Sharma (construction, Auckland), and Rachael Watene (corporate, Auckland).

Two new partners appointed by Glaister Ennor Auckland firm Glaister Ennor has promoted two senior associates to its partnership. Anthea Coombes is an expert in subdivisions and has significant experience in a wide range of land development and property matters. She has over 12 years’ experience in property law, and has worked on major subdivisions, commercial property transactions, complex title matters and large property developments. Nicola Harrison has nearly 20 years’ experience in New Zealand and the United Kingdom and specialises in commercial property law, residential land development and commercial contracts. Nicola has worked on some of New Zealand’s largest and most complex property transactions and looks after commercial

With 35 years experience as a commercial litigator, competition law specialist and, more recently, arbitrator, Matthew welcomes further appointments as arbitrator in any area.

Matthew Dunning QC BARRISTER FCIArb FAMINZ

MOBILE 027 294 7959 EMAIL matthew@dunningQC.co.nz WEBSITE www.dunningQC.co.nz

property investors, developers, commercial landlords, franchisors and high profile businesses.

Julian Clarke moves to Apex Insurance Cavell Leitch’s long time (18 year) Managing Partner Julian Clarke has left the firm to become owner and director of Apex Insurance Christchurch specialising in Commercial and Property Insurance.

Lane Neave appoints partner Lane Neave has promoted Joelle Grace to partner in its national corporate practice. Joelle has developed particular expertise in mergers and acquisitions, business advisory, corporate governance and commercial contracting, and operates in a range of industries. After completing BA and LLB(Hons) degrees at the University of Otago, Joelle was admitted as a barrister and solicitor in September 2005. Before joining the firm in 2015 she spent eight years in Sydney with a top tier Australian firm and two years at a large commercial firm in Auckland.

Changes at Copeland Ashcroft Law Adam de Hamel has been appointed as a senior associate with Copeland Ashcroft Law’s Dunedin office. Adam has returned

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to New Zealand after h av i n g wo rke d i n Melbourne with Willis Towers Watson. He has experience in dispute resolution, insurance and insolvency and risk advisory as both a lawyer and in-house advisor. Adam acts for employers across a range of industries. Associate Carla Pallant-Drake is relocating from the firm’s Dunedin branch to the Tauranga office. She will continue to assist clients in all aspects of employment and health and safety law. Carla has specialised in employment law throughout her career, and has been involved in litigation through to Court of Appeal level.

Stace Hammond appoints Arran Hunt to partnership Arran Hunt has joined Stace Hammond as a partner. He is a commercial lawyer specialising in technology law, social media and online harassment law, franchise law and business and company law. Arran’s first career was as a technical business analyst in New Zealand and London. He writes and presents frequently on the subject of technology and the law and acts for a number of technology-based companies and industry groups.

Robert Kirkness joins Thorndon Chambers Robert Kirkness has joined Wellington’s Thorndon Chambers as a barrister, focusing on commercial, public and international law disputes. He recently returned to New Zealand after several years practising in the international arbitration and public international law teams at Freshfields Bruckhaus Deringer in Paris and Singapore.

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Robert has appeared as counsel in a wide range of disputes, both in court and in arbitration before international tribunals.

Lauren Lindsay rejoins Bankside Chambers Lauren Lindsay has rejoined Auckland’s Bankside Chambers as a generalist commercial litigator and international arbitration practitioner. Lauren was previously a senior associate in Allen & Overy LLP’s international arbitration team in London, acting on large-scale commercial and investment-treaty arbitrations. In addition to her general commercial practice, Lauren has particular expertise in disputes arising in the life sciences and energy sectors.

Professor Susy Frankel inducted as Royal Society Fellow Victoria University of Wellington Law Professor Susy Frankel has been inducted as a Fellow of the Royal Society Te Apārangi. The induction recognises her role as an international research leader in international intellectual property law and its links with international trade. Her scholarship has influenced the development of New Zealand’s intellectual property law and the interpretation of international agreements in the formation of domestic policy. Professor Frankel is one of 20 Fellows inducted as part of the Royal Society Te Apārangi’s Academy Centenary.

Lane Neave announces promotions Lane Neave has announced a number of promotions, which were made from 1 January. Anna Walker has been appointed special counsel in the Queenstown Property team. Anna was admitted as a barrister and solicitor in September 2009 after graduating LLB(Hons) from the University of

Canterbury. She specialises in commercial property law. Hetish Lochan has been appointed senior associate in the Queenstown immigration team. Hetish was admitted as a barrister and solicitor in November 2008 after obtaining an LLB from Victoria University of Wellington. He is an immigration law specialist with expertise across a wide range of immigration matters. Jackie Frampton has been apointed senior associate in the Christchurch Building and Construction team. Jackie was admitted as a barrister and solicitor in September 2008 and has an LLB from the University of Canterbury. She specialises in litigation and has expertise in both commercial and construction litigation. Michelle Needham has been appointed senior associate in the Queenstown property team. Michelle was admitted as a barrister and solicitor in June 2008. She has LLB(Hons) and LLM(Hons) degrees from the University of Auckland and specialises in commercial property. She also has an interest in aviation law and holds a Graduate Diploma in Aviation from the University of Auckland. Rebecca Cook has been appointed associate in the Auckland building and construction team. Rebecca was admitted as a barrister and solicitor in August 2014 and has an LLM(Hons). She specialises in building and construction and has advised Crown departments, building and construction companies and commercial and residential property owners and investors. Kristina Sutherland has been appointed associate in the Christchurch Corporate

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team. Kristina was admitted as a barrister and solicitor in February 2005 and has BCom and LLB(Hons) degrees from the University of Canterbury. She provides advice on a range of corporate, commercial and business law matters. Jaxon Grieve has been appointed associate in the Christchurch property team. Jaxon was admitted as a barrister and solicitor in October 2014 after graduating LLB from the University of Canterbury. He advises on commercial property matters and also has experience in the primary and agribusiness sectors. Ken Huang has been appointed senior solicitor in the Auckland immigration team. Ken was admitted as a barrister and solicitor in July 2013 and graduated LLB from the University of Waikato. He specialises in immigration law and speaks fluent Mandarin. Whitney Moore has been appointed senior solicitor in the Christchurch Corporate team. Whitney was admitted as a barrister and solicitor in July 2013. She has BA and LLB degrees and assists with a number of corporate matters, including brand availability and protection, and drafting commercial documents. Danita Ferreira has been appointed senior solicitor in the Christchurch corporate team. Danita was admitted as a barrister and solicitor in July 2016 after graduating with BA and LLB degrees from the University of Canterbury. Holly Struckman has been appointed senior solicitor in the Auckland employment team. Holly was admitted as a barrister and solicitor in July 2016. She has BA and LLB degrees from the University of Canterbury and assists in providing legal advice on a wide range of employment-related matters.

Amy Kingston-Turner joins Juno Legal Amy Kingston-Turner has joined the Juno Legal team. She is an IP, commercial and corporate in-house lawyer with international expertise in brand protection and marketing at Shell International in London. Amy 12

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commenced her legal career as a barrister and then became a solicitor with Baldwins Intellectual Property. She is now back in New Zealand and is embedded in-house with an iconic New Zealand brand as Acting General Counsel.

Staff changes at Brookfields Lawyers Auckland firm Brookfields Lawyers has announced three promotions and two additions to its staff. Lisa Wansbrough has been promoted to senior associate. Admitted in November 2007, Lisa is an experienced litigator and acts on environmental, civil and criminal litigation. Her litigation practice has included litigation for councils and assisting on environmental appeals. Lisa spent time working in the United Kingdom as a solicitor for the Secretary of State for the Home Department. Rachel Ward has been promoted to senior solicitor. Since her admission in December 2015 Rachel has worked on a variety of resource management matters. She also acts on a variety of local government matters. Before joining Brookfields Rachel worked in policy for the Ministry for the Environment. Edward Fox has been promoted to senior solicitor. Edward has over 5 years of commercial dispute and civil litigation experience in both Auckland and London. His experience in civil litigation includes complex market pricing disputes, intellectual property matters and insolvency proceedings. Deborah Riley has returned to the firm as a senior associate after taking time out to travel

and write a book. Deborah initially joined Brookfields in 2012 after returning from the UK where she worked in local and regional authorities’ in-house legal teams. She is a member of the resource management and local government team. Rowan Ashton joins the firm in March. He specialises in environmental and public law and was admitted as a barrister and solicitor in March 2013 and worked in a barristers’ chambers. Rowan has appeared at council hearings and in cases before the Environment Court and High Court.

Maude & Miller promotes Damian Smith Maude & Miller has promoted Damian Smith to senior associate. Damian joined Maude & Miller in 2015 and is an experienced lawyer in the commercial, property, tax and trust areas. Damian’s practice areas includes commercial, property, tax and trust advice including construction contracts and disputes, commercial property transactions and leases and corporate governance and compliance.

Contributing information to On the Move Brief summaries of information about promotions, changes in law firms, recruitment and retirement are published without charge in On the Move (which is also available online). Please send information as an email or MS Word document (no PDFs please) to editor@lawsociety.org. nz. Submissions should be three or four sentences without superlatives and may be edited to conform to the format used. A jpeg photo may be included – along with permission to use the photo.

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Michael Robinson was not struck off We offer our sincere apologies for an incorrect assertion in the article “Characters in the Law” by David Sparks, which was published in LawTalk 925, February 2019 at pages 102 to 103. This stated that Auckland lawyer Michael Robinson was struck off. This is wrong. Mr Robinson was never struck off and we would like to set the record straight. We should have checked the assertion about a hard-working criminal lawyer who had a very successful career. David Sparks also apologises for his wrong memory on this matter. The mistake was discovered on receipt of an email from Mr Robinson’s son David, who was a lawyer and then District Court Judge himself. Mr Robinson’s email, which provides some very interesting information about his father, reads as follows: I was surprised to read in David Sparks’ article “Characters in the Law” published in the February 2019 edition of LawTalk that my father had been “struck off ”. I commenced working for him as a part-time law clerk in the late 1950s and joined him in partnership with Alf Morgan-Coakle when I qualified in 1961. I can assure you that throughout the time I worked for my father and was in partnership with him he had not been struck off. He appeared as counsel virtually every working day in the Magistrates’ Court and Supreme Court. On occasions he also appeared in the Court of Appeal. He died in August 1963 at the age of 51 after returning to court late at night for the verdict in the trial of Colleen Patterson charged with drug dealing. He was counsel in that trial and the late Sir Owen Woodhouse, who was the trial Judge, told me he invited my father into his chambers whilst they were awaiting the verdict. He recounted a very pleasant discussion with my father about our family history and noticed that my father did not appear to be

very well. At the time of his death my father had a large number of criminal jury trials set down for hearing in the Supreme Court. Following his death I appeared as counsel in those trials. I recall the trial of Colleen Patterson because she was acquitted at the trial when I appeared as her counsel. Following his death I continued in partnership with Alf Morgan-Coakle. The partnership was known as Robinson and Morgan-Coakle and following my appointment to the District Court, Alf Morgan-Coakle continued the partnership which is now known as Morgan Coakle Lawyers. I attach for your information an extract from page 224 of Portrait of a Profession edited by Sir Robin Cooke QC (1969). Although the article incorrectly names my father Michael Joseph Robinson (his correct name was Michael Robinson) this article give a much more accurate description of the Michael Robinson I knew. Kind Regards, David Robinson

The extract from Portrait of a Profession (written by CP Hutchinson QC) reads as follows: “Michael Joseph Robinson was a partner of Richard Singer, with whom Sir David Smith deals, and practised chiefly in the criminal and divorce divisions of the Court. He was an ebullient and irrepressible advocate; his clients got full value, as in every case he used every talent which he possessed for the benefit of his cause. Throughout his life he was a centre of controversy, but he was a man with a great heart and when the forensic battle was over always radiated warmth and friendliness towards his adversary. Furthermore, whenever he gave his word to any barrister it was as good as a bond, although it was always difficult to get him to give an undertaking.” ▪

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Battling cancer to become a lawyer Tyson Hullena BY ANGHARAD O’FLYNN

Kahui Legal solicitor Tyson Hullena (Ngāti Raukawa and Ngāti Toa Rangatira) has travelled a long and somewhat bumpy road to becoming a lawyer. Raised in Wairarapa, Tyson’s father works in education, his mother works in management and his two younger siblings are in banking and the New Zealand Navy, with the latter “gallivanting over/under the ocean somewhere in the world” as a diver. Never one to do things by halves, Tyson studied a wide variety of high school subjects while attending Chanel College in Masterton, “I studied maths and science mostly at school and I did history by correspondence, and English. “Calculus was definitely my favourite at the time. I was pretty lucky to have some awesome teachers at high school and they all played a big role in helping me enjoy those subjects whether it was through how they taught or just being decent humans.” After high school, Tyson moved to Dunedin to study physiotherapy at Otago University. “I studied physiotherapy for four years and worked in a private practice in Palmerston North for two years,” he says, jokingly adding, “it’s [Palmerston North] not quite as bad as the reputation it’s given.”

A change then a shock After two years working in a successful private physio practice, he felt it was time for a change. “I really enjoyed the people who I got to work with there, but I just wasn’t fulfilled by the work and knew I needed a change. I talked with my inner circle and whānau and came to law.” Moving to Wellington to study both law and accounting at Victoria University, the start to his first year in Wellington was a positive one. However, things took a turn for the worse towards the end of 2013. “I was diagnosed with testicular cancer on 19 November 2013. Right after my exams in my first year at VUW. I knew something was up during exams but didn’t think to check until I’d gone home for summer. 14

“When I went to see the doctor, I nearly didn’t mention it but, being Movember at the time and making a valiant, albeit pitiful, attempt at growing a moustache, I felt obliged to say something and to get tests done – luckily I did. If I had left it much longer the metastasis would’ve reached my brain.” After extensive treatment involving surgery and three week-long sessions of chemotherapy for 23 hours nearly every day, Tyson went back to university a few weeks late in the first trimester. “Since then I’ve had regular appointments with the oncologist, and sometimes scans and tests to confirm that everything is still in order. So far so good!”

Inspirations After finishing with BCom and LLB degrees, Tyson was admitted in 2018 and he now works as a solicitor at Wellington law firm Kahui Legal. Along with the active and positive working experience, Kahui Legal has provided Tyson with several highlights and valuable experiences, and the opportunity to learn and grow on a regular basis. “Learning from some amazing people, particularly at Te Hunga Roia o Aotearoa-Hui-a-Tau, and listening to speakers like Justice Joe Williams, Moana Jackson and Chief Justice Dame Sian Elias lay down challenges and provide insight into what can be achieved working in and with the law.”

Tyson shares that the most enjoyable aspects of his work are the diversity he sees as a part of the Kahui Legal team and applying his tertiary education in professional settings. “It’s easy to feel a little removed from the people you’re going to be working with/for at university because it’s all theory. Joining the workforce has opened my eyes to the practicalities of the work we do which makes it so much more important. “Every day is different. Being able to problem solve across different specialty areas of law is challenging but finding the right solution for our clients is really rewarding.” In his down time, Tyson finds physical activity and time with whānau great ways to unwind. “I enjoy spending time by, in, and on the water, be it just relaxing, going for a dive for kaimoana, or a surf. “Family time is high on my priority list. Whether it’s at home or visiting my siblings/cousins, it’s always good to spend time with whānau. “I’ve been lucky enough this last year to be able to see more of New Zealand, so that’s something I want to be able to keep doing – exploring. Hopefully a bit further abroad in the not-toodistant-future, but for now I’m happy exploring my own backyard. Finding a good work/life balance is important, so being active is always good.” ▪

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Representing those who have escaped from the worst that life can throw up Kamil Lakshman BY NICK BUTCHER

Immigration and refugee lawyer Kamil Lakshman was unaware that law was in her family bloodline until she was a teenager. Mrs Lakshman was born in Suva, Fiji, but never knew her father, a lawyer and a University of Canterbury graduate, who died when she was just three months old. “I was adopted by my grandparents. It wasn’t until my final years at secondary school that I became aware of his background,” she says. “My father was only about 28 years old when he died. At the time I felt the only connection I could get to him that was tangible was to become a lawyer. I wore my father’s gown when I was admitted as my grandmother had kept it for me all that time and presented it to me when I graduated. It was a complete shock.” Mrs Lakshman is the Principal at Idesi Legal, a boutique firm which has offices in Wellington, Auckland and Dunedin. She has been a long-standing member and past convenor of the New Zealand Law Society’s Wellington branch Immigration and Refugee Law Committee and is also a member of the national committee. She completed her law degree at Victoria University later in life and was admitted in 2000 prior to being a middle management public servant. She recently was admitted to the Fiji bar and holds a practising certificate in Fiji, mirroring her father’s journey. As an immigration and refugee lawyer, her team deals with a wide range of cases. Clients include asylum seekers wanting a better life than the one they left behind, which in some cases is a war-torn country or politically unsafe environment. The humanitarian aspect of many cases, she says, makes it both challenging and rewarding work. The stories of immigrants are often tales of daring

escapes and desperation, stories of survival that most of us could not imagine, so when Kamil Lakshman’s team gains a win, it is something to be savoured. “We achieved legal status for a woman who had been living here illegally for approximately 31 years. It’s hard work. We interview people to create the strongest and most powerful story we can, and then present their case. They can’t do it by themselves. If they could they wouldn’t be coming to us,” she says. There are no guarantees when representing people who are living in these uncertain situations. “You have to listen carefully to comprehend what they are saying. In a sense you have to hear what is not being said and see what is not being seen. That’s where we find the clues to telling their full story.” The really sad cases are those that had a good case to begin with but because of a small error their entire immigration status in New Zealand has become compromised, which then results in a long costly battle. While Mrs Lakshman’s work has a strong humanitarian flavour to it, so do many of her outside interests. For example, Fiji has been lashed by cyclones many times and it’s expected that it will happen again.

“We achieved legal status for a woman who had been living here illegally for approximately 31 years. It’s hard work. We interview people to create the strongest and most powerful story we can, and then present their case.”

Over the years, Mrs Lakshman has organised several humanitarian appeals to aid relief efforts after these tropical storms. After the last cyclone she managed to organise five relief containers. She has also been a radio presenter, with a show broadcast in Hindi, which is aimed at educating Fiji Indians on immigration matters. “This came about because I saw the lax nature in which forms were being filled and ghost operators undertaking this task at a fee,” she says. In her spare time, Kamil enjoys practising what she describes as spiritual activities, including yoga and meditation. ▪ 15

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Revamped website heralds new outlook at the Māori Law Society BY NICK BUTCHER Te Hunga Rōia Māori o Aotearoa, the Māori Law Society, will introduce a membership fee and a new website in March. The Society’s executive undertook two rounds of consultation last year about the fee proposal which will mean that practising lawyers and judges will be charged an annual $100 plus GST membership fee. Nonpractising lawyers and Community Law practitioners will be charged $75 plus GST. Membership is free for Māori law students. Liam Stoneley is the Society’s young lawyers’ representative, and a solicitor in Chapman Tripp’s Auckland corporate team. “We were really pleased with the positive response we received to the two consultation processes run last year. The 2018 executive ratified the proposal and the changes will be introduced for the upcoming financial year,” he says.

What lawyers get for their membership fee … In the past, becoming a member was a simple affair, requiring a law degree and proof of Māori descent. But the Māori Law Society is now 30 years old and a membership fee is an essential next step. Mr Stoneley says the membership fee will provide a steady stream of income for the Society, which will ensure longevity and fuel for the growth of the kaupapa and services they provide to members. Some of the new and enhanced benefits members can expect for their annual fee include: • Reduced registration costs for the annual conference; 16

• Subsidised regional and national networking functions; • Access to the members-only portal on the new website, which includes exclusive content and materials; • Increased advocacy for members and the Society’s values, including on law reform; • Access to the existing suite of services, such as the Ngā Wāhine Rōia Māori mentoring programme; and • Voting and speaking rights at Māori Law Society hui and the AGM.

How to become a member People will be able to pay their fees via the new website in March (due by 31 March) and get a unique membership number and log-in to the members only section. Existing members should keep an eye out for regular reminders over email and on social media to sign-up at māorilawsociety.co.nz. ▪

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Technology helping to overcome barriers at work BY CRAIG STEPHEN Auckland barrister sole Masumi Scherb has been “pretty much fully” blind since birth. And like other blind lawyers he has found technology a massive boost to his ability to do his work. “We’ve come a long way since I was admitted and I use a lot of Apple technology. I have an iPhone and an Apple Mac and they have voice output so whatever is on screen is spoken. And also there’s a lot of optical character recognition software, such as OCR software, so that I can convert text into pdf form and it can read it out to me. “I’m just starting to get into converting hand writing, which is kinda like the last frontier; for example, a lot of police disclosure forms are in hand-written form and that’s the hardest for me to read. I still need help reading that and I rely on a colleague who is also a long-time friend to help me do that. “They’re providing a lot more electronic disclosure these days so there’s been a huge improvement in access.” Mr Scherb says while the technology is improving it isn’t always being taken up. “Some of the acommodations or access to justice and the information we need is still on an ad hoc basis and that means people gaining the information off their own bat without assistance from the Ministry of Justice and central government. “The ministry is providing more legislation online which is really good, but it’s very slow in being posted and there’s still a long way to go to make the system fully accessible.” In court Mr Scherb relies on both his colleagues and court staff to get him around the buildings. “But there is more that could be done in terms of access, for example, some countries use an iPhone app that communicates with beacons so you

▴ Simon Laurent

know where doors are. More time could be looked into investigating such technology, for all court users who could benefit from improved technology.” Auckland immigration lawyer Simon Laurent, who is completely blind in one eye and has just 6% vision in the other, uses some new technology but largely overcomes his disability in simple ways.

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“I do read documents in the normal way, I don’t use braille, I never learned it. I just look closer. It probably takes me a bit longer to read through a document than most people. I find being able to use a PC where I can zoom in on things can be useful but I have to admit that there is nothing quite like having the physical thing in front of you to read it properly.” ▪

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The Innovators Renee Knake BY ANDREW KING LawFest organiser Andrew King continues a series of interviews with key legal professionals with their innovation and technology stories. Renee Knake holds the Fulbright Distinguished Chair in Entrepreneurship and Innovation at the Royal Melbourne Institute for Technology University and is Professor of Law and Director of Outcomes and Assessments at the University of Houston Law Centre.

What does legal innovation mean to you? Legal innovation means developing ways to make law more accessible for those who need it, whether on the street corner or in the corner office. It also means ethical innovation. Lawyers have a special obligation to ensure that innovations in the delivery of legal services are ethical, not only complying with professional obligations but also protecting clients from harm.

What role does technology play in innovation? Technology plays an important role in legal innovation, both in the development of new tools to make law more accessible and affordable, but also in showing the way toward innovation through investment, trial/error, user-centric design, etc. Technology alone, however, is not itself true innovation, unless it becomes adopted and disseminated.

What pressures are organisations facing in the delivery of legal services? Better, faster, cheaper, more-for-less – the pressures facing all sectors certainly also pertain to legal services. But, a unique pressure for those delivering legal services is adoption, whether it be convincing lawyers or their clients to try new tools or methods. Lawyers, by nature, are often risk-adverse and clients may not understand the value of legal services. So, this creates an extra hurdle or added layer of pressures for those who want to innovate in the legal services space. 18

What developments do you see in how legal services are delivered? I believe we will increasingly see more focus on the needs of clients, whether corporations, government bodies, or individuals, as well as stronger efforts aimed at better understanding the lived-experience for those who need legal help. Even as technology changes the tools legal services providers use, one-onone human interaction will remain centrally important.

What opportunities has legal innovation brought to you? My work in legal innovation has brought a number of opportunities. It has expanded career opportunities for students of mine, for example as legal solutions architects/designers or innovation counsel, jobs in the profession that did not exist when I was a student at the University of Chicago Law School 20 years ago. From 2014-16, I had the privilege of serving as a Reporter for the American Bar Association Commission on the Future of Legal Services, which led to the creation of the ABA’s Centre on Innovation. And, currently I hold the Fulbright Distinguished Chair in Entrepreneurship and Innovation at Royal Melbourne Institute for Technology University, a six-month fellowship through the AustralianAmerican Fulbright Commission. In this capacity, I am building upon my prior research to better understand

the role of entrepreneurship and innovation in the delivery of legal services globally.

What are some of your tips to start innovating or developing an innovative mindset? Look beyond one’s own profession or discipline for inspiration. My essay “Cultivating Learners Who Will Invent the Future of Law Practice: Some Thoughts on Educating Entrepreneurial and Innovative Lawyers”, which, while written for legal educators, offers insights for anyone who wants to think differently about how we approach the delivery of legal services.

Why is it important for legal professionals to continue to learn about legal innovation and leveraging technology? In the United States this is an ethical obligation for lawyers; American Bar Association Model Rule 1.1, governing competence, requires keeping abreast with changes in relevant technology. But even more significant, for legal professionals around the globe, learning about innovation and leveraging technology is essential to best serving our clients. Renee Knake is one of the speakers at LawFest 2019, at the Cordis Hotel in Auckland on 21 March. Further details can be found here – https:// www.lawfest.nz/ ▪

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NEW ZEALAND LAW SOCIETY

Law Society not seeking review of unsatisfactory conduct finding The New Zealand Law Society has confirmed that it is not seeking a review of a finding by a lawyers standards committee that a lawyer was guilty of unsatisfactory conduct after he sexually harassed two of his law firm’s employees. The decision was published recently. The Law Society has stated its position in response to comments by some lawyers who disagreed with the finding and the penalties imposed and asked why the Law Society was not seeking a review of the decision. “This is the first finding made by a standards committee on matters relating to sexual harassment at law firm social events. The reasoning process which the committee had to follow is a good example of why we need legislative reform in this area,” Law Society President Kathryn Beck says. “Under the legislation a standards committee can only make findings of unsatisfactory conduct. Only the New Zealand Lawyers and Conveyancers Disciplinary Tribunal can make a finding of misconduct.” Ms Beck says that when a complaint is received it is put before a standards committee. If a committee believes there are grounds to support a finding of misconduct against a legal practitioner it may decide to refer the matter to the Disciplinary Tribunal to make that finding. While there is no threshold for referral, standards committees often refer matters to the Tribunal when the conduct warrants strike off or suspension. While proceedings in the Tribunal are generally held in public, name suppression may be ordered where there is a likelihood of complainants being identified. “Like all standards committees,

the committee which considered this matter is independent of the Law Society in its deliberations and decisions. Standards committees are made up of experienced lawyers and non-lawyers who are dedicated to the work they do on behalf of consumers and the legal profession. While the Law Society was able to seek review of this decision by the Legal Complaints Review Officer, after considering all of the factors and the current disciplinary legislation, we did not believe it should be referred to the LCRO,” she says. “The reasons for so doing included evidence that the two employees concerned were satisfied with the way the firm dealt with the matter, the fact that the lawyer had taken full responsibility for his actions, had shown significant contrition and remorse, had no prior disciplinary history, and had taken rehabilitative steps which included treatment from a mental health specialist to ensure there was no repeat of the behaviour. “The standards committee decision included a full discussion of its current jurisdiction to consider and address conduct that occurs in a social setting within a law firm. The matters raised are very much part of the issues identified by Dame Silvia Cartwright’s regulatory working group. The Law Society will be consulting with the legal profession on how the working group’s recommended changes may be achieved, and we encourage people to engage in that process.

Decision highlights difficulties with current regime “The decision highlights the difficulties standards committees currently face in addressing

behaviour which occurs at work social events, given the consumer focus of the current disciplinary regime. Both employees were satisfied with the process followed by the law firm. One employee signalled that they did not wish to participate further in the disciplinary process. A majority of members of the standards committee found, despite the lawyer’s submissions to the contrary, that there was jurisdiction to make a finding that the conduct was essentially connected to legal work. However, a minority did not agree there was jurisdiction under the current legislation. Looking at the matter in its entirety, the Law Society chose not to seek a review.” Ms Beck says the Law Society has prepared a further more comprehensive outline of the distinction between unsatisfactory conduct and misconduct, and other considerations relating to bringing proceedings in the Disciplinary Tribunal. This article, by Law Society Senior Solicitor – Regulatory Matt Fogarty, is included in this issue of LawTalk at page 23. Ms Beck says the report by Dame Silvia’s group identified a range of problems with the current regulatory mechanisms and processes for dealing with complaints about sexual harassment, discrimination and bullying. “The Law Society is acting to secure change, but as our outline demonstrates, the current system is the one which we must operate under until that change occurs.”

Contributing articles to LawTalk We welcome articles related to the New Zealand legal profession, at work or leisure. All contributions and inquiries about submission of articles can be emailed to the Managing Editor, editor@ lawsociety.org.nz. Contact before submission of an article is preferred. The New Zealand Law Society reserves the right to edit all material submitted for publication.

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Agreement with most of Law Commission’s relationship property preferred approach The Law Society says it agrees with most of the Law Commission’s preferred approach proposals in its review of the Property (Relationships) Act 1976. In comments on the proposals, the Law Society has commended the Commission for its thorough and considered review. Key areas considered by the Law Society are as follows: De facto relationships: The Law Society agrees that the Act should apply in the same way to all marriages, civil unions and qualifying de facto relationships. However, it does not support retaining the current definition of a qualifying de facto relationship. It believes this is too wide and creates uncertainty which prevents issues being resolved efficiently. Classifications: Classification of the family home as relationship property is supported, whether owned by either or both parties if it was acquired before the relationship for the partners’ common use or benefit or if it was acquired during the relationship, other than as a third-party gift or inheritance. The Law Society also agrees with introduction of a new, limited entitlement to share future family income through a family Income Sharing Agreement. Trusts: The Commission’s proposals for trusts are supported. “It is important that on separation, the court has appropriate powers to deal with the issues arising where 20

property that would otherwise be classified as relationship property has been disposed of to trusts during the relationship,” the Law Society says. Children’s interests: The Law Society does not support the Commission’s preferred approach that children’s best interests should be a primary consideration under the Act, including an “overarching obligation” on the courts to have regard to the best interests of any minor or dependent children. It says the Act concerns the property entitlements of adult partners at the end of a relationship and its purpose is to recognise the equality contributions of the partners to the relationship and to provide for a just division of property when the relationship ends. The “overarching obligation” reaches right across the Act and is the overriding consideration. The Law Society suggests that children should be a primary focus when it comes to determining occupation of the former family home, and not the division of relationship property. Family Court Rules committee: The Law Society agrees that a Family Court Rules committee should be established to develop specific procedural rules and guidance for Property (Relationships) Act matters. It says it is essential that rules are brought into force at the same time as the new Act as it would be counterproductive for the legislative changes to be brought into force before the supporting rules are in place.

Guidance released on AML/CFT deskbased reviews The Law Society has released guidance on desk-based audits of law practices under the AntiMoney Laundering and Countering Funding of Terrorism Act 2009. The guide – which can be found at www.lawsociety.org.nz/practiceresources/practice-areas/aml-cft – has been written by Law Society Inspectorate Manager Lisa Attrill with inputs from the supervising Department of Internal Affairs. As part of its supervisory role, the department may review a lawyer’s risk assessment and AML/CMT compliance programme. Desk-based reviews can be carried out, with the objective of completion within one month. The reviews will assess compliance with sections 56-58 of the Act, and focus on a number of matters.

CPD declarations due soon The Continuing Professional Development (CPD) year ends on 31 March 2019. Declarations of completion are due no later than five working days after this – by 5 April. The Law Society suggests that all practitioners should check completion of their CPD requirements and also whether their CPD learning plan and record are up to date. Further information is available on the Law Society’s website at www.lawsociety. org.nz/cpd

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In-house lawyers surveyed The Law Society’s in-house lawyer section ILANZ and accounting firm Deloittes are carrying out a survey of New Zealand’s in-house lawyers. It is intended that the survey will be an annual event. Its objectives are to build an understanding of the current profile of the in-house legal profession, provide an insight into the current and aspirational priorities for in-house legal counsel, and provide information that may be useful for comparison purposes. An online survey has been sent to all in-house lawyers and this is being followed up with a series of in-person interviews. The survey results will be released at the ILANZ conference in May.

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Culture Change Taskforce work well underway The members of the Law Society’s Culture Change Taskforce are now meeting regularly. The taskforce, which is shown at a meeting in Wellington in February, is a key player in developing a strategic framework and action plan for the legal community that will support the creation and maintenance of work environments that are healthy, safe, respectful and inclusive. Taskforce chair Kathryn Beck says the practice of law is tough, but rewarding. “The Law Society’s 2018 Workplace Environment Survey told us that as a profession we get enormous satisfaction from the work we do, but many lawyers – 29% – think their workplace culture needs to change. To be sustainable as a profession, it is essential that our work environments are places where each individual can be themselves and thrive.” The 19-member taskforce represents a wide range of people and communities within the legal services industry and brings together lawyers and non-lawyers of differing ages and experiences from around the country. Members were appointed in September 2018 for an initial term of three years.

