ISSUE 933 · October 2019
Public Defence Service
An important influence on criminal law practice
Reflections on a ground–breaking Feminist Moot
Pro bono legal services support Canterbury Muslim community
Red flags! Is your law office as healthy as you think?
US lawyers, judges and civil rights
Page 19
Page 42
Page 51
Page 72
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6 · From
the Law Society
New Zealand Law Society
7 · New Zealand Law Society 18 · A Changing Profession ▹ BY GEOFF ADLAM
68 32
People in the Law
10 · On the move 16 · Wellington via golf, Gore and Glasgow ▹ BY ANGHARAD O’FLYNN 17 · Top barrister not afraid of a fight ▹ BY TEUILA FUATAI 19 · Reflections on a ground– breaking Feminist Moot ▹ BY REBEKAH HILL, ELLEN LELLMAN AND EMILY SCRIMGEOUR
21 · The value of friendship in law ▹ BY NICK BUTCHER 23 · The Innovators ▹ BY ANDREW KING
Update 24 · Barriers to participation in the employment institutions ▹ BY CHIEF JUDGE CHRISTINA INGLIS 26 · New Incorporated Societies Act ▹ BY MARK VON DADELSZEN 29 · Supreme Court provides guidance to lawyers on testamentary capacity ▹ BY SALLY MORRIS AND FREYA MCKECHNIE
Access to justice
32 · Public Defence Service ▹ BY GEOFF ADLAM 39 · New technology aids access to justice ▹ BY LYNDA HAGEN 41 · Lawyers battling for justice around the world 42 · Pro bono legal services support Canterbury Muslim community ▹ BY NICKBUTCHER
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Contents
Alternative dispute resolution
45 · Running a major relationship property arbitration ▹ BY ROBERT FISHER QC 46 · Reactive devaluation ▹ BY PAUL SILLS
Practising Well
48 · Being a supporter: a daughter’s story ▹ BY CAROLYN RISK
Practice 51 · Red flags! Is your law office as healthy as you think? ▹ BY EMILY MORROW
Creating a just culture 54 · Are we doing enough? ▹ BY JAMIE DOBSON
Technology
56 · New death notification service ▹ BY TRACEY CORMACK 57 · Windows 7 ▹ DAMIAN FUNNELL
69 · Legal nomenclature – from prolix to trendy ▹ BY SIR IAN BARKER QC 71 · A big story to tell – US lawyers, judges and civil rights ▹ BY JOHN BISHOP
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Letters to the editor Lawyers Complaints Service
Legal history
Classifieds
60 · Disciplinary charges against lawyers ▹ BY JUSTIN KLEINBAUM 62 · Complaints decision summaries
74 · Will notices 76 · Legal Jobs 77 · CPD Calendar
Lifestyle
Legal information
66 · The Ethical Lawyer: Legal Ethics and Professional Responsibility by Richard Scragg ▹ REVIEWED BY GARRY WILLIAMS
68 · Recent legal books ▹ BY GEOFF ADLAM
80 · A New Zealand Legal Crossword ▹ SET BY MĀYĀ 81 · Garrow’s Law ▹ BY CRAIG STEPHEN 82 · Tail
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F R O M T H E L AW S O C I E T Y
FROM THE LAW SOCIETY
Law Society’s new project to improve access to justice The phrase “access to justice” features frequently on these pages, and in wider public debate. As a criminal defence lawyer, who has worked largely on legal aid in a small region with a high Māori population, my view of the concept goes far wider than simple access to the courts. However you look at it, the erosion of access to justice jeopardises a person’s ability to be heard, exercise their rights, challenge discrimination and hold decision-makers to account. Barriers to access to justice have always existed, but it is clear that these have increased over time, both in New Zealand and globally. The Law Society has an important role to play in breaking down those barriers and has been working for a number of years to improve access to justice in a range of ways. Some examples of the Law Society’s recent work in this area include: A detailed written submission in September 2018 on the Ministry of Justice’s Triennial Legal Aid Review. The submission highlighted problems with eligibility for legal aid; clients’ difficulties with the application process; inadequate remuneration; burdensome administration; provider shortages and sustainability of the legal aid workforce. Intervention in a Court of Appeal case heard in July 2019 about the extent to which the state is obliged to ensure that lawyers are available under the Police Detention Legal Assistance scheme to provide advice to detained suspects. Our leading and junior counsel acted pro bono, with input from our criminal and legal services committees. Engagement with the Rules Committee’s access to justice working group, looking at ways to reduce the complexity and cost of civil litigation, including simplifying procedural rules. We have also been working with the Otago Legal Issues Centre and the Rules Committee around the provision of unbundled legal services. This is intended to enable lawyers to provide advice on discrete parts of a case when an unrepresented litigant is unable to afford to pay for the whole case. Other projects currently being undertaken include improving the availability of legal advice. We hold regular meetings with senior officials in the Public Defence Service, Legal Aid Services and the Ministry of Justice aimed at identifying and addressing issues which affect legal aid lawyers’ day-to-day practice, as well as the longer term viability of the legal aid system. We work on everything from reducing the complexity of legal aid forms, and resourcing issues which affect delays in bail hearings, 6
to remuneration rates, and understanding the demographic factors which underlie the steadily decreasing numbers of legal aid practitioners. In-house lawyers are currently unable to provide probono services to members of the public due to restrictions in the Lawyers and Conveyancers Act. There is an exception if that work is provided through a community law centre or a Citizens’ Advice Bureau, but that may still be an obstacle. A member’s bill to address this issue is proposed, and the Law Society’s in-house lawyers section, ILANZ, is working with our regulatory department to improve opportunities for in-house lawyers to undertake pro-bono work through other routes. Representatives from our Legal Service Committee are working with colleagues from the New Zealand Bar Association, who have established a working group to improve access to justice for civil legal aid. While this work will continue across the organisation and through the day-to-day work of the Law Society’s committees, we want to identify further opportunities for Law Society contribution. To facilitate this, a new project, aimed at influencing public understanding and support for improved access to justice, has recently started. These first steps involve carrying out research and engaging with academics and other stakeholders working in this area to more fully understand the access to justice landscape in New Zealand and overseas. We want to identify how the Law Society’s role and remit best place us to have the greatest impact, and to then develop and implement a programme of proactive and targeted initiatives to tackle the most significant access to justice issues in Aotearoa New Zealand. ▪ Tiana Epati President, New Zealand Law Society
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N E W Z E A L A N D L AW S O C I E T Y
NEW ZEALAND LAW SOCIETY
Special court sitting in Christchurch The 150th anniversary of the New Zealand Law Society was marked by the Law Society’s Canterbury Westland branch with a special High Court sitting in Christchurch on 5 September. Chief Justice Dame Helen Winkelmann presided at the sitting. The special sitting of the High Court also included judges of the High Court, Employment Court and District Court, along with Coroner Marcus Elliot and retired judge of the High Court, Peter Penlington. Chief Justice Winkelmann told the court that in the years since its creation in 1869, the Law Society has survived as an institution through various reviews
and reforms of its enabling legislation. “Each time reform has been in the air, the profession has fought hard for the standing and powers of its Law Society and for its independence.” She described the Law Society as “no ordinary institution”. “Through the work it does in supporting and regulating an independent legal profession, it has a critical role in our society. A role so critical that it is no overstatement to say that the Law Society is necessary to our constitutional order.” Chief Justice Winkelmann expanded on this by saying a society can only exist under the rule of law if all have equal access to the benefit of the law and all are subject to
the law, including the government. “Equality before the law in this sense requires a legal profession prepared to provide legal services without regard to the identity of their client, or the popularity of their client’s cause – a profession that cannot be pressured or bought off by the rich or the powerful. It is for this reason that the existence of an independent legal profession is one of the hallmarks of a society that lives under the rule of law. Were it left to the government to regulate and discipline lawyers, an unscrupulous government might use that power to disempower or discipline lawyers who argue cases the government would rather they not.” ▪
Law Society comments on Intellectual Property Laws Amendment Bill The Law Society has commented on proposals to amend the Patents Acts 2013, Trade Marks Act 2002, and the Designs Act 1953. The Law Society has raised several issues with proposed changes to the Patents Act. There is some uncertainty around the analysis behind the proposed changes to the transitional provisions in the Patents Act. The Law Society had raised concerns about a similar proposal in a 2016 discussion paper, it says. The Law Society says that rather than reducing the number of 1953 Act applications as intended, the proposal could increase it.
The Law Society also disagrees with MBIE’s assessment of the potential problems caused by “daisy-chaining” of divisional patent applications. It says the only alleged harm that could be caused is a risk of uncertainty for third parties which might want to take advantage of an invention without risk of infringement. “Such uncertainties are inherent throughout the patent system,” it says, noting that as divisional uncertainties are just one source of uncertainty within the patent system. it would be useful to understand why officials have identified these as a source of uncertainty requiring amendment.
There is disagreement with a proposal for amendment of the Trade Marks Act to remove the ability to register series of trade marks. The Law Society says registered series marks provide certainty as to the ambit of a trade mark owner’s rights and it favours their retention on this basis. The Law Society commented on the potential use of artificial intelligence by IPONZ, commenting that full public consultation is required before government departments are empowered by legislation to delegate discretionary decision-making to AI systems. ▪ 7
N E W Z E A L A N D L AW S O C I E T Y
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NEW ZEALAND LAW SOCIETY
Canterbury Women Lawyer Conference New Zealand Law Society President Tiana Epati opened the Canterbury Women’s Legal Association Conference in Christchurch on 21 August. The conference theme was “Navigating the Future”.
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Nelson lawyers commemorate 150 years New Zealand Law Society Vice-President (South Island) Andrew Logan (left) and Nelson branch President Andrew Shaw cut their way through a cake commemorating 150 years since the creation of the New Zealand Law Society. A function at Nelson’s Boathouse on 24 August was attended by over 100 guests. There were also dinners and special court sittings held around the country. 8
The Law Society’s weekly enewsletter LawPoints is automatically sent on Thursday evenings to all lawyers who currently hold a practising certificate, unless they unsubscribe. Because of the anti-spam settings of some servers, LawPoints may be blocked in some organisations. The Law Society has also had some problems recently with changes implemented by our US-based LawPoints distributor MailChimp which have removed some previous recipients from the distribution list. If you do not receive LawPoints or have stopped receiving it without unsubscribing, contact angela. ludlow@lawsociety.org.nz. A public version of LawPoints, NZLS Weekly, is also available free of charge each week to non-lawyers. To sign up, visit www.lawsociety. org.nz/news-and-communications/email-updates/ nzls-weekly.
Apology Unfortunately we misspelt the first name of Te Wehi Wright on page 38 of the September 2019 issue of LawTalk. The error is greatly regretted and we apologise to Mr Wright and his whānau.
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N E W Z E A L A N D L AW S O C I E T Y
NEW ZEALAND LAW SOCIETY
Wellington branch special sitting
▴ The Wellington branch had a special sitting to commemorate the 150 year anniversary at the High Court.
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PEOPLE IN THE LAW
ON THE MOVE
Two District Court Judges appointed Auckland barrister Clare Bennett and Napier barrister Jonathan Krebs have been appointed District Court Judges. Clare Bennett was admitted as a barrister and solicitor in December 1986, practising in Hamilton from 1989, then in chambers in Manukau and Auckland from 1999. She was appointed Youth Advocate in 1989, and has chaired the last two triennial National Youth Advocates Conferences. Ms Bennett holds approval for all categories with the Legal Services Agency and has been a member of the Litigation Skills Faculty since 2004. She will be sworn in on 3 October 2019 at the Manukau District Court. She will have jury jurisdiction and will be based on the North Shore. Jonathon Krebs was admitted as a barrister and solicitor in April 1988. He was a partner of Hawke’s Bay Crown Solicitors, Elvidge & Partners between 2002 and 2006, and was seconded to the Attorney-General’s Office in Apia, Samoa at the end of 2006. Mr Krebs’ principal focus in his career has been criminal and civil litigation. He was the convenor of the New Zealand Law Society’s Criminal Law Committee for 10 years and is a past President of the Hawke’s Bay District Law Society. In 2012 he was Director of the NZLS CLE Ltd litigation skills programme. Judge Krebs will be sworn in on 1 October 2019 in Napier. He will have jury jurisdiction and will be based in Palmerston North.
Memorial sitting for Chief Judge Goddard on 7 November The Employment Court will hold a memorial sitting on 7 November 2019 to commemorate former Chief Judge Tom Goddard’s contribution to employment law. Mr Goddard, who died on 14 March
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2019, was Chief Judge from 1991 to 2005. The memorial sitting will be held at 4pm on Thursday 7 November in Courtroom 5.01 of the Employment Court on Level 5 of the District Court building, 49 Ballance Street, Wellington. It will be followed by refreshments. “This special sitting will provide an opportunity for practitioners to remember former Chief Judge Tom Goddard and to reflect on his significant contribution to employment law and practise,” the Chief Judge of the Employment Court, Judge Christina Inglis, says.
Sir Anand Satyanand inducted into KiwiIndian Hall of Fame Former Governer-General, the Sir Anand Satyanand, has been inducted into the Kiwi-Indian Hall of Fame. The ceremony was held on 9 August at the Cordis Hotel. Prime Minister Jacinda Ardern presented the award. The Kiwi-Indian Hall of Fame award was introduced in 2013 to recognise and honour the efforts of prominent personalities in the New Zealand-Indian community. One person is inducted annually, recognised for their significant contribution to the development and progress of the both Indian community and New Zealand.
Criminal Justice student inaugural recipient of new University scholarship Mario Williams has been announced as the first recipient of the Chalky Carr Trust Scholarship. Mr Williams, a first-year Bachelor of Criminal Justice student, was presented the scholarship by Chalky Carr Trust Patron Gemma McCaw at an official ceremony. The Chalky Carr Trust Scholarship has been set up in conjunction with the University of Canterbury (UC) Foundation
specifically to help those impacted directly or indirectly by cancer. The scholarship is intended to be offered to a minimum of one UC student per annum at a value of $10,000 in perpetuity. The charity’s vision is to make a practical impact for someone living with a cancer diagnosis or their family members who need support through the journey. Chalky Carr was awarded the New Zealand Bravery Medal by the GovernerGeneral for his actions saving lives from the collapsed CTV building in the immediate aftermath of the February 2011 quake. Mr Carr was the All Blacks Logistics Manager when diagnosed with pancreatic cancer in 2016.
Holland Beckett promotes six to Associate positions Six staff of Bay of Plenty firm Holland Beckett Law have been promoted to Associate roles. Joel Murphy specialises in property and commercial law. He has experience in a broad range of property and commercial matters including commercial, rural and residential acquisitions and disposals, leasing, financing, property developments and subdivisions, due diligence and commercial contracts. Prior to joining Holland Beckett Law in January 2019, Joel spent five years working in a large Auckland law firm and then most recently two years working in-house in London. Dan Broadhurst joined the firm in 2014. Admitted as a barrister and solicitor in 2010, Dan specialises in property and commercial law and retains a general focus including relationship property, asset protection and estate planning. Dan studied law at Victoria University after beginning his
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working career as a primary school teacher. Pip Allan has been promoted to associate after joining the firm in May 2018 as a senior solicitor. Pip has a broad range of civil litigation experience, with particular expertise in construction and insolvency law. She also advises on property and insurance disputes. After completing her studies in New Zealand, Rachel Rosser began her legal career in Melbourne where she appeared regularly in both State and Federal courts. Rachel has experience in general litigation and relationship disputes, and advises her clients on all aspects of civil litigation, employment and family law matters. She also holds an additional interest in animal and equine law. Tim Conder specialises in litigation, with a particular focus on trust and estate disputes and regulatory prosecutions. After being admitted in 2015, Tim has appeared regularly in the District Court, High Court and Court of Appeal on a variety of criminal and civil matters. He has also published a number of academic articles, particularly in the area of criminal sentencing.
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Jess Warn started at Holland Beckett in 2013 as a graduate solicitor, and returned in October 2018, after travelling and working in-house for a technology start-up in Vancouver, Canada. Jess advises on a wide range of commercial and corporate law matters.
Morrison Kent announces new partner Joseph Kim has been a p p o i n t e d Pa r t n e r in Morrison Kent’s Auckland office. Joseph began his career at Morrison Kent in Auckland in 2010, joining one of the firm’s commercial/property teams and was promoted to associate in 2016. Joseph is experienced in property law with particular expertise in property acquisitions, developments, financing and leasing matters. He is also experienced in advising on commercial contracts, structuring and commercial transactions.
Loo & Koo appoints new partner Bibiana Lee has joined Loo & Koo as a partner in the firm’s commercial team. Bibiana has extensive experience in matters relating to property development and subdivision, development
financing, acquisition and disposal of commercial and residential properties, all aspects of commercial leasing including providing legal advice to a broad range of clients in commercial and business transactions.
Rachael Dewar Law announces three movements Wellington-based family and property firm Rachael Dewar Law has two recent appointments and one promotion. Amy Gulbransen has been promoted to Associate. Joining the firm in July 2018, Amy works in all areas of family law with a particular interest in relationship property, care of children and domestic violence matters. Amy graduated from the University of Canterbury in 2010, and was admitted at the High Court in May 2013 after working and travelling overseas. Sarah McGovern joined Rachael Dewar Law in January 2019, practising across all family law areas with a special interest in advocacy and Oranga Tamariki proceedings. Sarah graduated with an LLB from Kings Inns, Dublin, practising in Ireland before being admitted at the High Court in Nelson in June 2010. Sarah was recently appointed to the lawyer for child list and is available for agency court appearances. Ruby Hey has joined Rachael Dewar Law. She was admitted at the High Court in June 2019 after graduating with a LLB and BA in International Relations and Political Science from Victoria University. 11
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Ruby volunteers at the Wellington Community Law Centre and is undertaking a wide range of family law work, including relationship property, child law and family violence.
DLA Piper’s Tracey Cross appointed to AIA New Zealand Board Tracey Cross, a partner at DLA Piper New Zealand, has been appointed to international insurance firm AIA New Zealand’s board. Tracey’s senior involvement includes being the leader of DLA Piper’s conduct and culture initiative, and the Chair of DLA Piper NZ’s Leadership Alliance for Women, an initiative that supports the advancement of female lawyers into leadership. Tracey’s expertise is in funds management and superannuation.
Joanna Hayward appointed acting General Counsel at OPC Joanna Hayward has been appointed acting General Counsel to the Privacy Commissioner as the Office prepares for the enactment of new privacy law later this year. Joanna has been an adviser at OPC since 2014 and was formerly an adviser to the Law Commission on information law reform projects including the law of privacy, official information, search and surveillance, harmful digital communications and news media. She is a graduate of Canterbury University and is an experienced practitioner in public, commercial and banking law.
Mark Harding joins Cooney Lees Morgan Mark Harding has joined Bay of Plenty firm Cooney Lees Morgan as an Associate in the resource management and local government team. Mark practised for 12 years in Asia from 2006, beginning in Shanghai in energy, 12
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resources and property, then shifting focus to climate change. He eventually started his own firm looking at greenhouse gas reduction projects in China, which then shifted to sustainable operations of agribusiness in Indonesia.