The taskforce is required to deliver a draft strategy and action plan to the Law Society by 30 November 2019. A key initiative for the taskforce will be a one-day symposium on 14 May. This will be held in Wellington at the Pipitea Marae, Thorndon Quay, and will bring together 150 members of the wider legal profession and experts in systems and culture change. Kerrin Humphrey, Culture Manager, NZLS Taskforce, says the taskforce is not only excited about what can be learned at the symposium, but the conversations and work that it will spark. Ms Humphrey is a full-time co-ordinator for the taskforce. “The intention of the symposium will be to discuss and workshop a number of topics,” she says. “These include what it takes to change the systems and culture of a community, the particular issues in the legal community, causative factors and possible interventions.” “The taskforce will lead the way, but success will come when the leaders and each person in our legal community understands and embraces the need for change and starts doing things effectively,” Kathryn Beck says. 21

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Charities Act review concerns expressed to minister Law Society President Kathryn Beck has written to the Minister for the Community and Voluntary Sector, Peeni Henare, to raise a number of concerns about the current review of the Charities Act 2005. She says the current review is a welcome step, but the Law Society considers its scope should be widened and more time given to ensure the resulting legislative reforms are effective and fit for purpose. Ms Beck says the terms of reference are too narrow and will not enable key concerns to be addressed. “To date no first principles post-implementation review has been carried out. Instead, the last 13 years have been characterised by a series of amendments that have … been rushed through under urgency, without proper consultation and often resulting in unintended consequences,” she says. “A broader review would provide an opportunity to align the legislation with current and future needs and priorities, and also to take account of international best practice including the reforms undertaking in the UK and Australia.” Ms Beck says the proposed timeframe is not sufficient for meaningful consultation. M a ny o f t h e i s s u e s involved are complex, with far-reaching impact. “In the Law Society’s view, it would likely be more cost-effective (and prudent) in the long run to take the time needed to carry out a comprehensive reivew of the legislative framework.” A reply from the office of the minister has acknowledged the Law Society’s views. 22

Lack of consultation on rustling law of concern Law Society President Kathryn Beck has written to the Minister of Justice to express concern that legislation creating significant new criminal offices related to livestock rustling has been progressed without the opportunity for public consultation and select committee activity. “In the Law Society’s view, this is an undesirable and unjustified departure from the usual consultation process for legislative reform,” she says. Justice Minister Andrew Little introduced a Supplementary Order Paper on 12 December 2018 to amend the Crimes Amendment Bill. This was a day after the bill had received a second reading and well after the select committee had reported on the bill in late September. Until the supplementary order paper, the bill contained no provisions related to livestock rustling

and was focused on amending three provisions in the Crimes Act 1961 on accessories after the fact, blasphemous libel, and a requirement relating to the time in which a death must occur to be subject to criminal sanctions. “We appreciate the government’s desire to address the harms arising from theft of livestock but consider there is insufficient justification for amendment to the [bill] via supplementary order paper at a late stage in the bill’s passage through the House,” Ms Beck says. Her letter notes that the Law Society was consulted on a limited basis on the proposed new offences. This was a confidential consultation at short notice, and the specific wording of the offences was not provided. “The Law Society submitted that the new offences should be introduced via a new bill, rather than via SOP. In our view the proposed offences are a significant extension of the current law, and the appropriate avenue for making the legislative changes is through the introduction of a bill to allow for public consultation with relevant stakeholders including the legal profession and select committee consideration.” Ms Beck says the new offences are a significant extension of the current law and should be the subject of public submission and debate.

MORRIS LEGAL A N N O U N C E S P R O M OT I O N S Experts in resolving trust, relationship property and estate disputes GEORGIA ANGUS Senior Associate

www.morrislegal.co.nz

ARIA NEWFIELD Senior Solicitor

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N E W Z E A L A N D L AW S O C I E T Y

Principles and practice Publication, penalties and prosecutions BY MATT FOGARTY Background In January the Law Society published a decision by a standards committee which made an adverse disciplinary finding against a lawyer, following two separate instances of sexual harassment towards two employees. Standards committees are independent bodies and are comprised of up to seven lawyer members and up to two non-lawyer members. The decision has been the subject of public comment and criticism, including: whether the lawyer’s actions ought to have been assessed as amounting to misconduct rather than unsatisfactory conduct; whether the lawyer ought to have been suspended from practice (the lawyer was instead censured and ordered to pay a fine, and costs, to the Law Society); and/ or whether the lawyer’s identity ought to have been disclosed in the published standards committee decision. The Law Society welcomes such public debate. It is not appropriate for the Lawyers Complaints Service to publicly comment on an independent standards committee decision and so it is not the intention of this article to seek to justify or defend the decision. The parties to the matter have (or had) rights of review to the Legal Complaints Review Officer if they are dissatisfied with the standards committee decision. The Law Society also has (or had) the right to seek a review. Rather, this article is intended to highlight and discuss the following aspects of the current regulatory regime, and the limitations it imposes, in a general (noncase-specific) manner: a the distinction between unsatisfactory conduct and misconduct; b the governing legislation’s particular

emphasis on addressing lawyers’ conduct that occurs at a time when a lawyer is carrying out legal work for clients; c the respective jurisdiction, and procedures, of standards committees vs the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“Disciplinary Tribunal”); and d the underlying rationale in relation to imposing a disciplinary sanction on a lawyer, including the legal principles governing name publication.

Unsatisfactory conduct vs misconduct Both concepts are comprehensively defined in the Lawyers and Conveyancers Act 2006 (“LCA”) – see sections 12 (unsatisfactory conduct) and 7 (misconduct). The essence of the threshold of unsatisfactory conduct (as it applies to sexual harassment in the workplace, under the current legislation) is that the conduct would be regarded by lawyers of good standing as being unacceptable (including conduct unbecoming a lawyer, or unprofessional conduct). A finding of unsatisfactory conduct can also be made if a lawyer contravenes the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“Rules”). Over the past decade, unsatisfactory conduct findings have been imposed in relation to conduct such as: overcharging; breach of duty to take reasonable care; and negligent breach of a lawyer’s undertaking. As is self-evident, misconduct is more serious than unsatisfactory conduct. The threshold for a finding of misconduct is high. Only the Disciplinary Tribunal can make findings of misconduct. Matters come before the Disciplinary Tribunal following referral, and the laying of a disciplinary charge against a lawyer, by a standards committee. The most common threshold test for misconduct under the current legislation (which

can also be applied to sexual harassment in the workplace) is conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable. A finding of misconduct can also be made if a lawyer wilfully or recklessly contravenes the Rules. Over the past decade, misconduct findings have been imposed in relation to conduct such as: gross overcharging; serial incompetence; and willful or reckless breach of a lawyer’s undertaking.

“At a time when” the lawyer is providing regulated services There is only limited scope for a standards committee or the Disciplinary Tribunal to make adverse disciplinary findings in relation to a lawyer’s conduct in their personal/non-professional life. Subject to the exceptions noted below, in order for the Disciplinary Tribunal to make a finding of misconduct it first has to be satisfied the lawyer’s conduct occurred “at a time when” the lawyer was providing “regulated services” (s 7(1)(a) of the LCA). Regulated services essentially means legal work. This is also the case for two of the four limbs of unsatisfactory conduct (namely: conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; and conduct that would be regarded by lawyers of good standing as being unacceptable). This is reflective of the consumer-protection focus of the current legislation (s 3(1)(b) of the LCA). A finding of misconduct can also be made if a lawyer engages in conduct that would justify a finding they are not a fit and proper person or are otherwise unsuited to engage in practice as a lawyer (s 7(1) (b)(ii) of the LCA). Because the ‘not a fit and proper person’ element of misconduct generally applies to a lawyer’s conduct in their personal/non-professional life, it has an especially high threshold. It has previously been engaged in relation to conduct such as dishonesty offences. 23

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The Disciplinary Tribunal and High Court have sought to extend the reach of the statutory disciplinary provisions that only apply “at a time when” the lawyer is providing regulated services (see Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987). They have done this by adopting a statutory interpretative approach that extends the provisions’ application to conduct that is “connected to or with” the lawyer’s supply of regulated services. An example might be a lawyer’s improper issue of a statutory demand to recover unpaid legal fees from a company client (A v Canterbury Westland Standards Committee 2 [2015] NZHC 1896). While the lawyer may have issued the statutory demand at a time when the lawyer was no longer providing regulated services for the client, the issuing of the statutory demand is sufficiently connected to the lawyer’s provision of regulated services (because it arose out of the lawyer/ client relationship) to be potentially captured by sections 7(1)(a) and/or 12(b) of the LCA. This begs the question: how far can a standards committee lawfully go when assessing a lawyer’s conduct (which is arguably connected to the lawyer’s provision of regulated services) before the standards committee’s interpretation is vulnerable to judicial review for offending the natural and ordinary meaning of the words “at a time when” the lawyer is providing regulated services? This is the subject of discussion by the standards committee in the Mr X decision (published in January), and resulted in a split decision. It is one thing to say it captures a lawyer’s improper issue of a statutory demand following the lawyer’s provision of regulated services for the debtor client, but it is arguably another thing to say it captures a lawyer’s conduct towards a professional colleague which occurs outside of the workplace or outside of office hours. On the facts of the particular case a majority of the standards committee in the Mr X decision reached the view that Mr X’s conduct did occur at a time when Mr X was providing regulated services, even though Mr X’s conduct towards two of the firm’s employees either occurred outside of office hours (at Friday night drinks held on the firm’s premises) or outside of the office (at the firm’s end-of-year party held at an external venue). The statutory phrase “at a time when” the lawyer is providing regulated services, can limit the jurisdiction of standards comOver the mittees and the Disciplinary Tribunal. In past decade, order for standards committees and the misconduct Disciplinary Tribunal to have greater jurisfindings have diction to address lawyers’ conduct that been imposed does not occur at such a time, legislative in relation reform is required (and is being sought by to conduct the Law Society). such as: gross

Standards committees vs Disciplinary Tribunal Standards committees can make findings of unsatisfactory conduct only; they do not have jurisdiction to make findings of misconduct. Following a finding of unsatisfactory conduct, a standards committee 24

overcharging; serial incompetence; and willful or reckless breach of a lawyer’s undertaking.

can impose a variety of orders against the lawyer, including: censure or reprimand; direction to apologise; direction to reduce legal fees; direction to pay compensation (up to $25,000) to the complainant or affected party; and to pay a fine (up to $15,000) and/or costs to the Law Society. The Disciplinary Tribunal can make findings of unsatisfactory conduct and misconduct. The Disciplinary Tribunal has jurisdiction to impose all orders which are available to standards committees. In addition, the Disciplinary Tribunal has the ability to remove a lawyer from practice (either temporarily, by way of suspension for up to three years; or permanently, by way of strike-off from the roll of barristers and solicitors). It can also order that a lawyer is not able to practise on their own account (ie, as a sole practitioner, partner or director of a law firm). Standards committee hearings are almost exclusively conducted “on the papers”, and are held in private. This is the default position established by s 153 of the LCA. By contrast, the default position is that Disciplinary Tribunal hearings are held in public, with the parties appearing in-person (or through counsel) before the Disciplinary Tribunal. This reflects the policy decision that standards committees deal with matters of unsatisfactory conduct only, whereas the Disciplinary Tribunal also deals with more serious matters (ie, misconduct) where evidence is examined and tested in a quasi-court setting and considerations of open justice prevail. This distinction also has implications in terms of publication of decisions. The statutory presumption is that standards committee decisions remain confidential to the parties, unless a standards committee directs publication as it considers necessary or desirable in the public interest (s 142(2) of the LCA). As the Court of Appeal noted in New Zealand Law Society v B [2013] NZCA 156 at [47] (footnotes omitted): “The different legislative approach on the issue of publication between the Disciplinary Tribunal and Standards Committees and the LCRO [Legal Complaints Review Officer] no doubt reflects the policy decision that it is the Disciplinary Committee [sic] that deals with the more serious matters, which in the public interest should be dealt with openly, whereas the lesser matters dealt with by Standards Committees and the LCRO may or may not justify publication after having been dealt with privately ...” By contrast Disciplinary Tribunal decisions are, in the absence of any order to the contrary, publicly available. This is indicative of the importance of more serious disciplinary matters being in the public domain, and is consistent with two of the purposes of the LCA – to maintain public confidence in the provision of legal services, and to protect the consumers of legal services (s 3(1) of the LCA). As noted above, standards committees can only make findings of unsatisfactory conduct; it is the Disciplinary Tribunal that has sole jurisdiction to make a misconduct finding against a lawyer (following referral and prosecution by a standards committee). There is no threshold for a standards committee to refer a matter to the Disciplinary Tribunal and the Disciplinary Tribunal can make findings against a lawyer of unsatisfactory conduct (as well as misconduct). The High Court has, however, observed (Hart v Auckland Standards Committee 1 of the New Zealand Law

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Society [2013] 3 NZLR 103 at 128): “In practice, Standards Committees will in most cases only refer a complaint to the Tribunal if the alleged conduct forming the basis of the complaint is sufficiently serious to warrant consideration of suspension or striking off …” While there is no threshold to refer a matter to the Disciplinary Tribunal, a degree of pragmatism is sometimes viewed as appropriate. A standards committee may decide to refrain from referring a matter to the Disciplinary Tribunal if (were the matter to be referred) the prosecuting standards committee would not be seeking a sanction of suspension from practice or strike-off from the roll of barristers and solicitors. That might be because of a variety of different factors, including mitigating and/or medical circumstances, and an assessment there is a low risk of the lawyer reoffending. As noted in Webb, Dalziel and Cook, Ethics, Professional Responsibility and the Lawyer (LexisNexis NZ Ltd, 3rd edition),at 4.3.7 (footnotes omitted): “A final matter to consider is the conundrum faced by a Standards Committee which reaches the view that the conduct complained of is properly considered to be misconduct but the matter (while not trivial) is not deserving of the onerous step of prosecution before the New Zealand Tribunal. There has always been a discretion as to whether or not to charge a practitioner with misconduct. “Under the 1982 Act, a charge would be laid only where it was considered that “the case is of sufficient gravity to warrant the making of a charge”. That provision did not find its way into the 2006 Act. However, ss 152 (in respect of Standards Committees) and 211 use discretionary language in stating that the Committee “may” make certain determinations, including a determination to lay charges. This is consistent with a long-standing convention of prosecutorial discretion. “It may be that in some cases it will be appropriate for a Standards Committee to decline to prosecute a matter as misconduct, preferring to make orders based on a “lesser” finding of unsatisfactory conduct.” Proceedings before the Disciplinary Tribunal can be costly and time-consuming, and may involve litigation risk given the more serious the allegation/disciplinary charge, the stronger the evidence has to be

N E W Z E A L A N D L AW S O C I E T Y

The public [...] are entitled to scrutinise the manner in which lawyers are disciplined, because it is the profession in which the public must have confidence before the Disciplinary Tribunal will find the charge established on the balance of probabilities (Z v Dental Council of New Zealand CIV-2010-485-2249 (2 December 2011) at [41]). Litigation risk can also arise due to operation of the law. As an example, in order for the Disciplinary Tribunal to make a finding of misconduct pursuant to s 7(1)(a) of the Act (for disgraceful or dishonourable conduct, or willful or reckless contravention of the Rules), the prosecuting standards committee first has to satisfy the Disciplinary Tribunal that the lawyer’s conduct occurred “at a time when” the lawyer was providing regulated services. This legislative qualifier can create difficulties for a standards committee, and the Disciplinary Tribunal, when assessing a lawyer’s conduct which arises outside of the course of the working day. Given the quasi-court procedures of the Disciplinary Tribunal (including cross-examination), proceedings can also be emotionally challenging for the person harmed by the lawyer’s conduct, as well as witnesses, and sometimes such persons are (understandably) not inclined or not willing to give evidence before the Disciplinary Tribunal. The availability or otherwise of the person harmed by the lawyer’s conduct, as well as witnesses, to give evidence is another factor a standards committee may take into account when deciding whether or not to refer and prosecute a matter before the Disciplinary Tribunal. After taking all such factors into account a standards committee may consider it appropriate to make a finding of ‘high-end’ unsatisfactory conduct rather than laying a charge in the Disciplinary Tribunal for misconduct. A contrary view of course might be that all instances of prima facie misconduct ought to be referred to, and prosecuted by a standards committee before, the Disciplinary Tribunal (with all mitigating circumstances and the like to be assessed by the Disciplinary Tribunal rather than the standards committee). Any such pragmatism by a standards committee does need to be tempered in light of the following observations of the

Court of Appeal (Orlov v New Zealand Law Society [2013] 3 NZLR 562 (CA) at 576): “Having regard to the legislative purposes of consumer protection and the maintenance of public confidence in the provision of legal services, it is in our view important that the Tribunal be able to determine some complaints even though the likely sanction will not involve striking off or suspension. The complaints may for example involve complex issues of law or fact or be likely to result in a significant precedent …”

Penalties – rationale, and name publication Rationale In contrast to criminal proceedings (which reflect adversely upon the individual offender), breaches of professional standards may reflect upon the whole profession. The public (as well as members of the legal profession) are entitled to scrutinise the manner in which lawyers are disciplined, because it is the profession in which the public must have confidence if lawyers are to properly provide the necessary legal services to the public (Daniels v Complaints Committee 2 of the Wellington District Law Society CIV-2011-485-000227 (High Court Wellington, 8 August 2011) at [34]). As established by case law (Daniels at [22] and Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354 at [44] to [51]), the main purposes of the penalty function of both standards committees and the Disciplinary Tribunal are to: protect the public (including ordering penalties that will deter the respondent lawyer, and other lawyers, from offending in a similar way); set and maintain professional standards; impose sanctions on a lawyer for breach of his/her duties; and to provide scope for rehabilitation in appropriate cases. When setting a penalty, the starting point is fixed according to the gravity of the unsatisfactory conduct or misconduct, as well as the culpability of the lawyer for the particular breach of professional standards. Thereafter, a balancing exercise is required to factor in mitigating circumstances and other considerations (Daniels at [28]). As the High Court said in Daniels at [28] and [29]: “... Obviously, matters of good character, reputation and absence of prior transgressions count in favour of the practitioner. So, too would acknowledgement of error, wrongdoing 25

N E W Z E A L A N D L AW S O C I E T Y

and expressions of remorse and contrition. For example, immediate acknowledgement of wrongdoing, apology to a complainant, genuine remorse, contrition, and acceptance of responsibility as a proper response to the Law Society inquiry, can be seen to be substantial mitigating matters and justify lenient penalties . . . “On the other side of the coin, absence of remorse, failure to accept responsibility, showing no insight into misbehaviour, are matters which, whilst not aggravating, nevertheless may touch upon issues such as a person’s fitness to practise and good character or otherwise.” Punishment is not the primary purpose, although penalty orders inevitably will have some such effect (Daniels at [22]). A penalty ought to be fair, reasonable and proportionate in the circumstances. The High Court has also said a penalty ought to be the least restrictive that can reasonably be imposed in the circumstances (which is akin to the ‘least restrictive outcome’ principle applicable in criminal sentencing – Roberts at [50]). Whilst made in the context of disciplinary proceedings against a health professional, the following observations of the High Court (in relation to rehabilitation) may also be applicable to legal professionals (Roberts at [47]): “A reason why rehabilitation may be an important consideration is that health professionals and society as a whole make considerable investments in the training and development of health practitioners. Where appropriate, the Tribunal should endeavour to ensure these investments are not permanently lost, provided of course the practitioner is truly capable of being rehabilitated and reintegrated into the profession.”

Name publication For a lawyer, name publication will generally be the most significant element of a penalty imposed by a standards committee or the Disciplinary Tribunal. Short of being struck-off the roll, a lawyer’s reputation is everything and, once lost, is difficult to regain. When considering whether to publish the identity of a lawyer who has been the subject of a censure order (a censure order being a prerequisite to name publication by a standards committee), the standards committee (and the Board of the Law 26

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Society) is required by regulation to take into account the public interest and the impact of publication on the interests and privacy of: the complainant; clients of the censured lawyer; relatives of the censured lawyer; partners, employers, and associates of the censured lawyer; as well as the censured lawyer him/herself. The position is different for the Disciplinary Tribunal. Given the public nature of (the generally more serious) proceedings before the Disciplinary Tribunal, the starting position is publication of the whole of the Disciplinary Tribunal’s decision, including the name of the lawyer charged before the Disciplinary Tribunal. So, in the absence of orders to the contrary, the name of the lawyer will be able to be published in the media. The public interest may be protected by means other than name publication. This may arise, for example, where the lawyer is no longer practising. Such a circumstance might be a factor weighing against a decision to publish the lawyer’s name. Embarrassment, distress and emotional harm are generally not sufficient to justify name suppression (Complaints Assessment Committee 403 v Licensee B [2017] NZREADT 21 at [48]). Non-publication of a lawyer’s name (whether by a standards committee or the Disciplinary Tribunal) may be appropriate in circumstances where the lawyer will be able to continue in practice. As the High Court has said (B v B High Court, Auckland, HC 4/92, 6 April 1993 at page 99): “In normal course where a professional person appears before a disciplinary tribunal and is found guilty of an offence, that person should expect that an order preventing publication of his or her name will not be made. That will especially be so where the offence found to be proved, or admitted, is sufficiently serious to justify striking off or suspension from practice. But where the orders made by a disciplinary tribunal in relation to future practice of the defendant are directed towards that person’s rehabilitation and there is no striking off or suspension but rather, as here, a decision that practice may continue, there is much to be said for the view that publication of the defendant’s name is contrary to the spirit of the decision and counter-productive. It may simply cause damage which makes rehabilitation impossible or very much harder to achieve.”

Reporting unacceptable conduct Lawyers are required to submit a confidential report to the Law Society if they have reasonable grounds to suspect another lawyer has been guilty of misconduct. Lawyers can also provide a report if they have reasonable grounds to suspect another lawyer has been guilty of unsatisfactory conduct. These obligations flow from Rules 2.8 and 2.9. The reporting lawyer does not have a responsibility to make a definitive decision on whether the conduct in question amounts to unsatisfactory conduct or misconduct; those are matters for a standards committee and Disciplinary Tribunal to determine. Guidance on reporting unacceptable conduct can be found on the Law Society’s webpages.

Looking ahead 2019 is going to be a year of regulatory change for the legal profession. As readers will know, in December last year the Board of the Law Society accepted the recommendations made in a report on the regulatory processes for lawyers where unacceptable workplace behaviour occurs (Report of the New Zealand Law Society Working Group, December 2018, available on the Law Society’s webpages). The report identifies a range of problems with the current reporting regime and concludes that the regulatory mechanisms and processes are not designed effectively for dealing with complaints about sexual violence, harassment, discrimination and bullying. This article has been written based on current legislative provisions, regulations, and case law authority. Amongst other things there may well be changes to: a the complaints and discipline regime under the LCA and its current particular emphasis on capturing conduct that occurs “at a time when” the lawyer is providing regulated services/carrying out legal work; b the procedures of giving evidence before the Disciplinary Tribunal (to protect witnesses); and c changes to the law governing name publication or suppression in the context of established instances of sexual violence, harassment, discrimination and bullying within the legal profession. Watch this space. ▪

Matt Fogarty is Senior Solicitor – Regulatory with the New Zealand Law Society.

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SNAPSHOT OF THE PROFESSION

Snapshot of the Profession 2019 COMPILED BY GEOFF ADLAM DESIGNED BY SOPHIE MELLIGAN AND ANDREW JACOMBS

Over 14,000 lawyers now hold practising certificates issued by the New Zealand Law Society. They range in age from 22 to over 90. While there is obviously a lot more than the numbers, the information which the Law Society collects in its regulatory role can provide some useful details on the makeup of the legal profession. Care has been taken not to disclose information which could identify individuals or firms and organisations providing legal services. Lawyer numbers continue to grow. Since our first Snapshot in 2011, there has been an increase of 24% in all practising certificate holders, and 20% in New Zealandbased lawyers. At the same time the population of New Zealand has increased by around 12%. At the moment there is one lawyer

in New Zealand for every 365 citizens. Back in 1999 it was one lawyer for every 470 citizens. Another marked trend which has been covered in some detail because it is probably the biggest change occurring in the legal profession, is the continued change in the gender composition of lawyers. At 1 February 2018 the number of New Zealand-based women lawyers was one ahead of the number of men practising. A year later, there were 393 more women. However, women made up just 30.9% of partners and directors in multi-lawyer firms in 2018. This had risen to 32.7% in 2019, but was still far from equal. Perhaps encouragingly, the 6% rise in total women lawyers over the year lagged behind the 16% rise in women partners and directors.

Another year, another 500 more lawyers… The number of lawyers practising in New Zealand continues to rise. At 1 February 2019 there were 13,530 based in New Zealand – up 3.4% from 13,087 at 1 February 2018. Another 803 lawyers held New Zealand practising certificates but were based overseas (up from 756 a year earlier). The Jurist tells us that in 1876 there were 225 lawyers in New Zealand. Since the 1960s the number of practising lawyers has increased out of proportion to the total population increase. 15000

13,530

Lawyers

12500

10,552

10000

8,151

7500

5,704 3,871

5000 2500

225

1,070

2,671

1,779

1,754

1,784

2,113

1929

1939

1949

1959

1969

1,039

1,096

1,038

0 1876

1919

1979

1989

1999

2009

2019

470

408

365

2000 1500 1000 500 0

1,782

People per lawyer (Population of NZ)

1,102 825

923

818

536

SNAPSHOT OF THE PROFESSION

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New Zealand practising certificate holders Law firm

In-house

Barrister

Sole Practice

Unknown

Total

Female

Male

3,443

1,249

827

316

5,889

2,921

2,968

Wellington

958

1,226

208

2,488

1,351

1,137

Christchurch

867

202

140

1,278

692

586

Hamilton

330

531

299

232

Tauranga

216

323

162

161

Dunedin

185

299

152

147

Lower Hutt

114

217

110

107

Nelson

128

173

Whangarei

143

Rotorua

138

New Plymouth

127

100

122

Palmerston North

122

Napier

118

Queenstown

Hastings

Gisborne

Blenheim

Timaru

Whanganui

Porirua

Taupo

Whakatane

Ashburton

Rangiora

Masterton

Paraparaumu

Other Centres

555

833

404

429

7,875

3,182

1,565

783

125

13,530

6,939

6,591

511

241

803

413

390

8,386

3,423

1,586

813

125

14,333

7,352

6,981

centre Auckland

Invercargill

New Zealand-based Overseas Total

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Whangarei 143 9th F 54.5% M 45.5%

Auckland 5,889

SNAPSHOT OF THE PROFESSION

Tauranga 323 5th F 50.2%

M 49.8%

Rotorua 138

1st F 49.6% M 50.4%

10th F 51.4% M 48.6%

Hamilton 531

23rd F 62.8% M 37.2%

Whakatane 43 4th F 56.3% M 43.7%

Taupo 48 22nd F 47.9% M 52.1%

New Plymouth 127 11th F 55.9% M 44.1%

Whanganui 61 20th F 44.3% M 55.7%

Palmerston North 122 13th F 41.0% M 59.0%

Masterton 37 26th F 54.1% M 45.9%

Paraparaumu 37 27th F 54.1% M 45.9%

Porirua 53 21st F 56.6% M 43.4%

Lower Hutt 217 7th F 50.7% M 49.2%

Wellington 2,488 2nd F 54.3% M 45.7%

Gisborne 62 17th F 48.4% M 51.6%

Napier 118 14th F 39.0% M 61.0%

Hastings 92 16th F 57.6% M 42.4%

Blenheim 61 18th F 50.8% M 49.2%

Nelson 173 8th F 50.3% M 49.7%

Rangiora 39 25th F 48.7% M 51.3%

Christchurch 1,278 3rd F 54.1% M 45.9%

Ashburton 41 24th F 58.5% M 49.2%

Timaru 61 19th F 50.8% M 49.2%

Queenstown 94 15th F 58.5% M 41.5%

Dunedin 299 6th F 50.8%

M 49.2%

Invercargill 122 12th F 45.1% M 54.9%

SNAPSHOT OF THE PROFESSION

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Joining the legal profession To become a lawyer you need a law degree. The latest available statistics from the Ministry of Education show 9,260 domestic students enrolled for law bachelor degrees in 2017, along with another 655 international students. Another 710 domestic and 60 international students were studying for “honours and postgraduate certificates” in law – presumbly mainly for LLB(Hons). Of the domestic LLB students, 5,780 (62.4%) were women and 5,320 (57.5%) were aged 20 to 24 years. There were 1,250 students aged 25 to 39 (13.5%) and 460 (5.0%) aged 40 and over. The rest were aged under 20. The 9,260 domestic students enrolled for LLB in 2017 made up 7.3% of the 126,095 students who were enrolled for bachelors degrees in any subject.

D O M E S T I C S T U D E N T S S T U DY I N G F O R A N L L B I N 2017 Other 4.8% Pacific Peoples 9.2%

855

440

Māori 12%

1130 Total

9,260 Asian 21%

European 68%

1,945

6,310

Law Schools The University of New Zealand established an LLB degree in 1877 and by the end of the 19th century, all four of its then constituent colleges taught law. New Zealand now has six law schools and all appeared in the 2018 QS World University Rankings. These have been published annually since 2004 and use a three-component system to rank performance in specific academic disciplines, including law. Individual rankings are given for the top 50 with the rest ranked in bands. The 2018 rankings published in June 2018 were as follows:

University of Auckland FOUNDED 1883

2018

FOUNDED 1873

2018

2017

29 ▲ 7 36

101–150 ■ NC 101–150

Victoria University of Wellington

University of Waikato

FOUNDED 1899

2018

2017

FOUNDED 1991

2018

38 ▲ 6 46

2017

201–250 ■ NC 201–250

University of Otago

AUT University

2018

FOUNDED 1873

2017

51–100 ■ NC 51–100

University of Canterbury

FOUNDED 2009

2017

251–300 ■ NC 251–300

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SNAPSHOT OF THE PROFESSION

Completion of Professional Legal Studies

Completion of law degrees During 2017, 1520 students completed an LLB. Of these, 1390 were domestic and 130 were international. These students made up 5.5% of the 27,775 students who completed any bachelors degree in 2017. Most of the domestic students who completed an LLB were aged 20 to 24 (75.5% of completions in 2017) and 58.6% were women. Of domestic students who completed any bachelors degree during 2017, 63.3% were women – indicating a higher proportion of women than men graduated in other subjects than law. A further 260 domestic students (55.7% of whom were women) completed honours degrees and postgraduate certificates in law. Most of these will have completed an LLB(Hons) degree – meaning around 1,650 domestic students emerged from 2017 having completed the first big step to becoming a lawyer. A lower proportion of students of Māori and Pacific ethnicity completed LLBs than bachelors degrees in other disciplines (although a high proportion of students complete more than one degree overall).

After a law degree is secured, completion of the professional legal studies (“profs”) course is required for admission as a barrister and solicitor of the High Court. Legal education is overseen by the New Zealand Council of Legal Education which runs one of the two accepted profs course through its Institute of Professional Legal Studies (IPLS). The other course is provided by The College of Law which is owned by the Australian-based The College of Law Ltd. It is a competitive market and with one of the two players owned by the Council, information on student numbers does not appear to be available. The latest report of the Council (for the 2017 calendar year) shows that in 2017, 63% of IPLS trainees who completed a course were female and 85% of those completing a course were aged in their 20s, with 9% in their 30s. The majority of trainees (72%) identified themselves as NZ European/European/Pākehā, with 12% identifying as Asian, 9% identifying as Māori, 4% as Pacific Peoples and 3% as Other ethnicities. The Council does not provide numbers of those completing the IPLS course, but said the number of course completions in 2017 “mirrored the number of course completions in 2016”. The Council is also responsible for assessing overseas law qualifications and deciding applications by foreign graduates and practitioners to practise here. During 2017 there were 149 such applications, up from 126 in 2016 and the highest annual number since at least 1998.

E T H N I C I T Y O F D O M E S T I C S T U D E N T S C O M P L E T I N G D E G R E E S I N 20 17 ALL BACHELORS DEGREES

LLB DEGREES

L AW H O N S A N D P O S T- G R A D C E RT I F I C AT E S

Other

5.4% LLB

4.3%

1.9%

Pacific Peoples

4.9% LLB

6.5%

1.9%

Māori

4.4% LLB

10%

5.8%

Asian

22%

17%

1,105

1,850 3,190 Asian

140

4,405

305

European

6% LLB

71%

83%

6.9% LLB

16,520

985

215 31

SNAPSHOT OF THE PROFESSION

M arch 2 0 1 9 · L AW TA L K 9 2 6

Admission as barristers and solicitors

number of men in January 2018, meaning it took around 25 years for the catch-up. In 1993, women comprised 24% of the legal profession. The proportion of lawyers admitted each year who are women has “stabilised” at around 61% since the beginning of the 21st century. The number of new lawyers admitted to the profession each year now hovers just under the thousand mark with evidence of a slight downward trend. The first information available on admissions

Admission of those who qualify to become barristers and solicitors occurs throughout the year. The ratio of admissions to the number of lawyers in practice has grown steadily from around 5% in the 1950s to 7% now. Since 1993 more women have been admitted than men. The number of women practising law passed the

by gender was in 1980. At that time the 279 women practising comprised 6.9% of lawyers. The 102 women admitted that year equalled one-third of women practitioners, whereas the 286 men admitted equalled just 8% of men in practice (3,737). As around 1,650 domestic students completed an LLB or LLB(Hons) degree in 2017, it appears that about 57% of New Zealand law graduates are admitted as barristers and solicitors.

A D M I S S I O N S A S B A R R I S T E R S A N D S O L I C I TO R S 198 0 TO 20 18

Female Male

710

F 361 M 349

491 388

404

F 225 M 266

1985

1990

F 170 M 234

F 102 M 286

1980

1995

Retention The available data means only indicative information on retention of lawyers in the profession can be calculated. Details for lawyers who were admitted more than 40 years ago are not available. Taking

845

F 485 M 360

2000

883

905

2005

2010

F 576 M 343

F 583 M 338

the total number of lawyers who were admitted over a particular period and matching it against the number of lawyers admitted in that period who were practising at 1 February 2019 appears to show two rather high level observations: (1) about 40% of lawyers who are

987

985

940

2015

2017

2018

F 610 M 377

F 615 M 370

F 586 M 354

admitted don’t enter practice (at least promptly); and (2) male lawyers tend to stay in practice for a long time and the proportion of women in practice from those admitted declines more rapidly than for men after 20 years.