James Warren promoted to Partner at Kensington Swan James Warren has j o i n e d Ke n s i n g t o n Swan’s partnership as an employment law specialist. Formerly a partner at UK firm Fieldfisher in London, James joined Kensington Swan as Special Counsel in October 2018. Admitted at the High Court in 1998, he has a particular interest in the technology, media and financial services sectors, as well as multi-jurisdictional projects and business transformations.
Wook Lee joins Kensington Swan Wo o k L e e j o i n s Kensington Swan’s corporate and commercial team as Special Counsel. He is intended to join the partnership once he has fulfilled NZ Law Society regulatory requirements. Wook has 12 years’ experience in corporate advisory, governance and transactional matters, including M&A, divestments and equity capital raisings. He is fluent in Korean and was recognised as a ‘Rising star lawyer’ for the corporate and M&A practice area 2018 and 2019 Asialaw Profiles.
New Director at Carson Fox Legal Peter Liao has been appointed Director at Carson Fox Legal.
Peter specialises in commercial and commercial property law. He was admitted to the at the High Court in 2003 and the New York Bar in 2010. He holds LLB, BCom and LLM (first class honours) degrees from the University of Auckland, and an LLM from Cornell University (New York).
Chapman Tripp promotes three senior solicitors Chapman Tripp’s Wellington office has announced the promotion of three senior lawyers. Rosa McPhee specialises in property, infrastructure and construction law. Admitted at the High Court in December 2015, she has a particular interest in commercial construction and leasing. Jasmin Moran specialises in litigation and dispute resolution. Admitted at the High Court in December 2015, she focuses on energy, insurance and fishing industries. Millie Singh specialises in competition and regulatory law with experience in international trade matters focused in the Pacific. Admitted at the High Court in December 2014, she advises industries on merger control, enforcement and Commerce Act regulation.
Glaister Ennor promotes two new partners Two senior associates have become partners in Auckland law firm Glaister Ennor’s litigation and disputes resolution team. Mitch Singh has been promoted to
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Partner. He specialises in commercial and civil disputes, with particular expertise in contract, property, insolvency, privacy and cross-border disputes. Mitch graduated with a Bachelor of Laws from the University Otago in 2009, was admitted at the High Court in September 2010, and graduated with a LLM from the University of Auckland in 2017. Chen Jiang has been promoted to Partner. He is a litigation specialist across commercial, civil and family areas and graduated with a Bachelor of Laws and Bachelor of Arts in 2008. Admitted at the High Court in March 2010, Chen’s expertise includes contracts, trusts and estates, companies, property and construction, insurance and relationship property.
David Tyree joins McWilliam Rennie David Tyree has joined specialist family law practice McWilliam Rennie as an Associate. David has practised for 15 years in Taranaki and Wellington, specialising and leading teams in family law. David’s expertise includes separation, relationship property, contracting out agreements, childcare, guardianship proceedings relating to decision making for vulnerable people under the Protection of Personal and Property Rights Act, enduring power of attorney and challenging estates.
Fiona Brown joins Southern Cross Health Society Southern Cross Health Society welcomes
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Fiona Brown as Chief Legal Officer. Moving from General Counsel and Company Secretary at Kiwibank, Fiona is experienced across legal, governance, commercial and risk management roles. She began her law career with Chapman Tripp before taking on a number of roles spanning 11 years at ANZ, including Head of Governance, Chief of Staff and Head of Securitisation.
AJ Park promotes four, welcomes one Australasian intellectual property firm AJ Park has announced the promotion of four lawyers to Principals and appointed a new Senior Associate to their team as of July 1 2019. Jonathan AumonierWard has been promoted to Principal. He is an experienced trade mark and copyright specialist, being recognised by the World Trademark Review as a leading IP practitioner in New Zealand. Jonathan was admitted at the High Court in May 2001, with vast experience across the food and beverage, cosmetics, pharmaceuticals and ICT industries. Kieran O’Connell has been promoted to Principal. Admitted at the High Court in 2003, he joined AJ Park in 2008 specialising in trademark and copyright. Kieran’s clientele ranges from local to international in areas such as craft beer, organic foods, cosmetics and pharmaceuticals. He also provided advice around the New Zealand flag debate. Margot Smith has been promoted to
Principal. A trade mark specialist, Margot works on trade marks and related IP rights within and beyond New Zealand in areas such as food and beverage, fast-moving consumer goods, luxury goods and building industries. Admitted at the High Court July 2008, she also specialises in non-traditional trade marks including shape, colour and sound. Matt Hayes has been promoted to Principal. A member of the litigation and disputes resolution team, Matt specialises in resolving disputes such as designs, misleading advertising and product claims, counterfiet goods and regulatory issues. Admitted at the High Court in December 2001, Matt’s experienced at representing clients in negotiations and mediations before the New Zealand and Australian Courts, IPONZ and IP Australia. Natalie Harre has joined AJ Park’s litigation and dispute resolution team in Auckland. Natalie has extensive experience advising on a range of intellectual property matters, such as trade marks, copyright, patents, border protection, parallel importing and consumer law including the FTA and CGA. She also advises on terms of engagement for social media influencers and other social media issues.
EIS legal welcomes two new solicitors The Ministry of Education’s Education Infrastructure Service’s in-house legal team (EIS legal) welcomes two new solicitors to its construction division. Courtney Deed has joined as a Construction Solicitor within the Wellington Office. Courtney joins EIS Legal from private 13
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practice where she has specialised in resolving construction disputes. Sarah Lester joins as the Senior Construction Solicitor within the Christchurch office. Sarah brings unique construction experience with the Christchurch rebuild from her time at EQC. She will be focused on the Ministry’s $1 billion plus Christchurch Schools Rebuild programme.
Air New Zealand welcomes Astrid Sandberg Astrid Sandberg has joined Air New Zealand as Senior Workplace Relations Manager. Prior to this, Astrid was Senior Legal Counsel at Vodafone New Zealand, Head of Employment Law (EMEA) for the Royal Bank of Scotland, and in private practise in the UK and at Russell McVeagh in New Zealand. Astrid holds a BA/LLB (Hons) from the University of Auckland and an LLM from Cambridge University. She is a member of the ADLS Employment Law Committee.
Franks Ogilvie appoints new Senior Consultant Brigitte Morten has joined Wellington law firm Franks Ogilvie as a Senior Consultant. The firm says she brings for clients strategic communications and issue advocacy insights. Brigitte graduated with a Bachelor of Laws and Bachelor of Arts in 2006 from Victoria University of Wellington, a Masters in Law from the Australian National University in 2009, and has a post-graduate diploma in Counter Terrorism from the Interdisciplinary Centre in Herzliya, Israel. She has previously been a Senior Ministerial Advisor in the New Zealand Government and has experience across Australian state and federal politics. 14
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Wellington Family Law partnership to become Chambers The partners of Wellington Family Law, Caroline Hannan, Sija Spaak and Chris Dellabarca, advise that their partnership will dissolve with effect from 30 September 2019. With effect from 1 October 2019, the partners will be practising as barristers from Wellington Family Law Chambers. The partners state “we would like to take this opportunity to thank everybody who has been involved in any way with Wellington Family Law since its inception in 1994, and look forward to continuing those relationships from our Chambers.”
Five new team members at Anthony Harper Susan Lyall has joined the trust and asset planning team in Christchurch as a Senior Associate. She has expertise in trusts, asset protection, elder law, estate planning and wills. Susan is also an experienced family lawyer. Olivia Welsh has joined the health and safety team as a Senior Associate in Auckland. She has experience in providing health and safety legal compliance advice to businesses and regularly advises clients on ways to address risks in their particular work activities. Olivia also provides guidance and representation to clients following workplace incidents. Tom Brodie joins the property team in Auckland as a solicitor. Tom’s work includes advice on a wide range of property matters including commercial and unit title acquisitions, subdivisions, high rise developments, rural and residential properties.
Samantha Moore has just qualified from AUT University and having completed her P ro fe s s i o n a l L e ga l Studies, she has joined the Auckland property team as a solicitor. Olivia MacFarlane joins the Christchurchbased property team as a solicitor. Olivia works with the team on a diverse range of property matters.
Harkness Henry announces two new appointments William Zhang has been appointed to the litigation team. William has recently returned to Hamilton from Gisborne where he has spent three years practising primarily in family and criminal litigation. William speaks fluent Mandarin and Shanghainese and will be developing his civil litigation practice. Recent graduate, Jay Rajendram has been appointed as a law clerk in the resource management and employment team. Jay is currently completing his professionals’ studies and is expected to be admitted in late 2019.
Rainey Collins appoints new associate Emily Martinez has been promoted to associate from 1 August. She graduated from the University of Otago with an LLB with first class honours. Emily is in the firm’s litigation team, focusing principally on Māori legal matters. She works with whānau, hapū and iwi in claims before
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the Waitangi Tribunal, and has a particular interest in Māori education, health, and socioeconomic claim issues.
Saunders Robinson Brown appoints four to commercial team Four new lawyers have joined SRB’s commercial team, specialising in commercial property and projects. Jonathan Gillard was admitted as a barrister and solicitor in December 1987. His experience is in commercial property acquisitions & disposals and retail leasing, investment in New Zealand, commercial contracts, rural property and trusts. Jeff Kenny led the commercial property and projects team at Wynn Williams until 2019. He specialises in retail property development and leasing. Jeff is also a recognised author of legal publications and frequent speaker at legal conferences. Josh Orton was admitted as a barrister and solicitor in 2003. He specialises in large scale acquisitions, disposals, subdivisions, leasing and development projects. Katrina Wood graduated with a Bachelor of Laws with first class honours in 2016, and has previously been a member of Wynn Williams’ commercial property and projects team. She
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specialises in commercial property and retail leasing, and also provides advice on commercial contracts, company structuring, joint ventures and trust law.
Alexandra Allen-Franks awarded Cambridge Trust Scholarship
General Counsel, much of his focus in the first year on the job will relate to the new Trusts Act 2019, which will come into effect on 30 January 2021.
Alexandra Allen-Franks has been awarded a Cambridge Trust Scholarship and a Trinity Hall Research Studentship to study a PhD at the University of Cambridge beginning in October 2019. Her research will consider admissibility of evidence obtained in breach of human rights in both criminal and civil proceedings. Alexandra was admitted as a barrister and solicitor in October 2014. She is a graduate of the University of Otago, a former Judges’ Clerk of the Auckland High Court and a former junior barrister to Andrew Brown QC at Bankside Chambers.
Henry Stokes joins Perpetual Guardian Perpetual Guardian has appointed Henry S t o ke s a s G e n e r a l Counsel. Henry brings a wealth of trustee services experience from in-house and private practice roles, most recently serving as General Counsel for state-owned company Public Trust. In addition to Henry’s core duties as
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Announcement Ross Knight, a specialist in trust, estate and relationship property litigation, will be retiring as a partner of TGT Legal on 31 October 2019, to practice as a barrister sole, from 1 November 2019. Ross will be joining Old South British Chambers situated on level 3 South British Insurance Company Limited Building, 3-13 Shortland Street, Auckland CBD. www.rossknight.com 15
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PEOPLE IN THE LAW
N E W I N T H E L AW
Wellington via golf, Gore and Glasgow Honor Kerry, judge’s clerk at the Court of Appeal, Wellington BY ANGHARAD O’FLYNN
Born in Glasgow, Scotland, Honor Kerry spent the first four years of her life living in the Shetland Islands, the northernmost point of Scotland. “My parents wanted to move back to the Scottish mainland when it came time for me to start school but they felt that, as a teacher and a physio, they wouldn’t be able to give my brother and I the upbringing that they wanted for us in Scotland. They decided instead to give New Zealand a two-year trial and we are all still here 20 years later. “My family initially moved to Gore as it was the first place where my dad could get a job. Within a year both of my parents had found jobs in Christchurch and we moved north. Despite then moving to Auckland for university, and now living in Wellington, I remain a very proud Cantabrian.” When did you decide that you wanted to work in the legal profession? “I don’t have any lawyers in my family but my extremely intelligent and assertive great-grandmother wanted to be a lawyer. This, however, wasn’t the done thing at the time and the powers that be prevented her from doing so. She went on to become the British women’s champion in golf. I like to think that she channelled all of her energy and intellect into hitting golf balls further and more accurately than those who prevented her from doing the same with legal arguments. “Her story both inspired and frustrated me and it spurred me to work in the law 16
for both of us. I also remember a parent-teacher interview in year 10 where my social science teacher said that she wanted to see me as a lawyer or a politician changing the law and creating policies to make Aotearoa a better place. I have been fairly focused on the law ever since.” What do you enjoy most about being a judge’s clerk in the Court of Appeal and the work you do? “What I enjoy most about being a clerk is the exposure that I get to all manner of legal issues and factual situations. I have gained an insight into parts of society, business and government that I had (in some circumstances the privilege of) not having any experience in before. I am constantly learning. “I also really enjoy the people that I have come across in this role. I have wonderful colleagues, have worked with fantastic people in the wider community, and have the – unlikely to be repeated – privilege of Court of Appeal judges listening to my opinions on a daily basis.” After finishing your studies, did you find the job matched the expectations you had in school? “While I wanted to work in the law from a relatively young age, I had very little idea of what that would look like. The law is not a particularly accessible profession for young people. I had the privilege of not having to deal with the law in any substantive sense until I got to law school. “I had the opportunity to do some summer clerkships while I was at
university. These gave me an idea of what working in the law might be like. “While I didn’t know much about what it looked like in a practical sense, I did come out of school with firm expectations of how I want to be treated and how to treat others – equally and with respect for their individual dignity and differences. “I started working in the law in January 2018, about the same time as the publication of revelations about the profession which were far from those, perhaps naive, expectations. I am, however, pleased to see the cultural change that is starting to take place and hope that my naïve, but nonetheless firm and continuing, expectations will be met.” Are there any issues currently facing young lawyers that you’d like to highlight? “As noted, the legal profession in New Zealand requires meaningful cultural change to restore its mana. “The profession has serious issues with mental health, sexual harassment, bullying, discrimination and a lack of diversity. I think that all of these issues boil down to a lack of respect for one another and the privileged positions that we, as lawyers, hold in society. “These are serious issues and we must do better if we want to retain the people that can make the most positive change to our legal system.” ▪ Angharad O’Flynn is a Wellington-based journalist.
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PEOPLE IN THE LAW
PROFILE
Top barrister not afraid of a fight Belinda Sellars QC BY TEUILA FUATAI
For Belinda Sellars it has always been about the underdog. From her days as a junior in the District Court representing some of Auckland’s most determined drink drivers, to her current post as one of the country’s top criminal barristers, Ms Sellars does not shy away from a fight. “I’ve had a circuitous route,” she says modestly from her Chancery Street chambers. “I started pretty early. I was still only 16 when I started university. I had missed seventh form which wasn’t that unheard of in my day.” Counting backwards, she figures she was just 21 when she began representing clients. “That does sound very young. I can’t remember exactly, but it would have been around that.” Now, at the age of 47, she is about to mark a year since being appointed Queen’s Counsel in November 2018. While there may not have been much time for reflection since the announcement last year, her wide smile when asked about it tells its own story. “It’s extraordinary,” she says. “I’m so thrilled by it. It had been something that I had always thought would be a wonderful thing to achieve and I’m incredibly grateful.” Unpicking reactions to her appointment results in an interesting discussion about changes in the legal industry during Ms Sellars’ career. She was one of five women
in the 10-strong group of appointees last November. “I’ve had so much positive reaction, particularly from younger lawyers and women and people of different backgrounds,” she says. “I find that very pleasing – that I can be somebody that can be approached.”
Law in a less dominating age Related comments on the topic of “diversity in the law”, and the increasing prominence it has received in recent years, show a maturing of both Belinda Sellars and the profession. It starts with her path into law. Coming from a family of lawyers, it seemed like a natural fit and “eminently doable”, she says light-heartedly. With Vietnamese heritage, she stands out from the stable of “old white men” which has dominated the profession, though that was not something she paid much attention to. Rather, it was all about the work, Ms Sellars says. “I suppose it was a familiar environment to me because of my family and always being around it. But, I now see how it must be quite unsettling for someone, particularly if you don’t have the background. “Honestly, I’ve probably spent my career just sort-of looking in one direction and charging ahead a bit, rather than reflecting that much.
There was a time when there didn’t seem to be room for much else – particularly the end of the 80s and the 90s. All you did was think about how much [you were going to bill].” And while men still dominate the legal profession, progress since her early days has been significant, she says. “It’s interesting talking about diversity in the law now. When I first started, it really was lots of old white men, even though we were equal amounts coming through law school. There were women around, but they seemed to fade away quite quickly. That still happens now, but hopefully it’s changing a bit.” One of the things she has noticed, which underlies the need for better representation in the legal workforce, is how her presence as a person of mixed ethnicity often puts some clients at ease. “I sort of look like I’m of no fixed ethnicity. It’s actually an advantage because clients feel comfortable. And I think it’s something that we often underestimate – how seeing someone who might share your background can impact that client/ advocate relationship.” Ms Sellars has Vietnamese ancestry and speaks French, which she picked up to communicate with her maternal side of the family. “My mother was Vietnamese, but most of her family lived in France,” she says. “I couldn’t speak Vietnamese so I basically learned French so I could speak to them.” 17
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Drink drivers, commercial law and the PDS When asked about her choice of criminal defence work, Ms Sellars points to her time as part of the original Public Defence Service pilot team in Auckland as a crucial career point. Launched in 2004 under Michael Corry, the service was her re-entry into criminal work after six years at Russell McVeagh. Her stint at the firm followed two solid years wrangling drink driving cases under Auckland barrister Michael Harte. “It was great because I got into court and I got lots of exposure,” she says of her junior barrister days. “The clientele was real estate agents and car dealers. They were people desperate to keep their licences and were definitely a certain sort of person. It wasn’t the most politically correct of times,” she says with a laugh. “He [Harte] had quite a unique approach to things but he was a great teacher. Seeing how he worked as an advocate was an education in itself.” When she wanted to “spread her wings”, Michael Harte insisted she seek employment at Russell McVeagh. “So, I did. It was general litigation and lots of interesting work. But I came to a point where I thought it wasn’t quite me and that even though I enjoyed it, something was missing.” Being back in the thick of the District Court with the PDS cemented things for her, she says. “I think what had been missing for me at Russell McVeagh was possibly a sense of purpose. I was finding commercial litigation a bit unfulfilling. “With criminal law, there’s a lot of social interaction. You do often feel like you’re giving back quite a lot.” After five years with the PDS and promotion to a senior lawyer position, Ms Sellars took the leap and joined the independent bar in 2009. Since then, her career has gone from strength to strength.