L AW Y E R S I N P R A C T I C E AT 1 F E B RUA RY 20 19 C O M PA R E D TO TOTA L A D M I S S I O N S

58% 60%

F 59% M 58%

Female Male

47%

F 46% M 48%

50%

47%

F 47% M 47%

41%

11–20 years

21–30 years

F 39% M 43%

38%

F 25% M 50%

40% 30% 20%

0–5 years

6–10 years

31–40 years

L AW TA L K 9 2 6 · M arch 2 0 1 9

SNAPSHOT OF THE PROFESSION

Time in practice from admission The four-year law degree and admission requirements mean that most lawyers start work aged 23 at the earliest. At 1 February 2019, there appeared to be just two 22-year-old lawyers practising.

A reasonably rapid drop-off in lawyer numbers after the age of 68 seems to indicate that this is the age when many decide to leave active practice – pointing to 40 to 45 years in practice being what can be expected from most New Zealand lawyers. At 1 February 2019 the

median time in practice since admission was 15 years and 4 months. There were noticeable variations based on gender and location. The data also does not take account of time when a lawyer was not practising (for example, away on parental leave, overseas or other reasons).

M E D I A N Y E A R S I N P R A C T I C E , N E W Z E A L A N D B A S E D L AW Y E R S 0 years

10 years

20 years

30 years

40 years

50 years

60 years

70 years

Women 12y 3m

All lawyers Total 15y 4m Men 20y 1m

Law ﬁrm employees

Women 5y 8m

Total 6y 3m Men 6y 7m Women 20y 8m

Law ﬁrm partners Total 25y 4m Men 28y 4m Women 16y 7m

Law ﬁrm directors Total 20y 1m Men 23y 4m Women 24y 3m

Sole practitioners Total 32y 0m Men 36y 2m Women 21y 2m

Barristers sole Total 25y 3m Men 29y 5m Women 4y 4m

Employed barristers Total 3y 10m Men 3y 3m Women 13y 8m

In-house lawyers Total 14y 1m Men 15y 0m

SNAPSHOT OF THE PROFESSION

M arch 2 0 1 9 · L AW TA L K 9 2 6

Gender The number of women practising law is now well ahead of the number of men, and the proportion of women in the profession is increasing by over one percent each year. Given that over 60% of new lawyers admitted each year are women, it is likely that if all the current factors continue, women will make up

around 60% of the profession by 2030. The Law Society recorded the gender of practitioners for the first time in 1977, when the 168 practising women lawyers made up 4.6% of the profession. This had increased to 6.9% by 1980, when the first information is available on admissions by gender.

51.3% 2019

2015 46.9%

2010 43.9%

2005 39.0%

2000 34.0%

1995 27.0%

1990

12.3%

20.8%

1985

1980 6.9%

4.6%

1977

P R O P O RT I O N O F W O M E N P R A C T I S I N G I N N E W Z E A L A N D

 2019 62.3%*

2015 61.0%

2010 62.7%

2005 61.2%

2000 57.4%

1995 50.8%

42.1%

45.8%

1990

1985

1980

H I G H E S T P R O P O RT I O N Centres with highest proportion of women lawyers (more than 10 lawyers) Te Awamutu

65.5%

Wanaka

65.4%

Whakatane

62.8%

Thames

62.5%

Ashburton

58.5%

L OW E S T P R O P O RT I O N

P R O P O RT I O N O F W O M E N A D M I S S I O N S I N N E W Z E A L A N D

26.3%

At 1 February 2019, 51.3% of New Zealand-based lawyers were women. There was a reasonably wide variation in the gender balance across the country – of the centres with 10 or more lawyers, there was a majority of women in 26, there were equal numbers in 4, and there was a majority of men in 21.



Centres with lowest proportion of women lawyers Greymouth

30.8%

Matamata

31.6%

Havelock North

36.4%

Whangaparaoa

36.8%

Warkworth

37.5%

*Admissions for 2018 calendar year

Ethnicity New Zealand European

10242 78.2%

823

Māori

6.3%

Other European Chinese

765 5.8%

431

3.3%

Indian

294

Other Asian

230

2.2% 1.8%

Samoan

183

South-east Asian

126

1.4% 1.0%

All lawyers now provide information on their ethnicity (with the option of refusing to state this). Over 96% of lawyers have given details of their ethnicity, using the 17 options offered along with “Other” (9 lawyers). The number and proportion of New Zealand-based lawyers who identify with an ethnicity is shown for the most-selected options. Lawyers may identify with more than one ethnicity, so the proportion is for the number of lawyers as a ratio of all who provided ethnicity information.

L AW TA L K 9 2 6 · M arch 2 0 1 9

SNAPSHOT OF THE PROFESSION

Generational Groupings All lawyers

Female There were some grumblings about including this in the 2018 Snapshot, but these generalised labels are still often used to categorise people in employment and other contexts. Our analysis uses the rough boundaries of pre-1946 birth for the Silent Generation (aka Traditionalists), birth between 1946 and 1964 for Baby Boomers, 1965 to 1980 for Generation X, and 1981 to 1995 for Millennials. The new Gen Z (or iGen or Centennials) people were born from 1996 onwards and are just showing up in the legal profession. They comprise just 0.1% of lawyers so far so they have been omitted. They’re coming though, whoever they are. Millennials now dominate the legal profession, making up nearly half of all lawyers.

51%

Millennial

Male

44%

Millennial

35%

Millennial

35%

Generation X

36% 36%

Generation X

27%

Baby Boomer

13%

Baby Boomer

0.1%

Silent Generation

19%

Baby Boomer

Silent Generation

Language

Age

Lawyers are invited to state which languages they speak. This is self-selected, so there is no criteria for fluency – some of the French speakers may not be able to give good directions on the Avenue des Champs-Élysées. Apart from English (in which just 4,251 lawyers claim proficiency) the most-selected languages are:

Lawyers have the option of providing the Law Society with their age. The older the lawyer, the less inclined they appear to be to do this, so the following information may be a little more youthful than reality. Of the 82% of lawyers who have provided their birth date:

208 172 126

Korean

Māori

Hindi

French

Mandarin

Spanish

140

Average age of all lawyers:

42 years 4 months

Average age of female lawyers:

39 years 4 months

Average age of male lawyers:

46 years 0 months

Average age of barristers sole:

53 years 3 months

Average age of employed barristers:

35 years 5 months

Average age of partners:

50 years 1 months

Average age of directors:

49 years 6 months

Average age of sole practitioners:

57 years 11 months

Average age of Māori lawyers:

39 years 7 months

Average age of Chinese lawyers:

39 years 5 months

Average age of Indian lawyers:

41 years 1 months

Average age of Samoan lawyers:

41 years 8 months

Average age of NZ European lawyers:

43 years 2 months

Average age of North Island lawyers:

42 years 9 months

Average age of South Island lawyers:

40 years 0 months

Average age of lawyers based overseas:

35 years 8 months 35

SNAPSHOT OF THE PROFESSION

M arch 2 0 1 9 · L AW TA L K 9 2 6

Types of Practice New Zealand’s lawyers practise in three different ways: as barristers and solicitors, as barristers, and as in-house lawyers. Around 64% of New Zealand-based lawyers practise as barristers and solicitors in law firms ranging in size from a single lawyer to over 200. Our analysis divides barristers and solicitors in private practice into two groups: those who are the only lawyer practising in a firm (sole practitioners) and those who practise in a law firm with two or more other lawyers (multi-lawyer firms). The information excludes lawyers who are not practising in New Zealand.

Lawyers in multi-lawyer firms

directors (and also lawyers who are sole practitioners) must be qualfied to practise on their own account. Employees comprise 60.3% of lawyers working in multi-lawyer firms. They have been in practice for an average of 9 years and 11 months, compared with an average of 26 years 5 months for partners and

Law firms with more than one lawyer are the workplaces for 58% of New Zealandbased lawyers. Lawyers working in a multi-lawyer firm are broadly defined as either “employed” or as partners or directors. Partners and

22 years 9 months for directors. The number of women working in multi-lawyer firms (3,970) was just ahead of the number of men (3,905). However, when role is considered, this equality of numbers disappears. Women made up 62.1% of employed lawyers, but just 32.7% of partners and directors.

W O M E N A S PA RT N E R S A N D D I R E C TO R S BY L AW F I R M S I Z E ( BY N U M B E R O F PA RT N E R S A N D D I R E C TO R S I N F I R M )

64.4%

54.5%

1 to 3

62.1%

61.2%

51.7%

Total

35.8%

Most of New Zealand’s multi-lawyer firms are small enterprises, with an average of 6.4 lawyers per firm. Firm sizes vary dramatically, with 15 firms employing one quarter of all lawyers who work in firms. There were 1,236 multi-lawyer firms in New Zealand at 1 February 2019. Information on law firm size in past Snapshots has over-stated the number of sole practices, with the data used defining firms with just one lawyer qualified to practise on own account as a sole practice (even if other lawyers worked at the firm). The revised data gives the following picture: 36

32.7%

Total Women

Employees

Partners/ Directors

Total Women

Employees

Partners/ Directors

Total Women

29.6%

Employees

Total Women

Employees

Partners/ Directors

30.5%

29.3%

50.4%

49.2%

48.1%

Total Women

63.4%

4 to 9

Employees

10 to 19

Partners/ Directors

20-plus

N E W Z E A L A N D L AW F I R M S AT 1 F E B RUA RY 2019

Employees

Total Practising Lawyers

% Lawyers in firms

515

1460

1975

25.1%

226

379

605

7.7%

4 to 9

162

850

1193

2043

25.9%

1 to 3

1041

1534

1718

3252

40.5%

Total

1236

3125

4750

7875

Partners/ Directors

Firms

Partners & Directors

20-plus

10 to 19

L AW TA L K 9 2 6 · M arch 2 0 1 9

SNAPSHOT OF THE PROFESSION

Structure of law firms

Barristers

Lawyers have been able to incorporate their firms since the Lawyers and Conveyancers Act 2006 came into force 10 years ago. The steady rise in the proportion of incorporated firms continues, although this still happens among smaller rather than larger firms. The four largest incorporated firms each have 8 directors. Just under 32% of New Zealand’s law firms are now incorporated (including sole practices. This is up from 23% at 1 February 2016.

New Zealand’s 1,586 barristers make up 11.6% of New Zealand-based lawyers. Barristers are concentrated in a few centres, with just under three-quarters in Auckland, Christchurch and Wellington. As well as 1,417 barristers sole (who are able to practise on their own account as barristers), New Zealand has 148 employed barristers who work for barristers sole. Just over 68% of them are based in Auckland.

Incorporated

20-plus

10 to 19

L O C AT I O N O F B A R R I S T E R S

Partnerships

100%

128

4 to 9

79.0%

21.0%

403

1 to 3

38.7%

203

Sole practice

25.9%

640

Total

31.7%

638

61.3%

580

74.1%

1379 68.3%

AKL 51.2%

AKL 68.2%

AKL 52.1%

WGTN 14.1%

WGTN 5.4%

WGTN 13.1%

chch 8.8%

chch 10.1%

chch 8.8%

hAM 4.4%

hAM 5.4%

hAM 4.4%

DUN 3.1%

DUN 1.4%

DUN 2.9%

Other 18.4%

Other 9.5%

Other 18.7%

Barristers sole

Employed barristers

All barristers

Sole Practice Following the adjustments to our data, 39% of New Zealand’s law firms have just one practising lawyer. Of the 783 sole practitioners, 505 are male (64.5%). Sole practioners have spent an average of 30 years and 11 months in practice. The most-practised areas of law for sole practitioners are: Over 50% of time

Practise some

Property 18.9%

61.0%

Company/Commercial 13.0%

59.8%

Trusts and estates 3.1%

Barristers sole have spent an average of 26 years and 7 months in practice, while employed barristers average 6 years and 8 months in practice. A high 60.2% of barristers sole are men. They have spent an average of 29 years and 9 months in practice, compared to 22 years 1 month for women barristers sole. However, just 42.6% of employed barristers are men, indicating that the flow of women into legal practice is across all types of practice. Barristers sole who provide information on the areas in which they practise are most likely to specialise in criminal law and civil litigation. Compared with other types of practice, a relatively high proportion of barristers carry out some mediation.

54.9% Over 50% of time

Family 13.9%

50.7%

Civil litigation 5.2%

39.5%

A slightly higher proportion (18.3%) of sole practitioners are based in the South Island than for all lawyers (17.2%), while 39% of sole practitioners practise in Auckland (43.5% of all New Zealand-based lawyers). Thames (25%), Greymouth (23%), Levin (22%), Taupo (21%) and Te Puke (18%) are centres where the proportion of sole practitioners are well above their national 6% share.

Practise some

Civil litigation 22.1%

57.0%

Criminal 29.0%

49.6%

Family 17.1%

36.7%

Administrative/Public 3.2%

25.4%

Mediation 3.6%

25.1%

SNAPSHOT OF THE PROFESSION

M arch 2 0 1 9 · L AW TA L K 9 2 6

In-house lawyers The number of lawyers involved in in-house practice continues to increase. In the five years since 2014, there has been a 30% increase in New Zealandbased in-house lawyers, compared with an increase of 15% in all New

Zealand-based lawyers. In-house lawyers now make up 23.5% of the New Zealand legal profession. They have been in practice for an average of 16 years, with female in-house lawyers averaging 14 years 5 months and male 16 years 1 month. A high 62% of in-house lawyers are women.

Wellington is the in-house Mecca of New Zealand as 49.3% of all lawyers practising there are in-house (compared with 23.5% for the whole country). Auckland is the other major centre and for the first time in 2019 has more in-house lawyers than Wellington.

I N - H O U S E L AW Y E R S BY L O C AT I O N , 1 F E B RUA RY 20 19 % Local lawyers working in-house Auckland

21.5%

Other

Wellington

1.4%

17.7%

Lower Hutt

36.9%

Tauranga

39.5%

Tauranga

16.0%

Hamilton

Auckland

15.0%

49.3%

Christchurch

Other

% NZ In-house lawyers

2.5%

13.6%

Hamilton

3.0%

6.6%

Wellington

Christchurch

6.4%

38.6%

The employers of in-house lawyers can be categorised in several differing functions. Central government employs just over half (with district health boards included in this), followed by the corporate sector. Since February 2018, the proportion of lawyers working in the corporate and local government sectors has increased, with a slight fall in the government sector.

There are a few exceptions, but generally New Zealand’s in-house lawyers work in small teams. At 1 February 2019, in-house lawyers could be found in 961 separate locations around the country, giving an average of 3.3 in-house lawyers per location. Those locations belonged to 695 separate employing entities, and of these, 51% employ just one in-house lawyer.

B U S I N E S S O F E M P L OY E R S O F I N - H O U S E L AW Y E R S , 1 F E B RUA RY 2 0 19

I N - H O U S E L AW Y E R E M P L OY E R S BY N U M B E R O F L AW Y E R S , 1 F E B RUA RY 2019

Academic 1.6%

Community Law 3.3%

Commercial enterprise 37.4%

Government 50.3%

Local Government 4.9%

Other 2.5%

Sector

2–5

Academic

Community Law

Commercial

316

Government Local Government Other Total

6–10 11–20

21-99

100+

145

357

235

3.1%

Banking/Finance

Intellectual Property

3.3%

9.7%

5.2%

Administrative/Public

MĀORI ETHNICITY SAMOAN ETHNICITY

Criminal

MALE SAMOAN ETHNICITY

9.5%

10.8%

5.0%

14.2%

14.4%

16.7%

22.4%

31.8%

30.2% 31.9%

27.1%

30.9% 33.0%

29.5%

26.8%

40.8%

41.1% 38.9%

35.5%

31.9% 35.5%

29.2%

41.5%

47.7%

47.1%

50.0%

46.0%

41.4%

48.9%

47.9%

48.3%

41.5% 44.7% 39.8%

35.6%

32.2% 35.6%

28.9%

24.6%

23.9%

35.5%

34.2%

36.5%

38.2%

56.0%

57.3% 61.7%

years. The information in this section is expressed as a percentage of the lawyers who have indicated the areas in which they practise. The most-practised areas are company and commercial law, property law and

Employment

FEMALE CHINESE ETHNICITY INDIAN ETHNICITY NZ EUROPEAN ETHNICITY SAMOAN ETHNICITY

Family

FEMALE MALE INDIAN ETHNICITY MĀORI ETHNICITY NZ EUROPEAN ETHNICITY

Civil Litigation

14.6%

14.9%

Information is collected from lawyers on the areas in which they practise. Input is voluntary and around 74% provide details. A very high proportion of the lawyers who do not give information have been in practice for less than 10

FEMALE MALE CHINESE ETHNICITY INDIAN ETHNICITY MĀORI ETHNICITY NZ EUROPEAN ETHNICITY SAMOAN ETHNICITY

Trusts/Estates

FEMALE MALE CHINESE ETHNICITY INDIAN ETHNICITY MĀORI ETHNICITY NZ EUROPEAN ETHNICITY SAMOAN ETHNICITY

Property

FEMALE MALE CHINESE ETHNICITY INDIAN ETHNICITY MĀORI ETHNICITY NZ EUROPEAN ETHNICITY

Company/Commercial

L AW TA L K 9 2 6 · M arch 2 0 1 9 SNAPSHOT OF THE PROFESSION

Areas of Practice civil litigation. There are some noticeable differences by gender (a very high proportion of lawyers specialising in family law are women) ethnicity, type of practice and also location.

Practise some of the time

Practise over half the time

SNAPSHOT OF THE PROFESSION

M arch 2 0 1 9 · L AW TA L K 9 2 6

Locations

Lawyers per head of population

You can find a lawyer in over 150 centres around New Zealand. However the number of people per lawyer varies dramatically. Wellington’s large in-house lawyer contingent means it has the most lawyers per head of population, with one lawyer for every 84 inhabitants (nationally it is one for every 365 people). As could be expected, Auckland is the lawyer powerbase. The number of New Zealand-based lawyers has grown by 2,286 lawyers since 1 February 2011, with Aucklandbased lawyers growing by over half that – 1,337. Over the last year a number of centres which had seen a decline in lawyer numbers in the past five years showed an increase in numbers. Alexandra, Orewa, Feilding and Cambridge were among those showing the biggest decrease in numbers between 2011 and 2018 in our last Snapshot. They’re now on the Top Ten table for the biggest annual percentage increase in lawyer numbers. Auckland, of course had the biggest numerical increase, up by 101 (1.8%). Nationally lawyer numbers increased by 3.4% from 2018 to 2019

BIGGEST INCREASE Biggest increases in lawyer numbers, 2018 to 2019 (10 lawyer minimum)

centre

2018

2019

change

Alexandra

+ 23.1%

Hastings

+ 21.1%

Orewa

+ 20.0%

Feilding

+ 18.2%

Waikanae

+ 17.6%

Kaitaia

+ 16.7%

Cambridge

+ 13.6%

Kerikeri

+ 12.0%

Whakatane

+ 10.3%

Gore

+ 9.1%

SMALLEST INCREASE Smallest increases in lawyer numbers, 2018 to 2019 (10 lawyer minimum)

centre

2018

2019

change

Levin

- 10.0%

Havelock North

- 8.3%

Greymouth

- 7.1%

Te Awamutu

- 6.5%

Napier

125

118

- 5.6%

Invercargill

128

122

- 4.7%

Upper Hutt

- 4.2%

Taupo

- 4.0%

Whanganui

- 3.2%

138

—

Rotorua 40

The population is calculated on that of the urban area. It’s worth noting that the legal needs of some centres may be adequately serviced from other centres close by.

Highest proportion of lawyers Wellington

Lowest proportion of lawyers 84 : 1

Kawerau

3565 : 1

Queenstown

169 : 1

Turangi

3500 : 1

Kaikohe

253 : 1

Opotiki

2833 : 1

Auckland

269 : 1

Inglewood

2690 : 1

Kerikeri

271 : 1

Helensville

2643 : 1

Nelson

289 : 1

Motueka

2375 : 1

Christchurch

299 : 1

Huntly

2038 : 1

Alexandra

306 : 1

Dannevirke

2000 : 1

Hamilton

319 : 1

Tokoroa

1700 : 1

Warkworth

338 : 1

Paeroa

1470 : 1

Experience by location Another way of looking at the lawyers in a centre is by the proportion who have been in practice for a certain time. The information below excludes centres with fewer than 10 lawyers.

Highest proportion of lawyers who have been in practice for 31 years or more

Highest proportion of lawyers who have been in practice for 10 years or less

Hawera

Whangaparaoa

57.9%

Mount Maunganui 44.8%

Queenstown

48.9%

Levin

44.4%

Whakatane

46.5%

Warkworth

43.8%

Morrinsville

42.9%

Taupo

43.8%

Ashburton

41.5%

Kerikeri

42.9%

Orewa

41.5%

Upper Hutt

39.1%

Feilding

38.5%

Feilding

38.5%

Te Awamutu

37.5%

Thames

37.5%

Auckland

37.7%

Oamaru

36.8%

46.2%

L AW TA L K 9 2 6 · M arch 2 0 1 9

The legal services industry

SNAPSHOT OF THE PROFESSION

The legal services industry generated total income of $3.464 billion in the year to 30 September 2017, according to the latest available data from Statistics New Zealand. Statistics New Zealand’s Annual Enterprise Survey generates data on the financial performance of enterprises in New Zealand. It is the most comprehensive source of information on the financial performance of industry groups and sectors and is prepared by sampling. It is an important input into calculation of GDP. The 2017 income was up a healthy 4.6% from 2016. Estimated expenditure by legal services providers in 2017 was $2.259 billion, producing a before-tax surplus of $1.211 billion. Expenditure on salary and wages was the biggest component, making up 55.8% of total expenditure in 2017.

A N N UA L E N T E R P R I S E S U RV E Y, L E G A L S E RV I C E S , Y E A R TO 30 S E P T E M B E R ($ M I L L I O N )

* Provisional

Measure

2017*

2016*

2015

2010

Total income

$3,464

$3,311

$3,059

$2,747

Salaries and wages paid

$1,261

$1,184

$1,042

$805

Purchases & other operating expenses

$884

$896

$827

$805

Other expenditure

$114

$113

$133

$62

$2,259

$2,193

$2,002

$1,672

Opening stocks

$38

$47

$53

$26

Closing stocks

$44

$48

$39

$22

$1,211

$1,120

$1,044

$1,071

Total expenditure

Lawyers based overseas

Surplus before income tax

The Lawyers and Conveyancers Act 2006 allowed the New Zealand Law Society to issue practising certificates to lawyers based outside New Zealand for the first time. The number of lawyers who hold New Zealand practising certificates but who are based overseas has increased at a higher rate than the number of lawyers who are based in New Zealand – by 135% from 341 in 2011 to 803 in 2019. Over half can be found in England. The countries with the most New Zealand lawyers:

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England 423

Dubai 22

Singapore 43

Hong Kong 38

Australia 83

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ACC and the Woodhouse Principles: Real Compensation BY DON RENNIE The foundation for our current ACC legislation is found in the recommendations of the 1967 Woodhouse Royal Commission report Compensation for Personal Injury in New Zealand. This proposed the abolition of the common law right to sue for damages for personal injury caused by negligence or breach of statutory duty, and its replacement with a statutory system based on five fundamental principles: community responsibility, comprehensive entitlement, complete rehabilitation, real compensation, and administrative efficiency. In the fourth in a series of articles looking at each of the principles and the extent to which they are embodied in legislation and its administration by the ACC, Don Rennie considers real compensation.

The fourth principle in the Woodhouse Report relates to real compensation. It states at Clause 59: “Clearly if compensation is to meet real losses it must provide adequate recompense, unrestricted by earlier philosophies which put forward tests related merely to need.” It also observes that “… average modern households, geared to the regular injection of incomes … have corresponding commitments which do not disappear conveniently if one of the hazards of modern life suddenly produced physical misfortune.” Those observations apply today just as much as they did in 1967.

First Accident Compensation Act It is important to remember that the original Accident Compensation Act 1972 was drafted to implement a scheme that covered only earners and the victims of motor vehicle accidents. The format and principles used to draft the Act followed the form of the previous workers’ compensation legislation and, while limited to only covering employees and the self-employed as well as the victims of motor vehicle accidents, left the rest of the community with the common law right to sue. The 1972 Act as originally drafted, was amended in 42

1973. It extended cover to include every accident victim whose injury occurred in New Zealand and abolished the common law right to sue to recover damages for personal injury. It came into operation on 1 April 1974. However, the 1973 amendment was not drafted in a way that clearly adopted the five basic Woodhouse principles. Subsequent amendments have merely changed preceding legislation without any attempt to completely re-write the Act. There now only remains in rare cases the common law right to sue for exemplary or punitive damages arising out of personal injury in New Zealand.

The common law approach to compensation for personal injury As observed by Woodhouse at para 74 of the report, damages are an indemnity designed to put the injured person in the same relative position as that person was in when the injury occurred. At common law an attempt was made to quantify in money terms, the harm caused to the injured person. The recognised The common heads of damage included actual law action for economic loss including future damages was loss by reason of diminished earnrightly referred ing capacity, pain and suffering to as the (including mental suffering) and “forensic lottery”. loss of capacity to enjoy life. It produced Claims at common law required unpredictable proof of special damages, that is, results relating proof of the actual losses sustained to both liability in terms of loss of income, capital or and quantum of property. The claim also included an damages, often assessment of possible future losses relying on matters which was a purely conjectural which were not exercise where proof was imposcapable of proof sible. There was a saying amongst

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for permanent impairment is an entitlement under s 6. The amount of the lump sum payable was originally set by clause 56 of Schedule 1 of the Act which fixed the minimum at $2,500 and the maximum at $100,000. The Injury Prevention, Rehabilitation and Compensation (Lump Sum and Independence Allowance) Regulations 2002 provided in the schedule to reg 4, a scale of lump sum compensation for whole person impairment, ranging from the lowest recognised impairment of 10% that attracted $2,500, increasing by 1% increments up to 80% and over, that attracted the maximum of $100,000. The scale of payments has since been inflation adjusted under s 116 of the Act so the adjusted maximum is currently $133,000. plaintiff lawyers that “Every soldier carries a Field Marshal’s Baton in his knapsack” meaning that even the lowest ranking members of society had the potential to improve themselves to the highest level and that was a lost opportunity for which the plaintiff should be compensated. In the case of future pain and loss of capacity to enjoy life, the difficulty was greatly increased by the need to put money values on physical disabilities. Of course any award of damages was subject to adjustment if the claimant was found to have been negligent and that negligence contributed to the loss sustained. The common law action for damages was rightly referred to as the “forensic lottery”. It produced unpredictable results relating to both liability and quantum of damages, often relying on matters which were not capable of proof or based on other factors which swayed the judge or jury’s thinking. Part 3 of the Woodhouse Report discusses the issues involved in the common law action including, the history of negligence, the standard

of care, the duty of employers, contributory negligence, breach of industrial statutes, the nature of damages and the disadvantages of the common law system.

Compensation for permanent impairment Permanent physical disability can have damaging effects on the ordinary activities of both young and old, regardless of their influence on a capacity to work. Woodhouse wrote at para 61: “there must therefore be a realistic assessment of actual loss, both physical and economic, followed by shifting that loss on a suitably generous basis”. The report went on to say “If there might seem to be an issue as to whether compensation … should be restricted to meet their current needs or be assessed on a uniform flat rate basis, then these are propositions which we reject as entirely unacceptable.”

Current legislation Section 69(1)(d) of the 2001 Act states that lump sum compensation

The meaning of impairment Under s 6, impairment means “a loss, loss of use, or derangement of any body part, organ or system, or organ function”. The definition is taken from the American Medical Association Guides to the Evaluation of Permanent Impairment which are said to clarify the differences between the often-confusing terms disability, handicap, functional limitations and impairment. Whether or not they do clarify the differences is questionable. “Handicap” is a term historically used to describe disability.

Assessing compensation payable The amount of the lump sum payable for permanent impairment under reg 4 of the Injury Prevention, Rehabilitation and Compensation (Lump Sum and Independence Allowance) Regulations 2002, can only be paid after an assessment is carried out by an assessor appointed by the ACC under clause 58 of Schedule 1 of the Act. Clause 58(2) 43

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requires that in appointing an assessor, the ACC must have regard to the skills, qualifications and training it considers are necessary. To do the assessment the assessor must use the assessment tool provided in regulation 4(2).

The assessment tool The assessment tool provided in regulation 4(2) comprises (a) The AMA Guides to the Evaluation of Permanent Impairment (Fourth Edition) and (b) the ACC User Handbook to AMA 4. Regulation 4(3) states that the ACC User Handbook prevails if there is a conflict between it and the AMA Guides (Fourth Edition). There are now a Fifth and Sixth Editions of the AMA Guides available but they cannot be used because they do not comply with the regulation.

Impairment under AMA Guides Fourth Edition As noted above the AMA Guides are said to clarify the differences between the terms disability, handicap, functional limitations and impairment but it is questionable whether they in fact do so. Assume, for example, a person in good health suffers a back injury from lifting something heavy and suffers a disc herniation causing a decreased range of movement which is defined as an impairment under the Act. That impairment may result in functional limitation and the person may not be able to perform all the activities of daily living or lift heavy weights. According to the AMA Guides that may not necessarily lead to a disability. It depends on the demands of the job and what the injured person was required to perform. For example, if he works as a truck driver and is required to load goods on the tray of the truck by hand and unaided which he cannot manage, then there is a disability. However, if he drives a truck designed to carry pre-packed 44

containers which are lifted onto the truck by crane then, according to the AMA Guides, he can still drive the truck and he is not involved in heavy lifting, therefore there is no disability because he can still perform his role as a driver. Disability is defined in the AMA Guides as “an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of impairment”. The Guides note that “handicap” is a term historically used to describe disability. The ACC User Handbook to AMA 4 clarifies the difference between, disability, work capacity and impairment by comparing the amputation of a little finger on a concert pianist and a gardener. According to the scale both suffered an impairment of

5% but, in relation to work capacity, the effect on the pianist was major and on the gardener none. In relation to disability the effect on the concert pianist was very significant but to the gardener minor. How then is the scale applied in these two cases where the percentage impairment is the same according to the scale but the consequences are widely different?

Restriction on ACC making an assessment Clause 57 of Schedule 1 of the Act provides that the ACC must not make a lump sum assessment until it receives a medical certificate as to the stability of the claimant’s condition. The certificate must indicate that the condition arises from personal injury and that

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there is permanent impairment. An assessment can be made if two years have passed since the injury and the medical certificate states that the condition has not stabilised but there is likely to be permanent impairment. Applying these provisions to the two cases mentioned above, the medical certificates will be the same. Neither claimant is going to grow a new little finger so the condition is permanent and the “impairment” is the same according to the schedule. It would obviously be unjust to determine that both were only entitled to $2,500 when the losses were so vastly different.

The Woodhouse Principles In relation to some aspects of the

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common law damages action, the ACC scheme cannot provide compensation for all the real consequences of accidental injury. Whereas the common law allowed in-depth investigation of all the consequences of an accident suffered by an individual claimant, the ACC scheme deals with many, but not all, of the issues which would have made up a common law claim. The ACC scheme covers not only loss of earnings, hospital, medical and rehabilitation costs, but it does not recognise compensation for pain and suffering, loss of enjoyment of life, loss or disruption of present, future or potential opportunities and many other issues which would have been part of a common law claim. This particularly applies to self-employed earners who often purchase private insurance to cover losses not recognised by ACC. While an individual rehabilitation programme is prescribed in the Act, under ACC legislation, accident victims have been provided with a scheme of treatment, compensation and rehabilitation on a “one size fits all” basis. Lump sum payments must be made under the fixed requirements of the Act and according to the schedule in the regulations. This seems to be contrary to what Woodhouse said at para 61 of the report, on compensation for actual loss “If there might seem to be an issue as to whether compensation … should be restricted to meet their current needs or be assessed on a uniform flat rate basis, then these are propositions which we reject as entirely unacceptable.” The prescribed scale fixes the percentage of impairment and the amount of compensation payable which appears to be a system incompatible with the Woodhouse principle of real compensation.

Real compensation

Disability is defined in the AMA Guides as “an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of impairment”.

Accident victims have been deprived of the ability to seek damages not only for actual provable losses not covered by the scheme, but also for pain and suffering both present and future and loss or interruption of business opportunities. While the scheme provides cover for a large number of the consequences of personal injury, some important issues which used to be part of a common law claim, are no longer recognised by the law. The current provisions are particularly hard on self-employed tradesmen and small business people who may not be able to carry on their trade or business because of impairment. The lump sums payable are far short of what is necessary to put them in the position they would have been in if the injury had not occurred. ▪

Don Rennie  rendon@actrix.co.nz is convenor of the New Zealand Law Society’s ACC Committee. This article contains his personal views. 45

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Competition law and the removal of exceptions for intellectual property rights BY JOHN LAND

In January the Government released an important discussion paper, Review of Section 36 of the Commerce Act and other matters, on which submissions are due by 1 April. The rather bland title is prone to mislead. It diverts attention from the very significant proposed reform to remove from the Commerce Act all current exceptions relating to intellectual property rights. The reform of s 36 of the Commerce Act dealing with misuse of market power has been well signalled. It was the subject of an issues paper released by the Government in November 2015 (See Land, “Reform of misuse of market power law. Is it time for an ‘effects’ test’?” LawTalk 880, 29 January 2016, 38-39). In Australia, misuse of market power law has already been reformed to provide for an effects test. A similar change in New Zealand is overdue given the difficulties in enforcing the current form of s 36. However, the proposal to remove the intellectual property exceptions was not the subject of prior reform papers in New Zealand. The Minister of Commerce and Consumer Affairs in his cabinet paper made available with the release of the discussion paper, surprisingly says “I am not expecting the issues of the IP provisions … to be particularly controversial.” In my view, they should be. Given the potential impact on intellectual property rights the proposal needs real scrutiny. The 46

removal of the intellectual property exceptions could have quite significant implications when combined with recent changes to the Commerce Act (namely the increased scope of cartel conduct under s 30) and the proposed changes to misuse of market power law in s 36. To give one important example, the refusal to license patents will under the proposed reforms have a high risk of breaching competition law where the patent holder has a substantial degree of power in a market.