Underdogs and unhelpful clickbait When asked if she ever considered a move to prosecution, she grins and quickly asserts her position on the Auckland Crown Prosecutions Panel. “But I haven’t yet prosecuted.” “I suppose I’ve always liked being on the side of the underdog. That said, I think it’s always good to be able to look at things from both sides. And to be a good advocate and adviser, you need to do that,” she says. Her measured approach extends to other facets of society which impact criminal law. When we discuss the impact of media coverage on cases, and criminal justice issues, she shakes her head. The headline-grabbing slant often put on cases and criminal issues adds to misinformation about the justice system, she says. “When things in the media over popularise calls that say ‘prison is the answer’ and ‘longer prison is the answer’, it is really concerning,” she says. 18
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“I’d like it if the public was re-educated about what prison actually does and just the fact that when a person gets into that cycle, it’s so hard to ever get out.” The reaction of certain clients and their family members when they interact with the system for the first time provides a bit of reassurance, she says. “One thing about our system is there’s this perception that everything is there for the defendant. That couldn’t be further from the truth. It’s very dehumanising ... right down from the way you stand, the way you’re talked about and the way you’re addressed. “It always amazes me when you get clients who have never had anything to do with the criminal justice system and would be the ‘sorts’ that would be attracted to some of the messages from the Sensible Sentencing Trust or something like that,” Ms Sellars says. “It only takes for them to be charged or a member of the family to be charged to take on an entirely different perspective.”
Stress, injustice and satisfaction Overall, Ms Sellars credits a full and varied career, with numerous support people and mentors. There have been so many memorable moments, she says. The successful appeal for mercy of Tyson Redman, who went to prison for assault following a wrongful conviction in 2007, sticks out. “It was when I was still at the PDS that I started an application for the prerogative of mercy. That took five years to be granted. It ended up almost 10 years after the events that we were listening to these witnesses again, but this time they were in the Court of Appeal,” she says. There is also the case of a disabled man, who was representing himself during a retrial in the Court of Appeal for sexual offences. “He felt so strongly and argued for himself even though he had a speech impediment. I took him through the journey of a trial again, where he was acquitted.” Smatterings of dry, twisted humour from various drugs cases are also mentioned. And then there is her first murder case. “It was about a mother charged with killing her baby. That was pretty sad.” After explaining the woman’s progress in a prison reintegration programme, Belinda Sellars pauses briefly. She then cuts directly to what it is all about. “It’s the cases where you have a real feeling there’s been an injustice of some sort. Those are the ones that are the most stressful and most rewarding. I’ve had quite a few of those over the years in different forms. They cause you incredible stress at the time, because you have a feeling that ‘this is riding on me’. But, they’re so satisfying when you get the right result.” ▪ Teuila Fuatai teuila.fuatai@gmail.com is an Auckland journalist.
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PEOPLE IN THE LAW
Reflections on a groundbreaking Feminist Moot BY R EBEKAH HILL, ELLEN LELLMAN AND EMILY SCRIMGEOUR
In July, what is likely to be the world’s first Feminist Moot was held by the Victoria University of Wellington Feminist Law Society (VUWFLS). The event was inspired by our experiences as young women in the legal profession, as well as in anticipation of the challenges entering New Zealand’s legal system, prompted by recent events highlighting gender issues. Getting started was an exciting but daunting prospect as we struggled to find evidence of anything similar being done before, with the exception of a panel at Durham University in the UK discussing how a feminist moot may be run, but no competition ever being held. When we began writing the problem question, we wanted to encourage competitors to incorporate both feminist legal theory and tikanga principles into their submissions. We also wanted to create a safe community space at law school, which has historically been a masculine arena. Our moot acknowledged that the traditional ways moots and real life litigation play out perpetuate gender biases, whether that be through the imposing architecture of courthouses, restrictions on what women can wear, or the adversarial nature of submissions at trial. The need for major structural changes in the legal sector’s organisation can seem insurmountable and overwhelming at times, so we hoped this moot could add to existing conversations already being had about how legal reform can encourage equity amongst those who come to our courts, or those who deal regularly in legal settings. We tasked ourselves with finding an area of law with competing feminist views. Narrowing this down proved challenging, especially because such areas tend to involve heavy subject matter requiring thoughtful engagement. We wanted to strike a balance between the necessity of talking about relevant, yet fraught, social issues with making sure students felt safe. We also wanted to remain conscious of discussing these topics from our own positions of privilege. Eventually we decided that the most appropriate topic with balanced arguments for both sides was surrogacy.
Arguments made by competitors focused on balancing the welfare of women receiving maintenance payments for undergoing a process giving up their body and autonomy, contrasting against the risk of commercial surrogacy and the potential for taking advantage of vulnerable women. We had a plethora of feminist legal role models supporting us throughout the planning process with hot takes, speedy email responses and wise words of advice and encouragement. Incredibly, word spread within Wellington and we had people approaching us to tautoko (offer support) during the very early stages. We also took inspiration from the Feminist Judgments Project, which asked how seminal Aotearoa judgments would have read if written by a feminist judge to challenge the myth of judicial neutrality. It also contains a set of cases interpreted with mana wāhine approaches, respecting the complex issues Māori women face living under both colonisation and legacies of patriarchy. When it came to the day of signWhat we ups, the spots filled up quickly and proposed our preliminary round included with the eight teams of mooters. Competitors Feminist performed incredibly well, underMoot is a taking analyses of the child’s welfare new form of and best interests on both sides of mooting that the problem. Its success speaks to aims to teach students’ excitement to compete different in something that challenged how styles of a court looks and sounds to better represent them. argument and oral There were various differences presentation between our Feminist Moot and skills, not regular moots or trials. Some of based on these included a reduced emphasis on formalities by relaxing the dress assimilating with code and encouraging accessible patriarchal language to be used by all. We conventions also encouraged the expression of 19
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▴ Back row from left: Dame Susan Glazebrook, Steph Dyhrberg, Islay May Aitchison, Alice Mander, Ashley Parker, Emily Scrimgeour, Ellen Lellman and Isabella Lenihan-Ikin. Front row from left: Rose Peoples, Kellee Candy, Rebekah Hill, Sarah Mackenzie and Mariah Hori Te Pa
the individual mana of competitors and facilitated an awareness of the real lives involved in the case, rather than the dehumanisation that is often a by-product of legal focus. The judges also broke down barriers by introducing themselves with their mihi after competitors’ introductions, to minimise the power imbalances that normally exist. We were fortunate enough to have Justice Glazebrook judge our finals, who exhibited her own feminist perspectives by declining to choose between the finalists and declaring a draw. However, our other judges, Steph Dyhrberg and Mariah Hori Te Pa, congratulated the talented Islay May Aitchison and Kellee Candy as winners. We also facilitated a mentoring programme where we linked up wāhine working in law in Wellington to our moot What we competitors for support. We hope that initiative will continue to build enduring proposed connections between different members with the of our community, and we would like to Feminist thank all those who volunteered their time Moot is a as mentors. new form of Finally, after the event, we received mooting that feedback from participants which was aims to teach invaluable in helping us to reflect on the different moot and in looking to make this an annual styles of competition at Victoria University. We also argument hope this will inspire other law schools and oral around New Zealand to take up their own presentation feminist moots, and eventually we hope skills, not to develop a national event. based on Overall, what we proposed with the assimilating Feminist Moot is a new form of mooting with that aims to teach different styles of patriarchal argument and oral presentation skills, conventions 20
▴ Top right: Competitor Kellee Candy. Bottom right: Competitor Alice Mander
not based on assimilating with patriarchal conventions. We aimed to eradicate gender and race-based biases and to recognise the relationship between the law and the language it uses. In relaxing the rules around formal court processes and stressing to judges that equal weight should be placed on feminist and tikanga Māori perspectives, we hope we have created a starting point to be built upon. Though the moot was not as diverse and transformational as it could have been, it was the first of its kind, so we hope this event contributes to the work already being done by so many people to deconstruct, decolonise and pave a better way forward. ▪
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PEOPLE IN THE LAW
The value of friendship in law Three lawyers from the class of ’64 reminisce BY NICK BUTCHER Collegiality and friendship in the legal community is important in a profession that is becoming increasingly digital. Perhaps the best people to ask about the value of human connection between old colleagues are ‘old colleagues’. John Upton QC, Sir David Carruthers and Geoff Thompson all graduated from the University of Victoria in the class of 1964. They’ve all had very different careers. Sir David was the Chief District Court Judge, Geoff Thompson was President of the National Party, and an MP for Horowhenua, as well as a practising lawyer, and John Upton QC continues to practice as a barrister. Those university days have led to a friendship that has endured for over 50 years. They all travelled different paths through the law, but as Nick Butcher discovered, they’re a tight unit and still great mates after all these years.
I was somewhat nervous about having coffee with a Queen’s Counsel, a Knight and a former Member of Parliament. However, what I did find was three very normal men, who enjoy ribbing each other, something you can get away with when you’ve been friends for five decades. “Here’s Uppy in his flash suit. Look at you”, Sir David Carruthers says pointing to John Upton QC who still practises law and was dropping into the swanky La Cloche café in central Wellington. Sir David and Geoff Thompson were dressed more casual in sweaters. Their plans for the day were, perhaps, a bit more relaxed than appearing in court. “We all met at university and were involved in the
▴ Class of 1964 at a reunion at Government House in Wellington usual sorts of activities such as the law faculty club,” says Mr Upton. “Are we going to talk about what we got up to at university?” says Sir David. “War stories?” I say. “We haven’t got enough time,” says Mr Thompson.
Studying law in their day Back in the 1960s, the basic law degree took five years to complete and Victoria University classes were held in the old brick Hunter Building, unlike nowadays where they are held at the restored Old Government Buildings. It included two years full-time study with the rest part-time while working in an office as a law clerk. Some classes were held during the day while others were after work. Often, their lecturers were practising lawyers too. “It was just part of the deal. The firm you worked for encouraged you to study. They regarded you as an asset. They’d give you time off to study for your end of year exams, they were different times,” says Mr Thompson, who worked for the Public Trust in those days. One of the law school surprises at the time was the compulsory study of Roman law. “We wondered why on earth we had to learn this, however it was an introduction to a legal system. It did relate to the law of equity and property. But really it just felt like an exercise in mind training in that it got you familiar with ideas,” says Mr Upton. The study of Roman law replaced a previous requirement of compulsory Latin, as part of the degree. 21
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The reunion at Government House These former university friends never expected to have kept in contact for 50 years, and an even bigger reunion was something very special. Recently, the class of 1964, which also included prominent lawyers and judges such as, Sir Ken Keith who was the first New Zealander to be elected to the International Court of Justice, Sir Douglas Kidd and Bill Falconer, held a reunion at Government House. One of the class of ’64, Sir David Gascoigne, is married to the Governor-General, Dame Patsy Reddy and lives there. Sir Anand Satyanand is also part of the group, although he was not from ’64 and actually attended Auckland University. John Upton QC says he was given honorary membership some years ago, but that’s another story. “He’s our honorary patron pursuant to our non-existent rule book.” “We had a special dinner in the state dining room, toasted to absent friends, a toast to the class of ‘64 and we had a few speeches by various members,” Mr Upton says. “We all have a friendship that’s endured over that time and become richer and more precious. We’ve lost a few classmates in recent years which is why we really treasure these reunions,” he says. Back in 1964, the class of 35 students had only one woman studying law. In contrast, today, 60% of graduates from law school are women. They remembered that there was one Samoan student, one Fijian, and some Colombo Plan students, who were students from underdeveloped countries that had gained Governmentassisted funding from a body made up of countries that met in Colombo, Sri Lanka.
Who started these reunions? “I think it was organic,” says Sir David laughing. It turns out it had its beginnings in 1994 at Sir David’s house. John Shaw, who was also part of the class of ’64, worked for a liquor company at the time so they figured there might be the possibility of a discount on refreshments for the event. There were also reunions held at upmarket Bellamys, an eating institution in the Beehive. “Sir Douglas Kidd, a lawyer, an MP and Speaker of the House of Representatives, pressed the right buttons to make that happen,” says John Upton QC. These days, people are professionally connected through online sites such as LinkedIn or socially through Facebook. But these lawyers are a bit more traditional and simply picked up the telephone. “One of the intriguing things to me was the fact that we would all meet every five years and just pick up things where we left off. You’d resume your conversations,” John Upton says. Geoff Thompson says while they all moved in different directions after law school, the common thread was ’64. “Roger Clark for example. He’s involved in leading class 22
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actions with respect of the death penalty in the United States. He also represented Samoa before the United Nations in a major case at The Hague,” Sir David says.
Absent friends Not everyone was at the reunion because time has caught up and some have died. And one member of the class of ’64 was struck off the roll of barristers and solicitors. “We don’t know where he’s gone. He shall remain nameless but he was struck off for defalcations and eventually went to jail. We’ve not seen him in years and don’t know whether he is even still alive. He turned up to one reunion a long time ago after he was released from jail. You’d have thought that nothing had happened to him as he was as large as life, but then he vanished,” Mr Upton says. The lawyers all agree that access to justice is one of the most challenging issues for the justice system in New Zealand. They also say climate change is something that needs to be taken very seriously by all generations. John Upton plants a lot of trees in Hawke’s Bay, where he has a property. “It’s not for me to benefit but for my children and grandchildren. We’ve got about 220 different species of trees. That includes about 20 different species of gum tree or more commonly called eucalyptus. We’re very into wetland development too,” he says. We returned to talking about law again and this time observations about past judges. “Looking back when we all started there were judges of the Supreme Court – before it became the High Court – who we thought were incredibly old. But they were probably only in their 40s or 50s,” says Mr Upton. He remembers some of the names of judges he appeared before back in the old days such as Sir Harold Barrowclough, Sir Douglas Hutchison, and Sir Alec Haslam. Sir David Carruthers and Geoff Thompson add that an ideal place to sharpen up on legal skills was to attend court and watch other lawyers in action. Mr Thompson says many We all have lawyers have turned into successful a friendship commercial leaders, such as Barry that’s endured Dineen and Lindsay Ferguson, who over that were both part of the class of ’64. time and “Barry Dineen worked for Shell become richer Oil in New Zealand, Nigeria, and the and more United Kingdom. He actually played precious. cricket for Nigeria against Ghana We’ve back in his day,” John Upton says. lost a few And ending on the subject of sport, classmates in Sir David, Geoff and John, all predict recent years that the All Blacks will win the Rugby which is why World Cup for a third time in sucwe really cession. Whether their prediction is treasure these correct is something we will all have reunions. to wait a little longer to find out. ▪
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PEOPLE IN THE LAW
The Innovators Charlotte Baker, Legal Design Engineer at Wavelength BY ANDREW KING
LawFest organiser Andrew King continues a series of interviews with key legal professionals with their innovation and technology stories.
What does legal innovation mean to you? Legal innovation is about improving the way the legal system works. It means reimagining the future of law, questioning entrenched norms and establishing better ways to deliver law to people. As a legal designer, I innovate by applying design thinking to the law – combining legal expertise with a design thinking approach by embracing visualisation, plain language, simplicity and smart use of technology. This allows us to improve any aspect of the law – from legal contracts, policies and legal advice, to workflows and organisational structures that lawyers operate in.
What role does technology play in innovation? Technology can really enhance legal innovation, making legal solutions more interactive and digitally accessible. However, technology does not equal innovation. With all the hype around legal technology and the ‘race to innovate’, we’ve seen many legal teams hastily buy tech solutions. But technology tools are not a ‘quick fix’ to solving your problems. We need to start by understanding the crux of the problem we’re trying to solve – our users’ needs and pain points – then design a solution that solves that problem. If this requires technology, we select the most appropriate piece of tech to help. What people often miss is that technology is just one piece of the puzzle – tech must be implemented in conjunction with good design, legal engineering (eg, training a machine learning tool) and project and change management.
What pressures are organisations facing in the delivery of legal services? The modern-day legal client – just like consumers in most other sectors – expects robust design. There is mounting
pressure to deliver legal services more clearly, visually and enhanced seamlessly by technology. When you’re used to the great design offered by Apple, Google, IKEA et al, it’s natural to have the same expectation of legal services. Legal service providers are facing more pressure than ever to deliver top quality legal services more efficiently and under new cost structures. In-house clients are often under-resourced and feeling the pressure to “do more for less”. Law firms can no longer be complacent – their clients expect them to be embracing efficiency, automation, new fee structures and smarter (cheaper) ways of working. Many businesses are driving efficiency in their legal divisions and exploring new business models around the use of data, which pose tricky questions for counsel. All these challenges can be tackled with legal engineering and legal design – the sensible use of technology, data science and design within law.
What developments do you see in how legal services are delivered? Lawyers are starting to see the value of putting their clients at the centre of their service delivery. There has been a realisation across the market that, in many cases, the way we deliver legal services is not appropriate for the users or consumers of those services (eg, contracts written by lawyers, for lawyers) and organisations are starting to embrace legal innovation and design. We are seeing lawyers collaborate more. Legal design thinking advocates working collaboratively with a diverse team (like data scientists, technologists, designers, HR professionals, psychologists, as well as lawyers) to generate the best and broadest range of ideas for approaching legal problems.
What opportunities has legal innovation brought to you? The rise of legal innovation has allowed me to move away from traditional legal practice and build my career as a legal designer. It’s given me the opportunity to work towards making the law more engaging, accessible and understandable – something I feel passionately about and suits my character and skillset. 23
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What are some of your tips to start innovating or developing an innovative mindset? Start thinking about the user. Who is the consumer of your legal advice? What do they really need to know, and what do they not care about? Would it be easier for them to understand your advice if you wrote it in more ‘human’ language (without jargon or unnecessary complexities) or reformatted your advice into a visualisation? If you shift your mindset to put the user at the heart of your legal service delivery, you’ll be innovating before you know it.
Why is it important for legal professionals to continue to learn about legal innovation and leveraging technology? It’s important that all legal professionals are working toward making the law more user-friendly – more engaging, accessible and understandable. This is likely to mean adopting legal technology and embracing legal design to do things better. The legal industry is experiencing massive disruption (about time!) and those who refuse to embrace legal innovation are going to be left behind. There are so many opportunities for us as lawyers to do better by our clients – and we should all be welcoming this positive change. ▪ Andrew King andrew@lawfest.nz is organiser of LawFest and Charlotte Baker will be one of the speakers at LawFest 2020 in Auckland on 18 March 2020 www.lawfest.nz 24
Barriers to participation in the employment institutions BY CHIEF JUDGE CHRISTINA INGLIS
Community groups, academics, policy makers, senior legal practitioners, representatives from unions, Business New Zealand, the Canterbury Chamber of Commerce, Employment Mediation Services, the Employment Relations Authority and the Employment Court gathered in Wellington in May to discuss barriers to participation in the employment institutions and how those barriers might be better navigated. It was the second in a series of symposia organised by the Auckland University of Technology’s Work Research Institute, the Authority and the Court. The symposium provided a valuable opportunity to hear directly from the communities the employment institutions are designed to serve, including those in precarious employment. Many contributors highlighted the perceived complexity of employment law and practice, and difficulties in understanding how to navigate the dispute resolution process. A number of cultural issues were also raised, ranging from a reluctance to challenge or question those in authority, to the way in which mediation services must
be accessed and are now delivered. There was much support for providing additional resources to community organisations where people might first discuss workplace problems, including church groups and doctors. Some information suggested many people turned to their doctor as the first source of how to deal with such problems, due to effects on their health, and medical practices might act as a useful conduit for information and assistance. The New Zealand Law Society and other legal representative groups were identified as being well placed to undertake an important role in this regard. There was also much support for ensuring that a diverse range of tools was available, beyond those which are exclusively online. This point was reinforced by University of Otago Legal Issues Centre director Bridgette Toy-Cronin, who talked about the research she has done into what does and does not impede access to the justice system.