The misuse of market power reform

The proposed reform of s 36 would prohibit conduct by a firm with substantial market power which has the purpose, effect or likely effect of substantially lessening power in a market.

The proposed reform of s 36 would prohibit conduct by a firm with substantial market power which has the purpose, effect or likely effect of substantially lessening power in a market. That is essentially the same test as was recently adopted by Australia in s 46 of the Competition and Consumer Act 2010. Such a test will mean that dominant firms would have to be much more careful in engaging in conduct which might have an effect on competitors. Unlike a number of other jurisdictions, New Zealand competition law currently does not prohibit dominant firms from engaging in conduct with an anti-competitive effect. Instead, what s 36 of the Commerce Act prohibits is conduct with certain anti-competitive purposes. The current prohibition in s 36 has three limbs or elements. First, a firm must have a substantial degree of power in a market. Secondly, the firm must “take advantage” of that market power. The courts have interpreted the take advantage element as requiring the firm to be engaging in conduct that it would not engage in if the firm was in a competitive market (Commerce Commission v Telecom (2008) 12 TCLR 168 at [55]). This test has also been called the “counterfactual” test. Thirdly, the firm must engage in the conduct for one of three proscribed anti-competitive purposes. The proscribed purposes are: • to deter the entry of a person into a market; • to prevent or deter a person from engaging in competitive conduct; or

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• to eliminate a person from a market. It has been the application of the counterfactual test in the second limb that has been the subject of most criticism. The counterfactual test requires a firm’s conduct to be assessed against a hypothetical scenario which has no basis in reality, ie, a hypothetical market in which the firm’s existing market power is assumed not to exist. In deciding whether a firm has “taken advantage” of market power it is necessary to consider what the firm would have done in that hypothetical market. For example, in the Telecom case it was necessary to consider what Telecom would have done in a hypothetical market in which there was another provider of a public switched telephone network (PTSN) competing with Telecom’s own PTSN network. Such counterfactual analysis can be quite complex. Further, it is not

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Conduct that is quite benign when engaged in a competitive market can have quite serious anticompetitive effects when engaged in by a firm with substantial market power.

particularly helpful in assessing whether there is a real harm to competition in the market as a result of conduct. Conduct that is quite benign when engaged in a competitive market can have quite serious anti-competitive effects when engaged in by a firm with substantial market power. The Government proposal for misuse of market power law has two key aspects designed to address the flaws in the current law. First, the current requirement to prove that a firm has “taken advantage” of its market power will be removed. That in turn means the end of the counterfactual test. Secondly, the current focus on whether a firm has a purpose of restricting, deterring or eliminating a particular competitor will be replaced with a test that considers whether there is a purpose or effect of substantially lessening competition in the market as a whole. That substantial lessening of competition test is already used (in s 27) to assess whether contracts arrangements and understandings are anti-competitive. A test based on whether there is an effect or likely effect of substantially lessening competition is also used (in s 47) for assessment of whether business acquisitions are anti-competitive. The new effects based test for s 36 will be accompanied by a new ability for firms with market power to seek 47

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authorisation for their conduct where they can satisfy the Commerce Commission that the conduct would result in public benefits that outweigh the potential harm to competition. At the moment, it is only possible to seek authorisation on public benefit grounds for anti-competitive agreements or arrangements, not for unilateral conduct that might breach s 36. I agree that s 36 needs reform and that adopting a similar effects-based test for s 36 to that used in Australia is appropriate.

Removal of the IP exceptions However, the proposal in the discussion paper to remove the intellectual property exceptions in the Commerce Act needs careful consideration. The discussion paper refers to three current provisions affecting intellectual property rights (ss 45, 36(3) and 7(2)) and recommends the repeal of each of them. 48

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Section 45 is an exception that is relevant to the prohibition in s 27 on arrangements that substantially lessen competition and the prohibition in s 30 on cartel provisions (provisions between competitors that fix prices, allocate markets or restrict supply). Section 45 exempts arrangements in so far as they contain a provision authorising any act that would otherwise be prohibited by reason of the existence of a statutory intellectual property right. The scope of s 45 is probably quite limited. However, granting a licence to use and exploit intellectual property will not, by itself, amount to a breach of s 27 or 30. So, for example, providing a competitor with a licence to use intellectual property in just one geographic section of the market should not amount to market allocation in breach of the recently expanded definition of cartel conduct in s 30. Section 36(3) is an exception that is relevant to the current prohibition on misuse of market power. It states that a person does not take advantage of a substantial degree of power in a market (within the prohibition in s 36) by reason only that the person seeks to enforce a statutory intellectual property right. I will discuss the implications of removing this provision below. Finally, s 7(2) provides that the Commerce Act does not limit or affect any rule of law relating to breaches of confidence. The discussion paper proposes the repeal of all of these provisions. There is very little case law interpreting the provisions and their scope is not entirely clear. That does not mean, however, that the repeal of the provisions would not be important.

Enforcing patent rights as a misuse of market power One important example of a situation affected by the removal of the

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IP exceptions concerns the enforcement of intellectual property rights currently protected by s 36(3). This example takes on more importance given the proposed reform of s 36 to include an effects test and to remove the current counterfactual test. Let us say that a firm with market power seeks to enforce its intellectual property rights by bringing patent proceedings against its only competitor. Under the current law there would be no breach of s 36 due to a combination of the application of the counterfactual test and the exception in s 36(3). For a firm to be taking advantage of market power it must (under the counterfactual test) be engaging in conduct that it would not engage in if it was in a competitive market. That then means that an enforcement of IP rights is unlikely to be considered a taking advantage of market power under the current law because a firm with IP rights will normally want to enforce those rights regardless of whether it has market power. The exception in s 36(3) puts the point beyond all doubt. In the context of the proposed new effects test for s 36, however, the absence of an exception that protects the enforcement of IP rights is much more important. The action of enforcing the patent might be argued to have the likely effect of substantially lessening competition in the market under the new effects test proposed for s 36. (Enforcing common law rights in relation to breaches of confidence might potentially give rise to similar concerns in the absence of the savings provision in s 7(2).) The position is similar in relation to a refusal by a firm with market power to license a patent. Such conduct is unlikely to be a breach of the current form of s 36 (see for example APRA v Ceridale (1990) 97

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ALR 497). However, it could be a potential breach of the proposed new form of s 36. The new form of s 36 does not include a counterfactual test and can be contravened by an effect on competition rather than just purpose. Accordingly, a firm with market power that refuses to license its patents could potentially achieve an outcome that has the effect of substantially lessening competition in the market and thereby breach s 36. (Lai, “Competition Law and/ versus Patent Law in New Zealand” (2017) 23 NZBLQ 112 at 124) There are conflicting views as to whether refusing to license a patent amounts to enforcement of intellectual property rights within the current s 36(3) exception. I agree with the view of Douglas Calhoun and Brendan Brown (now Brown J) that the exception currently does apply to a refusal to license patents (Calhoun and Brown, “New Zealand: Interface between Misuse of Dominant Position and the Exercise of IP Rights” (1990) 12(2) EIPR 437 at 442). If the exception is removed the risk that a refusal to license patents could breach s 36 increases significantly. It is fair to acknowledge that in Europe the refusal to license intellectual property has been held to be an abuse of dominance in exceptional circumstances (see O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 2nd ed, 2013 at pp 530-537 and particularly the Magill and IMS Health cases referred to there). However, the combination of the proposed repeal of s 36(3) and the introduction of an effects test for s 36, runs the risk that a refusal to license IP can amount to a breach of s 36 in more than just exceptional circumstances.

Further review needed

For a firm to be taking advantage of market power it must (under the counterfactual test) be engaging in conduct that it would not engage in if it was in a competitive market.

In my view, the repeal of the three IP provisions in the Commerce Act deserves further careful consideration. For example, does removal of the exceptions in ss 36(3) and 45 undesirably decrease the incentive to invent by placing restrictions on patent holders’ ability to grant licences for particular geographic areas and/ or restrictions on patent holders’ ability to refuse to license patents? Further, does removal of the savings provision in s 7(2), combined with the proposed changes to s 36, unfairly restrict firms from being able to protect confidential information? Practitioners with an interest should consider making submissions by the deadline date of 1 April 2019. ▪

John Land is a senior competition law specialist and commercial litigator at Bankside Chambers in Auckland. Formerly a partner of Kensington Swan for 20 years, he can be contacted on  09 379 1513 or at  john.land@bankside.co.nz. 49

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Regulating fake news and video BY LYNDA HAGEN

New technologies offer exciting new channels for effective communication – but their misuse can pose threats to individual rights, and to wider society. The Law Foundation, through its Information Law and Policy Project, is backing two projects that are looking at how to regulate harmful use of two fast-moving technology areas: video and social media.

Fake video Fake video is everywhere – New Zealand’s highly successful digital effects industry is built on it. The potential creative uses can be jaw-dropping: for example, it enabled actor Peter Cushing to reprise his 1977 role as Grand Moff Tarkin in Star Wars: Rogue One, more than 20 years after his death. But fake audio-visual information can also cause harm by manipulating people’s words and images without permission. Leaders like Theresa May, Vladimir Putin and Donald Trump are depicted giving speeches they never made. Countless videos show celebrities performing in pornographic films they were not part of. Researchers Tom Barraclough and Curtis Barnes are studying the ethical, legal and social questions arising from image and sound synthesis and manipulation. Their project, Perception Inception, will define this rapidly-emerging area of technology law and produce a report to guide image creators, consumers and policy-makers. Mr Barraclough says many of the issues raised by fake video are likely to be covered already in legislation around privacy, censorship, and harmful digital communications. “We already have harassment laws, which may cover things like the use of fake video of people in compromising positions. I think there will be gaps in the law. There will be a mix of human, legal and technical responses – there won’t be a silver bullet,” he says. Policy makers worldwide are 50

looking at fake video regulation, and there have been attempts to legislate in New York and the US Senate – but, as Mr Barraclough says, these efforts have foundered around defining the problem. “Not all fake videos are harmful. The US legislation is about direct intervention – according to the Motion Picture Association of America, it would risk banning future biopics of historical figures. A spectrum of responses is needed.” Mr Barraclough and Mr Barnes are keen to involve New Zealand’s visual effects industry in their research: “We are world leaders in this industry built on fake videos,” Tom Barraclough says. “It’s a new, exciting area, and we have an opportunity to lead this internationally.” The first research draft will be circulated for comment in April before the report is finalised in May, though Mr Barraclough expects it to lead into other specialised projects. He encourages anyone with an interest to make contact via their website, www.perc-inc.nz

Fake news In terms of democratic values, social media is a two-edged sword. Because it gives people direct access to each other, it can give disempowered people a voice, as seen for example in the ‘Arab Spring’ uprising. But the impact of fake news, hosted by virtually unregulated platforms like Facebook, shows how social media has been used to disrupt democracy. A team led by researcher Marianne Elliott has been exploring the

opportunities, risks and threats posed to New Zealand’s democracy by digital technology, in particular by social media and the digital platform monopolies. She says there is a long history of regulating media to promote accuracy and fairness, and of constraining free speech to protect human rights. Digital media should meet the same standards as traditional forms, but it is much more difficult to regulate. Facebook has claimed to the Privacy Commissioner that it is not subject to New Zealand law. There are three major challenges: the speed of digital publishing, the absence of self-regulation as practised by traditional media, and the global nature of the problem. “Any functional regulatory framework has to be a global one,” she says. “It won’t work as a whole series of national frameworks. Reaching a consensus on a global framework might mean some compromise – what we can all agree on might be less than what we in New Zealand would see as ideal.” While opinions differ, many of the experts interviewed by Ms Elliott say that, as a digitally-advanced nation, New Zealand is well-placed to help shape a global consensus on digital regulation. Her research findings, the result of a year’s work, are expected to be published in late March. ▪

L y n d a H a g e n  l y n d a @ lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation. Further information about the Foundation is available at  www.lawfoundation.org.nz

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The search for body corporate maintenance BY THOMAS GIBBONS

Sometimes the needs of the many outweigh the needs of the few. Or the one. By this time, some will be thinking of Spock and Kirk. Some of JS Mill, more or less. And some will be thinking of body corporate maintenance. For that is the key message of recent court decisions on body corporate maintenance and remediation. A few years ago, the Wheeldon decision (Wheeldon v Body Corporate 342525 [2016] NZCA 247) showed that body corporate maintenance obligations could arise under section 138 of the Unit Titles Act 2010 because building elements related to or served each other in economic terms, as well as in physical terms. Last year, the Cook decision (Body Corporate 199380 v Cook [2018] NZHC 1244) showed that a body corporate will need to trace through a painstaking series of steps before deciding whether to seek recovery under section 126 or 138 of the UTA 2010. Also last year, the Gu decision (Gu v Body Corporate 211747 [2018] NZCA 396) highlighted the importance of understanding how works may benefit all owners, and not just some. And finally, also last year, the Court of Appeal declined an appeal in Otway (Body Corporate S73368 v Otway [2018] NZCA 612), holding that the substantial benefit test under s 126 of the UTA 2010 applies more narrowly than many people thought. What these decisions emphasise is that weathertightness, fire protection, and other matters will generally be an interlinked and indivisible part of an entire building. So

in Otway, at [66] we see the Court of Appeal saying: “we see the weathertightness of the entire building … as being interlinked and indivisible”, and in Gu at [71], we see that in relation to the need for a new code compliance certificate, the Court of Appeal noting: “We can see no good reason why the costs of the additional works – incurred for the benefit of all owners – should not be apportioned between the owners by reference to their ownership interests. The additional works were not for the benefit of individual unit owners. Apportioning the cost between the owners by reference to the ownership interest of each is consistent with both the 1972 and 2010 Acts. It is also fair. The works benefit all, and all should contribute to them.” Factual circumstances are important, and in some circumstances bodies corporate will consist of structurally separate units or elements, but the importance of economic relationships between units or building elements must, as per Wheeldon, also be kept in mind. In wording I have used elsewhere, unit owners need to be aware that rather than “my house, my castle”, the law of unit titles is better understood as “my house, part of somebody else’s castle”. This line of case law has emerged very quickly, though the emphasis on the whole over the one – the many over the few – was foreshadowed some years ago in various commentary on the UTA 2010, as well as in cases such as Berachan

Investments Ltd v Body Corporate 164025 [2012] NZCA 256. However, there are probably many remedial projects where bodies corporate or their advisers have in good faith sought to allocate costs to particular units; or sought to assess benefit in a particular way; or sought to use formulas based on an analysis of common property vs unit property – and will now find that their earlier assessments run against the broad tide of case law. Remediation projects, levying, and cost allocation are all generally more sophisticated than they used to be. But old ways can die hard, and there is often a temptation to deal with issues and problems discretely rather than holistically. Every body corporate decision on maintenance, remediation, cost allocation, and recovery needs to be re-run through the lens of recent case law. If one of the fundamentals of our Torrens system is “title by registration”, then it could be said that one of the fundamentals of our unit titles regime is “title by registration via governance”. And within this governance regime, the needs and interests of the many are, in recent case law, clearly held to outweigh the needs of the few or the one. ▪

Thomas Gibbons  Thomas. gibbons@mccawlewis.co.nz is a director of Hamilton firm McCaw Lewis. He writes and presents extensively on property law and is author of Unit Titles Law and Practice (2nd edition) published by LexisNexis. 51

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UPDATE

TRUSTS

Bethell v Bethell [2018] NZHC 3171 Third party ante-nuptial trust amounts to nuptial settlement BY RHONDA POWELL

The most recent High Court decision on s 182 of the Family Proceedings Act 1980 provides an interesting example of trust-busting in the post-Clayton era. Section 182 allows a court to make an order to vary an ante-nuptial or postnuptial settlement at the same time as or subsequent to divorce proceedings. This provision has its origins in 19th century English law and has been part of New Zealand law since the Divorce and Matrimonial Causes Act 1867. At that time there was no equal sharing regime. This provision enabled courts to vary settlements made on a couple at the start of their marriage when there was the expectation that the marriage would continue, to adjust for changed circumstances. The purpose of s 182 was set out by the Supreme Court in Clayton v Clayton (Claymark Trust) [2016] NZSC 30, [2016] NZFLR 189 at [60] as follows: “Nuptial settlements are premised on the continuation of the marriage or civil union. The purpose of s 182 is to empower the courts to review a settlement and make orders to remedy the consequences of the failure of the premise on which the settlement was made. Each case will require individual consideration” [footnotes omitted]. Section 182 is a discretionary 52

remedy and does not apply to de facto relationships. It is independent of any remedies available under the Property (Relationships) Act 1976 (PRA), although the division of property under the PRA is relevant to the exercise of discretion under s 182.

The scope of s 182

This provision enabled courts to vary settlements made on a couple at the start of their marriage when there was the expectation that the marriage would continue, to adjust for changed circumstances.

To establish jurisdiction under s 182 it is necessary to show that there was an ante-nuptial or postnuptial settlement made on the parties. In the case of written trusts, this is to be determined by the terms of the trust deed. The Supreme Court has twice affirmed the reasoning of the Court of Appeal in Ward v Ward [2009] NZCA 139, [2009] 3 NZLR 336. In essence, the trust must make some form of continued provision for one or both spouses. A family trust set up during the marriage with one or both spouses as beneficiaries will almost inevitably amount to a nuptial settlement. Property acquired by a trust during the marriage will also amount to a nuptial settlement. In Clayton v Clayton, the Supreme Court accepted that the Claymark Trust was a nuptial settlement notwithstanding the factual finding that it had been set up for business purposes and the fact that Mrs Clayton had signed a contracting out agreement specifically disclaiming any share in Mr Clayton’s business interests. The Supreme Court clearly signified the potential breadth of s 182 as a tool for ‘trust-busting’ in relationship property proceedings. The decision in Bethell v Bethell is an example of the expansive application of s 182 post-Clayton.

The facts in Bethell v Bethell Mr and Mrs Bethell lived together on a farm for a period of 15 years. They were married and raised two children together. The land had been farmed by three generations of the Bethell family. The Stumpy Trust was established prior to the marriage at a time shortly after a hiatus in the parties’ relationship (the timing of the hiatus was in dispute). The settlor was Mr Bethell’s mother and the trust

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was named after his grandfather, who was nicknamed ‘Stumpy’. The beneficiaries included Mr Bethell, his children and grandchildren and their spouses. A parallel trust in identical forms had been settled on Mr Bethell’s brother. The family solicitor gave evidence that the trust was part of an intergenerational succession planning exercise, through which the Bethell land was passed down a line of male heirs. Six years after the trust was established, in a complex series of transactions, the trust purchased the farm from another Bethell family entity in return for a debt-back for its full value. The debt was then assigned to Mr Bethell.

A third-party settlement The facts in Bethell differed from those in Clayton in that the trust was settled by a third party. Although the characterisation of trusts set up by third parties was left unresolved by the Supreme Court in Clayton, it noted two possibilities (at [35]): 1 that there is an exception to the general rule that a family trust set up during a marriage amounts to a nuptial settlement in the case of a trust set up by a third party with substantial other beneficiaries apart from the parties to the marriage and their children; or 2 that as long as the trust has the relevant connection to the marriage and one or other spouse is a beneficiary, then it is a nuptial settlement. In support of the first possibility, the Supreme Court cited the Family Court of Australia case In the Marriage of Knight [1987] 90 FLR 313. In that case, the inclusion of the husband’s parents as beneficiaries of equal ranking to the wife and children caused Nygh J to rule that the trust was not a nuptial settlement. The rationale was that the wider beneficiaries of the trust would be disadvantaged by its characterisation as a nuptial settlement. The range of beneficiaries in both

Bethell and Clayton were typical of the standard New Zealand family trust. Further, the New Zealand courts have found nuptial settlements to exist in circumstances where there were a wide range of beneficiaries. For example, in Fielding v Burrell [2005] NZFLR 558 (HC) a trust which included the sons of a previous marriage as beneficiaries was held to be a nuptial settlement and in X v X (Family Trust) [2009] NZFLR 956 (CA), the Court of Appeal accepted a trust that included the couple, their parents, their children and various charities as beneficiaries to be a nuptial settlement. In my view, the second possibility raised by the Supreme Court in Clayton is the better interpretation

because it is consistent with the purpose of s 182 to enable the court to intervene and prevent unfairness between the parties arising from changed circumstances. The rights and interests of other beneficiaries may be a factor relevant to the exercise of the court’s discretion but should not be a factor preventing jurisdiction.

An ante-nuptial settlement with no spouse in contemplation Another issue left unresolved by the Supreme Court in Clayton (as it didn’t arise on the facts) was raised in argument on behalf of Mr Bethell. This was that the trust was formed prior to the marriage with no particular spouse in contemplation. In 53

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this situation, the Supreme Court in Clayton posited (at [36]) that: “One view may be that once a marriage has taken place and the spouse identified, then there will be the necessary connection with the marriage. Even if that is not the case, however, it may be that each disposition of property to such a trust after marriage could constitute a post nuptial settlement” [footnotes omitted]. This point was critical in Bethell because of the factual dispute between the parties as to whether marriage was in contemplation at the time the trust was established.

Resolution of the issues in Bethell v Bethell In the Family Court, on behalf of Mrs Bethell, Stephanie Marsden successfully argued that both the settlement of the Stumpy Trust and the later acquisition of the farm by the Stumpy Trust constituted nuptial settlements in terms of s 182. This followed from Judge Murfitt’s finding that the trust was established at a time when the relationship was afoot and marriage was seriously in contemplation. Even if Mr Bethell was actively trying to protect family assets against a future claim by Mrs Bethell, the Stumpy Trust had sufficient connection to the marriage to amount to a nuptial settlement. In the High Court, Nation J recognised that it is insufficient for a trust deed to anticipate that a marriage may take place at some stage. Rather, the connection must be between the settlement and the marriage. He held that there was an adequate connection between the settlement of the Stumpy Trust and the marriage for it to be a nuptial settlement. As well as considering the intentions at the time the trust was established, Nation J also looked to the practical reality. He stated that (at [128]): 54

Even if Mr Bethell was actively trying to protect family assets against a future claim by Mrs Bethell, the Stumpy Trust had sufficient connection to the marriage to amount to a nuptial settlement.

“[The Bethell family’s solicitor] said it was not intended [Mr Bethell’s] wife would benefit from succession planning or [the] farm. I cannot accept that as the reality given the way, as a spouse and a discretionary beneficiary, [Mrs Bethell] could benefit from the subsequent trust. Consistent with that, [Mrs Bethell] subsequently benefited from the trust through the ways she, along with [Mr Bethell] and their children, was able to use and enjoy the farm and the family home owned by the Stumpy Trust and have the Stumpy Trust pay for expensive alterations to the home and the installation of a tennis court and swimming pool.” In terms of the purchase of the farm by the Stumpy Trust, Nation J accepted Ms Marsden’s argument that there can be a ‘settlement’ in terms of s 182 if the trust acquires property by way of sale and debt-back. This is

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an interesting point to note because it might have been assumed that a ‘settlement’ required some form of gratuitous transfer. In finding that the acquisition of the farm by the trust amounted to a postnuptial settlement, Nation J relied on the same practical realities of the trust and also noted that but for the settlement of the farm on the trust, Mr Bethell would have owned it personally, in which case it would have been subject to a claim by Mrs Bethell under the PRA. Nation J exercised his discretion under s 182 to vest a sum of $300,000 from the assets of the Stumpy Trust

in Mrs Bethell and the children. In doing so, he took account of a long list of factors including: • The outcome of the relationship property division without a s 182 order being made; • The parties’ respective financial positions; • Mrs Bethell’s loss of enjoyment of the farm and the lifestyle she had enjoyed during the relationship; • Mrs Bethell’s loss of opportunity to use the farm as security to fund her lifestyle; • The likelihood of Mr Bethell administering the trust fund for his own benefit rather than for

the benefit of the children; • The parties’ respective contributions to the farm; • The fact that the new trust would partially reflect the original purpose, being protection Mr Bethell’s immediate family; and • Mrs Bethell’s inability to make a claim against the homestead or against the increase in value of the farm under the PRA due to its ownership by the trust. This case exemplifies the flexibility and breadth with which s 182 is to be applied. Proximity of a trust to a marriage cannot be reduced to a question of timing but needs to be considered more broadly. A trust may be a nuptial settlement even if it was set up by a third party, provided that it has a connection to the marriage. A trust may be a nuptial settlement even if it is established prior to the marriage and the spouse is not named, provided that the particular marriage was in contemplation. If the trust owns the family home, it will be extremely difficult to argue that it is not a nuptial settlement. The role that the trust plays in the family’s affairs may be an important factor in establishing a connection to the marriage. Practitioners engaged in succession planning and asset protection should therefore advise clients that the way trust assets are used may impact upon the risk of a successful s 182 challenge. ▪

Rhonda Powell  rhonda@ athene.co.nz has established a barrister’s practice, Athene Trust Law. She has worked for law firms in London, Melbourne and New Zealand providing advice on trusts, succession planning and asset protection. She offers trust law consultancy to law firms and barristers. Before beginning practice as a barrister, Rhonda was a senior lecturer in law at the University of Canterbury. 55

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ALTERNATIVE DISPUTE RESOLUTION

Dispute prevention: using mediation as a business tool Part 1 BY PAUL SILLS “We are used to thinking about competitions in which there is only one winner… But the world is not really like that… The key to doing well lies not in overcoming others, but in eliciting their cooperation.” – Robert Axelrod

Mediation is often effective if the parties can engage in person and in a private but controlled environment. Facilitated direct conversation helps eliminate misunderstandings and failures in communication. Discussions have real context when face to face. Relationships typically become even more important after a business deal has been completed. Once the contract has been signed it goes in a file and the relationship between the parties becomes the most important thing. That relationship is being negotiated all the time. A significant aspect of ongoing relationships is negotiating conflict. Inevitably, problems arise during the life of the contract. For example, a party might realise they neglected to stipulate a key term, leading to different perceptions of what is fair. Or one side may come to believe that the other is failing to live up to the agreement. Agreeing on a dispute prevention clause in advance, and then actively utilising that provision, can go a long way towards helping parties manage conflict proactively when – or even before – it arises. Learning how to discuss areas of conflict, rather than simply sweeping them under the rug, can be just as important. 56

Commercial parties should be encouraged to identify disputes early and to identify issues that may potentially lead to a dispute, and then work together to de-escalate the issue or dispute. Both parties to the agreement need to keep their focus on commercial interests rather than the win/lose results of litigation.

Mediation framework Mediation provides a framework that strengthens the ability of business people to adjust relationships and resolve problems in a straightforward, efficient and effective way without losing control of the outcome to a judge or arbitrator. However, after initial attempts to negotiate fail because the parties met with strong emotions and tough initial positions, and settlement momentum dissipates through frustration or lack of structure, the common reaction is to move ahead with litigation or arbitration. This is disappointing but not surprising, since litigation and arbitration represent the established “default” framework for handling disputes when party to party negotiations fail. However, a growing number of business managers and in-house counsel recognise that they need to consider new options besides unassisted negotiation on the one hand and third-party adjudication on the other. Mediation permits parties to engage in a carefully managed discourse where the dispute or issue is viewed against the backdrop of business interests, practical considerations and options for mutual gain. Mediation can provide distinct advantages over direct party to party negotiations. The mediator can listen, suggest, steer, facilitate, test realities, and explore options for mutual gain. By having a facilitator take control of the negotiating experience, the parties can focus on the outcome. There are a number of benefits that support the increased use of early intervention facilitation in commercial relationships:

Customisation of the process Mediation is extraordinarily flexible when used properly. The range of options for business parties seeking third-party assistance to facilitate is limited only by the willingness of the participants and the creativity of the mediator. There are many ways in which mediation can be tailored to the needs of the parties and the particular issues in question. Examples include: • Setting the basic format for interaction between the parties and the mediator; • Use of information to provide an objective foundation for negotiations; • Use of technology (including online mediation); • A mediator can facilitate submissions (joint or several briefs) on legal or factual issues; • Presentation of “best-case” presentations for the benefit of business decision-makers; • Engagement of one or more experts to provide reports on key technical issues.

further obstacle to meaningful discussion and resolution. Part of the role of a mediator is to bring the parties together in an environment in which they can have their say but at the same time establish new and more constructive ways of interacting.

Commercial reality testing Experienced mediators – especially those with business experience – may be particularly qualified to help parties examine a conflict or an issue within the context of best and worst alternatives to a negotiated settlement as well as larger business aims. Mediators can routinely help parties confront the hard realities of their established positions, highlighting weaknesses and drawing attention to the compounding of risks and costs that accompany litigation or arbitration. Without the confines of a legal/factual focus (which is at the heart of litigation or arbitration) mediators can also help parties focus on underlying interests: strategic, economic and personal.

Communications enhanced

Creative and durable solutions

A significant value of mediation – and where it is often superior to unaided negotiations – is in creating an opportunity for parties to communicate effectively. As has been said, “Mediation can introduce light where before there was only heat.” In the course of disputes, business managers and their advisers become emotionally invested in the position which in itself creates a

The flexibility that should be the hallmark of mediation extends also to the range of possible mediated solutions. The final result of a successful mediation may range from the transfer of dollars to complex exchanges of performance and/or promises – these are all results well beyond the remedial limitations of a court proceeding or arbitration. There is a significant body

of evidence that shows parties are more likely to live up to the terms of a mediated settlement agreement than a court judgment or an arbitration award.

Continuing relationships maintained or enhanced For me, this is the key issue when contemplating the broader use of mediation other than as an adjunct to the litigation process. This is of fundamental importance in ensuring that commercial relationships stay on track. Mediation has the ability to restore broken or strained relationships, or even to create new business opportunities for mutual gain: “Mediation can restore trust where business relationships have turned sour. Parties used to be partners, used to act together to fulfil their common interest, have lost confidence. The channel of communication is broken. Using mediation is a method to restore dialogue and confidence.” Pierre Raoul Duval and Alexandra Munoz, Mediation in France. In Part 2 we will look at examples of both early and continuing intervention by mediators/facilitators in commercial relationships. ▪

Paul Sills  paul.sills@paulsills.co.nz is an Auckland barrister and mediator specialising in commercial and civil litigation. He is an AMINZ Mediation Panel member. 57

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ALTERNATIVE DISPUTE RESOLUTION

Families at war (and not in the Family Court) What can be done to prevent escalation? BY CAROLE SMITH

As lawyers, we often receive instructions from clients who are in dispute with family members. This could be about a variety of issues, from disputes over distribution of estates, to fallings out over joint business enterprises. How do we, as lawyers, actually help such clients? Sure, we can provide legal advice and give clients the options available to them. But what about helping them try and resolve the matter without resorting to full blown litigation? To my mind, three things are key.

What does the client actually want, and why? In an estate dispute for example, does it really matter if one sibling gets a greater share of the estate? Is it worth years of hassle and stress, and the depletion of the estate with costs sometimes running into the hundreds of thousands? What might be motivating such a client? Is there a residual bitterness in the family dynamics which may indirectly be driving the dispute? The Court of Appeal decision in Le Couteur v Norris [2018] NZCA 572 released on 11 December 2018 is a classic example of a sister and her brothers at each other’s throats, but with the brothers taking their stance for no discernible reason. Despite ample evidence that their mother wanted their sister to have whichever home the mother resided in at the date of her death, the brothers opposed their sister’s claim to the home under the Law Reform (Testamentary Promises) Act 1949. Why? What drove the brothers to 58

take this approach when there were no less than 25 services rendered (listed in the judgment from (a) to (y)) provided by their sister to their deceased mother? Services including having their mother live with her and her own family? As the court commented, “Juliet’s care for her mother enabled her brothers to lead their own separate lives without them having to concern themselves about Sidney’s care”. The brothers’ freedom cannot be quantified in monetary terms. Did they try and put themselves in their sister’s shoes, and think about whether they would have in fact traded places given the opportunity? Which brings me to my next point.

Try to see both sides

Most things in life are rarely black and white. Disputes are no different. The ‘other side’ may not be as unreasonable as your client is making out... The position can be even worse where there is no direct communication

Most things in life are rarely black and white. Disputes are no different. The ‘other side’ may not be as unreasonable as your client is making out. Perhaps there have been misunderstandings in communication between family members. This is very common where emotions run high. The position can be even worse where there is no direct communication and our clients are relying on what they’ve been told by other family members, for example, as to what the ‘other side’ is saying. Then there are the old chestnuts of perceptions and perspectives. A ‘perceived’ slight may not have been intended as such. Mediators also often speak of ‘two truths’ when it comes to perspectives. Family members, who often behave differently around each other to the way they would behave around people outside of the family, may remember and/or interpret things differently to each other. Lawyers’ letters back and forth usually don’t help in this type of situation. It may be more productive to meet with the other side and their legal representative to hopefully get a much clearer picture of what the dispute is actually about.

Mediation It is staggering how many disputes involving families reach the courts. By the time that has happened, the

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chances of any kind of continuing relationship are very slim indeed. The recent High Court decision in Huljich v Huljich [2018] NZHC 3429 released on 20 December 2018 begins with Venning J stating “to describe this as an unfortunate case is an understatement”. In Huljich, 88-year-old Mum sued two of her three sons, and a grandson. The claim ballooned from one cause of action against one son in October 2014, to 14 causes of action against three defendants, involving nine amended statements of claim, with the pleadings themselves being the subject of separate litigation in the High Court and Court of Appeal. None of the causes of action, which included deceit and fraud, succeeded. In fact, most were time-barred, and the court commented at the end of the judgment that there was only one claim which could have been responsibly pursued. The court also commented that Mum’s perception that her sons and grandson had breached any obligations was misconceived. Thus, any “emotional and mental distress” she suffered and attempted to claim for was “self-inflicted”. In an ideal world, this case should never have gone anywhere near the courts. The eldest son had, prior to proceedings being brought, offered to meet with Mum or her lawyer, and also suggested arbitration. Open offers were also made repeatedly once proceedings were issued. All to no avail. Mum “changed advisers on several occasions”. Thus despite the fairly onerous (and arguably in some respects bizarre) restrictions on lawyers stopping acting for clients where such clients are insisting on a course of action to which we are fundamentally opposed, it appears several lawyers did manage to extract themselves before the matter reached court. But of course, given the ‘cab rank’ rule, it would inevitably reach court provided the

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client had sufficient funds. It strikes me whilst writing this that some thought needs to be given to the wording of certain client care and conduct rules. How was it in the client’s best interests for this matter to proceed to court? Reading between the lines, Mum may have been vehemently opposed to the concept of settling. Her instructions may well have been “we fight to the death”. How can we help clients, especially given our professional restrictions, who are not doing themselves any favours, and are suffering as a result? I suggest we keep continuing to promote mediation as a viable option with our clients, regardless of how seemingly opposed our clients are to it. We need to dig deeper in

order to properly understand what is driving that opposition. Mediation can help even the most intransigent parties by, for example, challenging perceptions and shedding light on the numerous complexities involving the myriad of relationships involved. In Le Couteur, the parties did not attempt mediation, as apparently they couldn’t bear to look at each other, let alone talk to each other. Let’s see if we can push past that in these types of cases where far more than money is at stake. ▪

Carole Smith is an Auckland based barrister, mediator and negotiator. See  www.carolesmith.co.nz and  www.fortyeightshortland. co.nz for further information. 59

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FUTURE OF LAW

Beyond the hype AI and the law: an update BY JOY LIDDICOAT, COLIN GAVAGHAN AND ALISTAIR KNOTT

To go by some media reports, one might be forgiven for thinking that the lawyer of the 21st century is destined for the same fate as the switchboard operator or the ‘knocker-upper’ in the 20th – rendered superfluous by the accelerating march of automation. In particular, artificial intelligence (AI) and machine learning are suspected of taking over a large part of what is presently done by human lawyers. Our research has suggested that the future may not be quite so bleak. The practice of law will, however, change and, as with other forms of technological change, that change will not necessarily happen in an orderly or linear fashion. In this article, we suggest some of the areas where that change might be most pronounced.

AI and recruitment The first major change for future lawyers may occur before they even have their first job. Automatic tools will assess job applications, and interviews may even be with virtual recruiters. The technology is of various types. Some systems operate on a candidate’s application materials. Text classification systems take a textual document (for instance, an application letter, a reference or a candidate’s biography), and assign it to one of a number of preset categories. Information extraction systems take a textual document, and attempt to fill in various more specific fields (for instance, a candidate’s skills, years of work experience, highest educational qualification). Ranking systems 60

use the outputs of these systems to order applicants by their likely suitability for the job, to generate a shortlist for human recruiters. Some of these systems also consult documents found online, including (perhaps worryingly for some) a search of the candidate’s social media presence and can process pictures, using image classification techniques. There are also more interactive systems, that engage in real-time dialogues with candidates, and classify their contributions to this dialogue. Product developers claim these tools are much better than human recruiters at routine tasks and can: search through hundreds of applications faster, identify more qualified candidates, allegedly reduce hiring biases in screening interviews, and save time for routine tasks and pre-employment tests. There are also tools that perform other functions in HR: for instance, creating job descriptions, or matching candidates to those descriptions. However, there are significant concerns about bias and discrimination embedded in the data used to train these tools. In one study, search engine results for “unprofessional hair for work” showed mainly results of black women with natural hair styles, while searching for “professional hair for work” offered pictures of coiffed white women. Online platforms have also been criticised for enabling employers to discriminate on grounds of age and for excluding female job seekers from recruitment campaigns through targeted job advertisements which were forwarded to men rather than to women.

New guidance has emerged on how to take the tools into account in a recruitment process. For example, when being interviewed by a virtual recruiter, some recruitment firms recommend taking a different approach from being interviewed by a human, such as using and repeating key words, referring to particular skills that the assistant will be processing and scoring, and being more aware of body language. There have been calls for stronger ethics to guide development and deployment of these tools to avoid discrimination in recruitment processes. In New Zealand, the use of these tools has implications for employers’ Human Rights Act and Privacy Act obligations. For example, if the results of an algorithmic tool which used personal information was requested by an unsuccessful candidate, the results would need to be made available to a candidate in a meaningful form. In Naidu v Australasian College of Surgeons [2018] NZHRRT 234, Dr Naidu asked the College for access to personal information held about him in relation to an application for admission to a specialist medical training course. The request was not responded to within the statutory time period and, when finally complied with, the information included a score sheet with codes allocated to summaries of a referee’s views about Dr Naidu’s application. These scores were not in a form he considered meaningful (for example, what the score was out of or whether it was weighted). The tribunal noted section 42(1) (c) and (d) of the Privacy Act require

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information to be made available in a “form which can be comprehended”. Considering the proper application of this section to the score results, the tribunal referred to the the European Union’s General Data Protection Regulation (GDPR) which introduced a number of new measures designed to strengthen protection of personal information in the context of automated decision-making, including the use of algorithmic processes. The tribunal ordered the summary coding information be made available to Dr Naidu in a “meaningful” way, namely, “in a manner that is transparent, intelligible and easily accessible”.

Contract drafting Contract drafting is a rapidly developing field with a diverse range of legal products. The Australian company SmarterDrafter, for example,

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if the results of an algorithmic tool which used personal information was requested by an unsuccessful candidate, the results would need to be made available to a candidate in a meaningful form.

has developed a contract drafting tool connected to Google’s voice-activated internet search assistant, Alexa. SmarterDrafter works by using Alexa to ask a lawyer contract drafting questions (such as the names of the parties, type of agreement, the jurisdiction of applicable law and so on). Based on the lawyer’s verbal responses, Alexa searches, for example, company or address information and jurisdictional material, and then automatically prepares a draft contract which is emailed to the lawyer for review. Depending on the nature or complexity of the contract, the draft agreement can be emailed in anything from a few seconds to several minutes. These systems use text classification techniques (for understanding user’s answers to their questions), combined with natural language generation techniques (for creating a draft contract).

Document analytics Document analytics is a growing area, particularly in contract and commercial law. Products such as ThoughtRiver can analyse complex contracts and related documentation in order to create a digital contract summary, provide a narrative preliminary assessment of legal issues, a summary of governance and risk issues, make recommendations for triage, work-flow 61

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and prioritisation as well as draft preliminary reports and suggest benchmarking for progress. They use a combination of text classification and information retrieval techniques, plus document summarisation techniques. These sorts of products can be used to provide summaries of a client’s exposure to legal risks and can also be useful in more complex document reviews. Regulators are using these tools to enable speedy analysis of large volumes of documents and to speed up investigation and pre-trial evidential processes. In 2014, Britain’s Serious Fraud Office used algorithms to work through more than 30 million pages of documents disclosed by Rolls Royce in a discovery process in order to determine those that might be subject to privilege. Rolls Royce cooperated with the SFO, under court oversight, giving the SFO access to a vast array of documents and consenting to use of algorithms. The SFO reported the algorithmic tools took about onetenth of the time as the 30 human lawyers who would have been needed for the task.

Virtual legal assistants Virtual legal assistants based on natural language processing technology are becoming more common. For example, the Wellington Community Law Centre initiative, Citizen AI, has created RentBot which uses natural language dialogue systems to enable people to ask questions about tenancy issues. Inadequate access to legal information is a significant barrier to access to justice and service providers are routinely asked the same legal questions. These new tools have significant potential to improve access to justice by directly responding to routine legal questions without the need for a lawyer but with the quality of information based on thousands of previous 62

similar questions and answers (much like a real time ‘Frequently Asked Questions’). Because these tools provide legal information, rather than legal advice, they do not appear to be regulated services within the meaning of the Lawyers and Conveyancers Act. Citizen AI has plans to launch an employment tool, WorkBot, later this year. Virtual assistant tools allow a much wider range of people to have access to legal information at a fraction of current costs, and also enable legal skills to be focused away from repetitive questions into more complex or nuanced areas. In the future, law firms might also offer these services to their clients, directing them to readily available information to answer

simple questions and facilitating their interaction with a lawyer in more complex cases or in prescribed circumstances. Lawyers, too will soon be offered virtual assistance for some forms of legal research. LexisNexis announced it would be introducing a virtual assistant for online legal research, Lexis Legal Assistant, on its advanced platform in 2019. The bot would respond to written questions, save search results and be able to revisit previous research quickly. LexisNexis is also experimenting with a voice-activated legal search tool. Technological developments are being closely watched by the courts, with judges in some jurisdictions being called upon to adjudicate

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related issues in both pre-trial processes and questions of costs. Two recent Canadian cases, for example, suggest that use of computer generated search results may be ethically required when carrying out legal research (see Cass v 1410088 Ontario Inc 2018 ONSC 6959 and Drummond v The Cadillac Fairview Corp Ltd 2018 ONSC 5350). Whether or not use of computer assisted research might be ethically required in some cases, it seems clear that where algorithmic tools are used, a lawyer cannot rely solely on algorithmic results when giving advice to clients or in submissions to a court or tribunal. A lawyer would still have an overriding duty of care to ensure that reliance was reasonable and did not breach any of the other fundamental professional obligations of lawyers, for example, to facilitate the administration of justice or as an officer of the court.

Implications We do not think that natural language processing and AI tools will result in the wholesale replacement of lawyers

any time soon. Rather, AI will increasingly augment legal work and lawyers will increasingly be working with AI. The practice of law will change but, as with other forms of technological change, it is likely that this change will affect the law profession unevenly. Most New Zealand law firms are small and these firms do not have the same financial resources as large firms to invest and keep pace with technological change. The Law Society of England and Wales recently surveyed its members on issues of new technologies and found most lawyers are not ready for these changes and do not think that they will need advanced skills in this area, such as statistics or coding. In New Zealand, continuing professional development education is compulsory and self-directed. The Lawyers and Conveyancers Act and associated Continuing Professional Development Rules do not contain a technology specific duty of competence. However, a lawyer might identify a learning need, for example, in relation to computer assisted legal research or the use of AI tools to aid in litigation. Finally, concerns about the impact of new forms of technology on lawyers’ professional obligations, including client care, have prompted new or supplementary professional duties in some jurisdictions. For example, in 2012 the American Bar Association amended its Code of Conduct to introduce a ‘duty of technical competence’. Comment 8 on Model Rule 1.1 provides that to maintain “requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …” (emphasis added). At least 35 states have since formulated rules of professional conduct that adopt the comment and model rule in some form.

Conclusion Prophesising exactly how the next wave of automation will affect the world of work is something of a fool’s errand, and evidence and argument can be found to support almost any imaginable outcome. Nonetheless, our sense is that robots will not be replacing lawyers en masse any time soon. As Richard and Dan Susskind have said, though, it seems that the least likely future is one where nothing much will change. Lawyers need to begin to prepare for these changes, taking opportunities to use new products or to improve or learn new skills through legal or other education. ▪

Joy Liddicoat  joy.liddicoat@otago.ac.nz is a human rights and technology lawyer and member of the Artificial Intelligence and Law Project, along with Colin Gavaghan and Alistair Knott who are Associate Professors at the University of Otago. The project is funded by the New Zealand Law Foundation. 63

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Talking about mental health A utopia of lawyer mental health BY KATIE COWAN Work should not injure you or make you sick, but sometimes it does.

There are types of work that need to be done that make you subject to higher risks. If you’re a forestry worker, you’re at risk of logging accidents. If you’re an electrician, you’re at risk of electric shock and electrocution. The risks are not a reason not to have people do that job anymore, but they are reason to take care, to have systems of mitigation, and to have an industry-wide responsibility for the risks to individual workers. Lawyers have professional hazards too, but ours don’t get treated like professional hazards. Instead our anxiety, depression, addiction and suicide is considered a mostly individual matter, for individuals to manage. It’s deeply sad, of course, but we try and address it mostly via annual “wellness weeks” and perhaps the odd news alert with advice to eat broccoli. (Do eat broccoli though; it’s like Lorazepam in a bowl.) For the most part I don’t blame people too much for this. The hazard of poor mental health has crept up on us, partly because the science is relatively new and partly because poor mental health is mostly hidden from others’ view. It doesn’t help that lawyers, and industry leaders in particular, are busy. Taking stock of systemic, important-but-not-urgent problems takes mental capacity most people don’t have spare. It is possible that for many years nobody noticed. But we know better now, and the time has come to do better. Our work is not dangerous like a person’s whose work requires contact with live wires or chainsaws is dangerous. It is dangerous in a needly, scientific way, in a cumulative way; not because there is a risk of a single deadly accident but rather because there is a certainty of wearying degradation over time. It is dangerous because years spent doing it and not accounting for its danger 64

will leave one sick, or burnt out, or sometimes even dead. This reality is itself depressing, which is part of my point today.

A utopia What we need, in the face of such a complex, disheartening problem with interrelated causes, is not a glum recitation of the problem (though, call me if you want a fun lunch), but rather a utopia to face. Stay with me here. Bill Clinton is famously very excited about climate change, or at least he was in 2008. Speaking to speechwriter Jon Lovett he said climate change did not represent cause for despair, but rather an enormous opportunity. He said that people tend to turn away from big problems that feel unsolveable, whether in their own lives or at the most global systemic level. The way you get them to turn towards it is to get them excited about the opportunity instead. Climate change was an opportunity for extraordinary growth, interdisciplinary innovation and transformation of life on earth.

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My goals may be more modest, but my principle is the same. The problem of poor lawyer mental health is an enormous opportunity; we can get creative and even a little cheeky, and we can feel the power of contributing to a complex change with other people who are also doing it. Doing work you’re proud of with your talented friends is, according to my queen Amy Poehler, the way to the good life. So let’s talk utopia. Not utopia like some fantastical unreachable thing on a cloud glowing with light beyond the known colour spectrum. Neither, too, a utopia as blueprint, all mapped out and specific. Rather, let’s talk utopias like a direction to face: a version of lawyer mental

health that is exciting, and good, and sustainable. If a picture is worth a thousand words, I ask that I might present a thousand words to make my picture. Your thousand words might be different. Either way you can hang your picture in a nice frame on a wall at the back of your mind, which you may glance at it occasionally and murmur “that looks nice”. Reminding ourselves of utopias brings them closer into view, so it helps to keep them nearby.

My utopia I know I started this article with the analogy of forestry workers and electricians, but my utopia for mitigation of poor lawyer mental

health looks quite different to those industries’ approaches. The analogy works in that we are discussing a risk that arises in a job-specific context. However, poor lawyer mental health is also not analogous because it is more subtle and complex with a slower onset, that shows up differently in different people and that has numerous interrelated causes that are not easily untangled. Therefore, it requires different mitigation. Let’s start at the beginning. In my utopia, people with law degrees have taken mandatory courses not only in ethics but also in mental health. They learned at law school about their stress response systems, how trauma shows up in a brain and body, how cognition relates to the limbic system (and the experience of both), what emotions are and how to regulate them, the risks of the kind of hypervigilance and intellectualisation that law demands, what chronic stress is and what it does to your HPA axis over time, the science of habit formation, and upward and downward mood spirals in the brain. In my utopia, law graduates are people with a degree of fluency not only in evidence and mooting, but also a bio-psycho-social model of mental health. And lawyers, as part of their ongoing CPD obligations, get updates and refreshers on the science every year throughout their careers. And then, in my utopia, poor mental health is a normal thing that happens a lot. It is treated like a professional hazard, seen and understood, and leaders throughout the industry make room for it every day.

Non-judgemental acceptance In my utopia, non-judgemental acceptance of lawyer mental illness is just part of practice. It is ordinary. Crying and panic attacks are understood, are expected to happen sometimes at work, and multiple people know what to do when they see them. Burnout is detected early and everyone knows what it means. 65

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People are free to moderate their own work environment to reduce stress or increase comfort; for example working with your door closed doesn’t mean anything political. People talk openly about their own mental health and the health of their firm, and the discussion covers the individual through to the systemic. As a result there is no need to hide your mental health or feel too much shame about it, since you know that everyone around you basically knows what’s happening. (Of course, the disorders themselves heap shame upon you without the need for anyone else’s input, but everyone gets that too.) Note here that my utopia is not “no lawyer mental illness”. You could say that’s a utopia of sorts, but it’s a pretty useless one. For one thing, it is the nature of demanding professions like law that the risk of poor mental health rises naturally. But for another, trying to fix this particular problem by eradicating it is usually counter-productive. If the measurement of success is the numbers of mentally ill lawyers 66

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going down, you’ll inevitably push the mentally ill underground; instances of poor mental health will be signs of failure, and things that represent failure get treated differently from things that just happen sometimes. Mental illness is the type of complex thing where making room for it, allowing it, does more work to heal the crunchy edges of it than trying to get rid of it. (One reason for that is that recovery from mental illness usually takes months or years and is non-linear. Pressure to recover usually slows or reverses recovery.) In my utopia, the Law Society does not ask if you have a mental disorder on your application for a practising certificate, since doing so encourages hiding and fear. It is understood throughout the profession that having poor mental health for a period does not, on its own, say anything about your capacity to practise, and that many if not most lawyers practise with excellence while in poor health at some point.

Non-work hours are sacrosanct At a practical level, in my utopia, people treat nonwork hours as sacrosanct. You rarely work at night or on weekends, even if you’re a QC. It is understood that for a lawyer to be sustainably well and able to do their job (let alone be a happy human being) it is necessary that they have time to sleep, play sports, raise children, see friends, think big thoughts, sing in choirs, write novels, and idly do very little of a Saturday afternoon. In my utopia, when people do have to work beyond their contracted hours, they are paid well for every hour.

This happens partly to disincentivise chronic over-work, but also because it is understood both that it’s wrong to make people earn one’s profit for free, and it’s downright evil to make them do it by taking their rest and restore time from them without compensation (that time being the time that protects them from the effects of chronic stress). In my utopia, lawyers who work three or four day weeks are just as common as those who work five, regardless of whether they are also a parent. It is normal for people to go through periods where they work reduced hours, and stress leave is routine. In my utopia, lawyers have mandatory quarterly supervision meetings with an independent psychologist, with whom they reflect on their career and health, work on habit change, untangle work challenges, or anything else. Employers also heavily subsidise sessions with independent psychologists on an ongoing basis, and lawyers are free to take those sessions during work time. It’s normal, right? So it’s no big deal. Partners model the culture they want by walking through their offices, chests thrust forward, enunciating, “I’m off to see Dr Pratt! See you at 2!”.

Management training and monitoring Poor mental health is exacerbated and can even be brought on by mismanagement and bullying. In my utopia, people responsible for managing staff receive management training and monitoring, just like if they were learning a new specialty (because they are). There are 360 degree review processes and other mechanisms to weed out bullies, and a person who bullies or is sexually inappropriate is not tolerated within a partnership, no matter how many fees they bring in. And hey, since we’re dreaming? Let’s go a bit bigger. In my utopia, the leadership of organisations that employ lawyers are at least 50% female/non-binary, and are racially diverse. A sense of

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powerlessness or injustice contributes to all kinds of health issues, not least mental health. Seeing proper representation in the leadership ranks is one of the surest signs that you, as someone other than a straight white man, will be treated fairly and have the same opportunities for advancement as anyone else. In my utopia this has done a lot to curb bullying, sexual harassment and unconscious bias, but the industry remains vigilant about those threats too, not least because they intersect with the underlying hazard of poor mental health in lawyers. Of course, it goes without saying that there is no gender or racial pay gap, since employers are obliged to report salaries and bonuses, and the transparency does a lot of heavy lifting in this regard. All of this makes people feel safe and able to trust their employers, which does wonders for their health and their ability to do great work.

Conclusion There’s more to my utopia (call me for that lunch), but you get the idea. The specifics all lead to a culture where poor mental health is treated like the professional hazard it is, and employers and leaders take responsibility for mitigating the risks and addressing it within people’s roles when it happens. Some of these things cost money, but I think that’s ok. No-one likes the owner of an electrician company who refuses to splurge on safety gear while raking in six or seven figure profits. And lawyers earn more than electricians; we can afford this stuff. But if it helps, working somewhere where your mental health is understood, respected and cared for drives loyalty and productivity like little else. Most people like to do work for people who respect them. I can imagine any number of objections to my utopia. I have anxiety, depression and PTSD; my brain is basically an “I object to what you just said and also what you are wearing today” machine. But if you have objections, I ask you not to focus on them for a second. Focus instead on what your utopia might look like, if it diverges from mine. And then ask what the person next to you what their utopia might look like. And together, ask yourselves what you might be able to do to face in the direction of your utopias now. Rutger Bregman says it well: “If the blueprint is a high-resolution photo, then this utopia is just a vague outline. It offers not solutions but guideposts. Instead of forcing us into a straitjacket, it inspires us to change. And it understands that, as Voltaire put it, the perfect is the enemy of the good. As one American philosopher [George Kateb] has remarked, ‘any serious utopian thinker will

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▴ Katie Cowan

▴ Sarah Taylor

be made uncomfortable by the very idea of the blueprint’.” It can be hard to take action on a problem, especially a big giant one that is beyond the grasp of the individual. The problem is a Bad Thing, and looking at it makes us feel queasy, and feeling queasy makes us think maybe we’d be better off doing something else. By contrast, Bregman’s version of utopia “throws open the mind”. Having one’s mind thrown open tends to inspire one to hop from foot to foot with excitement, and that kind of thing usually leads to action. And this is why utopias are important. They are exciting. I am excited by a utopia of care for lawyers’ mental health. It could be an adventure for us as a profession, a real joy-ride of change and missteps and corrections and lessons and lightbulb moments and delicious, messy, imperfect progress by all kinds of actors over time. Who’s with me? ▪

Learn Law Life platform, where she is the resident advice columnist.

Katie Cowan is a former litigation lawyer who now works to improve how lawyers and law students experience the law. She works from Christchurch as a writer and speaker, and as a coach for lawyers at crossroads. You can find more of her work via The New Lawyer Podcast or on LexisNexis’

Sarah Taylor is the co-ordinator of this series, a senior lawyer, and the director of business development at lexvoco, a law firm focused on the success and wellbeing of lawyers. If you’d like to contribute to an article in this ongoing series, please contact Sarah  sarah@ lexvoco.com

Some useful resources: • www.mentalhealth.org.nz • www.depression.org.nz • www.toughtalk.nz • www.wellbeingatthebar. org.uk • www.wellplace.nz • www.ruok.org.au • www.lawsociety.org.nz/ practice-resources/ practising-well Need to talk? Free call or text 1737 any time for support from a trained counsellor Lifeline Aotearoa 0800 54 33 54 (0800 LIFELINE) or free text HELP (4357) Suicide Crisis Helpline 0508 82 88 65 (0508 TAUTOKO) Samaritans 0800 726 666

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Mindfulness for New Zealand lawyers Become a switched-on, focused, resilient and joyful lawyer BY ASHIKA BALI Imagine being able to fully concentrate at work without constant nagging thoughts. Imagine being able to stay calm in stressful situations. Imagine being productive at work the entire day. Imagine being a lawyer with a razorsharp focus. Imagine being able to leave work at work when you go home. Imagine being fully awake in the present moment. Imagine being joyful.

Yes, all these are possible for lawyers through mindfulness meditation. Neuroscience has confirmed that one of the most effective tools for training the mind is mindfulness. Mindfulness meditation has been scientifically proven to reduce stress, anxiety and depression. It has also been scientifically proven to hone skills such as listening, reacting, responding, developing decision making, emotional intelligence and resilience; and to enhance focus, performance and productivity – for example, see Klatt, M.D., Buckworth J., and Malarkey, W.B., (2009), Effects of low dose mindfulness based stress reduction (MBSR-ld) on working adults. As lawyers, we are at the forefront of personal, moral and ethical battles. Our work revolves around conflict and hostility. This takes a toll on us, but we don’t hate it. In fact, we’d like to get better at it. However, I’ve observed that we’re actually moving in the opposite direction. Instead of developing skills to deal with challenging situations and enhancing 68

focus, performance and productivity, lawyers are facing mental health and wellness difficulties. When we speak about the mental health of lawyers, words such as stress, anxiety, depression, substance abuse, and even suicide come to mind. I have been in the legal profession for about 11 years and I have been practising mindfulness meditation for about two decades. I have keenly observed the New Zealand legal profession and its approach to mental health and wellness issues. I’ve noticed that mindfulness remains a foreign concept in the New Zealand legal profession. There are essentially three facets of the profession – the law, the business of law and the lawyer.

The Law The legal profession by nature is confrontational, aggressive and grim. Clients don’t engage lawyers because everything is going well. They engage lawyers because things have gone wrong and they are frustrated, emotionally charged, stressed or unhappy. Even in the most cordial matter, if there is one, a lawyer is engaged primarily to assess the risks and worst-case scenario for their client. Lawyers are trained and paid to think critically and act aggressively.

The Business of Law Then there is the business of law. These involve timesheets, billable hours, succession, business development, developing lawyer skills, keeping up with technology, innovation, profitability, competition, long term plans, marketing, etc. Most lawyers are very much involved in the business of law in addition to lawyering.

The Lawyer The legal profession is now made up of lawyers from a broad sociocultural background. The face of the profession today is more diverse than it was 40 years ago. But interestingly, when it comes

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to personality, lawyers are more alike than they are different. Research conducted by Larry Richard (published in the ABA Journal in 1993) revealed that the psychological profile of lawyers as a group is quite different from the general population. Of the 16 possible Myers-Briggs Type Indicator types, lawyers overwhelmingly cluster into only five of them. One of these types reportedly occurs five times more frequently in lawyers than in the population at large. This type includes introversion, intuition, thinking and judging. Of relevance here is that the majority of lawyers are introverts. Introverts prefer to focus their awareness and obtain their mental stimulation primarily from within as opposed to extroverts who tend to be more sociable and enjoy being the centre of attention. Even the extrovert lawyers are unlikely to freely talk about any mental health and wellness issues that they are facing. It is clear that lawyers have a preference to manage themselves and are not keen on speaking up. Other traits that are common in lawyers also play a part in how they deal with their performance and mental health issues. Danielle Buckley, an Australian psychologist, has said that, from a scientific

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perspective, some of the attributes that make lawyers so successful are also the ones that prevent them from reaching their full performance potential. Perfectionism, for example, can create a hyper-diligent, highly anxious individual with an inability to switch off and unwind due to fear of failure. Competitiveness is another valuable asset in a high performing lawyer. However, when not controlled this can result in a status conscious, argumentative, aggressive and insecure individual. Considering all this, is it at all surprising that lawyers suffer mental health and wellness issues? No. It is simply a result of the regular and focused practice of conflict, hostility, aggression and constant pressure which is exacerbated by lawyers’ personality and the stigma surrounding mental health and wellness issues.

Mindfulness Meditation Mindfulness meditation is both a reactive and a proactive approach to dealing with the challenges of the legal profession. Think of it as exercising. If you exercise regularly, your body and health will be in a good condition. If you don’t exercise and only put junk into your body, you’ll become unfit and develop health problems. You will

need to train and change your lifestyle to recover from the adverse effects. Just like our bodies, our minds need training as well. Mindfulness meditation is a powerful tool that will help optimise the performance of the mind to keep up with the demands of the increasingly complex and challenging legal world. It will train the mind to be more focused, clear and effective. Mindfulness meditation has gained immense popularity over the past decade in the United States, Australia, Canada and Europe. It has been implemented in many different sectors, including schools, hospitals, corporations, and government. Organisations such as Google, Apple, The Huffington Post, Oxford University, Harvard University and the US Marines have introduced mindfulness training. There is a huge amount of research pointing to the effectiveness of mindfulness meditation for both individuals and organisations to increase health and wellbeing, help manage stress and enhance interpersonal skills, leadership, performance and productivity. An eight-week mindfulness-based stress reduction course was developed in the 1970s by Jon KabatZinn at the University of Massachusetts Medical Centre. This led to the rise of 69

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interest in mindfulness meditation in the West. There has since been over 35 years of high-quality studies examining mindfulness meditation and providing reliable evidence confirming the benefits of mindfulness meditation.

Mindfulness for Lawyers New Zealand My experience and observation of the legal profession and how the practice of mindfulness can help one deal with stress and anxiety, inspired me to create Mindfulness for Lawyers New Zealand. It’s designed for New Zealand lawyers by a New Zealand lawyer. Its aim is to bridge the gap between the issue – mental health and wellness difficulties – and the desired outcome – a switched-on, focused, resilient and joyful lawyer. In addition to disclosing the tried and tested benefits of mindfulness, the personal stories I share on the courses are aimed at breaking the taboo about lawyers’ mental health and lawyers’ reservation to recognise and address their own difficulties and challenges. I believe lawyers’ mental health and wellness must be at the forefront of their professional development plan. After all, without a sound mind, a lawyer will not be able to effectively develop skills in law or any other area for that matter. Mindfulness for Lawyers New Zealand was officially launched in December 2018. Lawyers of all experience levels and from all over New Zealand have been quick to enrol. This is a promising sign that lawyers are receptive to the ancient techniques to improve their skills and performance as a lawyer and deal with any mental health and wellness difficulties. The benefits of mindfulness meditation lie in its simplicity. We cannot expect lawyers to deal with difficulties they do not know they have. The key to training the mind is first knowing the mind. Mindfulness meditation does exactly that. It helps you know your mind and changes your life. ▪

Ashika Bali  mindfulnessforlawyers@ abali.co.nz is the founder/author at Mindfulness for Lawyers New Zealand, and principal/solicitor at A Bali, Lawyer.  www.mindfulnessforlawyers.co.nz 70

Eating healthy No one size fits all BY RAEWYN NG

Recent research out of Australia indicates that, in comparison to other professionals and students in other disciplines, lawyers and law students may experience consistently higher levels of psychological distress. There is also a demonstrated positive association between psychological distress, disordered eating, weight and shape concerns and maladaptive eating habits. It’s clear that stress, anxiety and depression are linked to unhealthy eating and taking control of your eating habits can lead to not only better health but also better mood and less stress on your body. When it comes to being ‘healthy’, or, more specifically, ‘healthy eating’, there are so many options to choose from, it’s easy to get confused. How do we know if we should be intermittent fasting or eating six meals a day, if we should be paleo, plant-based or ketogenic? If we want to start eating healthy, where do we start? Firstly, I think we can all agree that some simple common-sense guidelines are still relevant: • Drink 8-10 glasses (2 litres) of water each day, filtered if possible. • Include all macronutrients (carbohydrate, fat, and protein – whether plant or animal based) in your diet. • Focus on unprocessed wholefoods. • Vary your fruit and vegetables from day to day and week to week – try to eat according to the seasons. • Avoid refined, highly processed foods, especially those that include additives like MSG, sugar, white flour, poor quality salt and vegetable oils. These general strategies give us a great starting point. However, when we get into the detail of what’s going to work best for each of us, the answer may lie in our genes (genotype), or more accurately, our epigenome and our phenotype. The epigenome is a sheath of proteins and chemicals that sits on top of our strands of DNA which can modify how that DNA is expressed. The epigenome can switch on and off genetic traits like a light switch according to our experiences, perceptions and lifestyle choices. The phenotype is the result of the complex interactions between our genotype, the environment we’re in, and our lifestyle choices, leading to the expression of those genes, or the person we are, right now. As an analogy, if your genes are the music of ‘you’ as it’s written, your epigenome are the sound engineers, determining which bits are loud and which bits are soft, which bits get the spotlight and which bits get ignored. Your phenotype is the symphony we hear.

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Since the human genome was mapped in 2003, with the promise of solving major health issues, it’s been discovered that only around 20-40% of our health is down to our genes. 60-80% is reliant on gene expression or our phenotype, that is, the multifaceted interplay of the environment and our choices on our genes. For example, you may have a genetic predisposition for diabetes, but that doesn’t necessarily mean you will develop diabetes. Your lifestyle choices have a very real impact on which genes in your body ‘switch on’ and therefore on the quality of your health and your life.

All bodies are different One of the most important factors for your gene expression is the food you eat. I’m sure you’ve all witnessed two people on the same diet with vastly different

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results. You may have assumed that one person may have tried something else and kept it a secret or that the other person ‘cheated’. However, we all respond differently to different diets depending on our genes and how they are expressing. For each of us there are specific foods that will benefit us more than others, there are meal timings, frequencies and portion sizes that will encourage our best health more than others. Some people will do better focusing on mostly plant-based and fewer meals while others will thrive on a higher protein intake and more frequent meals. This concept is fast becoming more mainstream. The Global Wellness Institute released its 2019 Global Wellness Trends recently and identified personalised nutrition as a top trend that will have a meaningful impact on the $4.2 trillion wellness industry. David Bosshart, CEO of independent European think tank GDI Gottlieb Duttweiler Institute for Economic and Social Studies and keynote speaker at the 2018 Global Wellness Summit states “We are confused about what we eat, where we eat, and when to eat it. We define ourselves by what we’re eating, but, even more so, by what we don’t eat… we are overwhelmed by our choices.” The question needs to change from ‘what foods are right for us’ to 71

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‘what foods are right for me’. Enter epigenetics and phenotyping to give us an answer. What works best for each of us is based on many things from our embryology through to our phenotype, the hormones that are dominant in our system and the symptoms we may be experiencing. You can easily get your genes tested to see if you’re predisposed to certain conditions but what’s more important is whether those genes have been switched on or not and how to beneficially control them. Preliminary studies are also showing that individuals are more likely to stick with personalised nutrition advice based on phenotyping. What works best is based on many things from our embryology through to our phenotype, the hormones that are dominant in our system and the symptoms we may be experiencing.