Focus on costs The cost (including financial) of pursuing and defending employment disputes continued to receive a
great deal of focus, including for vulnerable workers and small to medium-sized employers. Numerous participants identified this as a significant barrier to positive engagement with the employment institutions and, rather, as an incentive to look at settlement as the only viable option. Possible solutions were canvassed, including that the Employment Relations Authority give further consideration to adopting a different (possibly no-costs) regime. The reputational costs of pursuing employment disputes, and the impact of the current general practice of naming parties in determinations and court judgments, were identified as key concerns. The Chief of the Employment Relations Authority spoke of his understanding (from feedback he had received over the years) that the prospect of name publication was sufficient to steer many people away from pursuit of a claim beyond the confidential mediation setting, and that it was not uncommon for those who had been named in a determination (as a party or a witness) to have considerable difficulty finding alternative work. In this regard, reference was made to the practice of online searching by some recruitment agencies and employers. It was suggested that consideration be given to reversing the general presumption and to discussion as to whether legislative amendment might be required, given the approach adopted by the Court of Appeal to non-publication, including in employment matters. Many noted the demonstrable increase in the demand for support and assistance in employment matters over recent years (including the developing
Many noted the demonstrable increase in the demand for support and assistance in employment matters over recent years ... against a backdrop of diminishing union presence in workplaces
presence of lay advocates), which has occurred against a backdrop of diminishing union presence in workplaces. The implications of this for those who could not afford to engage professional assistance and support were discussed. Speakers from the Auckland Community Law Centre and Citizens Advice Bureau's national office outlined initiatives they are undertaking, including a pro bono scheme assisting self-represented litigants which has been piloted by the Centre in the Employment Court and has recently been expanded to the Authority in Auckland. Work is also underway, with the assistance of the Michael and Suzanne Borrin Foundation, to develop a WorkBot chatbot providing access, via a smartphone device, to information about employment law and how to resolve disputes. Papers from the first and second symposia are available at https://workresearch.aut.ac.nz/ reports-and-projects/papers-andpresentations#barriers2 â–Ş Chief Judge Christina Inglis is Chief Judge of the Employment Court. 25
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I N C O R P O R AT E D S O C I E T I E S
New Incorporated Societies Act Progress Report 2 BY MARK VON DADELSZEN In the second in a series of three articles, Mark von Dadelszen looks at the proposed reform of the law relating to incorporated societies. This involves a complete overhaul of the existing century-old legislation. Society constitutions The new Incorporated Societies Act is proposed to require that society constitutions include, as a minimum, the name and purposes of the society, how people become members and cease to be members, provisions to keep an up-to-date register of members. There will need to be provision for the composition, roles and functions of committees, how the society enters into legal obligations, controls and manages its finances, and keeps financial records, arrangements and requirements for general meetings – including the intervals between general meetings, when minutes are required to be kept, the manner of calling meetings, the time within which, and manner in which, notices of general meetings and notice of motion must be notified, the quorum and procedure for general meetings, and voting procedures for general meetings. A society will be empowered to include rules in its constitution (consistent with the constitution and the statute), to make bylaws (no longer subject to the Bylaws Act 1910), to express its tikanga or culture, and to provide for any other matter relevant to the society’s affairs. The new statute will require that all constitutional alterations be notified to the Registrar within 30 days, taking effect from registration or a later specified date. Courts will have new discretionary powers to amend a society’s constitution if a constitutional amendment was not made in accordance with the constitution or the Act, if it is not practicable for a society to amend its constitution itself as required by its constitution, if a society’s constitution is operating or would operate in an oppressive, unfairly discriminatory or unfairly prejudicial manner, and in any other circumstances considered just and equitable. While the Law Commission recommended that a model constitution be provided, the June 2019 26
Cabinet Paper suggests that societies are “too diverse for standard constitutional provisions or model constitutions”. However, some Government ministries may pick up on the Law Commission’s alternative suggestion (in paragraphs 7.58-7.59 of its report) of a society constitution-builder.
Membership of societies Under the Incorporated Societies Act the minimum membership of an incorporated society will reduce to 10 (from the present 15), with corporate members still being equivalent to three individuals. The minimum of 10 will apply at the time of, and after, incorporation (with annual reporting of membership numbers to the Registrar), and if the minimum drops below 10 the Registrar may give notice to a society to increase membership to the minimum or be deregistered. New members must explicitly consent to becoming members of a society (possibly subject to some minor exceptions). The new statute will continue The June to prohibit societies from operat2019 Cabinet ing for the financial gain of their Paper members and from distributing suggests that any gain, profit, dividend, or other societies are financial benefit to their members. “too diverse However, a society that ceases to for standard exist may distribute surplus assets constitutional to a member which is itself a notprovisions for-profit entity which does not or model provide for distribution of surplus constitutions." assets to its members, and as part
of an amalgamation, may distribute any gain, profit, dividend or other financial profit to a member which is a body corporate and is the entity into which the society and member are amalgamating. However, a society will be empowered to reimburse members for reasonable expenses related to the society, pay members for services on a normal “arm’s length” basis, and provide benefits and incidental prizes and discounts to the public including members and their families. Society members will have statutory rights to access financial reports presented to the annual general meeting, to access minutes of previous AGMs, to access a register of committee interests, and those rights will be supplemented by the right to request other information, which a society may decline to provide in defined circumstances. Members will still not be liable for a society’s obligations, and the new provision will be generally aligned to that in section 97 of the Companies Act 1993. Societies will also be empowered to indemnify members and employees who act in good faith in pursuing a society’s activities, and to take insurance for the purposes of that indemnity.
Societies with branches Branch/parent society relationships will be defined by those entities, not by legislation (at present under the 1920 Amendment Act). There will be no separate provision for incorporation of branches, but a branch may be incorporated as a society in the normal way, and existing registered branches will be “grand-parented”. However, further consideration will be given to the implications relating to the inter-relationship between the proposed new Act and the Employment Relations Act 2000 and its application to societies whose members are other societies or who have a multiple branch structure.
Society administration Every society will continue to be required to have a registered office in New Zealand, and will usually be able to change its registered office (and may nominate that this takes effect on a date after the Registrar is notified of the change). Societies will be required to file annual returns (online filing will be facilitated), with prescribed information. Larger societies will be required to file annual financial reports (the format to be determined by the External Reporting Board).
The minister’s proposals will lessen the burden for smaller societies not registered as charities (those with annual expenditure of less than $10,000, or assets less than $30,000 or which do not have “donee” status under the Income Tax Act 2007). The new “Accounting Standards Framework” altered the form of financial statements (Financial Reporting Act 2013 and External Reporting Board) for accounting periods commencing from 1 April 2015.
Complaints and grievances Every society constitution will be required to include procedures to deal with internal disputes. Societies must maintain procedures for complaints concerning misconduct of or discipline of members, and grievances raised by members concerning their rights or interests as society members. However, societies will be free to continue, develop or adopt complaint, disciplinary or grievance procedures to meet their needs, as long as their procedures and practices satisfy relevant specified natural justice minima defined in the Act (eg, the right to be heard and to prepare a defence). 27
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to make it clear that an incorporated society generally has wide powers (unless expressly negated in its constitution) to buy, sell, exchange, develop and mortgage property, borrow money and give security for it and to issue negotiable instruments, receive and make gifts, enter contracts and leases, employ people, and belong to other similar societies or associations. How societies may enter into legal obligations is likely to be spelt out (see clauses 91-92 of the 2015 Exposure Draft Bill).
Ultra vires actions The new statute is expected to provide that no act of a society and no transfer of property to or by a society is invalid merely because the society did not have the capacity, the right, or the power to do the act or to transfer or take a transfer of the property. It will protect third parties who are unaware of any incapacity when they deal with a society.
Decision-makers in all classes of dispute will be required to be impartial and able to consider the issues without a predetermined view. A society will be empowered to elect not to consider or continue considering a complaint or grievance if the issues are trivial, if no material misconduct is disclosed by the complaint or grievance, if the complaint or grievance appears to be without foundation, if the complainant has an insignificant interest in the matter, or if the issue has already been investigated and dealt with. Societies will also be empowered to meet their obligations in dealing 28
with complaints or grievance procedures by referring them to an external arbitrator or arbitral tribunal, by appointing a visitor (or referee), or through binding arbitration.
Legal capacity of societies Incorporated societies will be deemed to have full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction, and the new provision will be generally aligned to section 16 of the Companies Act 1993. For avoidance of doubt, the new statute is likely
Costs in legal proceedings The new statute will not include a provision relating to security for costs in legal proceedings (existing court rules are considered adequate). â–Ş Ma r k vo n D a d e l s z e n m a r k . vondadelszen@bvond.co.nz is a consultant with Bannister & von Dadelszen. He was a member of the reference group advising the Law Commission in the preparation of its report on the proposed reforms, and was engaged by MBIE to advise on the proposed model constitution as originally recommended by the Law Commission.
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UPDATE
Supreme Court provides guidance to lawyers on testamentary capacity BY SALLY MORRIS AND FREYA MCKECHNIE
Sandman v McKay [2019] NZSC 41 concerns a son’s claim against the law firm that drafted his mother’s will. The majority decision of the Supreme Court indicates that where lawyers are instructed to draft a will, they should do so even if they suspect a client may lack testamentary capacity or be subject to undue influence. However, lawyers should carefully document the advice given and steps taken. It would also be prudent for a lawyer to suggest that a medical certificate be obtained. While the Supreme Court did not need to determine the extent of a lawyer’s duty in these circumstances for the purpose of its decision, the court’s comments provide helpful guidance for practitioners who are concerned about a client’s capacity but have instructions to draft a will.
The facts Elizabeth Sandman died on 30 October 2013, leaving a will dated 2 December 2010. Under this will, Mrs Sandman’s son, Mark Sandman, received less than he would have under her previous will, which was executed in 2005. The law firm that prepared Mrs Sandman’s 2010 will began acting for her in 2007, when she granted enduring powers of attorney (EPAs) in favour of her daughter, Victoria Sandman. A family friend, Mr Giboney, was the successor attorney to Victoria under the property EPA. Mrs Sandman met with Ms Paul, a solicitor from the law firm,
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in early 2010 to discuss changing her will. Mrs Sandman was concerned her will was unfair to her daughter Victoria, as her son Mark had received greater financial support from her during her life than Victoria had. Ms Paul met with Mrs Sandman again in October 2010 to take instructions to prepare her new will. Victoria was present during the meeting. Later that month, Ms Paul sent a letter to Mrs Sandman, care of Mr Giboney, summarising her instructions and setting out the further information required to prepare the new will. Ms Paul also suggested that it would be prudent to obtain a medical certificate from Mrs Sandman’s doctor to confirm she had testamentary capacity. Mrs Sandman’s doctor provided a medical certificate confirming she had capacity based on the last time she saw her, which was one month earlier, in September 2010. Mrs Sandman then executed the will in December 2010. Under the 2010 will the residue of Mrs Sandman’s estate went in equal shares to Victoria and Mark. Sadly, Victoria died of a terminal illness in March 2011. Mrs Sandman met with Ms Paul to discuss the 2010 will following Victoria’s death. However, Mrs Sandman advised that she did not want to change her will. Under the 2010 will, Victoria’s half share of the residual estate went to relatives and family friends, whereas under the 2005 will the entire residue would have gone to Mark. In correspondence following their meeting, Ms Paul stated that Mrs Sandman appeared to have a good understanding of her 2010 will and how her estate would be distributed in light of Victoria’s death. 29
Mark’s claims
Lower courts’ decisions
Mark Sandman filed a claim in November 2016 seeking to recall probate of the 2010 will and obtain a grant of probate of the 2005 will. He claimed that his mother lacked testamentary capacity when she executed the 2010 will and, as a result, that will did not reflect her wishes but instead those of Victoria and Mr Giboney. Mark also brought a claim against the partners of the law firm based on dishonest assistance. There are four components to a claim for dishonest assistance: • the existence of a trust; • a breach of that trust by a trustee that results in a loss; • participation by the defendant, a third party, assisting in the breach of trust; and • dishonesty on the part of the defendant. In this case, Mark contended that a claim for dishonest assistance could be available where there is a breach of fiduciary duty, rather than a breach of trust. He argued that Ms Paul assisted Victoria and Mr Giboney in breaching EPAs, under which they owed fiduciary duties to Mrs Sandman. Mark pleaded that their breach was obtaining control of Mrs Sandman’s affairs “and in particular the execution of the [2010 will]”. Mark sought damages based on the difference between what he received under the 2010 will – $440,000, being half of the residual estate – and what he would have received under the 2005 will – the entirety of the residual estate. The law firm applied to strike out Mark’s dishonest assistance claim and for summary judgment. These applications were the subject of the Supreme Court proceedings.
The High Court held that “a careful examination of individual facts” was required to establish whether dishonest assistance was made out. The evidence ought to be tested at full trial, as Mark’s pleadings “endeavoured to identify facts indicating the knowledge of the firm on which a claim of knowing assistance could be founded”. The Court of Appeal was satisfied that, assuming the firm’s actions somehow amounted to assistance in a breach of fiduciary duties owed to Mrs Sandman, Mark could not establish at trial that the firm’s actions were undertaken dishonestly. The firm was entitled to an order for summary judgment and it was therefore not necessary to consider the strikeout application.
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Supreme Court majority decision The question for the Supreme Court was whether the Court of Appeal was correct to grant summary judgment on the basis that the material before the court showed conclusively that there was no dishonesty on the part of the firm. Mark argued that the firm assisted with Victoria and Mr Giboney’s breach of fiduciary duty by preparing a will and having it executed, either knowing or wilfully blind to the fact that Mrs Sandman lacked capacity. The Supreme Court set out the steps that a prudent solicitor would take if in doubt as to whether a client lacked capacity. The court commented that after taking these steps, it is arguably not up to the solicitor, who is not a medical expert, to decide whether a client has testamentary capacity and whether to follow his or her instructions. The court held at [81]:
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“The position arguably is that a solicitor, even if he or she does not think a client has capacity, would nevertheless be obliged to prepare and arrange for the execution of the will. The issue of actual capacity would then be decided after the client’s death, on the basis of the evidence including expert medical evidence.” For the purpose of the appeal, the Supreme Court was prepared to assume that the firm could be liable for dishonest assistance if Ms Paul knew Mrs Sandman lacked capacity or was wilfully blind to this. However, the court held there was no argument that the firm suspected Mrs Sandman was incompetent and deliberately decided not to inquire in case that inquiry resulted in actual knowledge. In fact, Ms Paul had suggested a medical certificate should be obtained prior to Mrs Sandman making the 2010 will and one was provided by her doctor, certifying that Mrs Sandman had capacity. Although there were no file notes before the court, correspondence made it clear that Ms Paul was satisfied that Mrs Sandman had testamentary capacity. The Supreme Court held that for Mark to succeed at trial, he “would have to prove that the contemporary documentation did not reflect what had happened and that the relevant documents were effectively constructed by Ms Paul … to mask her knowledge of [Mrs Sandman’s] incapacity”. This included the firm’s correspondence, the medical certificate and an independent solicitor’s certification in relation to the EPA regarding Mrs Sandman’s mental capability. The Supreme Court commented that “[s]ummary judgment will be inappropriate where there are factual disputes and, in particular, credibility issues that cannot be resolved on the basis of the affidavit evidence”. However, Ms Paul’s credibility was not at issue. The contemporaneous documentation made it “clear that Ms Paul did not doubt Mrs Sandman’s capacity and was not wilfully blind to that possibility”. The court also commented briefly on the strikeout application. There was nothing to suggest that either Victoria or Mr Giboney’s actions amounted to a breach of fiduciary duty. Even if the court accepted that a breach of fiduciary duty was sufficient for a dishonest assistance claim, and that it was not necessary for Mark to be the party the duty was owed to, there was no such breach. Accordingly, there was no arguable cause of action and the firm had a strong case for strikeout.
Supreme Court minority decision In contrast to the majority, Elias CJ considered it arguable that a solicitor who is uncertain about a client’s capacity may be obliged to withdraw from acting. She stated at [132]: “I doubt that a solicitor who knows a client to lack testamentary capacity is nevertheless obliged to carry out the client’s instructions, leaving capacity to be assessed after death. ... [i]t is arguable that a solicitor who formed the view that a client lacked capacity or was being unduly influenced would be
U P D AT E
The position arguably is that a solicitor, even if he or she does not think a client has capacity, would nevertheless be obliged to prepare and arrange for the execution of the will
obliged to withdraw from acting and that it would be a breach of the duties owed by the solicitor to the client for the solicitor to participate in the transaction.” On the issue of summary judgment, Elias CJ held that Mrs Sandman’s capacity and the extent to which any material impairment or influence was known to the firm could not be properly assessed without a full trial. On this basis, the Court of Appeal erred in granting summary judgment. However, Elias CJ held that Mark’s claim, as pleaded, was untenable in law and should be struck out. She held that Mark could not bring a claim for dishonest assistance on the basis of his potential interest under the 2005 will. Elias CJ commented that it is not settled law whether participation in a breach of fiduciary duty is sufficient foundation for a claim of dishonest assistance, or whether there must be a breach of trust. However, she proceeded on the assumption that participation in a breach of fiduciary duty was sufficient foundation for a claim of dishonest assistance. Elias CJ held that Mark would only have standing to bring the claim if Victoria and Mr Giboney were trustees of a trust he was a beneficiary of, or if they owed Mrs Sandman fiduciary duties through which he benefitted. His potential expectation under the 2005 will, a testamentary disposition Mrs Sandman could change, was insufficient for a claim of dishonest assistance.
Conclusion The majority decision of the Supreme Court provides some comfort to lawyers who frequently prepare wills, by recognising that it is not up to the lawyer to determine capacity. If in doubt, the position is arguably that a lawyer should nevertheless draft and arrange for execution of a will. It will, of course, always be prudent for a lawyer to arrange for a medical certificate to be obtained if there is any concern around capacity. The reliance placed on contemporaneous documentation in this case should also serve as a reminder to lawyers of the importance of taking comprehensive file notes and recording observations or concerns about capacity in legal advice and correspondence. The decision also demonstrates that it is not always clear-cut whether a claim is appropriate for summary judgment. The majority of the Supreme Court agreed with the Court of Appeal’s decision to grant summary judgment, while Elias CJ held that a full trial was warranted. ▪ Sally Morris sally.morris@morrislegal.co.nz is a partner and Freya McKechnie freya.mckechnie@morrislegal. co.nz a solicitor at Morris Legal in Auckland. 31
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ACCESS TO JUSTICE
Public Defence Service An important influence on criminal law practice BY GEOFF ADLAM
From a pilot scheme in Manukau in 2004, the Public Defence Service (PDS) has grown to an organisation with 10 offices and around 250 staff, 181 of whom are lawyers. It is having an important impact on the practice of criminal law.