It’s not just diet You can easily get your genes tested to see if you’re predisposed to certain conditions but what’s more important is whether those genes have been switched on or not and how to beneficially control them. And it doesn’t just come down to diet; other things that affect gene expression come as no surprise: exercise, sleep, stress management, medication/supplements, and sense of purpose and meaning in life. As well as your epigenome and phenotype, your microbiome also plays a significant role in your overall health and mood and is also affected by your food choices. The microbiome is the trillions of bacteria and microbes that live in your gut. That’s around 1-2kg of bacterial cells with various roles in the body and they far outnumber the human cells in our body. There are up to 1,000 species of human gut bacteria and your personal microbial make-up is as unique as your fingerprint. A diverse range and high population of gut bacteria is vital for good health, affecting: • Digestion and absorption of calories and nutrients from food; • Digestion of dietary fibre which produces chemicals that benefit gut health and While there affect weight loss; are general • Fat absorption and sensitivity to insulin, guidelines impacting on fat storage; for healthy • The production of hormones leptin and eating, ghrelin, which control appetite and there’s no motivation to eat. one-dietIn addition to this, up to 90% of your happy fits-all mood neurotransmitter serotonin and prescription 50% of your feel-good neurotransmitter and the dopamine reside in your gut, so a healthy plethora of gut and microbiome is essential for better diets that mood and ability to cope. ‘work’ is Studies have shown that lean people testament to generally have up to 70% more gut bacteria this. 72

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and more diverse gut bacteria than overweight people. A typical Western diet that’s high in fat and refined sugars but low in fibre commonly leads to less microbial diversity.

Habits to promote beneficial microbes While your gut microbiome is to some extent affected by genetics, the following lifestyle and dietary habits can help to promote more beneficial microbes over harmful ones. • Increase fibre intake to encourage healthy gut bacteria like bifidobacteria which can help weight loss. Most high fibre foods, like fruit, vegetables and wholegrains, also contain prebiotics which your gut bacteria breaks down for fuel to promote more beneficial bacteria. • Focus on a variety of wholefoods for a more diverse microbiome. • Increase polyphenols like green tea, dark chocolate, olive oil and wholegrains. Polyphenols are type of antioxidant that your microbiome breaks down to help make more healthy gut bacteria. • Eat fermented foods like yoghurt, sauerkraut, kimchi, kombucha and kefir which contain probiotics and healthy bacteria that promote and control the number of disease-causing bacteria in the gut. • Reduce chronic ongoing stress as it slows gut function. Gentle exercise like Vinyasa yoga, walking in nature, meditation, breathing exercises or mindfulness techniques can help. While there are general guidelines for healthy eating, there’s no one-diet-fits-all prescription and the plethora of diets that ‘work’ is testament to this. Find out what works best for you by listening to your body and using your intuition to tune into your own hunger and fullness signals, being mindful of the foods you eat, how you feel afterwards and making adjustments accordingly. Or alternatively, talk to me about epigenetic profiling for a greater understanding of how to eat, exercise, live and work in congruence with your body. ▪

Raewyn Ng  rae@mybod.co.nz is a movement coach with an interest in wellbeing and holistic health, managing stress and living a balanced lifestyle.

Asking for help is a sign of strength Law is a fulfilling profession, but it can be a stressful one. If you want ideas on improving your work-life balance, make a start by engaging with our Practising Well resources at lawsociety.org.nz/practising-well

Healthy Mind â&#x20AC;˘ Healthy Body â&#x20AC;˘ Healthy Practice

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What does it take to be a partner or a director… And is it right for you? BY EMILY MORROW

Being a principal in a law firm (whether as a partner or director) is, in my opinion, more of an art than a science and definitely not for everyone. Working out if it’s for you can be stressful, but in my experience, there are some key personal attributes that you’ll want to have if you’re going to give it a try and succeed. An increasing number of law firms are becoming incorporated for a variety of reasons, so principals in those firms are, of course, directors rather than partners. However, the common theme of moving from being an “employee” to a “principal” is the same whether a firm operates as a partnership or is incorporated. This article will focus on those common, underlying themes and for simplicity I will be referring generically to “partnerships”, realising there are some differences between the two legal structures.

What makes a partner great? I know many smart, hard-working lawyers who were not made partners or, if they were made partners, it didn’t work out for them. Why is that? What is it that distinguishes those lawyers who “have what it takes” from the others? Here’s what I’ve noticed makes partners great beyond brains and hard work: Commericiality: Law is, indeed, a profession, but it is also a business. I don’t think being professional and entrepreneurial is mutually exclusive and the best lawyers combine both capabilities. They are self-starters, willing to take calculated risks, do instinctive cost/benefit analyses when making decisions, know when to hold and when to fold and build flourishing practices. You don’t have to love being an entrepreneur to be considered for partnership, but some entrepreneurial ability will help. Law firms rarely make partners of “grinders”, but they do look for “minders and finders”. Leadership: The reality is that lawyers who are capable leaders are more likely to be offered partnership. People look up to them, they have influence, they instill confidence in others, they care about the people who report to them and they unflinchingly make tough decisions and are accountable for the results. These are all attributes 74

of successful leaders and successful partners. Relationship Building: Those lawyers who quickly and reliably establish high trust relationships with colleagues and clients are most likely to be successful. As part of this, it’s important to be a good team player and a good sport. Certainly pursue the things that are important to you individually, but do so in a way that doesn’t burn bridges. Practicality: Because success in the practice of law is also about running a business, it’s helpful to be practical. Ultimately, it’s about judgement and some level of self-discipline. You need to gauge accurately what a client needs and the amount of work you do so that the client is pleased and your bill is paid. Similarly, you should pursue the legal issues that are appropriate, while avoid going off on interesting tangents. Further, it’s critical to have what I think of as a “customer service orientation”. Humour and Objectivity: Those people who can approach themselves and their work with a certain amount of humour and objectivity will likely be appreciated within any law firm. Being able to see yourself and others with an appropriate degree of perspective, while not trivialising things that matter, is a real skill. Creativity and innovation: Despite the focus on precedents and structure in the law, having a certain level of creativity and innovation can be a critical differentiator for potential partners. Those lawyers who are creative and innovative are also often remarkably resourceful. Ultimately, clients expect partners to get results and thinking outside of the box, while being very professional, can be a winning combination. Communication skills: The best lawyers are excellent oral and written communicators and also capable listeners. They may have strong egos, but they don’t let hubris get in the way of their ability to communicate well.

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Long-term success as a partner.

Flexibility: Being rigid and having tunnel vision can keep you focused, but long term it can be a problem for a potential partner. Flexible people figure out what needs to be done, consider various ways of accomplishing that and collaborate fluidly with others, while retaining their individuality.

Is it for you? If you are considering seeking partnership, ask yourself these questions: To what extent do I enjoy building a practice versus doing the legal work? How comfortable and adept am I at building and running a high functioning, high morale team and delegating as much work to team members as I possibly can? What do I do when I don’t have enough work in my pipeline to keep myself and others busy? How good am I at managing myself around other people when under stress, so I consistently lead by example? How adept am I at being both competitive and collaborative with my professional colleagues, especially my potential future partners? How do I address issues of profitability versus consistent high quality legal work?

To what extent do I view change as problematic and stressful, rather than as an opportunity? How do I integrate being an excellent team player with being a well-defined individual? How do I deal with failure, especially in situations where “the buck has stopped with me”? How comfortable am I with having no guarantees of financial success other than that which my partners and I create day to day, billable hour by billable hour? If I have to reinvent myself professionally due to changing circumstances, am I resilient and creative enough to do so? Be honest with yourself when answering these questions, as this will give you some inkling about your likely appetite for partnership. Assess your own capabilities critically. If you have some professional and/or personal developmental needs, consider working on them sooner rather than later. It’s likely that merely becoming a partner will not alone address those deficiencies. Others may look at you somewhat differently when you don the mantle of partnership, but that will only get you so far.

Assuming you become a partner, there is likely to be some good news and some bad news. You will have, indeed, achieved considerable professional success and will have worked hard to do so. However, you will not have “arrived”, but rather will be embarking on yet another arduous but potentially fulfilling journey. It will not take long for this reality to set in. That said, I have noticed two factors that sustain partners and partnerships over the long haul. They are shared core values and collegiality. By “core values” I do not mean the “public” values a firm articulates on its website. Instead, I mean the way things actually happen, typically based on unspoken priorities. For example, if there is a choice between doing something that is profitable versus something that might conflict with the firm’s public core values, what does the firm do? How are nonprofessional staff treated within the firm and to what extent does this reflect a hierarchical structure versus a more egalitarian one? And so forth. Try to understand these core values and make sure they resonate with you. Although I don’t think it is essential to like all of your partners, I do think it is critical that you respect and trust them. This is the collegiality that provides the glue to hold a firm together. Internal politicking, scapegoating, indirect communication, grudges and the like can create a chronically toxic environment. Lawyers will often leave a firm not because they dislike the work or feel under-compensated, but because they don’t trust and respect their partners. Pay attention to the culture of the firm because it does matter long term. Is becoming a partner finding the Holy Grail, or will it be a cross to bear? It may take some time to find out, but you’ll never regret having given it some thought along the way. ▪

Emily Morrow  www.emilymorrow.com was a senior partner with a large firm in the United States. She now resides in Auckland, is a member of the Law Society’s Culture Change Taskforce and provides tailored consulting services for the legal profession. 75

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Why co-operating with media is usually the best advice BY PETE BURDON

The advice lawyers give their clients around dealing with the news media during negative events often conflicts with the views of public relations professionals (PRs). The reason for this is obvious. Lawyers are focused on the court of law and fear that talking to reporters could weaken their clients’ case in any subsequent legal action. On the other hand, PRs are more concerned with the court of public opinion and how negative media attention can impact on the clients’ reputation and future earning potential.

What’s the answer? Clearly there are times when there’s good reason not to say anything. For example, if something is before the courts, you can’t comment. There are also times where the mere admission of something could be seen as defamatory. But on most occasions, it’s best to cooperate as much as possible with media. This will limit reputational damage and sometimes even grow a company’s credibility. But this only applies to companies that are well prepared and have well trained spokespeople who know how to keep out of trouble. As a former reporter and current media trainer and advisor, I see lots of occasions where business leaders damage their brands heavily by shying away from media requests. Often this is on the advice of their lawyer. For example, last year the property management company Quinovic refused requests for media interviews after a franchisee’s advertisements suggested that landlords weren’t charging enough if their tenants could still afford to go 76

out socialising. This led to a massive social media backlash and negative news media attention. While Quinovic did issue a brief statement, its refusal to front for media interviews led to heavily one-sided stories that would have severely damaged the company’s reputation. These occasions where business owners fail to front often lead to misinformation as well, and there’s no one around to correct it. It also leads to complaints by the businesses involved about biased reporting. But if they refuse to appear, there’s no-one to blame but themselves.

A great example of doing this properly Remember back to the Pike River disaster. When the mine collapsed, the company responded perfectly. Forget what happened later; at the time they did everything right. Spokesperson Peter Whittall was always available to media. In just about every story What people he was there representing the company. forget is that Can you remember what he said? the media will He basically had two key points that he write their stories kept referring back to. One was around whether you empathy for the victims and their families, decide to be while the second was what the company in them or not. was doing to get the miners out and supBut if you’re at port their families. That was all he needed the centre of to do and all anyone expected him to do. the issue, media What if he hadn’t appeared? You can will come to you imagine the stories. What people forget first. This gives is that the media will write their stories you the power to whether you decide to be in them or not. control the flow But if you’re at the centre of the issue, of information. media will come to you first. This gives you

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emergency management plan, but we will have one in place next week and we’ve always had weekly fire drills.” From this example, the reporter might choose to only use the first part of your answer: “We don’t have an emergency management plan.” That makes it look like you don’t care about the safety of staff. The best answer here would be to only say the second part of that answer: “We will have one in place next week and we’ve always had weekly fire drills.” You can see how the context is now completely different. In a nutshell, if you don’t want it quoted, don’t say it.

Other media interview mistakes

the power to control the flow of information. But if you don’t, media will be forced to look elsewhere and probably turn their focus to negative reporting because they have no alternative. Forgetting what happened later, Peter Whittall became a bit of a celebrity and was respected for showing up. While he was there for media, they didn’t need to go elsewhere. I know there were a few unethical things done by some media at the time, but this was minimal and from memory, that was media from overseas.

But what if media misquote you? Lots of lawyers I speak to are concerned about talking to media because they think they, or their clients, will get misquoted or quoted out of context. This is a justifiable concern and something that does happen. But it doesn’t have to. The key is to know how to talk to media. It’s a completely different conversation and any spokesperson needs to know the difference. As a media

trainer, I can spot quickly whether someone knows what they are doing. The big difference is that for all non-live interviews, reporters will only ever use snippets of the conversation in their subsequent story. That makes it completely different from any other form of communication. What this means is that you have to make sure that everything you say can stand on its own without relying on other parts of the interview to make sense or fit the right context. Here’s an example. Reporter: “Does your company have an emergency management plan?” You: “We don’t have an

The biggest mistake people make with media interviews is treating them as Q&As. They are not. They are a conversation between you and a reporter or presenter. They pick the topic and you decide what you want to say about that topic, as long as it’s of interest to the audience. In the earlier Peter Whittall example, he kept referring back to those two points of empathy and what the company was going to do about the disaster. That’s how it works. If he was asked: “Who’s fault was the explosion?” he wouldn’t have been able to answer that, and probably wouldn’t want to anyway for any number of reasons. His best way to deal with that would have been to address it briefly and then use a bridging statement to get back to one of the messages he wanted the story to focus on. Here’s how it could have gone: “Who’s fault was the explosion?” Answer: It’s too early to speculate on that. Our 100 percent focus now is on trying to get the miners out.” It’s vital that any spokesperson has a clear three-point message to return to during any media interview. It’s not about avoiding questions, it’s about knowing how to get your points across and into the media stories. Remember the best plan is to help media as much as possible. It’s fairly simple to work out what they will ask. So, when you’ve decided how to answer those 77

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produce a story, ring the company at the centre of it for comment and immediately post the story on the news website and send it out through social media. If the company can’t respond within the first hour, all the story will say is that the spokesperson refused to comment. Most people see that as an admission of guilt. The best way to deal with this is to have a crisis management plan in place. This needs to have a number of holding statements (short media releases) that say things like: “We’ve just heard about the issue and we’re doing all we can to sort it out.” That’s far better than: “No comment.” These statements should all be seen by lawyers before they are needed. Then they can be sent out quickly, getting the company into the first story that goes out and giving everyone time to work out the more detailed response. If a company waits three or four hours to respond these days, it’s too late. The horse has bolted and people have already made up their mind whether the company is a victim or a villain.

Summing up briefly, you return to your key points.

One more step The last step after creating your three-point message is to dress those points up in attractive ways. That means you can almost guarantee their use by the media. John Key was an expert at this. Here’s one example. He was asked a few years ago how much taxpayers were spending on wining and dining the UN delegates when they came to New Zealand. We wanted them to vote for us to get the vacant seat in the General Assembly. The point he wanted to get across was that he couldn’t give a figure because that would give ammunition to the others who wanted the seat. So he responded this way. “Me saying what we spent 78

on the UN delegates coming here would be like Steve Hansen giving the England rugby team the All Blacks’ game plan for next Saturday’s test.” You can see how that answered the question perfectly, gave the reporters a great sound bite and he could almost guarantee that the media would use that in their story. Hopefully this gives you some insight into how a media interview can be an opportunity rather than a threat. But the key is to be ready before these skills are needed. It’s too late once the crisis erupts. The media skills are needed well in advance in the same way someone takes out insurance. You may not have a fire, but if you do, you will survive financially.

What recent media changes mean? The introduction of the internet and social media has changed the way businesses must deal with the media during a crisis or negative situation. We all know how quickly news travels. That means that the success of a crisis response is usually determined by the speed with which a company acts. If something erupts, a reporter will

While this has all looked at the PR response alone, the reputation of a business is just as important, and often more important, than legal threats. Even if there are legal threats, in most cases, public comment from a trained spokesperson won’t hinder any potential legal action. In fact, it can assist. But one thing is clear, just like the All Blacks need a game plan before every test, businesses need a crisis management plan and trained spokespeople if they want to cement themselves against reputational damage. It’s too late to start thinking about this when something erupts. ▪

Pete Burdon  pete@mediatrainingnz. co.nz is founder and head trainer of Media Training NZ. He’s a former daily newspaper reporter and government press secretary. Pete trains leaders to grow their profiles and professional status through the news media. He primes spokespeople to control interviews with reporters and he trains experts, business owners and communication staff how to win free publicity in their target media. For more on Pete and his training visit  www.mediatrainingnz. co.nz or www.peteburdon.com

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Lawyers and social media BY JONATHAN SUTTON

In July 2013, an article in LawTalk 812 entitled “Social media’s legal criteria”, quoted figures showing that about 2.3 million New Zealanders, or roughly 51% of the population, were on Facebook alone. By January 2018 this figure had grown significantly, with statistics company Statista estimating that 73% of the population, or roughly 3.5 million Kiwis, had accounts with the social media giant. Other social media platforms such as YouTube, Instagram, Pinterest, Twitter and Snapchat have also experienced rapid increases in New Zealanders subscribing to their services. In 2018 YouTube overtook Facebook as New Zealand’s most popular social media platform of choice. Whatever your views on the phenomenon, it is clear from its growing popularity that social media is here to stay. This proliferation of personal users has inevitably seen a related increase in the number of businesses using such platforms for marketing purposes. As demonstrated by Donald Trump’s use of social media throughout his 2016 presidential campaign and current presidency, professional and personal social media identities can become so entwined and intermingled that differentiation is often difficult and/or artificial. Accordingly, lawyers need to be aware of the potential consequences of their use of both personal and professional social media accounts. What follows are some matters that lawyers should consider when publishing content on social media platforms:

Protecting your personal information One of the most important things to remember when using social media is that once you have posted, uploaded or commented on a social media platform you effectively lose control of how that content may be used and how far it may be disseminated. This is particularly true if your social media account is public, ie, content is made available to the world at large. Public accounts are useful for businesses and professionals as they are available to everybody; however, this is not ideal for accounts containing personal information. Restricting access to your personal accounts – often by changing your privacy settings to “private” – will provide a higher degree of privacy, but limiting access in this manner does not guarantee such material will remain with those with immediate access. In other words, while you may only intend that information goes to select individuals, or “friends”, there is not necessarily any reasonable expectation that that information will not be disseminated further.

As stated by the High Court in Senior v Police [2013] NZHC 357: “The Court takes judicial notice that persons who use Facebook are very aware that the contents of Facebook are often communicated to persons beyond the ‘friends’ who use Facebook. What information is put on a Facebook page, to which hundreds of people have access, the persons putting the information on the page know that that information will likely extend way beyond the defined class of ‘friends’.” While the comments of the High Court in Senior v Police arose in the context of an alleged criminal breach of a protection order, lawyers in many other fields will recognise that social media is playing a larger role in proceedings before all courts. Comments from Chief District Court Judge Jan-Marie Doogue, reported by Stuff on 9 April 2018, indicate that social media evidence is particularly prevalent in the Family Court as parties involved in disputes often use it to communicate back and forth.

Professional responsibility and social media In August 2017, the United Kingdom’s Solicitors Regulation Authority (SRA) issued a warning notice to British solicitors concerning their professional and private use of social media. That warning followed an increase in reports of offensive and inappropriate posts and came just a week after the Solicitors Disciplinary Tribunal suspended for 12 months, with a £25,000 fine, a solicitor for anti-semitic and anti-Zionist comments he posted through his personal Facebook account. The Tribunal found that the solicitor’s comments had caused “offence to the public to the detriment of the collective reputation of the profession” and that “being a solicitor was not a feature of one’s being that one could switch on and off as one chose.” (SRA v Mahmood, Case 11625-2017, 15 August 2017). 79

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Back in New Zealand, the Lawyers Complaints Service and the Law Society Registry have also experienced an increase in the number of matters before them concerning lawyers’ use of social media. Complaints about inappropriate use of social media fall into two main categories: inappropriate/misleading statements and misuse of ‘private’ information. Complaints in the first category usually take the form of an allegation that a lawyer has published something on a social media platform that the complainant considers improper or offensive. The most common examples of this kind of complaint include allegations that a comment by a lawyer is derogatory, offensive or deceptive. In most cases complaints in this category are not likely to progress beyond an initial referral to a standards committee. In contrast to the United Kingdom, the disciplinary process in New Zealand is more limited to the conduct of a lawyer in their professional capacity. A lawyer is entitled to the same freedoms of speech as any member of the public.

Comments relating to role as lawyer However, when a lawyer’s social media comment(s) relates to their role as a lawyer, a complaint can prompt further disciplinary response. As alluded to above, the disciplinary regime is primarily concerned with a lawyer’s conduct in the course of carrying out the work of a lawyer – or in other words, conduct at a time when providing regulated services. When determining whether the posting of a comment on a social media platform is made at a time when providing regulated services, standards committees consider all the circumstances in which the comment was made. Factors that are commonly key to any such consideration are: the nature and purpose of the comment, the nature of the platform on which the comment is made, and whether the commenter’s profile identifies/relies on their status as a lawyer. For example, it is not unreasonable to expect that a lawyer’s LinkedIn account will be more likely to fall under disciplinary 80

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the Solicitors Disciplinary Tribunal suspended for 12 months, with a £25,000 fine, a solicitor for anti-semitic and anti-Zionist comments posted [...] through his personal Facebook account.

scrutiny than a comment made on a lawyer’s personal Facebook account. Likewise, a comment from a lawyer concerning proceedings they are involved in will attract more scrutiny than an expression of opinion on political matters unrelated to the lawyers’ practice. The second, and less common, category of social media complaints relate to allegations that a lawyer has improperly used social media in the course of their representation of a client. As these complaints concern the representation of a client they are more likely to be connected with the provision of regulated services. Most commonly these complaints concern the alleged improper procurement and/or disclosure of social media evidence. Generally speaking, obtaining evidence available to a client through their own social media account(s) is unobjectionable. However, issues may arise where a lawyer uses their own social media account to progress the interests of a client. Such instances are likely to be rare and it is not immediately clear whether such an approach would raise issues of professional responsibility, however some guidance may be found in rules 6, 7, 7.3 and 13 of the Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008. 6 In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interests of third parties. [. . .] 7 A lawyer must promptly disclose to a client all information that the lawyer has or acquires that is relevant to the matter in respect of which the lawyer is engaged by the client. [. . .] 7.3 A lawyer is not required to disclose information to the client if – (a) the client has given informed consent to the non-disclosure of particular information; or (b) the disclosure would be likely to place at risk the health (including

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mental health) or safety of the client or any other person; or (c) disclosure would be in breach of law or in breach of an order of the court; or (d) the information relates to a proposed retainer that the lawyer has declined. [...] 13 The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.

practising certificate as a barrister or as a barrister and solicitor. • A barrister who, having recently joined the bar, forgets or omits to update their LinkedIn account and still advertises themselves as a barrister and solicitor. More serious issues that the Registry deals with are when an applicant’s use of their social media account has raised issues as to whether they are a fit and proper person to practise law. For example, in Lincoln v New Zealand Law Society [2018] NZHC 3050 the High Court found that the use of a Facebook post to threaten and intimidate was reprehensible and inconsistent with the requirement that the applicant be a fit and proper person to practise law. Mr Lincoln has subsequently appealed the High Court decision.

Registry social media issues

Be careful but don’t be paranoid

Social media issues dealt with by the Law Society’s Registry typically take the form of individuals who have misclassified themselves on a social media platform in potential breach of ss 21(b)(i) or 22 of the Lawyers and Conveyancers Act 2006. Examples of this kind of breach include: • A new graduate who, having recently completed their professionals course and having been admitted to the High Court, identifies themselves as a lawyer on LinkedIn. Such a person would not be a lawyer as defined by s 6 of the Act, not being a person who holds a current

In brief, lawyers should take care before uploading information on to any social media platform. Unlike verbal or more traditional forms of written correspondence, social media content has much greater potential to reach unintended audiences, including the Lawyers Complaints Service. Although complaints concerning social media are still rare, and disciplinary findings rarer, as a general rule, practitioners should treat social media in the same way as any other form of written publication to the world at large – if you wouldn’t want information to be disseminated that far you may wish to reconsider posting it. ▪

Jonathan Sutton is a Legal Standards Officer with the New Zealand Law Society 81

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Focus on Oamaru How gold and grog made Oamaru a thriving criminal capital BY JOCK ANDERSON ▴ Bill Dean

In the mid-1800s, when Oamaru was the gateway to the Otago goldfields and bigger than Dunedin, more than 13% of the town’s population appeared in court. The port town was called a drunken metropolis “full of inebriated sailors and prostitutes” and with the highest crime rates in Otago. After the gold mining days Oamaru’s growth slowed and stagnated for several decades as development by-passed the coastal town. This wasn’t helped in the mid1980s, according to local lawyer Michael de Buyzer, by Rogernomics and retrenchment which saw a lot of departments of state leave town. “There were challenges for many people in ensuring the district was adequately serviced by central government,” Michael says. Today, Oamaru is proud of the good bits that grew from those turbulent times – mainly a fine collection of Victorian heritage buildings that arguably make the North Otago town New Zealand’s heritage centre. But one of those fine buildings – the courthouse – was nearly lost.

“Port-a-court” When earthquakes forced the closure of Oamaru’s grand Forrester and Lemon designed 135-year old courthouse in 2011 it looked as if justice would forever be meted out in a succession of temporary locations – including a “port-a-court” in

a hotel carpark. Until Bill Dean, one of Oamaru’s senior practitioners, a partner in Dean & Associates, and husband of National’s Waitaki MP Jacqui Dean, decided enough was enough. Government engineers reckoned it would cost between $4 million and $6 million to make the courthouse fit for use – a figure Bill Dean and others regarded as insane. He employed a civil engineer who costed the work at $350,000. “I got resistance from Justice to even get the keys into the building,” Bill says. “Fortunately, I had Jacqui on my side and my good mate Chester Borrows was Courts Minister.” Eventually, the local council stepped up in 2016, did a deal to acquire the land and building for a nominal amount, and spent $900,000 bringing the buildings up to the highest modern standard on the basis that the Ministry of Justice would rent it back as a hearing centre. “It took several years for the paperwork to be accepted and remedial work to be completed. The courthouse needed to be saved for the community’s sake,” Bill says. The modernised courthouse was opened late in 2018 and is back in business for court and other legal hearings, serviced from Timaru.

“You get embedded in Oamaru” Having moved from the North Island for a couple of years’ experience, Bill is still there 35 years later – although he reckons

▴ Katherine Henry

he is in the process of retiring to go back to his former profession as a truck driver. “It’s an isolated job and I don’t have to worry about other people’s problems.” “After a while you get embedded in Oamaru,” he says. “For a young couple maybe starting a family it’s one of the safest places in the country. The schools are fantastic. The place is humming. Tourism has gone through the roof with the preservation and use of old Victorian buildings. “The Victorian quarter has filled up with commercial businesses, retail, cafes, a brewery. A whole lot of businesses sprang up on the back of the Victoria precinct.” But like many small provincial towns it is not easy to attract lawyers to Oamaru. 83

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Facts ❶ Of the Waitaki district’s population of 22,300, nearly 14,000 (63%) live in Oamaru. 91% of the population are European, compared with 74% for the whole of New Zealand. ❷ Every year more than 75,000 people visit Oamaru’s biggest tourist attraction – the little blue penguin colony. ❸ In 2014 Lonely Planet named Oamaru New Zealand’s coolest town, partly because of its historic Victorian precinct, Victorian Heritage Week, penguins and its Steampunk HQ . ❹ The many 19th century buildings constructed in distinctive “Oamaru stone” limestone 84

means Oamaru’s Victorian precinct in the southern part of the town’s main commercial district ranks as one of New Zealand’s most impressive streetscapes. ❺ Oamaru made it into the Guinness Book of World Records in 2016 for the largest gathering of steampunks in the world – a term coined in the 1980s based on imagining inventions the Victorians might have created for the modern world and is something that has to be seen to be understood. ❻ Among famous folk born in or around Oamaru, or who stayed for a while, are writers

Janet Frame, Owen Marshall, Greg McGee and Fiona Farrell Poole, broadcaster Jim Mora, former Australian Prime Minister Chris Watson, fellow politicians Arnold Nordmeyer and William Steward, and All Blacks Richie McCaw and Fred Allen. ❼ A strong community of living artists work in and around Oamaru and there are several dealer galleries in the historic quarter. ❽ The world first learned of the death of explorer Captain Robert Falcon Scott and members of his team on their return from the ill-fated expedition to the South Pole when Scott’s ship Terra Nova arrived in Oamaru on 10 February 1913, and the news spread worldwide. ❾ The median house value in Oamaru is just under $282,000. Sources: Statistics New Zealand and Waitaki District Council

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▴ Ben Coleman

It’s where we live

▴ The Oamaru courthouse.

It is easy to get a graduate who wants to get a couple of years’ experience before heading off to the bright lights or overseas, but attracting and retaining experienced practitioners is a different story. “Those who stay, do so for a reason, usually family. We have had a fair share of graduates, in for a couple of years, then off, unless they become a parent – which we encourage. “In my first two years in Oamaru I did six jury trials and won five of them, as well as urban and rural conveyancing, and commercial work. You become an able general practitioner.”

Barrister sole Katherine Henry operates her part-time criminal practice from a two-acre block at Totara, south of Oamaru, where she helps her husband till the land to grow vegetables and create a self-sufficient food forest. Katherine previously worked at Chapman Tripp in Wellington, and for Invercargill firms Southern Law, Hewat Galt Lawyers and Preston Russell Law – where she was a Crown prosecutor. “We moved here in 2014 to live here and I practise here because we live here,” Katherine says. “It’s in the wider area where our extended families live.” “For me it works well because I work from home part-time and as a barrister in the courts I probably wouldn’t be able to work part-time as I do if I was in a bigger centre.” The Timaru District Court Judge Joanna Maze sits on Oamaru’s criminal list once a fortnight. There are no High Court sittings. Katherine says smaller towns allow junior lawyers to have a broad range of practice areas and get involved in cases. “I worked for Chapman Tripp in Wellington doing civil litigation and was a small cog in a big machine. It was great but clients tended to be in-house lawyers or directors. “When I moved to Invercargill I

▴ Michael de Buyzer

was dealing with a lot more mum and dad clients. I also worked for the Crown in Invercargill. In a smaller place I was working for smaller clients in smaller disputes which meant I could take a lead role.” With three children, Katherine is a home educating parent, balancing home and work and says the family’s lifestyle is their relaxation. Katherine and husband Steven are building a straw bale house with heavy timber frames, which she says suits the environment. “We are always planting trees and always outside with our children – and we go camping. My husband works on the land. “For me as a sole practitioner not having a library is a challenge. I can’t afford to have everything and have a basic reference package. Sometimes I use the law library kiosks when I go to Timaru or Dunedin but it can be more of a challenge just finding time. “Most of my work is legal aid so I have to be careful about what I subscribe to.”

Quirky call back home for local boy A novel tongue-in-cheek advertisement placed by legal “character” Dick Crush attracted local-born Michael de Buyzer back to Oamaru from a Christchurch firm. “My parents still lived here. I replied to Dick’s ad and got the job. I 85

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◂ The Lagonda Tearooms in Oamaru is a great spot for a cup of tea and a cheese roll. In years past it was a popular destination for Oamaru’s teenagers, who would regularly visit the tearooms after school for milkshakes.

moved to see what it was like and 32 years Every year later I’m still here,” says Michael. more than Michael is a partner in Berry & Co, 75,000 people which also has offices in Queenstown and visit Oamaru’s Invercargill. The firm has been a member of biggest tourist independent legal network NZ LAW Ltd for attraction – some time and was the first South Island the little firm to join. “It provides certain collegiality blue penguin and idea sharing with lawyers in a myriad colony. of different-sized firms.” “This is a good, safe, friendly community with good schooling and opportunities to get into sporting and cultural clubs. Oamaru has been very kind to our family. “Technical developments such as cell phone and electronic mail settlements at a distance tend to make life easier. There was a major challenge with the courthouse but that has been resolved. “As lawyers we tend to get on well with one another. We respect each other and also stand up vigorously for our clients when required. But it never becomes acrimonious or personal. “We get together from time to time socially and there is good collegiality between Oamaru and Timaru.”

Progressive attitude amid Victorian charm Dean & Associates partner Ben Coleman says Oamaru – where 19 lawyers practise – is experiencing a resurgence of growth. “Oamaru and the Waitaki economy is being revitalised. It is no longer a one trick pony supported by the primary industry sector. “There is substantial growth and diversification into the services, tourism, retail, hospitality, manufacturing, commercial and property spaces. Some of New Zealand’s leading production companies who export all over the world base themselves here.” Ben returned to New Zealand in 2002 after working for a major international law firm in London. After a year at the Bank of New 86

Zealand in sales and compliance, a job came up in Oamaru. “My mother has family in this area, so it was a natural choice and I have been with this firm ever since. “I don’t think I would have foreseen staying when I first joined but it’s a fantastic town and the town and region have a strong growth up-curve and a good robust economy.” Married with three children he says that increasingly, people, businesses and institutions in the region are becoming more industrious, ambitious and diligent. “There is a progressive attitude whilst the charm and quirky niche of being a Victorian town with beautiful turn of the century architecture is retained. It’s exciting to be intrinsically involved in this growth by way of advising clients who are leading it. “Some of my friends from Melbourne have visited and rate the historic precinct with its captivating and unique shops better than predictable high streets in cities. “It’s a nice town to raise children in because it’s safe, the schools are good, people genuinely care and there are excellent facilities like the bike park. It’s not far away from the mountains or the beaches and we usually get to go home for lunch. “There is definitely a real sense of community spirit and concern in Waitaki. “The quality of the legal work is high and is expanding into a broader spectrum. Clients have high expectations and can be demanding; our office is very busy and I’m not usually home in the evenings until 7 or 8pm. “There are plenty of opportunities for lawyers to make a positive impact in the community with volunteer work too – for example my partner Bill Dean’s involvement in rugby, mine as a director of the Highlanders and cricket and our associate Emma’s contribution to Waitaki Girls’ High School.” ▪

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An innovative approach to school property investment How the Ministry of Education is managing its forward construction programme BY REBECCA ROBERTSHAWE

The Ministry of Education’s Infrastructure Service (EIS) is responsible for managing the Crown’s investment in school property, school transport, ICT infrastructure and the schools’ payroll system. Our $28.7 million property portfolio includes more than 15,000 school buildings across more than 8,000 hectares. As at December 2018, we had $1.5 billion in active design or construction projects. We execute around $350 million of new major works construction contracts every year. The ministry is one of New Zealand’s largest asset managers and buyers of construction services. We balance our obligations to taxpayers and the Crown by providing safe, well-designed, fit for purpose learning environments to house the 790,000 children and 70,000 teachers who use them every day. We have to make investment decisions that will be long lasting for future generations of children. While we need to get good value for taxpayers’ money and manage risks appropriately on behalf of school communities and taxpayers, the ministry is also committed to engaging fairly with the construction industry. We are an active participant in the sector and in response to

the current market, have embarked on a number of initiatives to engage with the industry and streamline our procurement processes and construction contract documentation. We have tried to be innovative in this, aiming to: • Establish long-term, mutually beneficial relationships with the construction sector; • Increase the transparency of our future construction work programme; • Make it easier to do business with us; and • Ensure dealing with us is a high quality and consistent experience for construction contractors, our consultant partners and schools.

Construction Directory In 2018 the ministry launched a Construction Directory of preferred suppliers and a Construction Pipeline of the 87

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high-value projects we are planning. The Construction Directory is a panel of over 100 pre-qualified construction suppliers for major infrastructure projects. We aim to make the tender process easier for suppliers using the directory. They supply company information just once, during their appointment to the Construction Directory, instead of having to repeat the same information in each tender response. It will also substantially reduce the time ministry staff spend assessing contractors’ tenders, while giving us the confidence of having a pool of high performing suppliers. We expect to procure an estimated $250 million of construction through the directory on an annual basis. The Construction Pipeline describes the future capital works projects above $500,000 the ministry is planning. It allows suppliers to identify early their preferred tender opportunities and helps them plan their future resourcing. We are committed to open and transparent engagement with the industry. All ministry standard construction contracts and explanatory guidance notes are publically available on our website. Suppliers can familiarise themselves with terms in advance of submitting a tender, with concerns addressed at the earliest stage of the procurement process.

Annual contract review The ministry reviews construction contracts annually in consultation with construction suppliers. Briefings are held nationally enabling suppliers to discuss issues directly with our staff. Our Infrastructure Services’ procurement team also meets regularly with construction industry groups for open discussion and reciprocal feedback. These groups include the New Zealand Institute of Architects (NZIA) and the Association of Chartered Engineers NZ (ACENZ). Senior ministry officials also met with executives from Registered Master Builders to discuss industry concerns and possible solutions. Feedback received during the development of the Construction Directory led to us

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implementing immediate changes to the standard ministry ‘major works’ contract, including reducing payment times. We are currently reviewing the warranties for workmanship and materials to ensure our contract requirements better align with the current market. We are also gaining efficiencies in our contracting process by looking outside the box for solutions. Internally, we recently introduced Contract Express, a new automated construction contract software system designed for more efficient and consistent documentation processes. As a result our procurement and legal teams spend significantly less time drafting, reviewing and approving construction contracts, while ensuring consistent terms across the projects. With automation the ministry is able to release better quality requests for tender. This enables suppliers to submit more precise assessments of the required resources and the risks involved with a particular project. We are also focusing on design, engineering and consultancy projects. The ministry chairs the Crown Construction Clients Group (CCCG) which is made up of the ministry and six other of the largest government construction clients: the Ministry of Business, Innovation and Employment, Housing New Zealand, New Zealand Defence Force, NZ Transport Agency, Ministry of Health and Auckland Council. The CCCG works in collaboration with NZIA, ACENZ and other industry bodies to standardise conditions of contracts for consultancy services. We intend for both the Crown and suppliers to benefit from reducing the time spent negotiating standard terms and providing a significantly more consistent experience for consultants working with Crown agencies. Given the size of the ministry’s property portfolio and future project pipeline, it’s in our interest to support a thriving and sustainable construction sector which can build and maintain our properties. For more information on the Construction Directory, Construction Pipeline and upcoming engagement opportunities visit www.education.govt.nz/suppliers and www. gets.govt.nz ▪

Rebecca Robertshawe eis.legal@ education.govt.nz is the Legal Director of the Ministry of Education’s Infrastructure Service.

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He aha ngā mea nui o te ao nei? Ngā awa, ngā roto me te kotahitanga What’s important in this world? The rivers, the lakes and collaborative frameworks BY DONNA LLEWELL

The field of “co-governance” of some of Aotearoa New Zealand’s key natural and physical resources has for many years been thought to be reserved for specialist Treaty lawyers - but that is evolving and requiring new skills and diversification for public and private lawyers in some regions of the country. This article provides some context about co-governance arrangements, and - from an implementation perspective - discusses challenges that an advising solicitor may encounter. Co-governance entities have developed uniquely in New Zealand (compared with other countries with indigenous populations) as collaborative frameworks for significant waterways and waterbodies, including freshwater, estuarine and harbours. These frameworks provide new and important avenues for environmental management and bringing the collective wisdom, relationships and resources of tāngata whenua of any given locality together with that of central and/ or local government representatives. Some co-governance entities include community or other stakeholder representation. They all result in the blending of public and private interests and values whilst at the same time recognising

an imperative place for Māori in the management of natural resources.

Co-governance context In the world of co-governance one size does not fit all. There will be something different in each entity from its creation, its membership, the purpose and functions, to scope and interface with environmental laws, the natural and physical resource being governed (and its state of health and well-being and associated management challenges). There are ongoing debates seeking to delineate between ‘co-governance’ and ‘co-management’. From the author’s perspective, that is semantics best left to academics. It is all about collaborative processes and opportunity with an entity and its membership working towards a collective goal of sustainable management and enhancement of the environment. Another critical matter to appreciate is that a co-governance entity is complementary to and not substitution for the participatory and consultative rights of tāngata whenua/iwi, hapū, whānau in our resource management processes. For those who like to appreciate distinctions ... the key characteristics of co-entities may include: Co-governance = high level governance; strategic directions; defining values; setting common aspirations, vision, objectives, action priorities and planning to achieve those; development of a public statutory document which interfaces with localised regulatory and planning frameworks; influencing decision-making (including funding, use and allocation of the natural resource, and the means to achieve the mutual co-governance goals) Co-management = medium to lower level governance; operational decision-making; directing or conducting physical day-to-day management; natural resource

may be publicly or privately owned; the entity may have a contract for service delivery; management and planning more localised and informal So where is the nexus and authority for co-governance? Predominately entities have come into being as part of cultural redress packages for settlement of historical Treaty grievances of iwi claimants. Key examples include co-governance structures for national and/ or regionally significant rivers, lakes and their catchments (ie, Te Arawa Lakes Strategy Group (2006), Waikato River Authority (2010), Rangitāiki River Forum (2012), Te Maru o Kaituna River Authority (2014), and Te Pou Tupua (for the Whanganui River (2017)). Another significant example of co-governance is Te Urewera Board (2014) which is unique in terms of its governance with separate legal status and identity for land and resources which, prior to the Treaty settlement with Ngāi Tūhoe, were managed as a national park. All of these co-governance arrangements are founded in Deeds of Settlements and then empowered discretely through Treaty settlement legislation. There are other legislative foundations by which collaborative frameworks might be established. 89

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Under the Local Government Act 2002 and the Resource Management Act 1991 (RMA) in particular there are avenues (which to date have not widely utilised) to establish joint management committees or the delegation of statutory functions to certain bodies. The RMA reforms of 2018 heralded the introduction of a new instrument Te Mana Whakahono a Rohe which focuses on building constructive relationships, process and practices between iwi and agencies in the RMA space. The intent of this instrument is to enhance Māori participation in the RMA resource management and decision-making processes but co-governance is not within scope. Lastly, there is wide diversity of voluntary-based agreements, protocols, memoranda of understandings and relationship documents throughout the country between Māori, central or local government and/or other stakeholders. Generally these will be localised or project based and none will have the same statutory power and integrity of legislated co-governance arrangements.

Capacity The most fundamental matter for the success and durability of co-governance is for representative parties and their appointees to get to know each other and build their relationships and trust. In many cases, prior history and negative experiences for Māori often means this can take time. More often than not both tribal appointees and local government representatives may not necessarily have been involved during Treaty settlement negotiations. That requires the advising solicitor to go back to basics of statutory interpretation for educating co-governance members (and to keep repeating that exercise as members transition on to the entity). The capacity of parties to the co-governance arrangement is also important for creating, over time, a level playing field such that each side of the equation is building shared 90

knowledge, capacity, participation and responsibility. Local government agencies are assigned the secretariat role and administrative responsibility for the co-governance entity, but over time and with maturity there would be no barrier to an entity looking to use other external services. It may be challenging at times for council officials in a technical advisory role to a co-governance entity because the blend of representatives and interests at the table may mean debate, consideration and/or decision-making does not reflect an official’s experience with their usual council committee. Co-governance does not take so kindly to recommendations of an official or necessarily endorse an official’s viewpoint. Effective co-governance with robust leadership promotes open engagement to arrive at a collective full consensus decision which might not be the usual route that local government officials experience. Legal advisors need to be mindful of the principles and parameters of conflict of interests. The co-governance empowering legislation stipulates that an iwi member’s association to his or her tribal connections does not detract from their full participation in the business of the co-governance entity; and to avoid doubt, such membership does not mean he or she are members of a local authority. It is also imperative for local government appointees to appreciate the boundaries. For example, he or she may be participating in a co-governance decision which then subsequently will come before a committee or full council meeting for final determination as a councillor. A member council’s legal advisor might also be asked to provide advice to the co-governance entity and that must always be premised with clarification that such advice is given on behalf of the respective council; and that other local government or iwi members or the co-governance entity in its own right is entitled and may need to seek independent legal advice.

Integration Co-governance entities are deemed to be a permanent “joint committee” of representative councils in terms of the Local Government Act 2002 (LGA). However, the empowering legislation also makes a number of modifications, disallows and/or transplants a number of sections and clauses of the LGA and its schedules to support co-governance processes. As well, an entity must adopt standing orders which cannot contravene the LGA, the Local Government Official Information and Meetings Act 1987 or any other legislation; and which must also respect tikanga Māori protocols and practices. An entity has discrete power to appoint sub-committees in advancement of its purpose. These integrations are to balance and recognise the accountability and transparency obligations for a co-governance entity because they carry out a public role with the application of public funds (but not exclusively as there could be private or other funding arrangements). However, such integration respects and recognises that the co-governance entity has firm avenues to incorporate traditional and cultural norms, including Mātauranga Māori knowledge in relation to the natural resource and co-governance goals. Another significant example of integration is where a principal output from a co-governance entity is a statutory document which from its inception, policy and development, public submission and hearing process, decisions and final approval of such document brings into play the vision and objectives of the entity for the natural resource. This document has different interplays with the RMA and LGA. For example, RMA consenting

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processes must have regard to the document. All relevant local authorities must also recognise and provide for the vision, objectives and desired outcomes of the co-governance document when preparing or amending a regional policy statement, regional plan, or district plan under the RMA. In line with RMA planning timeframes, the co-governance document will be reviewed every 10 years (with differing procedure depending on the materiality of the review). A co-governance entity has legal personality and its own statutory platform, purpose, powers, functions and administrative processes. In practical terms, as capacity of its membership increases and fulfilment of a key function (ie, developing the co-governance statutory document) it becomes even more important for all persons to appreciate that such an entity is not simply another local council committee. It is a discrete statutory body which has its own role to play in the sustainable management of a designated natural resource. An entity might also create its own mana/authority with a public interface quite different to that of regional and local government bodies. Most co-governance structures operate a form of duality in that meetings will be rotated between a formal council chamber setting to a local marae or community-based venue. Te Reo Māori is freely used at times without the formality of notice or accredited translation. Such practices and environments might be completely new to non-Māori members and advisors requiring openness of mind and hearts.

Adaptation Co-governance entities are vibrant living structures

that by their nature and constitution will change over time. Experience is also showing that the issues confronting our environment and natural resources are also evolving and this is placing pressure and desire on the part of co-governance entities to expand their brief or scope of business. A clear example is responding and adapting to the challenges of climate change for our ecosystems. Changes and rotations of representative membership of both iwi and local government mean relationship building is a constant exercise. There has been some work to adjust sitting terms and cycles to have more cohesion and continuity for membership and/or alignment with local government election periods so that an entity may not be faced every three years with a completely new set of members and loss of institutional knowledge. Adapting the co-governance structure, membership, purpose and functions or any other key element of its being may be problematic in that empowering settlement legislation would need to be amended. That requires engagement and is at the mercy of Parliament which, after 10 years of operation of a co-governance entity, may be reluctant to meddle with Treaty settlement legislation. Thereby, some non-legislative aspects may be adapted by full agreement of representative members. There appears to be a growing presence of non-members of the co-governance entity at proceedings which may demonstrate a heightened interest and awareness from community and environmental interest groups, stakeholders with rights or interests associated with the natural resource and the local public generally. If the work of co-governance engenders more open and mutual dialogue between all facets of our communities, then is that a benefit not necessarily contemplated by the establishment of co-governance arrangements? Perhaps it also shows a maturing and developing

appreciation of the rightful position and benefit that Māori can contribute towards the future of our significant natural and physical resources.

Conclusion In terms of the Treaty settlement process, the September 2018 quarterly report of the Office of Treaty Settlements outlined that approximately 70% (ie, 77 out of 114 potential Treaty claimant settlements) have been concluded in Aotearoa New Zealand. This will inevitably result in more co-governance arrangements coming into being and interface with the regional and local environments. The devolution and economic position for Māori is likely to enhance their own capacity and resourcing to instigate wider utility of collaborative frameworks outside Treaty settlements. Some of the challenges of co-governance outlined in this article may leave the reader with concern as to the complexity of such arrangements. That said, anything new and unique takes time to come to fruition. We must look towards the positive opportunities that co-governance brings – not only for the environment but also for relationships and cementing for the longer term the proper and rightful place of Māori authority in governance of significant waterways and other resources of this country. Every co-governance member has an eye towards the future generations whether they be an iwi or local authority appointment. ▪

Donna Llewell donna.llewell@ boprc.govt.nz is a committee member of ILANZ and In-House Legal Counsel for the Bay of Plenty Regional Council / Toi Moana. Donna’s legal practice is predominately in public environmental sectors, and she has worked on a number of key Treaty of Waitangi historical claims negotiations, settlements and her practice includes advising on implementation of settlement redress within a local government context. 91

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Complaints decision summaries Lawyer took ‘satisfactory steps’ after error [Names used in this summary are fictitious] A lawyers standards committee has resolved not to impose a disciplinary finding against a lawyer who breached her professional obligations when she disclosed information she shouldn’t have. The lawyer, Noggs, was contacted by Ms Wemmick in relation to her separation from her husband, Mr Hexam. Unbeknown to Ms Wemmick, Noggs had been instructed by Mr Hexam two days earlier. At no time during their conversation did Noggs advise Ms Wemmick of her retainer with Mr Hexam. Noggs subsequently disclosed to Mr Hexam the details of what Ms Wemmick had sought advice on and also referred to these in a letter she sent to Ms Wemmick, on behalf of Mr Hexam, on the same day Ms Wemmick contacted her. Ms Wemmick complained that Noggs had breached her professional obligations when she disclosed to Mr Hexam what she had sought advice on from Noggs. On receipt of Ms Wemmick’s complaint, Noggs: • took advice from a senior family lawyer and the complaints advisory panel; • acknowledged her error and provided a written apology to Ms Wemmick (via her current lawyer); • implemented new procedures to ensure that conflicts are identified earlier; and • terminated Mr Hexam’s retainer. The committee agreed that Noggs had breached her professional obligations when she disclosed to Mr Hexam what Ms Wemmick had sought advice on and referred to that information in the letter she sent to Ms Wemmick. However, the 92

committee considered that the steps taken by Noggs on receipt of Ms Wemmick’s complaint were ‘both prompt and satisfactory’. In light of the steps already taken, the committee decided to take no further action as it was satisfied that in the circumstances further action was not necessary or appropriate.

Made threat for improper purpose [Names used in this summary are fictitious] Informing two real estate agents that his clients would complain about them to the Real Estate Agents Authority (REAA) unless they paid $50,000 compensation was unsatisfactory conduct by a lawyer, a lawyers standards committee has found. The real estate agents acted for the vendor of an apartment which was experiencing issues with noise from a neighbour. The purchasers considered that the real estate agents were aware of these issues and failed to disclose them prior to the sale. As such, the purchasers consulted their lawyer, who referred them to Stiggins. Stiggins wrote to the agents, setting out his clients’ concerns about the noise and alleged that the agents were aware, at the time the sale was negotiated, that there were issues in relation to unacceptable noise levels. One paragraph of Stiggins’ letter stated that his clients had grounds to file a complaint with the REAA but as they were conscious of the time involved for both parties, they were prepared to refrain from complaining in return for a payment of $50,000. On receiving Stiggins’ letter, the agents took advice and subsequently made a complaint to the Lawyers Complaints Service.

A lawyers standards committee conducted a hearing to determine whether Stiggins had breached rule 2.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 when he threatened to refer the agents to the REAA unless $50,000 was paid to his clients. Rule 2.7 provides that: “A lawyer must not threaten, expressly or by implication, to make any accusation against a person or to disclose something about any person for any improper purpose”. In his submission to the committee, Stiggins denied any improper conduct. He said his letter did not threaten to make an accusation against either agent or to disclose the agents’ actions for an improper purpose. His letter merely set out his clients’ enquiry of the agents, which was whether the agents would be open to settling their concerns without the need to make a complaint to the REAA.

Unsatisfactory conduct The committee found that Stiggins had breached rule 2.7 and that was unsatisfactory conduct. “While it is a legitimate course for lawyers involved in contentious matters to threaten civil litigation unless a financial settlement is reached, it is not appropriate for a lawyer to use a threat to refer another party to a professional standards authority as a lever to extract a benefit on behalf of a client,” the committee said. “In doing so [Stiggins] acted with an improper purpose.” As a lawyer, Stiggins had an obligation to uphold the rule of law and facilitate the administration of justice. If he had reached the view that the agents had breached their statutory obligations under the Real Estate Agents Act 2008, he should have referred his concern to the REAA. “It was not for him to co-opt that public body’s own processes to advance his

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clients’ interests. “That [Stiggins] was acting on the instructions of his clients is immaterial, when following a client’s instruction would lead to a breach of a lawyer’s professional obligations, he or she should decline to act rather than carry out that instruction,” the committee said. As well as determining unsatisfactory conduct, the committee ordered Stiggins to pay a $5,000 fine and $1,000 costs.

On review Stiggins applied to the Legal Complaints Review Officer (LCRO), saying he considered the committee erred in its decision. Even if it had not erred, he considered the fine to be excessive. In LCRO 283/2014, the LCRO upheld the committee’s determination of unsatisfactory conduct by Stiggins. “I agree with [Stiggins] that lawyers frequently make demands for compensation on behalf of their clients, accompanied by threat to commence proceedings if the compensation sought is not paid. He described this as a conventional and entirely appropriate approach, and I accept that to be the case,” the LCRO said. However, Stiggins’ argument “pays insufficient regard to the fact that the threat made to the agents was a threat to subject them to a professional disciplinary inquiry. In advancing the threat, he was attempting to assert leverage over the agents by, as the committee described it, co-opting a public body’s processes to advance his clients’ interests.” “The impropriety of the demand flows from the attempt to achieve financial compensation by threat of utilising a professional regulatory body as leverage to achieve the financial outcome sought. “It is not, in my view, analogous to equate the threat of making professional complaint, to that of threat to file proceedings in a court,” the LCRO said.

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However, the LCRO did consider that the $5,000 fine was excessive, and replaced it with a $2,000 fine, plus $1,200 costs.

Fined for overcharging [Names used in this summary are fictitious] Two lawyers who overcharged a client have been fined $2,000 and ordered to reduce their fees by a lawyers standards committee. The client, Ms Quilp, had separated from her former partner. When her former partner learned that Ms Quilp had booked overseas travel for her and their children, he successfully applied to the Family Court for an order preventing the removal of the children from New Zealand. Ms Quilp instructed a law firm, firm C, to make a without notice application to discharge the order and was assisted by two lawyers, Tiffey and Tisher. Ms Quilp hoped that, by filing the application, she would be able to proceed with her travel plans. However, the Family Court declined to grant the application without notice and directed it should be heard on notice. Tiffey and Tisher subsequently terminated the retainer with Ms Quilp. For reasons that were not clear to the committee, Tiffey and Tisher formed the view that Ms Quilp’s instructions placed them in a position of conflict with their obligations to the court. The same day Tiffey and Tisher terminated the retainer, Ms Quilp instructed new counsel Mr Cheeryble, who advised Tiffey and Tisher that he now acted for Ms Quilp. A directions conference relating to Ms Quilp’s application was set down for three days after Tiffey and Tisher terminated

the retainer. However, Tiffey and Tisher considered it was necessary for Tisher to attend the directions conference, on the basis that they had not yet been served a copy of the change of representation notice (this was subsequently received later that afternoon). Ms Quilp complained to the Lawyers Complaints Service about the quantum of fees charged, saying she was particularly concerned that Tiffey and Tisher sought to invoice her for attendances made after the termination of the retainer. That committee said that if Tisher insisted on attending court to file the notice of representation in fulfillment of his professional obligations as an officer of the court, then that “should have been at no cost to Ms [Quilp]”. The committee concluded that “from the time they terminated the retainer with Ms [Quilp], the practitioners were quite simply not entitled to incur any more fees on Ms [Quilp]’s behalf, whether that be for discharging their own professional obligations or for any other matter.” In seeking to charge Ms Quilp for attendances which took place after the termination of the retainer, Tiffey and Tisher had breached their obligation under rule 9 of the Lawyers and Conveyances Act (Lawyers: Conduct and Client Care) Rules 2008 to charge only a fee that was fair and reasonable. That amounted to unsatisfactory conduct, the committee concluded. In terms of the reasonableness of the final statement of account, the committee said it reached the conclusion that the fees charged were excessive and that this also amounted to unsatisfactory conduct. A fair and reasonable fee for the work undertaken up to and including the termination of the retainer would have been $5,000 exclusive of GST and disbursements. The committee ordered Tiffey and Tisher to pay a total fine of $2,000, to reduce their 93

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final statement to $5,000 (excluding GST and disbursements), to refund Ms Quilp any money received from her above the $5,000 (excluding GST and disbursements), and to pay $1,000 costs to the New Zealand Law Society.

Client should have been told about legal aid eligibility [Names used in this summary are fictitious] Failure to alert a client that she may have been eligible for legal aid constituted unsatisfactory conduct by a lawyer, a lawyers standards committee has found.

Evidence preparation Systems, staff & training Advisory services

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The lawyer, Omer, acted for Ms Wegg in an action against her employer. During the course of the case, payment of the law firm’s fees became an issue and Ms Wegg also became unemployed. Rule 9.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 reads: “Where a client may be eligible for legal aid, a lawyer must inform the client of this and whether or not the lawyer is prepared to work on legally aided matters.” The standards committee raised an own motion investigation into Omer’s compliance with rule 9.5. In her response to the committee, Omer said that a family member of Ms Wegg had undertaken to pay the fees and as at the time Ms Wegg was employed, she did not consider that her client would be eligible for legal aid. The committee considered that neither

Risk management Applications Hearings support

point Omer sought to rely on excused her from her obligations under rule 9.5 because: • Ms Wegg was young; • she was employed in an industry which is traditionally not highly paid; • her future employment was uncertain, being subject of the case in hand; and • a family member’s undertaking to pay her legal fees indicated that Ms Wegg may have had financial difficulties. The committee determined that those factors should have alerted Omer to the possibility that Ms Wegg may have been eligible for legal aid. Notwithstanding the above, the committee determined that a finding of unsatisfactory conduct was sufficient penalty without the imposition of any orders, as there was insufficient evidence before the committee that Ms Wegg would actually have been eligible for legal aid.

Sign up to the New Zealand Law Society’s Gender Equality Charter Be part of a community leading change in the legal profession. Demonstrate your commitment to gender equality to your staff and clients. ▸ Lead from the top ▸ Make a plan and take action ▸ Measure progress #leadthechange To find out more visit www.lawsociety.org.nz

L AW TA L K 9 2 6 · M arch 2 0 1 9

Will Notices

CLASSIFIEDS · WILL NOTICES

Barrett, Mervyn Desmond

Male, Kevyn George

Would any lawyer holding a will for the abovenamed, late of Wellington, Retired, who died on 16 January 2019, please contact Bev Roche, Tripe Matthews Feist:

Would any lawyer holding a will for the abovenamed, late of Auckland, aged 75 years, born on 1 April 1943, who died on 4 December 2018, please contact Anishka Prasad, Prudentia Law:

 bev@tmf.co.nz  04 494 1590  PO Box 5003, Wellington

 anishka@prudentia.co.nz  09 912 1985  PO Box 340 Shortland Street, Auckland 1140

PA G E 95

Blok, Ruben Gisert

Barrett, Mervyn Desmond Blok, Ruben Gisert Callaghan, Nellie Aurere Dunman, Gladys Heather-Mankelow, Andrea Tuataata (otherwise known as Andrea Tuataata Kino Toi Toi Heather-Mankelow) Lavin, Asya Ivanova Male, Kevyn George Matia, Arran Chamberlain Tuhito McLuckie, Patricia Ann Rogers, Te Heikahurangi Scott, Donald Alexander Sila, Foafoa

Would any lawyer holding a will for the abovenamed, late of Wellington, aged 39 years, who died on 3 October 2018, please contact Vanya Jones, Legal Executive, Churton Hart & Divers:

PA G E 96

 don.howden@joneshowden.co.nz  07 888 7072

Staudenmann-Hughes, Nico Alan Tekii, Nooroa Trott, Dawn Lynette Tupuola, Silafaga Liaina Turahui, Peter John Robert

 vanya@propertylawyer.co.nz  09 533 9476 or fax 09 533 9482  PO Box 82-040, Highland Park, Auckland 2143

Callaghan, Nellie Aurere Would any lawyer holding a will for the abovenamed, late of 21 Stanley Street, Matamata, born on 28 October 1929, who died on 23 December 2018, please contact Don Howden, Jones Howden:

Dunman, Gladys Would any lawyer holding a will for the abovenamed, late of Matai Crescent, Putaruru, Home Executive, born on 23 June 1935, who died on 13 August 2018, please contact NL Lawyers:  office@nll.co.nz  07 886 7540  PO Box 518, Tokoroa

Heather-Mankelow, Andrea Tuataata (otherwise known as Andrea Tuataata Kino Toi Toi Heather-Mankelow) Would any lawyer holding a will for the abovenamed, Chef, born on 23 January 1970, who died on 18 January 2019, please contact Melissa Bourke, Innes Dean Tararua Law:  melissa@innesdean.co.nz  06 952 3266  PO Box 43, Palmerston North 4440 or DX PP82510

Lavin, Asya Ivanova Would any lawyer holding a will for the abovenamed, late of Auckland, aged 43 years, born on 28 July 1975, who died on 25 January 2019, please contact Anishka Prasad, Prudentia Law:  anishka@prudentia.co.nz  09 912 1985  PO Box 340 Shortland Street, Auckland 1140

Matia, Arran Chamberlain Tuhito Would any lawyer holding a will for the above-named, late of 233 Marsden Point Road, Ruakaka 0116 and 37 Browns Road, Manurewa, Auckland, born on 28 October 1993, who died on 27 December 2018, please contact David Rice, David Rice & Associates:  office@davidrice.co.nz  09 295 1067  PO Box 72-266, Papakura 2244 or DX EP76505

McLuckie, Patricia Ann Would any lawyer holding a will for the abovenamed, late of Sunset Rest Home, 117-123 Boundary Road, Blockhouse Bay, Auckland, Retired, aged 74 years, born on 7 October 1944, who died on 25 December 2018, please contact Asta Gold, Gold Legal Ltd:  a.gold@goldlegal.co.nz  09 235 0440

Rogers, Te Heikahurangi Would any lawyer holding a will for the above-named, late of 24 Taheke Road Kaikohe, Linesman, please contact Manu Rogers , Rogers Barristers & Solicitors:  rogerslegalfirm@gmail.com  09 405 8330

Scott, Donald Alexander Would any lawyer holding a will for the abovenamed, late of 17 West Harbour Drive, West Harbour, Auckland, who died at Auckland on 1 January 2019, please contact Alexander McDonald, Price Baker Berridge:  amcdonald@pbb.co.nz  09 836 9437 or fax 09 837 2667  PO Box 21463, Henderson, Auckland 0650

Sila, Foafoa Would any lawyer holding a will for the abovenamed, Builder, aged 35 years, who died at Tuakau on 20 October 2018, please contact Jo Lovett, Franklin Law:  jol@franklinlaw.co.nz  09 237 0066 or fax 09 238 7141  PO Box 43, Pukekohe 2340 or DX EP77020

LEGAL JOBS · CLASSIFIEDS

WILL NOTICES CONTINUED

Staudenmann-Hughes, Nico Alan Would any lawyer holding a will for the abovenamed, late of Tawa, Engineer, born on 28 December 1993, who died on 12 July 2018, please contact Grace Collett, Family Law Specialists:  grace@familylawspecialists.co.nz  04 237 4063  PO Box 50513, Porirua 5240

Tekii, Nooroa Would any lawyer holding a will for the abovenamed, late of 167 Balmoral Drive, Tokoroa, House Executive, born on 30 April 1958, who died on 29 October 2018, please contact David Mayall, Niemand Peebles Hoult:  david@nplaw.co.nz  07 959 1818  PO Box 1028 Hamilton, 3204

Trott, Dawn Lynette Would any lawyer holding a will for the abovenamed, late of 54 Devon Crescent, Bulls, who died on 28 January 2019, please contact Mark Richardson, Lawyer:

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maritime law, and in disciplinary proceedings. We appear in the District Court, High Court, Court of Appeal, Supreme Court and tribunals, and in arbitrations and mediations. Members of Chambers accept appointments as arbitrators and as mediators.

Lambton Chambers welcomes Debra Angus as a member of Chambers. Debra has a wealth of experience in public and parliamentary law and frequently advises on parliamentary strengthening and rule of law issues for international development projects.

A spacious and well-appointed room is available to a suitable candidate. A one year term is available initially, with the prospect of renewal for a longer term.

We also invite expressions of interest in joining Chambers.  Lambton Chambers is located in central Wellington, close to the Courts. We provide a range of expertise in civil, commercial, insurance, criminal, and regulatory law and in specialist areas of family, tax, aviation and

Contact:

Joy Patchett, Oﬃce Manager  T: 04 472 7950 E: admin@lambtonchambers.co.nz W: lambtonchambers.co.nz Level 3 Legal House, 101 Lambton Quay Wellington, 6011

Further information is available on request. Enquiries will be treated with the strictest conﬁdentiality.

Barristers:

Debra Angus Andrew Beck Pam Davidson Toby Gee Barbara Hunt Paul Michalik David Milliken John Morrison

Kim Murray Gaeline Phipps Terry Sissons

 mark@markrichardson.co.nz  06 327 8606  PO Box 216, Marton

Tupuola, Silafaga Liaina Would any lawyer holding a will for the abovenamed, late of Lower Hutt, who died on 31 July 2018, please contact Main Street Legal Limited:  sune@mainstreetlegal.co.nz  04 527 9727 or fax 04 527 9723  PO Box 40 457, Upper Hutt or DX RP44011

Turahui, Peter John Robert Would any lawyer holding a will for the abovenamed, late of 703C Sandringham Road, Sandringham, born on 23 December 1963, who died in Auckland on 14 January 2019, please contact Alex Sheehan, Pidgeon Law:  alex@pidgeonlaw.co.nz  09 337 0826 or fax 09 337 0827  PO Box 6535, Wellesley Street, Auckland 1141

Sainsbury Logan & Williams is a leading Hawke’s Bay law firm with an emphasis on Commercial/Corporate work and Litigation. This is a great opportunity to join the litigation team. You will work with two partners and be ‘hands on’ in doing civil and commercial litigation which is high-end, diverse, interesting and challenging, in an environment where we offer excellent mentoring and a supportive and engaging team environment. We will consider applicants with 6 – 10 years’ litigation experience. The ideal candidate will be ambitious, have an excellent academic record, and be able to work independently and engage confidently with clients and other practitioners. If Hawke’s Bay sounds like your destination, there is partnership potential for the right candidate.

To apply, please contact Howard Bott, Practice Manager at HJB@slw.co.nz 96

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CLASSIFIEDS · LEGAL JOBS

LAWYER

Mergers and Acquisitions • Quality, varied work • Strong international and national client base • The autonomy and responsibility to manage your own deals

Online summary Kayes Fletcher Walker, the office of the Manukau Crown Solicitor, has vacancies for junior prosecutors beginning in late January 2020. The positions are suitable for recent graduates through to solicitors with 3 years PQE (but not necessarily with prosecution experience). Successful applicants will be joining a dynamic mediumsized law firm committed to providing great training and career development, with unrivalled opportunities to appear regularly in court. To obtain an application form please visit our website www.kfw.co.nz. Applications close Wednesday 20 March 2019, and can be sent to office@kfw.co.nz

Be empowered with the autonomy and responsibility to manage your own deals whilst being a part of a collegial and genuinely supportive team.