T
he Manukau pilot took off after Dame Margaret Bazley’s often scathing 2009 report, Transforming the Legal Aid System, recommended the use of publicly provided services where case volumes were sufficient to make them an efficient option. The result was expansion of the PDS through the rest of Auckland, and down New Zealand, with the last office, in Christchurch, opening in 2012. A few months after the PDS arrived in Wellington in February 2011, senior criminal lawyers publicly contemplated going on strike and working to rule to protest at what was described as “a takeover by a government-run legal-defence agency”. Some forecast the imminent demise of the private criminal bar. The bar is still very concerned at where the criminal lawyers of tomorrow will come from. However, the PDS is clearly here to stay and it has become an important influence and contributor to the health of criminal practice. “We’re a huge part of the future of the criminal bar, and I hate to think what might have happened if there wasn’t a PDS,” says Public Defender Northern Rob Stevens. Mr Stevens joined the PDS upon the opening of the Tauranga office in 2012 after 19 years as a partner at Wellington firm Fanselows. He has seen a major change in how criminal law is practised. “I started in 1986 and I remember in those days that a QC never appeared without a junior, even if it was just an ordinary list matter. Every little firm had a criminal practice. The Crown used to be the premier training ground for criminal lawyers and everyone aspired to be Crown prosecutors – or at least to be part of the Crown and to be trained by them.” ◂ Wellington PDS lawyer Grace Kahukore-Fitzgibbon at the Porirua District Court 33
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Changes That’s changed immeasurably, he says, particularly over the last decade. “The changes in Crown funding has meant a lot fewer opportunities from the Crown. I think there are fewer opportunities at the private bar for young lawyers. QCs don’t appear with juniors now as a matter of course. And I think it’s falling to us to a certain extent to fill the gap. I think we’re doing a good job.” The PDS was principally established to provide effective, cost-efficient legal services. “We still obviously strive to do this. But I think we’ve become much more important to the profession generally in terms of providing for the future of the criminal bar. I think one of the biggest issues facing us as a profession is, where are the future criminal lawyers?” Mr Stevens says. The PDS sees itself as a leader in securing that future by providing training and a supportive practice environment. Its structured Law Graduate programme gives new lawyers the chance to immerse themselves in a criminal defence environment. Since 2016, a total of 36 law graduates have joined the PDS. Three are still at graduate level, eight are now supervised providers (with the next step qualification as PAL1 [Criminal Provider Approval Level 1] lead lawyers), 20 are PAL1 lawyers and five have moved on to other opportunities. Another seven graduates joined the PDS for a six-month fixed term on 5 September. Recruitment is also underway for five summer interns for three-month fixed terms starting on 25 November.
▸ Grace KahukoreFitzgibbon, a Wellingtonbased PDS lawyer
Training ground “It’s a great training ground,” says Grace KahukoreFitzgibbon, a member of the Wellington PDS who became PAL1 qualified this March after a year as a supervised provider. “Practitioners at our level are exposed to a lot of court time and an interesting variety of cases through being at the PDS.” Wellington PDS lawyer Julia Spiers was hired for the PDS summer intern programme over 2016/17 after her fourth year of studying law. “I thoroughly enjoyed it, with the sense of collegiality in the office and being able to see real cases in action rather than just doing photocopying and scanning and admin tasks. It was really beneficial being able to work on submissions and meet real clients and do as much as I could without actually being a lawyer – and then to see the case play out in a real courtroom with the judge referencing the submissions I’d been working on. I found that a really rewarding and valuable experience.” “Just itching to go back” to the PDS, Ms Spiers finished her law degree and the profs course and started back in the Graduate Programme in March 2018, becoming a supervised provider three months later when she was admitted. She moved to PAL1 in July this year. “I felt very prepared. In the office we’re able to ask anyone for help and everyone’s very approachable if you’ve got any questions – but no-one’s looking over your shoulder the whole time. You have independence 34
▸ Julia Spiers, a Wellingtonbased PDS lawyer
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because we’re part of the ministry.” He says he has never once felt a disadvantage at the connection with the ministry – “apart from perhaps the profession’s perception of our independence”. He also points to the Lawyers Conduct and Client Care Rules: “It’s our responsibilities as lawyers that take precedence”. “In fact we derive a lot of benefits Stress and pressure from being a part of the ministry, Both acknowledge that working in a busy criminal practice can be stressful. the support and access to resources “There’s always stress and pressure because in the courtroom you get the ministry provides makes a real things thrown at you from judges and clients,” says Julia Spiers. difference for us as an organisation.” “It’s emotionally charged, it’s interesting, you’re really Len Andersen says that with making a difference. Often you’re representing someone half the legal aid work going to the who can’t speak up for themselves. I love it; I’ll be here PDS in the centres it works in, it is for a while. It’s access to justice for people who wouldn’t difficult for criminal practitioners in be able to pay for it.” You’re really many areas to get enough work to “It can be stressful because the case loads are high, making a earn a good income because of the but you just learn so much so quickly,” Ms Kahukoredifference. low legal aid rates and the econoFitzgibbon says. “The high case loads can mean there’s Often you’re mies of scale. extra pressure. But that’s balanced by the support and representing “The shortage of work means that knowledge in the office.” someone senior lawyers often compete with Information released by Justice Minister Andrew Little who can’t junior lawyers for PAL2 work which in response to parliamentary questions shows that at speak up for makes it difficult for junior lawyers 1 May 2019 the average case load for a PDS lawyer was themselves to survive. It has also resulted in 43.8 cases. This was slightly up on May 2018 (43.2 cases). ... It’s access senior lawyers leaving the bar to At 1 May 2019, the average active legal aid cases that an to justice for work for PDS – which has benefitted individual legal aid provider (including PDS lawyers) had people who PDS but also further reduced the was 38.4 cases, down on 39.2 at 1 May 2018. Big case wouldn’t senior bar.” loads, but the statistics do not indicate any significant be able to Mr Stevens says he is not aware disparity. pay for it. of any future plans to expand the Both Julia Spiers and Grace Kahukore-Fitzgibbon say PDS. He believes it provides a good there is a real sense of collegiality between members of balance with the private bar for the private bar and the PDS in the Wellington region. available work. “I’ve always found members of the private bar to “I would not like to see the PDS ever take more than be helpful and approachable, and they are shown the 50% of the legal aid assignments – and that’s not a target; same courtesy by PDS lawyers. The ‘us and them’ divide it’s the maximum that we take in any centre – because seems to be slipping away, which I think bodes well it’s vitally important that the private bar is a strong for the future of the criminal bar in New Zealand,” Ms well-organised part of the profession.” Kahukore-Fitzgibbon says. He notes that the PDS has been able to assist the private bar by sharing training materials and its involveMinistry of Justice connection ment in working for change in the development of AVL Areas where the private bar and the PDS differ are in in Auckland. its connection with the Ministry of Justice and, still, its “I would hope that now the profession sees us not as impact on legal aid work. a threat but as an asset.” Criminal Bar Association President Len Andersen sees Less than 10% of approved the fact that the PDS is administered by the ministry as legal aid providers creating problems. He would like to see it administered by a different ministry so it is separate from the court Written parliamentary questions to Justice Minister system itself. Andrew Little show that at 1 June 2019 there were 183 Public Defender Northern Rob Stevens disagrees. PDS approved legal aid providers out of a total of 2,226 “We are fiercely independent and that’s something the approved providers – 8.2%. A year earlier at 1 June 2018 Ministry of Justice has recognised. I can honestly say that there were 178 PDS approved providers out of 2,096 – in the seven years I’ve been with the PDS I have never 8.5% of the total approved. once felt compromised by being part of the ministry. Information from Mr Little also shows that at 1 July And I’ve never felt that there has been an expectation 2019, 126 PDS lawyers and 747 private lawyers held duty that I will approach a particular issue in a particular way lawyer approval, making PDS lawyers 14.4% of approved and you’re trusted to do your own work, which is a good mix because it increases your confidence in dealing with the client.” The sense of collegiality, a well-developed training programme and the on-tap resource of experience appeal to both young women. “You hit the ground running. From day one I was writing submissions and helping to deal with clients, doing real work that I was able to take ownership of as well,” says Ms Kahukore-Fitzgibbon. “People don’t have the capacity to micromanage, so there’s a lot of trust. The senior staff are open to answering questions, but ultimately we’re trusted.”
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duty lawyers. On a justice service regional basis, there were PDS duty lawyers in seven of 15 regions. Comments from lawyers at the private bar have sometimes painted a picture of a sweatshop-type practice where poorly trained and supervised young lawyers manage enormous caseloads and flounder. “I’ve certainly never worked the hours at the PDS that I used to work at the private bar,” says Rob Stevens. “We’ve put a real emphasis on wellbeing and managing caseloads. We have time recording in PDS offices and my perception is that most of the lawyers are working around about 40 hours a week most of the time. That obviously changes if you’re in the middle of a jury trial, but we keep a very close eye on the hours that our lawyers are working and we manage them if there appears to be some concerns.” He points to the Law Society’s Legal Community Counselling Service trial and says the PDS introduced this about four years ago. Every PDS lawyer is entitled to three hours of professional supervision every six months with a counsellor or psychologists. “I think the PDS now presents a career path for young criminal lawyers. There are a number of senior criminal lawyers who started with us as supervised providers. The Deputy Public Defender in Manukau started with us 14 or 15 years ago as a very junior lawyer and is now PAL4 qualified and helps to manage a 55-lawyer office.”
A training focus Rob Stevens says he feels quite proud that the rest of the profession views the PDS as a training ground. “We’ve got a lot of young lawyers who are with us for a year or perhaps two and then they’re grabbed by the Crown, by barristers, by small firms – although there aren’t many small firms that do a lot of criminal work anymore. “It makes it a little bit harder for us perhaps in terms of retention, but I see one of our real responsibilities as providing welltrained, qualified lawyers to the criminal bar. And if we can keep doing that, I really think we’re doing a good job.” The training starts on day one with a focus on client interviews and management, ethics, and how to open a file, but all PDS lawyers are expected to complete at least 60 hours of CPD a year. Special workshops are overseen by a national 36
training committee, and specialist training materials now cover around 50 different topics. “With the legal aid reviews and auditing of files, inevitably the PDS files come out very well because we have very high quality assurance standards and strong file management policies. There are lots of precedents and templates for lawyers to use,” Mr Stevens says. An ethics committee of 12 of the most senior PDS lawyers has a focus on delivering an opinion on matters such as conflicts of interest within 24 hours. The organisation also has a culture and diversity committee and has signed up to the Law Society’s Gender Equality Charter. The PDS is also working on developing greater flexibility of employment. It has a number of part-time lawyers and also lawyers who have returned to the workforce. “I’ve got over 100 lawyers in my patch in the northern region,” Rob Stevens says. “Every single one of them is passionate and committed, and just so client-oriented. The managers of our support services talk to me frequently about having come from outside organisations in to the PDS and they can’t believe the commitment
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This has resulted in the criminal bar getting older, Mr Andersen says. He believes there will be a crisis in some districts when those criminal lawyers who are currently over 60 retire. The standard and competence of lawyers who work for the PDS is generally good, he says. “The junior lawyers are well trained and those at the top are excellent. Like the bar generally, there is a shortage of PAL3 level lawyers.” He feels the PDS is a good start for lawyers wanting to practise criminal law. “But lawyers who start in the PDS can find it difficult to survive if they want to leave the PDS.” “There is no doubt that the PDS contributes to the overall delivery of access to justice,” New Zealand Law Society President and criminal lawyer Tiana Epati says. “When I was a young lawyer if you wanted to break into criminal law you either got a graduate position with the Crown – which were, and still are, rare – or had to find a criminal barrister willing to hire and train you. I was fortunate enough to get a job with the Crown but I often wonder what would have become of me if I had not been so fortunate. These days the PDS offers that crucial career pathway for young lawyers looking to become criminal lawyers.” Ms Epati says this is particularly important given that the reduction to legal aid rates has made if difficult for many criminal barristers to take on graduates.
Criminal law pressures of the lawyers. They come to work because they want to make a difference and they’re incredibly passionate, and I think that’s pretty rare.”
An important player in criminal defence Mr Stevens has no doubt that the PDS has become an important player in New Zealand’s criminal defence practice. “I love being part of the PDS and I’m pretty proud of being able to have made a small contribution to it. They’re all trying to make a difference and that’s a pretty good reason to go to work every day.” Criminal Bar Association President Len Andersen believes the PDS has had both a positive and negative impact on the criminal justice system. “It has provided good training for lawyers and raised the standard of representation in some courts,” he says. However, “it has had a negative impact on the private bar as the amount of work available to the private bar has decreased, which has reduced opportunities for lawyers to obtain work as employees doing criminal work apart from the PDS.”
Ms Epati says the PDS is also important given the unique pressures of practising criminal law. “The Legal Workplace Environment Survey in April 2018 indicated that, by practice area, criminal lawyers experienced the highest rate of unacceptable behaviour. Mental health is a huge concern for criminal lawyers. I have personally experienced some very low moments as a criminal lawyer. You are dealing with difficult and vulnerable people at the most stressful time in their lives. Being able to talk it through with colleagues who understand this is critical. The PDS offers a team environment and the opportunity for professional supervision.” Ms Epati says the PDS also has to take a special responsibility as kaitiaki for the new generation of criminal lawyers. Access 37
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to employment assistance programmes and resources necessary to health and wellbeing are good, but also must be encouraged. Lawyers from Māori (10% of PDS staff and 6% of New Zealand lawyers) and Samoan (9% of PDS and 2% of New Zealand lawyers) backgrounds also make up a bigger proportion of PDS employees than nationally. “This is important because criminal justice – like all parts of the
profession – needs better diversity,” Tiana Epati says. “It is particularly important given the over-representation of both ethnic groups in the criminal courts. But this also comes with special responsibility. The PDS also must be culturally competent and responsive to the needs of its lawyers.” Ms Epati feels the PDS has made a significant contribution to the way in which criminal legal services are being delivered and in providing an avenue for young lawyers. “To reach its full potential the PDS needs the support of the entire profession, given the unique features and challenges of the junior criminal bar.”
T H E P U B L I C D E F E N C E S E R V I C E — F T E L AW Y E R S B Y L E G A L A I D A P P R O VA L L E V E L ( PA L ) A S AT 3 1 J U LY 2 0 1 9 AU C K L A N D
Office
SP PAL1 PAL2 PAL3 PAL4
Total
Manukau
11.6
15
11
4
2
43.6
Auckland
5
7.8
6.6
3
6.8
29.2
Christchurch
5
5
2.8
2
4
18.8
Wellington
1
6
6.4
1
2
16.4
2.6
4.7
3.2
1
2
13.5
Hamilton
1
6
1.6
1
3
12.6
Tauranga
0
2.8
2
1
2
7.8
North Shore
1
3
1
1
1
7
Hawke’s Bay
3
0
2
0
1
6
Dunedin
1
2
0
0.8
1
4.8
31.2
52.3
36.6
14.8
24.8
159.7
Waitakere
Total
N O RT H S H O R E SP 1 PAL1 3 PAL2 1 PAL3 1 PAL4 1
M A N U K AU SP 11.6 PAL1 15 PAL2 11 PAL3 4 PAL4 2
WA I TA K E R E SP 2.6 PAL1 4.7 PAL2 3.2 PAL3 1 PAL4 2
TAU R A N G A SP 0 PAL1 2.8 PAL2 2 PAL3 1 PAL4 2
H A M I LT O N SP 1 PAL1 6 PAL2 1.6 PAL3 1 PAL4 3
This information has been provided by the Ministry of Justice. It does not include the Director, Senior Lawyer Appeals specialists, the 2 Regional Public Defenders (both PAL4 and take cases) or the Duty Lawyer Supervisors who do not take cases but oversee duty lawyer services. There are five DLS in the southern region, led by a Senior Duty Lawyer Supervisor Southern and 10 DLS in the northern region, led be a Senior Duty Lawyer Supervisor Northern. These roles add a further 21 lawyers, bringing the total PDS FTE lawyer count to 180.7.
H AW K E ' S B AY SP 3 PAL1 0 PAL2 2 PAL3 0 PAL4 1 WELLINGTON SP 1 PAL1 6 PAL2 6.4 PAL3 1 PAL4 2 C H R I S TC H U RC H
DUNEDIN SP 3 PAL1 0 PAL2 2 PAL3 0 PAL4 1
38
SP 5 PAL1 7.8 PAL2 6.6 PAL3 3 PAL4 6.8
SP 5 PAL1 5 PAL2 2.8 PAL3 2 PAL4 4
L AW TA L K 9 3 3 · O ctober 2 0 1 9
ACCESS TO JUSTICE
New technology aids access to justice BY LYNDA HAGEN
Better access to justice for all New Zealanders – especially people from vulnerable or disadvantaged groups – has been a common theme behind many of the Law Foundation’s grants throughout its existence. Over the years, Foundation funding has improved access to justice in some way for groups as diverse as children, people with disabilities, ethnic minorities, sexual abuse victims, medical misadventure victims, ACC claimants and people with impaired decision-making capability, among others. In recent years, the Foundation has also filled a rapidly-growing law and policy gap by backing research into the legal and public policy impacts of emerging new technologies through its Information Law and Policy Project (ILAPP) fund. It’s therefore fitting that the last two projects to be supported under ILAPP before the Foundation goes into recess combine important new technology research and the prospect of improved access to justice. One study potentially allows anyone – with or without a legal background – to understand judicial decisions that are relevant to their cases, through using analytic technology previously available only to academics and practitioners. The second, related research, on “Legislation as Code,” will look at how drafting law while simultaneously preparing it in machine-readable computer language can improve resulting legislation and how it is operationalised across government.
Automated Open Access Analytics Under the Automated Open Access Analytics project, lead researcher Tom Barraclough and his co-researchers, Curtis Barnes and Warren Forster, will work with OpenLaw NZ (www.openlaw.nz) to use its platform to develop software that can be used by anyone to analyse large volumes of judicial decisions. Over recent years, the Law Foundation has been the main funder for the New Zealand Legal Information Institute (NZLII), an open access website that makes New Zealand’s legislation, much of its case law and many decisions of specialist legal bodies freely available. Mr Barraclough says this project takes access to legal information, such as that available through NZLII, a step further. It aims to help any researcher, trained or untrained, to understand the law, learn the true meaning of words in a statute, follow precedent and discover relationships between pieces of legal information, without requiring a high level of specialist knowledge. “The core goal is to develop automated tools that greatly reduce the time and expertise necessary to conduct legal research, both academic and practical,” he says. “Insights that would once have required a team 39
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of legal researchers working many hours will be attainable by lay people in a fraction of the time.” OpenLaw NZ uses open source, freely available software that can analyse case law and judicial decisions and convert those into useful data. The platform was developed by Andrew Easterbrook and William Parry, two participants in this research. The project will run a test case using ACC case law as an example dataset to show the benefits that an open access automated data processor like OpenLaw NZ can bring.