About the firm

Quigg Partners is a boutique law firm specialising in corporate mergers & acquisitions and employment. It provides specialist legal advice of the highest quality that best addresses clients’ objectives and needs. Its client base is made up of corporate organisations including government and quasi-government organisations, multi-national companies, leading New Zealand companies (both public and private) and many trans-Tasman and international businesses covering a broad range of industries.

About the role

Quigg Partners currently has an opportunity an Intermediate Lawyer to join the Corporate M&A team. The majority of your role will be corporate mergers and acquisitions and commercial law, but you will also have the opportunity to work in other areas depending on your area of interest and client needs. As part of the Corporate M&A team you will be involved in: • • • • • •

Buying and selling businesses (large and small) Carrying out due diligence Reviewing contracts Negotiating sale and purchase agreements Advising on the structure of deals Completing deals

Quigg Partners advise on large, small, cross-border and domestic deals, so this opportunity offers plenty of variety within the M&A corporate space.

Skills & experience

Junior and Intermediate Litigation Lawyers Gilbert Walker is a specialist advisory and dispute resolution practice based in Auckland. We practise across a broad range of civil disputes, including commercial, construction, insurance, property, trusts and regulatory matters. We are acting on a wide range of interesting and challenging matters for high proﬁle clients. We are recruiting junior and intermediate associates to join us now. We maintain a low ratio of senior to junior lawyers. If you join us, you can expect to work with each of our three partners in small, focused teams. All of our lawyers engage directly with our clients and appear regularly in court and other dispute resolution forums. We work in an open and collegial environment that rewards those with initiative and high standards of excellence. If you have an outstanding record of academic and professional achievement we would like to hear from you. We pay our lawyers at the top of the market to attract the best candidates. Applications should be sent to: Martin Smith at martin.smith@gilbertwalker.com

For further information about our firm, please contact any of our partners or staff, or visit our website: www.gilbertwalker.com

• Anywhere from 3-6 years post qualification experience • Experience in any of the following areas: • Banking and Finance • Commercial Property • Conveyancing • Competition and Consumer Law • Tax • Commercial law • Corporate M&A • Commercial disputes • Excellent work ethic We work a lot with competition law, the Takeovers Code and the Overseas Investment Office so if you have experience in this area it would be relevant also. There may also be opportunities to work on commercial property matters and some disputes / litigation work.

The Culture

Quigg Partners offer a culture where you work hard when required but is relaxed and friendly. The Lawyers are independent and autonomous, but support is there if you need it. We are outcomes focused, offer flexibility with work hours and provide the technology to be able work from home if you need to. Quigg Partners also encourage Lawyers to get involved with areas of legal practice they are particularly interested in.

To apply please submit your cover letter and resume to Nicola van Heerden on nicola@kin.co.nz or call on 029 770 7936 97

CPD Calendar PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Greg Cain Michael Hargreaves

Death and illness caused by long term health issues are extremely costly to society. Accordingly, WorkSafe is very focused on health-related risks, and interacts with Persons Conducting a Business or Undertaking (PCBUs) in a range of areas from asbestos to bullying and sexual harassment. This webinar will cover PCBUs’ obligations in the health area and examine recent and forthcoming cases on health issues from New Zealand and Australia. It also outlines WorkSafe’s strategic approach for dealing with these issues.

Webinar

13 Mar

Emma Butcher Andrew Scott-Howman

Independent investigations in the workplace have taken on a new importance in the global #metoo age, with a sudden increase in the number and complexity of bullying and harassment allegations. Following on from a session at the Employment Law Conference in October 2018, this webinar will suggest both practical and technical tips and provide advice aimed at assisting you whether supporting an employer investigating a complaint or advising a complainant or a respondent.

Webinar

20 Mar

Roderick Joyce QSO QC Sandra Grant Nikki Pender Paul Radich QC

This workshop is an excellent opportunity for recently admitted practitioners to develop practical skills in civil litigation in an intense small-group workshop. You will 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.

Dunedin

13-14 May

Auckland 1

27-28 May

Wellington

21-22 Oct

Auckland 2

4-5 Nov

CIVIL LITIGATION AND EMPLOYMENT HEALTH AND SAFETY – RECENT DEVELOPMENTS

1.5 CPD hours

EMPLOYMENT – INVESTIGATIONS IN THE #METOO ERA

1.5 CPD hours

INTRODUCTION TO CIVIL LITIGATION SKILLS

9 CPD hours

Note: Douglas Wilson Scholarship applications close 15 April.

COMPANY, COMMERCIAL AND TAX INTRODUCTION TO COMPANY LAW PRACTICE

Local Presenters

A practical two-day transaction-based workshop that will equip you with the knowledge and understanding to deal with the purchase, establishment, operation and sale of a business. A popular, regular in the CLE calendar.

Christchurch

11-12 Mar

Wellington

18-19 Mar

Auckland

25-26 Mar

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

Various

Feb-Oct

14 Mar

13 CPD hours

CRIMINAL DUTY LAWYER TRAINING PROGRAMME

Local Presenters

11* CPD hours PAROLE BOARD HEARINGS – THE LAWYER’S ROLE

*CPD hours may vary, see website Judith Fyfe Sir Ronald Young

There are approximately 8,000 parole hearings every year, but lawyers appear at only a small percentage of them. There are significant opportunities for practitioners to play a greater role in this process. This webinar will provide practical insights on the Parole Board hearing process and the role of the parole lawyer.

Webinar

Brett Crowley

A practical two-day workshop covering the fundamentals of being an effective criminal lawyer. This workshop will benefit all practitioners wanting to be appointed to level one of the criminal legal aid list, and those recently appointed to level one. Note: Douglas Wilson Scholarship applications close 3 April* & 31 July**.

Wellington Auckland

2-3 Sept**

Aimed at practitioners with at least 6-10 years’ litigation experience (either criminal or civil) this five-day nonresidential programme follows the same methods that have proved so successful in the basic level NZLS CLE Litigation Skills Programme.

Wellington

23-27 Jun

1.5 CPD hours INTRODUCTION TO CRIMINAL LAW PRACTICE

13 CPD hours

ADVANCED LITIGATION SKILLS PROGRAMME – FOR CRIMINAL AND CIVIL LITIGATORS

32 CPD hours

Director: Judith Ablett-Kerr ONZM QC Deputy Director: Paul David QC

6-7 May*

Note: Course applications and Douglas Wilson Scholarship applications close 8 May.

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz

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

PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Hana Ellis Wendy Kelly April Trenberth Jason Wren

This workshop has been designed to ensure participants have the opportunity to develop the full range of skills, knowledge and attitudes required to carry out the role of Lawyer for Child effectively.

Wellington

Sharon Chandra Antonia Fisher QC

The landscape of relationship property is ever-changing as relationships and property structures become increasingly complex. It is important for practitioners to be aware of these developments. This webinar will focus on the key issues in this area and provide an update of recent cases.

Webinar

21 Mar

Marika Eastwick-Field David Raudkivi

This seminar will discuss representations, warranties and covenants in Sale and Purchase Agreements that are frequently the subject of post completion claims, how different liability regimes under the Sale and Purchase Agreement can impact on claims, the availability of statutory claims, and the use of warranty and indemnity insurance. The discussion will then move to procedural and substantive issues involved in pursuing and defending such claims, including the implications of warranty and indemnity insurance.

Auckland

12 Mar

Live Web Stream

12 Mar

Tony Davis Robyn von Keisenberg

Increasingly family lawyers need a sound degree of financial knowledge when they are dealing with relationship breakups when there is a property in dispute. This seminar will provide you with the background to better understand valuation theory and how it is applied in practice with a focus on practical issues for family lawyers which will assist in quantifying relationship property, better managing your experts and critiquing opposing expert evidence.

Auckland

26 Mar

Live Web Stream

26 Mar

Kimberly Lawrence David Tyree

Despite a will-maker’s best intentions, estate litigation is increasingly common. Practitioners need to be aware of appropriate options for each client’s circumstances, including when to challenge the validity of the will itself and when to challenge the provisions contained in a will, and they need to be aware of common mistakes made in estate litigation.

Webinar

18 Mar

Chair: Greg Kelly

Trust lawyers and trustees face unprecedented changes: the Justice Committee of Parliament has recommended that a new Trusts Bill be passed; the Law Commission has proposed significant changes to the current “trust busting” provisions in family law; the drafting of trust documents and changes to existing trusts will come under scrutiny; the Family Court will have greater jurisdiction over trusts. If you work in the areas of trusts, estates, property and relationship property, you will need to understand these changes.

Wellington

A comprehensive round-up of recent cases and developments with an eye to the future – what lies ahead in human rights law?

Wellington

FAMILY LAWYER FOR CHILD

18.5 CPD hours

PRA – KEY RECENT DEVELOPMENTS

1.5 CPD hours

20-22 Mar

PROPERTY AND TRUSTS WARRANTIES – POST CLOSING CLAIMS ON SALE & PURCHASE AGREEMENTS

2 CPD hours

VALUATION AND EXPERT FINANCIAL EVIDENCE IN PRA CASES

2 CPD hours

ESTATE CHALLENGES

1.5 CPD hours

TRUSTS CONFERENCE 2019

13 CPD hours

17-18 June

Live Web Stream

17-18 June

Auckland

24-25 June

PUBLIC HUMAN RIGHTS LAW – NEW FRONTIERS

Chair: Paul Rishworth QC

7 May

Live Web Stream

7 May

Auckland

8 May

New Zealand’s premier Education Law Conference will once again focus on the key issues facing educationalists, as well as practitioners who advise boards of trustees, principals, or parents.

Wellington

6 May

Live Web Stream

6 May

Auckland

7 May

Lawyers who practice in the Elder Law area are today faced with legal requirements and complexities which were not evident a generation ago. This intensive will provide up-todate practical advice on current issues and challenges.

Wellington

6.5 CPD hours

OTHER PRACTICE AREAS EDUCATION LAW 2019

Chair: Gretchen Stone

6.5 CPD hours ELDER LAW 2019

6 CPD hours

Chair: Mary Joy Simpson

29 May

Live Web Stream

29 May

Auckland

30 May

To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111

LIFESTYLE

PROGRAMME PROGRAMME

Onlineregistration registrationand andpayment paymentcan canbe bemade madeat: at: Online www.lawyerseducation.co.nz www.lawyerseducation.co.nz

PRESENTERS PRESENTERS

CONTENT CONTENT

WHERE WHERE

WHEN WHEN

PRACTICE AND PROFESSIONAL SKILLS PRACTICE AND PROFESSIONAL SKILLS A WINDOW INTO A WINDOW INTO BECOMING A DISTRICT BECOMING A DISTRICT COURT AND/OR FAMILY COURT AND/OR FAMILY COURT JUDGE COURT JUDGE

Chief District Court Chief District Court Judge Doogue Judge Doogue Principal Family Court Principal Family Court Judge Moran Judge Moran

1.25 CPD hours 1.25 CPD hours

invitation from Chief District Court Judge and AnAn invitation from thethe Chief District Court Judge and thethe Auckland 1 (Full) Auckland 1 (Full) Principal Family Court Judge hear what it takes Principal Family Court Judge to to hear what it takes to to bebe a a Hamilton (Full) Hamilton (Full) modern judge. This seminar help you determine whether modern judge. This seminar willwill help you determine whether Auckland 2 2 this role might you, and whether your current career Auckland this role might bebe forfor you, and whether your current career settings right should you wish progress settings areare right should you wish to to progress onon to to thethe Bench. Bench.

Dunedin Dunedin

11 Mar 11 Mar Mar 12 12 Mar Apr 15 15 Apr Apr 17 17 Apr

See invitation attend www.lawyerseducation.co.nz See fullfull invitation to to attend at:at: www.lawyerseducation.co.nz TRUST ACCOUNT TRUST ACCOUNT ADMINISTRATORS ADMINISTRATORS

Philip Strang Philip Strang

How you keep a trust account in good order? This practicalVarious How dodo you keep a trust account in good order? This practical Various training is for new trust accounting staff, legal executives, training is for new trust accounting staff, legal executives, legal secretaries and office managers. legal secretaries and office managers.

Philip Strang Philip Strang

Under Financial Assurance Scheme practices operating Auckland Under thethe Financial Assurance Scheme all all practices operating Auckland 1 1 a trust account must appoint a qualified trust account a trust account must appoint a qualified trust account Hamilton Hamilton supervisor. A candidate must a lawyer and must pass supervisor. A candidate must bebe a lawyer and must pass Wellington NZLS trust account supervisor assessments, which take Wellington thethe NZLS trust account supervisor assessments, which take Auckland Auckland 2 2 place during a full day programme. The training consists place during a full day programme. The training consists of of self-study learning material (approx. 40-50 hours) help you Christchurch self-study learning material (approx. 40-50 hours) to to help you Christchurch prepare assessments. prepare forfor thethe assessments.

Mar-Sep Mar-Sep

4 CPD hours 4 CPD hours TRUST ACCOUNT TRUST ACCOUNT SUPERVISOR TRAINING SUPERVISOR TRAINING PROGRAMME PROGRAMME

CPD hours 7.57.5 CPD hours

EFFECTING CULTURE EFFECTING CULTURE CHANGE CHANGE

Rabia Siddique Rabia Siddique

6 CPD hours 6 CPD hours

MEDIATION PRINCIPLES MEDIATION PRINCIPLES AND PRACTICE AND PRACTICE

CPD hours 13 13 CPD hours

Virginia Goldblatt Virginia Goldblatt Geoff Sharp Geoff Sharp David Patten David Patten Adam Lewis Adam Lewis

Culture is everything. It goes beyond company values Wellington Culture is everything. It goes farfar beyond thethe company values Wellington and mission espouse websites, letterheads and and mission wewe espouse onon ourour websites, letterheads and to to Auckland Auckland clients. It what is what and when think others ourour clients. It is wewe saysay and dodo when wewe think others watching listening. Essentially it about is about how areare notnot watching or or listening. Essentially it is how wewe treat each other, how communicate with each other and treat each other, how wewe communicate with each other and clients. This workshop has limited numbers and ourour clients. This workshop has limited numbers and willwill fill fill fast. upup fast. A practical two-day workshop focused professionals Auckland A practical two-day workshop focused onon thethe professionals Auckland in the mediation process, whether that is as advocates in the mediation process, whether that is as advocates or or Wellington Wellington mediators. You learn new skills and also enhance and mediators. You willwill learn new skills and also enhance and adapt skills you currently possess that you can improve adapt skills you currently possess so so that you can improve your representation parties mediation and your your representation of of parties at at mediation and your knowledge role a mediator. It can lead, if you wish, knowledge of of thethe role of of a mediator. It can lead, if you wish, to to a second workshop focused training a mediator. a second workshop focused onon training to to bebe a mediator.

Apr 16 16 Apr 18 18 JulJul Sept 2424 Sept 5 Nov 5 Nov Nov 12 12 Nov Apr 2929 Apr Apr 3030 Apr

3-4 May* 3-4 May* 26-27 Jul** 26-27 Jul**

Note: Douglas Wilson Scholarship applications close Note: Douglas Wilson Scholarship applications close onon 3 3 April* and June**. April* and 2626 June**. STEPPING STEPPING UPUP – – FOUNDATION FOR FOUNDATION FOR PRACTISING OWN PRACTISING ONON OWN ACCOUNT 2019 ACCOUNT 2019

18.5 CPD hours 18.5 CPD hours

Director: Director: Warwick Deuchrass Warwick Deuchrass

lawyers wishing practise their own account whether AllAll lawyers wishing to to practise onon their own account whether alone, in partnership, in an incorporated practice alone, in partnership, in an incorporated practice or or as as a a barrister, required complete this course. (Note: barrister, willwill bebe required to to complete this course. (Note: From 1 October 2012 lawyers applying barristers sole From 1 October 2012 all all lawyers applying to to bebe barristers sole required complete Stepping Up.) Developed with areare required to to complete Stepping Up.) Developed with thethe support New Zealand Law Foundation. support of of thethe New Zealand Law Foundation.

Christchurch Christchurch

9-11 May 9-11 May

Auckland Auckland 2 2

25-27 25-27 JulJul

Wellington Wellington

12-14 Sep 12-14 Sep

Auckland Auckland 3 3

21-23 Nov 21-23 Nov

CPD –– A A Few Few Hours Hours Short? Short? CPD Checkout outour ourOnline OnlineCPD CPD Check 24/7Access Accessfrom fromyour yourDevice Device 24/7 www.lawyerseducation.co.nz www.lawyerseducation.co.nz

contact | Visit: www.lawyerseducation.co.nz ToTo contact usus| Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz| Phone: | Phone: CLE information 0800 333 Email: cle@lawyerseducation.co.nz CLE information onon 0800 333 111111

L AW TA L K 9 2 6 · M arch 2 0 1 9

LIFESTYLE

A New Zealand Legal Crossword

10 11

13 14 15

SET BY MĀYĀ

24 25

X A

S D

W W

O W

I N

A W

C L

D R

Across answers contain a baby name rejected in 2018. This is ignored in the wordplay, e.g. “Judgement” might be clued “Men to model wisdom”.

N E

S E

N I

O O

C R

N A

B U

E E

A X

E R

N E

M I

R A

L A R I

Solution to February 2019 crossword Across 1. Enamel, 4. Abacuses, 9. A Brush, 10. Strainer, 12. Iago,

Across

Down

1 David Bowie’s creation goes to

1 Tiramisu served by those hiding

my head (5,3)

2 Score deciders? No, normally 3/5 (6)

9 Storms out of Coco’s place (8)

3 Formulaic type of transport? (6,3)

10 We’re alone! (6)

4 Wind instrument so alumnus can go

12 Poles may be alluring (6) 13 They come to save “Snakehead” (8)

15 Woo nice stranger with cheap sherry (11) 19 Not the one Bonnie Tyler’s

13. With The Law, 15. Extractor Fan,

holding out for - oh, absent and

18. Know The Drill, 21. Enlargeson,

on the fiddle, they say (11)

22. Your, 24. Teenager, 25. Braces,

22 Constant bearing for dugouts (8)

26. Lay Aside, 27. Bridge.

24 Not doing a good job about... (6) 26 ...person in charge of whiskey (6)

Down 1. Examines, 2. Arrogate,

27 Ignored part of answer’s guitarist to head parade? (8)

3. Erse, 5. Butchers Hook,

28 Stags’ tail? (6)

6. Crash Lands, 7. Senile, 8. Straws,

29 Lands (David Bowie’s, in one

11. Dirty Weekend, 14. Wagnerians,

incarnation) party girl (8)

16. Divorced, 17. Clarisse, 19. Denial, 20. Sleepy, 23. Brer.

wrongful employment (6)

5 State of a fruit in front (6)

on working holiday? (4) 6 Beside one’s objections (5) 7 Alkaliser used against a branch of the police? (8) 8 Demanded untidiness? (8) 11 Jaguars on iron railways? (7) 14 Wooed Wimbledon, for example? (7) 16 Ludicrous “Gore Quest” fantasy (9) 17 Renewable energy for the Navy? (3,5)

18 Agent said to improve by going round and round (8) 20 Roman consul and supreme commander prior to 19’s beheading (6) 21 Exploitative Acts perform in America (6) 23 Cup a girl discovered? (5)

101

LIFESTYLE

Berlin The sexy city that’s full of quirks and contrasts BY JOHN BISHOP

Berlin never reached the heights of other imperial capitals in the age of empires. Even today it compares poorly both with other capital cities in Europe and with other German cities like Munich, Frankfurt, Hamburg and Cologne. As a united country, Germany is young. It only became one country in 1871, after Bismarck’s forces crushed Napoleon III’s armies in the Franco-Prussian War, leading Bavaria, the last remaining independent kingdom to throw its lot in with a Prussian-controlled German Empire. Berlin, the capital of Prussia, then became the capital of a united German nation. That regime ended in 1918, less than 50 years compared with the many centuries that other imperial cities had to build their presence and personality. The conservative and cautious north German Protestants had neither the time nor the inclination to imitate the opulence of Versailles or the decadence of the Schönbrunn Palace in Vienna, or even the style of Buckingham Palace, which was considered a poor outhouse of a place in the 19th century by snobby European royalty. The second reason is geographical. Berlin is built on a swamp – the name Berlin means ‘little lake’ or ‘swamp’ in Swabian, the language of Slavonic migrants who settled there in the 12th century. At every building site in the city large pumps are operating constantly to remove water for solid foundations to be put in. There are depth, height and weight restrictions for buildings. The tour guides tell gullible tourists that the pipes going into almost every building are for beer, or for piping in the custard for the sweet cakes and squares Berliners love to eat. The hydrology means that there are few skyscrapers and no really eye-catching architecture, like the Eiffel Tower in Paris, the Gherkin and the Shard in London or the Donauturm, the Millennium or Donau City Towers in Vienna. Berlin has seen a lot of action: Napoleon’s triumphant arrival after defeating the Prussians at the battle of Jena; the Spartacist uprising led by Communist Rosa Luxembourg in 1919; the Nazis book burning in 1933; John Kennedy declaring on 26 June 1963 “Ich bin ein Berliner”; Ronald Reagan standing at the Brandenburg Gate imploring Soviet 102

leader Mikhail Gorbachev, “Open this gate! Mr Gorbachev, tear down this wall!” followed by the smashing down of the wall in November 1989, and in November 2002 Michael Jackson dangling his nine-month-old son out of a window of the top floor of the Adlon Hotel to the horror of the crowd below.

Museums at night

The tour guides tell gullible tourists that the pipes going into almost every building are for beer

Wellington barrister Chris Chapman is a big fan of the city, and visits regularly. He agrees Berlin does not have the concentrated architectural grandeur of some other European cities. “One exception to this is the Museuminsel and adjacent area in the former East Berlin. There, in addition to the impressive buildings that are the home to five of Berlin’s leading museums, is the Berliner Dom, the Opera, the Neue Wache containing the Käthe Kollwitz statue Mutter mit Totem Sohn, the Humboldt University and the soon to be completed rebuilt Berliner Schloss,” says Chris. “Every capital city has museums to awe their visitors offering displays of art and antiquities and Berlin has this sort of museum in abundance. And once a year there is the very popular Lange Nacht der Museen. “On that day – 31 August this year – from 6pm until the small hours a single €18 ticket

▴ The view down Oranienburge Straße towards the Fernsehturm, the tallest structure in Germany and an icon of East Berlin. ▸ Currywurst – Bratwurst with curry sauce, served with fries – is a specialty of Berlin (and very delicious). will get you into as many museums as you can visit plus the transport in between.” I am not into such cultural pursuits; instead my highlights were the Spy Museum, the Hitler Bunker and Checkpoint Charlie. The Spy Museum regards the first instance of spies as the scouts used by the Egyptian Pharaohs in the 15th century BC to detect and report on enemy troop movements. There is more than a nod in the direction of the cinematic and romantic version of spies, with a display on James Bond, and a collation of spy movies. Berlin was centrepiece in many spy novels and films from the 1950s onwards, including most recently Bridge of Spies. In spy apparatus my personal favourite is a recording device the CIA developed to attach to a cat which was then to wander around a room full of diplomats recording 103

their conversations. Getting the cat ready, trained and set up cost $15 million, but alas, the cat was accidentally killed by a taxi on its first mission. At Checkpoint Charlie, the famous crossing point between the American and Soviet sectors, I was unsurprised to learn that the uniformed guards are not real German soldiers (one of them is Italian). The guard house is a replica, and in real life it was several metres further forward 104

and blocking the cross street. To pose with the “guards” for a photo costs €3; a visitor can choose which officers hat to wear: Russian, American, British, French, but they do salute authentically.

The wall Around the area are some excellent photographic accounts of the wall going up and coming down. Built from 1961 onwards and constantly strengthened until its demise

“Berliners are today resigned to the fact that their city is largely dysfunctional. It is bankrupt. But it is sexy, international, cosmopolitan and somehow cool.”

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◂ Inside the cupola atop the Reichstag, the German parliament building. Designed by architect Norman Foster, the glass dome was added to the building as part of repairs to WWII damage, prior to parliament returning to Berlin in 1999.

from 1989, the Berlin Wall was 96km long and went around the city as well as across it dividing East from West, thus locking West Berlin into East Germany. Almost all of it is now gone. All up, 136 people were killed trying to cross it. But there were 5,075 successful crossings, mostly in the first two years, and about 500 of those were East German border guards. The souvenir shops have pieces of broken concrete “from the Wall” nicely mounted on wooden plinths for display as a reminder. In the former East German side of the city there are murals depicting happy peasants and workers led by the intelligentsia all toiling for socialism. One example of “socialist realism” erected in 1952 was negated by the 1953 uprising against Communist rule which was brutally crushed. The Hitler Bunker is long gone, but the tour guides all know where it was, and you can stand on the site in a small carpark outside a rather ordinary apartment block to hear the story of what happened at the end of the Third Reich in April/May 1945. Oliver Hartwich, the head of the Wellington-based think tank the New Zealand Initiative, is German but not from Berlin. He says Berlin is the least German of all German cities and is different in other ways too. “The thing that makes Berlin different from, say, Hamburg or Munich is its size, which, in turn, enables the formation of scenes and sub-scenes that no other German city managed to develop.” That’s certainly true in the high and low culture of the arts and the creative industries, leading one critic to comment that Berlin was a retirement home for the creatives in their mid-30s. “The other factor about Berlin was that after World War II, it got used to subsidies and transfers,” says Oliver. “The East German government wanted to make it its shop window, whereas for the West it was case of showing solidarity with the city,” says Oliver. “In both cases, Berlin got used to receiving money for being, well, Berlin. And after unification, that mindset didn’t change. “Klaus Wowereit, mayor of Berlin in the early 2000s, coined a wonderful phrase when he described Berlin’s self-image as “poor but sexy”. What other mayor of a global city would say that? “So, Berliners are today resigned to the fact that their city is largely dysfunctional. It is bankrupt. But it is sexy, international, cosmopolitan and somehow cool. I certainly love it, though I would never want to live there.”

City of contradictions In Berlin, tourism is the number one industry, with the arts coming in second. Construction is third, and government is fourth. The long delays and massive cost overruns in building the city’s new airport belie the country’s reputation for efficiency. This is a city of quirks and contradictions. Under Communism, East Berlin pioneered the use of symbols of people walking or waiting inside green and red traffic lights. The man in the green symbol resembled Erich Honneker, the long-time head of the Communist Party in East Germany, a person of stocky peasant origin. When unification occurred, Berliners overturned a plan to get rid of the East German lights and replace them with the Western German variant. The East German version is still used throughout the now united city. And only in Berlin will you find rabid fans of a late-night pick me up after drinking, called currywurst. It’s a grilled sausage (usually beef or veal mixed with pork), in a tomato-based onion and curry sauce, onto which curry powder is shaken to taste. Try it at your own risk, but don’t scorn it: locals love it. There’s even a museum devoted to currywurst. The city’s Holocaust Memorial is also memorable. Built in 2003-05 to a design by American architect Peter Eisenman, who has yet to explain its rationale, the memorial consists of 2,711 rectangular blocks of concrete, each of a different size from knee height to above one’s head, arranged on a 19,000 sq m block south of the Brandenburg Gate. Each block was sprayed with anti-graffiti paint, made by a company called Degesch, a subsidiary of the much larger Degussa company. In World War II Degussa made Zyklon B, the gas used in the death camps. The Berlin authorities knew all this at the time the contract was awarded, and when it was revealed, a fierce public row erupted. One outcome was that Degussa now cleans and refreshes the paint each year for free. ▪

John Bishop john@johnbishop.co.nz is a travel writer and business mentor. 105

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TAIL END

Some more characters in the law BY DON RENNIE Following David Sparks’ memories of characters in the law in LawTalk 925 (February 2019, page 102) (but see page 13), Don Rennie has cast his mind back in time. Don has had a long career in the law and is the convenor of the Law Society’s Accident Compensation Committee.

I was interested to read about some of the characters referred to in David Sparks’ item. I knew Len Leary and had met Mick Robinson during the time I worked in the Magistrates’ Court office in Auckland in the early 1950s. Working as a clerk in the Magistrates’ Court in Wellington in 1954 brought me into contact with a number of “characters” amongst the lawyers and magistrates. I met many lawyers in some cases over the counter when filing documents and answering questions about their cases and hearings, and in other cases when I sat in front of a range of magistrates hearing lawyers pleading their cases. Among the magistrates I worked with were Jim Hannah, Ben Scully, Brice Thompson, Bill Carson and several new magistrates who, when they were first appointed, cut their teeth in the downstairs No. 1 Courtroom in the Wellington Magistrates’ Court. I remember one new magistrate (I won’t name) who had been appointed from a respectable legal practice but with

Notable Quotes

very little court experience. I had taken the day’s list of cases with the relevant documents up to his chambers and discussed what would take place in hearing the cases. He was extremely nervous and I gave him what encouragement I could. We proceeded downstairs to the No. 1 Courtroom and I went ahead of His Worship and stood at the clerk’s bench. The Court Orderly called “silence all rise” and there was a deathly hush but no magistrate appeared. I looked back and His Worship was frozen to the spot with stage fright. I rapidly called “Court adjourned” and went back and took His Worship back to his chambers where I got him a cup of tea and calmed him down. When he was ready we reconvened the court and the second time he entered the court and stepped onto the bench and things went smoothly. That magistrate later became one of the best, fairest and most efficient I had experienced while working in the courts. Magistrate Ben Scully was a different case. He was a forthright ex-West Coaster with firm ideas on how things should be done

❝ What educational purpose do these rules serve? Conformity is not a blank cheque for discipline. ❞ — Victoria University Associate Professor of Law Dean Knight after Auckland Boys’ Grammar School required a 13-year-old boy to cut his long hair.

❝ It is little wonder that so many women (and men) are turning away from the criminal Bar; the environment is increasingly hostile. The hours are punishing and unpredictable, often late into and sometimes through the night, the personal sacrifices are huge, fees are derisory, not remotely stacking up for the necessary childcare or breaks, and the treatment from all directions too often is very unpleasant. ❞ — Chris Henley QC, Chair of the Criminal Bar Association of England and Wales.

❝ Every year, bereaved New Zealand families are paying lawyers between $4.25 and $8.5 million more than they need to, for basic paperwork after a loved one dies. ❞ — Canterbury lawyer Cheryl Simes, who has researched the costs of preparing probate documents.

❝ Act as judges, not as saviours of the nation. ❞ — A request for judicial impartiality from Jordi Pina, defence lawyer for three of 12 pro-independence Catalan politicians facing charges of rebellion, disobedience and misuse of public funds.

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and how defendants, counsel and witnesses should be treated. I was in court with him the day the “Mongrel Mob” was founded. A young offender was in the dock being reprimanded by His Worship and as he was stood down from the dock his Worship said “you’re nothing but a mongrel”. This was picked up by the press (I think it was the Truth newspaper) which published the headline “Court calls Defendant Mongrel”. Before long a number of “prospects” had formed a gang and adopted the name “Mongrel Mob” which still exists today. Among the lawyers appearing in the Wellington Magistrates’ Court no one was more memorable than Roy Stacey. I had seen Roy’s uncle Bill Stacey appearing before magistrates and I felt Roy learned some of his tricks of presentation from Bill, but Roy was something special. He was a former naval officer during the war and was colourful, always polite and had a way with handling witnesses and addressing the court. He had a wonderful flow of language and could always find the right expression or word to fit the circumstances. He was gregarious and often invited court staff to his chambers or home for parties and celebrations. He was memorable and a real character. The Magistrates’ Court was the place where many new lawyers gained their

❝ We need people with a desire to make the law a better place. That’s the sort of people I work with here, that’s incredibly exciting for me. ❞ — New Gallaway Cook Allan partner Jenna Riddle. ❝ There’s an underclass that doesn’t get access to safety nets like every other Australian does, and it disproportionately affects New Zealanders of colour. ❞ — Melbourne community legal centre WestJustice lawyer Sarouche Razi comments on the problems faced by people from New Zealand who live in Australia on a Special Category Visa.

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▴ Harry Arndt

early experience sometimes by watching experienced lawyers like Les Rose, George Kent, Harry Arndt, Frank O’Flynn, Roy Stacey, George Barton, Des Dalgety and many others who also practised in the Supreme Court jurisdiction. In the Supreme Court (now the High Court) judges were addressed as “Your Honour” but in the Magistrates’ Court the magistrate was addressed as “Your Worship”. I am reminded of the story of the young lawyer who had experience in the Magistrates’ Court but in appearing nervously for the first time before a judge in the Supreme Court mistakenly addressed the judge as “Your Worship”. The judge replied “Mr…… in this court you may Honour me but you must not Worship me”. An embarrassing lesson which I am sure he never forgot. There seems to be an absence of real “characters” in the law these days but perhaps things have changed. There are numerous other characters I can recall in my time in practice but I think I have said enough to encourage the recollections of those who practised in years gone by. ▪

❝ Through the years I worked hard, I cried and I prayed because I wanted to make my family proud. I laid it in my heart that I was going to graduate and become a lawyer one day. ❞ — Adi Lina Garnett Valenitabua, 26, one of 42 new lawyers admitted in Fiji on 1 February. ❝ The law in New Zealand about class actions is based on a very general rule in the High Court rules that dates back to 1873. It’s not really designed for modern class actions. ❞ — Wellington barrister Jason McHerron, convenor of the Law Society’s Public and Administrative Law Committee. 107

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