Legislation as Code The second “law as code” project explores a change that could be as transformative as the ancient shift from writing law on paper instead of stone. But it also raises questions to be explored by the research, such as the potential for unintended impacts of drafting law while simultaneously coding it. Tom Barraclough and Curtis Barnes are working with law as code practitioner Hamish Fraser on this research. Mr Barraclough says the change offers huge promise, but won’t deliver unless there is public confidence in it. “The ambiguity of logic within language is hard for computers. What are the impacts for people and justice if that ambiguity is reduced?” he asks. “Better understanding is needed to ensure the technology does not render the legal system opaque and
Legal research — let us do the hard work for you
AUCKLAND
High Court, Cnr Waterloo Quadrant & Parliament St TEL 09 304 1020 E auckland@nzlslibrary.org.nz
CHRISTCHURCH
Justice & Emergency Services Precinct (B2 entrance) TEL 03 377 1852 E canterbury@nzlslibrary.org.nz
WELLINGTON
High Court Building, Kate Sheppard Place entrance TEL 04 473 6202 E wellington@nzlslibrary.org.nz
www. l aws o c i e t y.o r g . n z / l aw- l i b ra r y
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inscrutable, or lead to revolutionary transparency.” Mr Barraclough says the end of the Law Foundation’s ILAPP fund leaves a gap in advancing research around law and new technologies in New Zealand. “There’s a very real need for research at the interface of law and technology, because there is a real risk that technology creates barriers to access to justice, as well as being able to remove them,” he says. The Law Foundation’s research teams for this work are seeking to connect with people who have an interest in these projects or have insights to share. Contact with the research team can be made via the Law Foundation, and information on these and other ILAPP projects are detailed in our website. ▪ Lynda Hagen lynda@lawfoundation. org.nz is Executive Director of the New Zealand Law Foundation.
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L AW TA L K 9 3 3 · O ctober 2 0 1 9
A CC E S S T O J U S T I C E
ACCESS TO JUSTICE
Lawyers battling for justice around the world BY GEOFF ADLAM
Human rights awards The International Rescue Committee and its President and CEO, David Miliband, have been announced as the 2019 recipient of the 11th Stockholm Human Rights Award. The award is jointly made by the Swedish Bar Association, the International Bar Association (IBA) and the International Legal Assistance Consortium to an individual and/or organisation for outstanding contributions to human rights and the rule of law. David Miliband oversees relief operations in more than 40 war-affected countries and refugee resettlement programmes in 28 cities in the United States. T h e 2 0 1 9 I BA Aw a r d f o r Outstanding Contribution by a Legal Practitioner to Human Rights has been won jointly by Martin Lee SC and Margaret Ng. Both are Hong Kong-based lawyers and the IBA says both have demonstrated tireless dedication to the protection of human rights and the pursuit of justice. Mr Lee was called to the Hong Kong Bar in 1966 and became the Founding Chairman of the United Democrats of Hong Kong party. He served on the Drafting Committee for Hong Kong’s Basic Law. He openly criticised the Chinese government’s role in the Tiananmen Square massacre in 1989, and more recently has spoken out against the Hong Kong extradition law. Dr Ng was called to the Hong Kong Bar in 1988 and was a founding
member of the Basic Law Article 23 Concern Group. Dr Ng continues to fight against restrictions of civil liberties in Hong Kong as a member of the renamed Basic Law Article 45 Concern Group. The 2019 IBA Pro Bono Award has been won by Malaysian lawyer Cecil Rajendra. In 1980 Mr Rajendra and his associates set up the first rural legal aid clinic in Malaysia and he launched the country’s first mobile legal aid clinic in 2000. He has been a leading campaigner for human rights and is also a prominent poet, with his poems published in over 50 countries.
Pakistan focus of 2020 Day of Endangered Lawyer The tenth annual Day of the Endangered Lawyer will focus on Pakistan, on 24 January 2020. The Day of the Endangered Lawyer foundation is based in the Netherlands. It has developed a wide range of activities around the world on 24 January to raise awareness of lawyers who are being harassed, silenced, pressured, threatened, persecuted, tortured and murdered for their work as lawyers. Information released by the organisers says that over the past several years lawyers in Pakistan have been subjected to acts of mass terrorism, murder, attempted murder, assaults, death threats, contempt proceedings, harassment and intimidation in the execution of their professional duties.
At least 45 lawyers, prosecutors and retired judges have been killed in the Philippines since President Duterte took office in July 2016
Philippine Government urged to act on lawyer deaths The Netherlands-based Lawyers for Lawyers organisation has urged Philippines President Rodrigo Duterte to act to stop attacks against and extra-judicial killings of lawyers. Lawyers for Lawyers says at least 45 lawyers, prosecutors and retired judges have been killed in the Philippines since President Duterte took office in July 2016. In a letter to the President, the organisation says it is deeply concerned about the increasing attacks against lawyers, the labelling of lawyers as an “enemy of the State”, and the oppressive working environment they face since the start of his administration. ▪ 41
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ACCESS TO JUSTICE
Pro bono legal services support Canterbury Muslim community BY NICK BUTCHER
Six months after the Christchurch mosque attacks, pro bono legal services continue to make a difference to families of the victims. Lawyers in Canterbury have been involved in hundreds of pro bono cases involving families of the 51 people who died in the 15 March terrorist attacks. The free legal work would be valued at thousands of dollars but that’s a drop in the ocean compared to the difference it has made to the people who come from a range of countries, including Afghanistan, Somalia and Pakistan.
The lawyer response The Canterbury Westland branch of the New Zealand Law Society and Community Law Canterbury joined forces to generate a list of individual firms and lawyers that were able to offer pro bono services. Community Law Canterbury says it was a privilege to assist the Muslim community following the terrorist attacks. Community Law senior solicitor Louise Taylor, who is also an It’s difficult Adjunct Fellow at the University to think anything good of Canterbury’s School of Law, could come says the community law centre from such a is a large organisation with 20 staff solicitors. senseless act “Many of us were working at of hatred but we now enjoy Community Law Canterbury very positive during the earthquakes and the feeling in the office was a links with a bit similar – disbelief, fear and part of our sadness. So we had something of community we were a template to work from. Many perhaps less members of our staff and student engaged with. volunteer cohort speak multiple 42
languages and were more than willing to put these skills to use to assist families. “It’s difficult to think anything good could come from such a senseless act of hatred but we now enjoy very positive links with a part of our community we were perhaps less engaged with,” she says. She says staff were present in the Welfare Centre which was set up the day after the attacks and until it closed three weeks later. The centre was created as a place for families of victims to meet, pray, grieve and listen to police briefings on the investigation. “To gain trust with people we opted to have only four of our senior lawyers front this service so that they could build relationships with the families and organisations affected. This worked well and we now have very strong links with various community groups. These groups contact us regularly and we’ve been humbled by the gifts of food, invitations to events and other acknowledgements from individuals, families and organisations we have worked with.”
Changing legal needs Ms Taylor says Community Law Canterbury lawyers spoke with hundreds of people in the welfare centre and in clients’ homes. “Over the course of time the community’s needs changed as matters moved on from practical issues concerning identification and healthcare to matters such as immigration for victims and their families, ACC, employment, welfare, housing, family and other matters which stemmed from the events. “Malcolm Ellis, manager of the Canterbury Westland branch of the New Zealand Law Society, put together a list of lawyers offering pro bono legal services and we referred many clients to those lawyers who have, no doubt, provided valuable services for both their immediate clients and the wider community. Perhaps not surprisingly, one of the particular areas where this support was required was estate law and practice,” she says.
After the Welfare Centre closed, CLC opened around 50 individual representation case files, mainly in the area of immigration. “We have, to date, resolved around 20 of these and one of our staff members continues to work full-time with clients and the community to settle the remaining matters. We have actively engaged with Minister of Housing Megan Wood’s office and various other allied support services to meet our clients’ needs. At this stage we cannot anticipate when these matters will resolve as we are dealing with governments in countries with very different legal and administrative systems to our own. We are also dealing with a number of clients who are now relying on ministerial discretion and this can be an unpredictable process to go through.” Ms Taylor says the nature of the work has been emotionally hard on staff as it involves very personal situations where human loss has occurred. “We’ve offered staff assistance through our Employee Assistance Programme. We’re very clear in understanding that if we do not look after ourselves and each other we cannot hope to look after anyone else effectively. We were lifted during the busier times, by gifts of food from the Muslim community.”
Large immigration specialist firm responds One of the firms to offer help immediately was Lane Neave which specialises in, among other matters, immigration. Partner Mark Williams says by the time the work is completed, the firm will have provided in excess of $100,000 in pro bono services. The day after the attacks, Lane Neave was in touch with Immigration New Zealand. An agency hub had been set up at Hagley Oval (along with the Welfare Centre) where a range of services had converged to meet and advise families of victims. The location was ideal as it was close to Christchurch Hospital, where many people were being treated for gunshot wounds. The hub included government organisations such as Immigration New Zealand and the Ministry of Social Development. There were also local services such as Community Law Canterbury and Victim Support at the hub. It operated daily for about three weeks. It became apparent that legal advice was desperately needed so Lane Neave also set up shop at the hub. “Initially we staffed it ourselves but given the opening hours and the length of time the hub was going to be running, it happened that the Student Volunteer Army President – Sati Ravichandiren – was clerking
with our immigration team at the time. He got student volunteers to staff the hub and collect the information and documentation required for the families in shifts,” Mr Williams says. About 20 mostly law students ended up volunteering their time. “As you will be aware, the Student Volunteer Army came about in response to the earthquake, so again, they have mobilised and volunteered valuable assistance to those in need in their community,” he says.
Volunteer army haste pays Sati Ravichandiren is in his final year of studying law at the University of Canterbury. “People with immigration issues would come to the hub and our team would interview them. We would find out all of the essential information such as whether a person wanted to bring a family member into New Zealand, and how they were connected to the attacks at the mosques,” he says. His team would explain to people using the service what the basic legal requirements were in New Zealand for emergency applications. The group was trained by Mark Williams in how to conduct the interviews and what information was required – such as a passport, birth certificate and formal 43
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identification for the person wantWhile a ing to enter the country. subsidy of about $1,250 “We created a roster with two was available people on at a time for two hours ... in reality and then two others would take over. By five o’clock someone from the value the law firm would stop by and pick of the work undertaken up the forms which the lawyers to prepare could then continue to work on.” a thorough For the students, this was an ‘at the coal face’ experience in what special it could be like to practise law. Mr direction Ravichandiren says it was worth its application weight in gold. ranged from “It provided students with an $5,000 to opportunity to use their skills to $10,000 help people. It was such a valuable experience because we got to use the skills that we’ve been trained in, which we’ve learned about for several years for a really positive cause. We got to take this out of the university and put it into practice. We were interviewing people who had been at the mosques, other people who had family members severely hurt or had lost family members. It was very emotional,” he says. They all had to grow thick skin and he says the nature of what they were dealing with did hit them all hard. “But talking about it and sharing our experiences helped significantly in dealing with this.”
More firms get involved Mark Williams says it wasn’t long before other law firms started offering pro bono assistance because of the list created through the Law Society’s Canterbury Westland branch. “We provided pro bono work to over 30 families with emergency visitor visa applications and in some cases there were multiple visa applications – up to four from an individual family. We had two solicitors working more or less full-time for about eight weeks on this work, in addition to two immigration partners managing workflow and dealing with more complex issues,” he says. He says the help from the Student Volunteer Army was invaluable and often they worked with lawyers and Immigration New Zealand over weekends. Mr Williams says the current tranche of pro bono work around the Christchurch Response (2019) is in the Permanent Resident Visa category. 44
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“We’re now focusing our efforts on providing assistance to the more complex issues, such as special direction applications to the Minister of Immigration for the granting of residency to family members as an exception to the immigration policy. “While a subsidy of about $1,250 was available from Immigration New Zealand to some people for assistance, in reality the value of the work undertaken to prepare a thorough special direction application ranged from $5,000 to $10,000,” he says.
The complexity of some cases A lack of bona fide documentation to say who a person is – such as birth certificates – can be problematic. For example, Mr Williams says, there were challenges with people who had Somalian passports as they are not considered an international travel document. “We’re working with the Red Cross and Immigration New Zealand to try and find alternative travel documents.” There are also cases where someone has been left a widow(er) without any other family in New Zealand to support them and cases where surviving victims need long-term assistance to recover from both psychological and physical trauma. They have had family come to this country under emergency visitor visas, but they needed a longer period of time – in some instances permanently – to stay and help family recover fully. “A lot of these people left alone in New Zealand come from refugee backgrounds and just don’t have established family networks here. We’ve drafted quite substantial submissions for government assistance for people in these exceptional circumstances,” Mr Williams says. While lawyers soldiered on and did their work for people going through immense loss, the effect of the work on some of these lawyers was also a challenge. “You’re dealing with people who are going through trauma. It’s difficult, particularly for some of our younger and less experienced lawyers. They’re listening to some terrible stories, including accounts from those who survived,” he says. Mr Williams says their firm had lawyers working all sorts of hours, particularly during the first two months after the mosque attacks. “The colleagues of people doing this work assisted with their case load while this was going on. There were a lot of late nights. There was a lot of great team work involved.” He says they’re still receiving new pro bono work related to the terrorist attacks and it will be some time before their contribution is completed. ▪
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A LT E R N AT I V E D I S P U T E R E S O L U T I O N
ALTERNATIVE DISPUTE RESOLUTION
Running a major relationship property arbitration BY ROBERT FISHER QC
In a previous article (LawTalk 932, September 2019), I suggested ways in which modest to middle level disputes could be dealt with by expedited arbitration. In this article I consider major relationship property disputes. Major relationship property disputes are assumed to be those in which trusts or companies are involved or in which more than $750,000 is at stake. Every arbitration aspires to speed and economy. Major relationship property arbitrations are no exception. However, relatively elaborate procedures may be justified where they would not be disproportionate to the magnitude of the dispute. In such cases the arbitration is likely to pass through a series of steps if it does not settle at some point along the way: 1. Parties agree on who they want as arbitrator, ask AMINZ to appoint one, or approach a dispute resolution institution to manage the appointment and the process. 2. Arbitrator organises a preliminary conference with lawyers and parties. Can be done by phone (especially where Every lawyers or clients are at a distance) but arbitration ideally in person. 3. Arbitrator provides precedent arbitration aspires to agreement under s 21A of the Property speed and economy. (Relationships) Act 1976. Signed by cliMajor ents (and sometimes trustees) following relationship full lawyer certification requirements under s 21F. property 4. Factual statements and disclosure by arbitrations are no each party in accordance with timetaexception. ble set at the preliminary conference, However, usually taking the form of (i) affidavits setting out factual background and a list relatively of current assets, liabilities, and values elaborate procedures plus (ii) voluntary disclosure of any may be additional documents that the other justified. party may wish to see.
5. (If required) requests by one party for further documents and information held by the other followed by either voluntary compliance or conference with arbitrator to resolve. 6. Each side provides to the arbitrator and other party a non-binding spreadsheet analysis of assets, liabilities, values and suggested division. 7. Issues conference with arbitrator. Usually results in settlement. Otherwise directions given for remaining steps required to resolve outstanding issues. 8. Each party provides final affidavits, final spreadsheet analysis and synopsis of submissions. 9. A defended hearing with parties and lawyers present. 10. Award from the arbitrator. If required the award can be filed in the High Court and enforced. In practice at least four out of five relationship property arbitrations settle at some point along that continuum. The trigger for settlement is likely to be one of the following: • effective disclosure by both sides due to timetabled discovery on a voluntary basis or, where necessary, mandatory directions from the arbitrator; or • crystallising of issues due to the parties’ exchange of spreadsheet analyses of assets, liabilities, values and suggested division; or • appreciation of strengths and weaknesses due to an issues conference with the arbitrator. If the dispute does not settle, there will need to be a defended hearing followed by an arbitration award. This part of the process will have much in common with a conventional civil trial followed by a reserved judgment. A major difference, however, is that the issue of an award will normally signal the end of the dispute. The opportunities to challenge an arbitration award are very narrow. There is no general right of appeal. ▪ Robert Fisher QC www.robertfisher.co.nz is a member of Bankside Chambers, a former High Court Judge and the author of Fisher on Matrimonial Property. Since leaving the bench he has been in full-time practice as an arbitrator and mediator. 45
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ALTERNATIVE DISPUTE RESOLUTION
Reactive devaluation BY PAUL SILLS
Conflict is inevitable and is often necessary to bring about change. Our reaction to conflict is typically a problem in itself as we lack robust and fair conflict resolution strategies, all too often falling back on our biases and prejudices even when we think we are being rational. Reactive devaluation is one of the five psychological traits that most often come into play during the mediation process. Previous articles have examined cognitive bias and cognitive dissonance. This article discusses the importance of reactive devaluation and strategies to avoid its affects.
Reactive devaluation is the idea that our perception of a particular proposal or offer is influenced by our opinion of the party who made it. In conflict resolution, the value of an offer may be diminished in the eyes of the recipient due to their negative opinion of the opposing party, rather than reflecting the offer to hand. This reaction makes it more difficult for parties to reach an agreement even when proposals are made in good faith and would be considered objectively fair by a non-judgmental observer. In the context of negotiation, reactive devaluation leads parties to devalue and reject offers that would otherwise be considered reasonable. Instead of focusing on the immediate discussion, parties tend to focus too much on who they are in conflict with. When in conflict parties often become fixated on “beating” the other party rather than exploring fair solutions, which demonstrates the prominent part that our emotions play in conflict. It is often difficult for us as human beings to put our feelings aside and focus on the mechanics and resolution of the problem. Lee Ross, Professor of Psychology at Stanford University, has conducted a significant amount of research into the psychological barriers that prevent conflict resolution. In his work chapter “Reactive Devaluation in Negotiation and Conflict Resolution” (Kenneth J. Arrow, et al., Eds., Barriers to Conflict Resolution, W.W. Norton & Company, 1995, p.27-42), 46
Ross identified a number of cognitive and motivational processes which lead to reactive devaluation: perception, preferences, loss aversion, and heightened scrutiny. Understanding these factors may enable us to better address the challenges that reactive devaluation brings when attempting to reach agreement over disputes.
Perception/Interpretation When party A’s offer is inconsistent with party B’s expectations and understanding of their interests, party B may sceptically assess the offer and begin searching for “evidence” that the offer is more advantageous for party A. Parties who receive offers may conclude that it must be a bad deal for them merely because party A made the offer. Simply being in an adversarial relationship can be a factor in reactive devaluation. That is, if party A makes the offer, then it must be good only for party A, due to the competitive nature of the relationship and the existence of a dispute. A 2002 study on the Israeli/ Palestine conflict highlights the barriers that arise from reactive devaluation. The researchers in the study asked Israelis and Palestinians if they would support a specific Human peace plan, which was an Israeli beings, at peace plan. However, the Israeli least in some subjects were told that it was a circumstanPalestinian proposal. The study ces, may found that both sides devalued be inclined the proposal purely because it was to reject presented as the ‘other side’s’. or devalue The Israel/Palestine conflict also whatever provides an example of how a peris available son’s sense of identity and culture to them, and contributes to our perception of to vet and others and plays a role in our tenstrive for dency for reactive devaluation. It whatever is is the “them and us” mentality that denied drives our perception of others.
Both Palestinians and Israelis have proud cultural identities that involve feelings of animosity toward the other. Therefore, agreeing to a peace plan from the other side arguably means “losing” to what is perceived to be an inferior group. Similar dynamics may apply in mediation, where the personal pride and dignity of both parties may interfere with their ability to come to a reasonable arrangement.
Preferences Ross summarises the preferences process as follows: “Human beings, at least in some circumstances, may be inclined to reject or devalue whatever is available to them, and to vet and strive for whatever is denied” (page 38). In other words, the grass is always greener on the other side. Here, negotiator B rejects A’s proposal, not because of an adversarial view, but purely because the proposal is available. Conflicting parties will often strive for a better or different arrangement than what is offered, adopting the mentality that engaging in tense and rigorous arguments will result in a better deal for them. Parties in conflict will often reject what is readily available and on offer.
Loss Aversion Loss aversion may have a significant relationship with reactive devaluation. Human beings recall the pain associated with loss much more vividly than the feelings associated with experiencing a win – “losses loom larger than gains” (Ross, p.42). This means that parties in mediation are motivated to avoid loss. In relation to reactive devaluation, party B will reject or devalue party A’s offer as they assess their losses as outweighing their gains.
Heightened Scrutiny This occurs when a party analysing an offer begins to judge it less favourably. Psychologically, something judged unfavorable is perceived in a more negative light the longer it is considered.
Strategies to combat reactive devaluation Conflict resolution professionals can use a range of strategies and tools to address reactive devaluation in mediation. This includes using a collaborative negotiation style to identify the underlying interests of both parties. Through this, settlement arrangements can be reached efficiently and equitably.
Allowing ample opportunities for parties to discuss their standpoints during negotiations is vital in order to achieve a collective understanding of the issues within the dispute. While doing this, it is also important to encourage parties to revert back to the key factors driving the conflict, without the emotional influence. This enables the parties to assess potential proposals at face value, without focusing on who is making the offer. Timing is also key. Negotiation expert Randolph Lowry said, “The right offer at the wrong time is the wrong offer” (interview on Mediate. com, 9 December 2018). Rushing the agreement will not achieve the desired result and will invite devaluation. It is important that the negotiation process is conducted methodically to ensure settlements can be reached that reflect the interests of both sides. It takes time to achieve fairness and a level of mutual respect between parties. ▪ 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. 47
TA L K I N G A B O U T M E N TA L H E A LT H · P R A C T I S I N G W E L L
PRACTISING WELL
TA L K I N G A B O U T M E N TA L H E A LT H
Being a supporter: a daughter’s story BY CAROLYN RISK
My father died in July of last year, the day following his 89th birthday. He died of natural causes and in his own bed. There were many times in Dad’s life that I was not certain that those two would be possible as Dad died after living a lifetime with severe depression. Depression was a constant in Dad’s life. At times it defined and confined his life and his choices. At other times it was more of a quiet background note – like a steady bass sound that could not be ignored but which did not prevent you enjoying or engaging with the music of your choice. Over the course of my adult life there was a sea change in the way in which depression was diagnosed and treated. I watched as the treatment options expanded and improved. I experienced a new generation of doctors more inclined to engage with family members and recognise our role in the life of their patient. I experienced the growing openness about discussing depression. With relief and gratitude, I saw the courage of people such as John Kirwan help us to develop a collective vocabulary to talk about depression, about what it means, and about how to respond to it and support those who live with it. I know that there is no one way in which people experience depression. Equally, the experience of each person caring about and supporting someone with depression is specific to their circumstances and the nature of the relationship – whether parent, child, sibling, friend or partner. I know that my mother’s experience of supporting Dad was different to my own and the impact of Dad’s illness on her life greatly exceeded the impact it had on mine. I can only share what I learned from my experience as an adult child supporting 48
my father, and my mother, to cope with Dad’s depression and the way in which it impacted on all our lives.
Understand the implications of the illness for your role I learned that I needed to understand enough about the illness to appreciate what that meant for the role I could play and the implications for what I could do and what I could not do. I learned that I could not bargain with depression or negotiate with it. When depression meant that Dad believed that the best option for him and his family was for him to die, I could not rationally explain to him that this was not true. I could not expect him to understand, or accept, that my view of his world was that he had much to live for and still much to offer me and others. I had to accept his current reality and work to support him to get to a time when that reality changed for him. I am, by nature, an empiricist and find rational analysis irresistible. However, I had to learn to accept that depression was not a problem I could solve by rational analysis and it could, and would, assert itself in ways that I could not change. I also learned enough about depression to accept that I could not “fix” Dad or cure the disease. Depression is an illness and needs to be treated like any other disease by those who are trained to do so. My role was to support Dad – to connect him with the treatment that he needed, to support him through the process of treatment and at times to act as an advocate to ensure he and my mother had access to the professional support and assistance they needed to cope with the reality of his illness. I couldn’t cure Dad, but I could continue
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to believe that treatment would be successful and he could regain a life that was not robbed of all joy and feeling by depression. I learned that part of my role was to be what I called “an ambassador for the future” – to maintain the possibility of a future that was not defined by the symptoms of the disease and to ensure that when the doctors had done their job there was a future available to Dad that he could embrace and enjoy. I came to think of Dad as like a Russian doll toy. When the depression was at its worst all that there was of him was the very small doll that is at the centre of the toy – the one that is most fragile and vulnerable but which still looks like the other layers of the doll. I needed to maintain the possibility that at some future point the outer layers would be restored and the doll would once again be stable and able to stand upright unaided.
It is not about you – it is about the illness Experience taught me that depression can act as a powerful filter of facts and can distort the reality of the person experiencing depression. That meant I had to learn to not take personally things that were directed at me personally. This was one aspect in which recourse to rational analysis was useful. Depression meant that Dad did not always recognise or acknowledge acts of kindness or support – or even my presence. I had to learn not to take that personally but to recognise it as a symptom of the disease. I came to realise that rejection of me was part of a generic rejection of the external world – not a targeted, specific rejection of me. It was not about me – it was about the disease. Rational understanding told me 49
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what is happening. I made an early decision that one of the ways I would cope with Dad’s illness was not to dissemble about what it was. If people asked me what was wrong with Dad I would tell them that he was suffering from depression. It was one way by which I normalised his illness. It was also one way by which I was able to identify those with whom it was possible for me to talk about how I was feeling and what was happening for me and Dad and those with whom such conversations were not possible. Finally, while it is true that although you can’t cure or fix the depression, it is also true that you can make a difference in the life of the person living with depression. You can stay connected and engaged with them, and with those whose lives are impacted by the episodes of depression, and continue to care about and for them. Vitally, you can keep alive the version of themselves that depression takes from them and importantly you can be present in their life to welcome back the person they are when the depression retreats. ▪ I could not make my support for Dad conditional on the quality of his response to my support. Depression drives people into themselves and it sucks energy from them. It does not leave them with the energy to manage their own lives – let alone to accommodate you and your life. I needed to decide when and how I stayed connected to Dad’s life when depression did not allow him to recognise my role in his life or his role in my life. I also gradually learned to accept that when Dad was well I couldn’t confront him with how he behaved when he wasn’t well. I could not hold him hostage for behaviour that was dictated by the illness. I found other places to take the hurt and anger that his behaviour sometimes caused me. Other people supported me to deal with that, which allowed me to continue to engage with Dad as he needed. 50
Be kind to yourself Supporting someone with depression is unlikely to be the only responsibility you have. As with everything, you are no good to anyone if you do not take care of yourself first. It may also be that supporting someone with depression is the work of years – not weeks or months – so you need to pace yourself for the long haul. You can set limits to what you can and can’t do and for how long. It is okay to give yourself a break. It is not always possible to do everything you might want to. Be honest about what you can do and for how long and don’t beat yourself up about what you decide. What you can do will change over time consistent with other demands in your life – only you can determine what the best balance is. Make sure you have support and find people you can talk to about
Carolyn Risk has worked in private practice and as a senior public servant. She lives in Wellington and is self employed as a barrister and public policy consultant. Sarah Taylor is the co-ordinator of this series, a senior lawyer, and the Director of Client Solutions at LOD NZ, a law firm focused on the success and wellbeing of lawyers. If you’d like to contribute to this 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
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P R A CT I C E
PRACTICE
Red flags! Is your law office as healthy as you think? BY EMILY MORROW
About three years ago, I had a wellwoman check-up and assumed I would pass with flying colours as an active, fit person. However, when my GP listened to my heart, she said “Do you know you have a very audible heart murmur?”, to which I replied “No. I thought I had a healthy heart”. What ensued was three years of monitoring after which my condition worsened. Last May I had very successful open heart surgery to repair a prolapsed mitral valve. I am now better than ever. That said, the interesting (and concerning) bit is that I never felt unwell and was completely asymptomatic up to and including the day of my surgery. In other words, I had a serious problem of which I was blissfully ignorant. Fortunately, once I became aware of the red flag symptom (a heart murmur that I could not have diagnosed myself), I was able to get the underlying problem corrected. In my work with lawyers and law offices, my role is somewhat like that of the general practitioner who comes in and checks the vital signs, looks for and identifies red flags, diagnoses problems and suggests “treatment”. Below are the “red flags” I look for in relation to the overall health and wellbeing of a law office.
Financial red flags A firm’s financials always tell a story and, unless there is a compelling reason not to review them, I review these in advance of working with a firm. Obvious red flags include lower than normal earnings, higher than normal expenses, significant
If a firm has great leadership, is well managed, has a compelling and timely vision for its future and runs relatively friction free internally, it will attract the brightest and the best talent
variability between production by partners (or others), low net profit centre numbers for practice groups, diminishing returns for certain practice areas and so forth. The list goes on. Frequently there is something that is worth noticing and discussing. What presents as a “financial” problem often reflects non-financial problems. It is the tip of the iceberg, quantitatively verifiable and a good clue as to underlying and potentially more significant issues. Like my heart murmur, financial red flags often indicate appropriate diagnostic and interventional steps. For example, if a particular lawyer is a chronic under-producer, this could be a symptom of changing market conditions, underlying personal problems, such as burnout, lack of confidence, insufficient resources from the firm, poor team management, business development challenges and so on. Similarly, if a practice group is under functioning, this could indicate poor leadership, inappropriate staffing, inadequate work flow, and so forth. The symptom indicates the underlying problem(s) and failure to pursue it further likely ensures that the condition will worsen over time.
Management and leadership red flags I often begin my work by interviewing individuals in management and/or leadership positions within a firm. Even with very small firms, somebody is in charge (if only in a de facto manner), and it’s worth getting their view on things. I also interview people in less senior positions because their perspective is often very informative. Frequently, my questions focus on the following: • What do you see as the most important issues the firm should address in the next two to five years? 51
• What are the potential risks if the firm were to fail to address such issues? • What would success look like if the firm were to address these issues successfully? • What might need to change to achieve success? • What resources does the firm have to address these issues, including leadership and management capabilities? As a newcomer to a firm, my neutrality often allows me to hear what people are telling me in a relatively unfiltered way. Getting different perspectives allows me to have a composite view of what is going on With the in a firm that more likely approaches increased “reality”. interest in law Typical leadership/management firm culture, red flags include: the ability to • Long-standing, unaddressed quickly and friction amongst professionals accurately and/or management. identify the • Poor internal and external core elements communication. of a firm’s • Denial about what is happening culture and resistance to change. becomes • Chronic anxiety and inability to critical 52
identify and implement appropriate changes. • Outdated management and leadership structures and habits that are stunting a firm’s growth and development.
Personnel and succession planning red flags The retirement of baby boomers, the increased focus on achieving a more sustainable work/life balance and the chronic shortage of highly experienced lawyers are common red flags for law firms. The problems present in terms of poor workflow management, inadequate and/or ineffective business development (and stagnant practice growth), inadequate or nonexistent succession plans, poor people management, chronic staff turnover and low morale. If a firm has great leadership, is well managed, has a compelling and timely vision for its future and runs relatively friction free internally, it will attract the brightest and the best talent both now and in the future. Sadly, the reverse is also true.
Strategic red flags There are many sins that fall under this particular heading and they are often subtle and interdependent. Such “clues” become obvious by connecting the dots
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between the financial, leadership, management, personnel and external marketplace dots. A firm may have robust current earnings, well-managed expenses, capable professionals, and nevertheless have dark clouds on the horizon which, if left unaddressed, will become increasingly problematic. Typical red flags I see in this regard are: • Outdated “strategic plans” that do not take into account current market conditions, demographic changes, increased competition and potential new opportunities. • An “off-the-shelf ” strategic plan that was developed without much thought and which is not tailored to a firm’s real needs. • Partners, directors and management who lack strategic planning expertise. Although lawyers are smart people with strong analytical capabilities, many struggle to think strategically over time,
taking into account current realities and accurately predicting how those will play out in the future. It’s a kind of prescience and creativity that they don’t teach in law schools. • An inability to articulate, concisely and with conviction, what the strategic vision is for the firm and how it will be achieved. Frequently, if I interview five people in a firm and ask them to state the firm’s strategic vision in one sentence, I get five quite different answers. This is a real red flag.
Culture red flags As in the wonderful Australian movie, The Castle, this particular red flag is about “the vibe” within a firm. When I walk into a law firm, I start paying attention to its visible “cultural artifacts”. That is, empirical clues about the core elements of the firm’s culture that drive what really happens in the firm. For example,
I notice what the office looks like, how people are talking to each other, the speed with which people walk around, the extent to which they make eye contact with each other, whether they smile at each other and listen attentively, how things are organised, interactions between staff and lawyers and so forth. I have learned to be a bit of a “culture sponge” and it serves me well. With the increased interest in law firm culture, the ability to quickly and accurately identify the core elements of a firm’s culture becomes critical. The old adage that “culture eats strategy for breakfast” is really true. It’s a waste of everyone’s time to suggest interventions or changes that run across the grain of a firm’s culture. It may be necessary to encourage fundamental cultural changes, but the existing culture must be understood first before that can occur. Culture “red flags” manifest in many ways including unhappy, stressed, resentful, anxious, cynical and under-productive human beings and a general lack of initiative and innovation. This often reflects a misalignment between what a firm says it believes in and what is really happening day to day, creating chronic malaise and perceived hypocrisy. I hope you never need to have open heart surgery, but if you do, try to pick up the problem early by identifying and responding to the appropriate red flags. Similarly, I hope your firm doesn’t have any symptoms reflective of the above red flags. However, if you notice such symptoms (or someone brings them to your attention), I suggest you get onto them quickly and resolutely. Denial won’t help, but appropriate action will. ▪ Emily Morrow www.emilymorrow. com was a lawyer and senior partner in the United States. She now resides in Auckland and provides tailored consulting services. 53
CR E AT I N G A J U S T C U LT U R E
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CREATING A JUST CULTURE
Are we doing enough? The global scale of bullying and sexual harassment in legal workplaces BY JAMIE DOBSON
There’s no magic bullet when it comes to achieving cultural change in the global legal profession. A step inciting a change, is precisely that – just one step, says International Bar Association (IBA) Senior Legal Advisor Kieran Pender. The IBA launched its “Us Too? Bullying and sexual harassment in the legal profession” report in May 2019. Mr Pender, who is the report’s author, is on a global engagement campaign to raise awareness of the study. By the end of the year, he will have travelled through all six continents. As part of this tour Mr Pender spoke in Auckland, and Wellington, and at the New Zealand Bar Association’s annual conference in Queenstown, during August. Raising awareness of the issue is the first of 10 recommendations the IBA’s report makes to the global profession. The aim of these recommendations is to have ideas that encourage jurisdictions to begin the conversation on bullying and sexual harassment. And where the conversation is already happening, such as in New Zealand, to facilitate momentum and discussion for addressing the problem. Mr Pender says he hopes the engagement and feedback he hears from his continuing journey across the world, will begin to inform some concrete material the IBA can produce for the future. Asked what he thinks regulators should do to bring about change, he says building up regulatory action and a robust system with regulators of workplace labour would help culture change, only if workplace policies on bullying and sexual harassment catch up, the right legislation is in process, and individuals look at their own behaviour. 54
“It’s too simplistic to say ‘beef up the regulatory structure and it will go away’. At an individual level we need to do a better job, consider our own conduct, speak up when we see it happening, and support those who are targets of this conduct,” he says. However, with a survey of almost 7,000 lawyers from 135 countries, broad macro-impact solutions have only been able to be included in discussion of recommendations so far. When discussion turns to changes at a smaller scale, Mr Pender says he is often asked “what about other professions?” To answer this, he discusses the obligations under the conduct, ethical and moral standards imposed on lawyers, and the economic cost of people leaving the profession because of their experiences. Perhaps most pointedly though, he says: “There’s a rule of law argument that this kind of conduct is illegal. Lawyers aren’t above the law, so if we’re acting in this way, what message does that send to the rest of the community? Not a good one.”
Concerning results from Oceania
It’s too simplistic to say ‘beef up the regulatory structure and it will go away’. At an individual level we need to do a better job, consider our own conduct, speak up when we see it happening
New Zealand shares some of the worst results in the report alongside Australia. It’s worth noting that New Zealand and Australia are combined in the results. Due to those high numbers, Mr Pender was specifically interested in the Australasian leg of his campaign. He wanted to see what he calls the perception paradox reflected. The paradox’s explanation is that a heightened awareness of issues means it is reported higher. It’s more normal for people to speak up and discuss the issues. The IBA’s research found that one in two female respondents and one in three male respondents have experienced bullying in legal workplaces worldwide. While one in three female and 1 in 14 male respondents had been sexually harassed at work, survey responses from Oceania show the highest rates of bullying. The New Zealand Law Society’s 2018 workplace environment survey indicated that 18% have been sexually harassed during their working life, and that 52% of lawyers have experienced bullying to some degree. For Mr Pender the work will not stop at the end of
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There’s a rule of law argument that this kind of conduct is illegal. Lawyers aren’t above the law, so if we’re acting in this way, what message does that send to the rest of the community?
the engagement campaign. The IBA has committed to following up the survey in five years’ time, although he says a fresh pair of eyes may be useful to have by then. He began work on ‘Us Too’ in February 2018. Prior to him joining, the IBA had been preparing to release a report on barriers women face globally in the legal profession, when the Harvey Weinstein scandal hit the news and #MeToo began to spread. They thought they should look further into the issue and this became Mr Pender’s primary focus. An employment lawyer from Australia, Mr Pender has previous experience working against bullying and harassment. Asked how he got into this work, he says: “It’s not hard to be passionate about wanting to achieve a profession where we treat people better and there are less dickheads, so I consider myself immensely fortunate.” He remains positive this isn’t a moment where discontent bubbles away like decades gone by. Mr Pender feels there is an appetite for cultural change globally and wants to encourage everyone to play their role. “The hope is that if one less person is bullied or sexually harassed as a result of this research, or they are and feel empowered to speak up, they receive support, and action is taken against the perpetrator, then it’s all worthwhile.” ▪ 55
TECHNOLOGY
TECHNOLOGY
New death notification service BY TRACEY CORMACK
MyTrove is a free web service now available to solve some of the challenges to lawyers and individuals around estate management. The platform myTrove Notify (www.mytrove.co.nz) allows users to notify multiple organisations when someone has died, after registering online and completing the details. Currently, notifications can be sent to IRD, Westpac and the Department of Internal Affairs (Passports). In July 2016 the Public Trust commissioned Executor Research which found that on average it takes an executor 52.1 hours to fulfil duties such as closing down the accounts of a person who has died. Executors typically take between two months to a year to wind up an estate from start to finish. The people behind MyTrove say it can reduce the administrative burden encountered by grieving families, or lawyers, by reducing paperwork, removing the need to visit multiple organisations who require essentially the same information, and allowing personal and official death data to work together. Ross Hughson is the Managing Director of Personal Information Management Ltd (PIM) and worked in conjunction with the Department of Internal Affairs (DIA) to launch the project. The project began in 2017 when the Registrar General of Births, Deaths and Marriages, Jeff Montgomery, saw issues around the closing down of estates. DIA Because sponsored a team to take part in a a death is three-month Government technolconfirmed ogy accelerator run by MBIE, with against Ross and PIM part of the team. The the Death team also worked with the Law Register at Society and other stakeholder groups DIA before selected to assist the DIA in the, organisations “Simplifying the Final Affair” project. are notifed, The area selected to simplify first was it replaces to streamline the death notification the need process. for a Death The service was launched in Certificate. 56
March 2018 and myTrove Notify currently processes 10-15% of deaths in New Zealand. Mr Hughson is aiming to have that figure increase to 40-50% within the next year, with a target of 100% over time. Because a death is confirmed against the Death Register at DIA before organisations are notified, it replaces the need for a Death Certificate. Stella Purcell, Principal at Ruby Law, was recently prompted to register the notification of a deceased person online using the myTrove web service. “A central registration is an efficient way of dealing with notifications of this nature, certainly saves individual letters being sent. I’m all for finding a more efficient way of doing anything administrative,” she says. The web service has recently added a tab where you can elect to give feedback and suggestions, and PIM will soon be starting a focus group to get further ideas from lawyers to further develop the service. These may include ‘find my will’ and ‘find my insurance’ tabs, real-time confirmation of probate, or identity verification of the person notifying of the death. ▪
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TECHNOLOGY
Windows 7 Leaving so soon? BY DAMIAN FUNNELL
Microsoft will withdraw support for Windows 7, its fastest-ever selling version of Windows, on 14 January 2020. No more security patches or other updates from this date, meaning it’s time to upgrade. The history of Microsoft Windows sure has been a strange old rollercoaster ride. It officially started with version 1.0 back in 1985, but Windows didn’t gain mainstream adoption until version 3.0 in 1990. Its popularity exploded with the release of Windows 95, which began a 15-year period of total dominance and ubiquity for the operating system. A dominance that only came to an end with the resurgence of Apple and the smartphone revolution over the last decade. Windows 7 (2009) became the biggest selling version of Windows both because it was released during a period of peak market dominance for the PC and because it was sandwiched between two of the worst and least popular versions that Microsoft has yet inflicted upon us. Windows Vista (2006) and Windows 8 (2012) were both critical and commercial failures, having likely only contributed a measly few billion to Bill Gates’ net worth. Windows 7, on the other hand, was fast, secure and basically sucked a lot less than the versions that came before and after. It went on to sell an incredible 450 million copies in less than two years. It didn’t just sell quickly in its early days, however. It also had amazing longevity. Because of the
disappointment that was Windows 8, many customers, particularly businesses, chose to keep buying PCs with Windows 7 pre-installed for years after Windows 8 was released. A significant percentage of new PCs were still being sold with Windows 7 when Windows 10 finally came along in 2015 to put Windows 8.1 (as it was called by then) out of its misery. It was only a couple of years ago that manufacturers stopped selling Windows 7 PCs and only last year that Windows 10 overtook Windows 7 for worldwide installs. This means that more than a fifth of PC devices (which includes Macs) in New Zealand are still running Windows 7 today. Microsoft offered a free upgrade to Windows 10 upon its release to try and wean customers off Windows 7. Corporate customers were a lot less keen on the free upgrade than consumers, meaning the percentage of Windows 7-based PCs in the office is a lot higher than the overall country average. There are no reliable stats available, but some estimates put this figure above 40%.
The logic behind the move Why should I care? One word: security. Yes, your Windows 7 PCs might be running just fine and they may indeed have a couple of years’ of life left in them yet. But they are also running an operating system that is over 10 years old and that, as of 14 January, won’t receive updates or security patches from Microsoft anymore. Microsoft, left with the unenviable choice between extending Windows 7 support (and hurting Windows 10 sales) or ending support for an OS that still runs on tens of millions of computers worldwide, chose the latter and will effectively yank the rug out from under a huge customer base. Yes, extending Windows 7 support would have been expensive and yes they have been telling customers for years that this would happen, but I think it’s poor form for them to withdraw support for an OS that so many of us still use. This article is being written on a 57
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The days of being blasé about computer security are over. We can no longer tell ourselves that we’re too small or too unimportant to be of interest to hackers.
laptop running Windows 7. I do almost all of my work in a browser these days (I’ve just counted and I have 55 Google Chrome tabs open), so the version of Windows that I’m running is largely irrelevant to me in 2019. Yes, I will upgrade my laptop prior to Windows 7 support being withdrawn, but I’m annoyed that I have to given that this machine is only three years old. It feels like I’ve just broken it in and now I have to replace it. I’ll upgrade because the days of being blasé about computer security (and outdated software) are over. We can no longer tell ourselves that we’re too small or too unimportant to be of interest to hackers, because almost all of us have been the target of at least one hacking attempt during the last 12 months. The majority of us have been the victim of a successful hacking attempt over the past five years. I for one had my debit card details stolen this year 58
after hackers compromised Kathmandu’s website and this caused me considerable cost and disruption. All of the fraudulent purchases were refunded, but my card was cancelled and it took two weeks to get a new one. Payments were missed, subscriptions suspended and it took me ages to resolve everything once my new card arrived. At Choice Technology we see a steady stream of business customers who need help to recover from security breaches. These are almost always preventable and the effects can be catastrophic. In many cases if the customer had updated their software they would have been protected from whatever exploit they succumbed to. This is why all of the computers that we manage on behalf of our customers receive regular automated updates and are monitored for security-related events 24 hours per day. This is also why we’re asking our customers to upgrade their Windows 7 PCs prior to support being withdrawn. So don’t wait until January to think about upgrading from Windows 7. It’s a good idea to do a stocktake now and to have a plan in place for upgrading or replacing them before Microsoft finally withdraws support for what became one of the most popular versions of Windows ever. Bye Windows 7. It’s a shame you have to leave so soon, but it was great while it lasted. ▪ Damian Funnell damian.funnell@hoodoo. software is a technologist. He is the founder of Choice Technology, an IT services company, and Hoodoo, an app development studio.
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L E TT E R S T O T H E E D I T O R
LETTERS TO THE EDITOR
Enduring powers of attorney forms I wrote some months ago (LawTalk 907, June 2017) about the forms of enduring powers of attorney, related certificates, and plethora of other material in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008. I considered, and still do, that the prescribed enduring powers of attorney forms are poorly set out and are far too long – partly caused by the inclusion of superfluous material such as the provision of celebratory gifts. Anecdotally, the forms and their implementation raise thoughts of civil disobedience in the most law abiding of solicitors. More importantly, sections 94 and 94A of the Protection of Personal and Property Rights Act 1988 should be replaced. There are many situations other than where people have appointed each other that there is less than a negligible risk of conflict of interest arising. A frequent situation is where an elderly spouse cannot appoint the other who is indisposed. The appointee, usually a middle-aged son or daughter, does not want to appoint their elderly parent. All parties are longstanding clients and well known to the practitioner. A correction of the Act and simplification of the forms would gain the enduring gratitude of the legal profession and the paying public. Errol Macdonald, Levin.
Geoff Adlam replies The Property Law Section acknowledges the frustration being experienced by this and other practitioners who advise clients on EPAs and agree the default MSD forms are unduly lengthy and often overly complex for the needs of many clients. However, the additional information accords with the stated MSD goal that the new form “was to protect donors against attorney abuse and make both donors and attorneys more aware of their rights and obligations under an EPA”.
Ultimately, practitioners know their clients and what degree of prompting through use of the default form is required in a given situation. Although the EPA form provided by MSD is guaranteed to be compliant with the Act, there is fortunately some flexibility to adapt the form, provided it complies with the requirements of s 95(2) of the Act. Many sections of the new form are optional, although when contemplating changes to the form it is important to show that the donor has turned their mind to the option before rejecting it. The conflict rule, although sometimes onerous to apply in practice, could more positively be seen as providing protection for the practitioner involved in executing the EPA. The Property Law Section does however sympathise with many of the writer’s concerns and will raise these with MSD when the opportunity presents itself.
Printing for the retirement village industry Is it just me? I am affronted when reading of the obscene profits made by the banks and the more modest, but no less obscene, profits made by the retirement village industry that each of these institutions insist on the legal profession undertaking the role of their de facto unpaid printing provider. In some cases, this amounts to over one hundred pages that are required to be printed. “Charge your clients” they say, but there is already push back to our profession over costs so often we, at our own cost, just absorb the cost of it. The irony is that some banks require not only a scanned copy of the documents but also the hard copy. One wonders where the building is that stores all those pages – or perhaps that hard copy, too, is scanned. What waste of time and paper – and we worry about plastic bags!
Further, why do we get asked to tell their clients what their rules and charges are (disclosure) when they have the client’s personal contact information on their file already and could (should?) complete that task themselves. However, and being a realist, no doubt the Latin maxim, Adversus tonitruum magnitudinis peditum Libonis, will apply. Grant Aislabie Director, CG Law Ltd, Mt Maunganui.
Berry & Co among New Zealand’s oldest law firms We read with interest the article entitled “New Zealand’s Oldest Law Firms” appearing at pages 98 and 99 of LawTalk Issue 932. Our firm, Berry & Co was omitted from the list of the 50 oldest law firms, however it traces its roots back to 1886 when HB Crawford first set up practice in Naseby and shortly thereafter moved to Oamaru to practice law. The firm has gone through a number of name changes over the subsequent 133 years, and became Berry & Co in 1988. The firm held very successful 110th anniversary celebrations in 1996 that was attended by many former staff members and partners dating back to the 1950s. In recent years the firm has expanded with branch offices in Queenstown and lnvercargill. We suspect there may be other firms who likewise have a similar lineage that have been missed off the list, but no doubt they will make contact if they feel the need to correct the record! Michael de Buyzer Partner, Berry & Co.
Geoff Adlam replies Yes, Mr de Buyzer is correct, Berry & Co of Oamaru should have been included in the list of the 50 oldest law firms in New Zealand. Our apologies for the omission. 59
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LAWYERS COMPLAINTS SERVICE
Disciplinary charges against lawyers How is conduct treated that took place before the Lawyers and Conveyancers Act 2006 came into force? BY JUSTIN KLEINBAUM
In the recent Court of Appeal decision of Peter James Morahan v Wellington Standards Committee 2 [2019] NZCA 221, the Court of Appeal considered the status of conduct that occurred before the Lawyers and Conveyancers Act 2006 came into force. The Court of Appeal confirmed the role such conduct can play when establishing context and confirming the penalty. For a variety of reasons, complaints against lawyers are often made some time after the relevant conduct took place. The rules governing complaints made in respect of conduct that took place before the Act came into force are set out in section 351 of the Act. While s 351 allows for a complaint to be made in respect of conduct that took place before the Act came into force, it does create a limitation period for complaints and consequently for disciplinary proceedings. Relevantly, section 351 states: 351 Complaints about conduct before commencement of section ( 1 ) If a lawyer or former lawyer or employee or former employee of a lawyer is alleged to have been guilty, before the commencement of this section, of 60
conduct in respect of which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982, a complaint about that conduct may be made, after the commencement of this section, to the complaints service established under section 121(1) by the New Zealand Law Society. ( 2 ) Despite subsection (1), no person is entitled to make under this Act— ( a ) a complaint that has been disposed of under the Law Practitioners Act 1982; or ( b ) a complaint in respect of— ( i ) conduct that occurred more than 6 years before the commencement of this section; or ( ii ) regulated services that were delivered more than 6 years before the commencement of this section; or ( iii ) a bill of costs that was rendered more than 6 years before the commencement of this section. In effect, a complaint cannot relate to conduct that took place before 1 August 2002.
Mr Morahan had been found liable by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in relation to two disciplinary charges brought by the Wellington Standards Committee 2. Mr Morahan appealed to the High Court which dismissed the appeal in its entirety. Mr Morahan then sought and was granted leave to appeal to the Court of Appeal. The first charge related to Mr Morahan’s conduct between 1 August 2002 and 1 August 2008, when he was acting for Ms B, Mr J and a trust in relation to several property transactions. The charge alleged that Mr Morahan had breached the professional duties he owed Ms B by acting for Mr J and the trust in a way that disadvantaged Ms B. The second charge alleged that Mr Morahan breached his professional duties to Ms B by taking steps that were contrary to her interests following the breakup of the marriage between Ms B and Mr J and in relation to proceedings between them in the Family Court. This offending was alleged to have occurred after 1 August 2008, and so section 351 of the Act was not relevant. In relation to the first charge, the particulars referred to steps taken by Mr Morahan before 1 August 2002. The Tribunal, in finding the
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first charge proved, stated “that the charge [could] be proved only on findings made in respect of conduct alleged to have occurred after 1 August 2002” and that it was making “no finding against [Mr Morahan] in respect to any of his conduct prior to 1 August 2002”. However, even though the Tribunal expressly confined its findings as to liability to matters that took place between 1 August 2002 and 1 August 2008, it did, in fact, make findings in relation to matters which took place before 1 August 2002. The Tribunal stated that those findings were “relevant in establishing context” and that Mr Morahan’s conduct which took place before 1 August 2002 “had ongoing implications for what was to follow”. The Tribunal also found that Mr Morahan’s conduct prior to 1 August 2002 was relevant when determining penalty. It referred to Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850 (HC), a decision of a full court of the High Court which held “in considering sanctions to be imposed upon an errant practitioner, a disciplinary tribunal is required to view in total the fitness of a practitioner to practice, whether in the short or long term”. On appeal in the High Court, Churchman J did not consider that the allegations relating to conduct prior to 1 August 2002 should have been included in the particulars of the charge. However, he rejected the submission that that inclusion invalidated the charge itself. Further, he held that the Tribunal was entitled to take into account Mr Morahan’s conduct prior to 1 August 2002 when determining penalty. Churchman J stated that there were many relevant factors in determining whether a practitioner was fit to practice. These included: a. Whether the conduct was a one-off event in an otherwise blameless career; b. Whether the practitioner had insight into the consequence of his or her actions; c. Whether the practitioner had expressed remorse or apologised for their actions; d. Whether the conduct in question was part of a consistent pattern of behaviour extending over a long period of time (including in this case, prior to 1 August 2002); and e. Any prior disciplinary sanctions that may have been imposed on the practitioner. Mr Morahan appealed to the Court of Appeal. There were two limbs to the issue on appeal relating to s 351. Firstly, counsel for Mr Morahan argued that the Tribunal had erred in law in making adverse findings against him in relation to his conduct prior to 1 August 2002. He argued that those findings “fatally impugned the Tribunal’s findings in relation to Mr Morahan’s conduct between 1 August 2002 and 1 August 2008”. Secondly, he argued that by expressly taking into account Mr Morahan’s conduct prior to 1 August 2002 when determining penalties, the Tribunal breached s 351. He argued that effectively, the limitation provisions in s 351 were invalidated when the Tribunal took Mr Morahan’s conduct prior to 1 August 2002 into account. It
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followed then that the High Court had erred in upholding the Tribunal decision. The Standards Committee acknowledged that there had been an error in the way the particulars of the charge had been drafted. However, it was submitted that the evidence concerning Mr Morahan’s conduct prior to 1 August 2002 was relevant and admissible as propensity evidence. In respect of the issue of liability, the Court of Appeal accepted that propensity evidence could be adduced at disciplinary proceedings but stated that it had no need to explore that point further. It considered that the Tribunal had not treated Mr Morahan’s conduct as propensity evidence. It stated that “the Tribunal made it abundantly clear that it confined its findings as to liability in relation to Charge 1 to Mr Morahan’s conduct between 1 August 2002 and 1 August 2008. The findings made in relation to the events that occurred before 1 August 2002 were merely contextual.” Accordingly, the Court of Appeal saw no basis for interfering with the Tribunal’s and High Court’s findings on liability. It stated that it was “satisfied the Tribunal and the High Court complied with s 351 of the [Act] when finding and confirming Mr Morahan was guilty of Charge 1”. In respect of penalty, the Court of Appeal examined the purpose that underpins penalties imposed by professional disciplinary bodies. It summarised them as follows: a. The responsibility to protect the public; b. The maintenance of public confidence in the profession through the setting of standards; c. Any rehabilitative function to assist the practitioner to be reintegrated into the professions; and d. Any punitive function. The Court of Appeal stated that the multifaceted role of the Tribunal when determining a penalty supported the submission that the Tribunal must be entitled to take into account a wide range of matters when determining what penalty was appropriate for each, fact specific, case. Ultimately, it determined the issue by examining the text and purpose of s 351. It found that while that section created a limitation period for complaints and disciplinary charges against a lawyer, the text of s 351 did not attempt to limit in any way the matters which the Tribunal could consider when determining a penalty. Accordingly, it found that the Tribunal had not breached s 351 by taking into account Mr Morahan’s conduct prior to 1 August 2002 when determining penalty. Further, it found that the High Court also complied with s 351 when upholding the Tribunal’s decision. This case provides some clarity about how to deal with conduct that took place before 1 August 2002 when considering complaints against practitioners. It also reinforces the established view that the Tribunal is entitled to consider a wide range of matters when determining whether a practitioner is fit to practice. ▪ 61
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LAWYERS COMPLAINTS SERVICE
Complaints decision summaries Censured for incompetent advice and estate administration Former lawyer Jennifer McDonnell has been censured and fined $8,000 by a lawyers standards committee. The committee found Ms McDonnell had provided negligent and/or incompetent advice to the beneficiaries of an estate which contributed to delay. This constituted unsatisfactory conduct. In late 2014, Ms McDonnell took instructions to prepare wills for Mr W and his wife Mrs W. Mr W appointed three of his children, including Ms K, as executors and trustees. Mr W died a short time later. His will provided for his estate to be distributed to his five children after payment of debts and/or expenses. At the time of his death Mr W’s estate consisted of assets worth approximately $250,000 and household chattels. He also owned assets jointly with his wife, including a licence to occupy a property, bank accounts and a number of investments. In accordance with the principle of survivorship, any jointly owned property, would pass automatically to Mrs W. However, although not set out in Mr W’s will, Ms McDonnell submitted Mr W had instructed her that he wanted one half of the property he and Mrs W owned jointly to pass to his children on his death. Ms McDonnell provided the executors with a schedule of assets claiming the estate was entitled to half the assets that were jointly held by Mr and Mrs W. Dividing the assets in accordance with Ms McDonnell’s schedule increased the amount available to the estate but reduced 62
the amount which would have belonged to Mrs W. One of the aims of the suggested division was so that Mrs W could receive a residential care subsidy. The executors initially agreed to an equal division of the assets. However, when Ms K, who had been appointed by Mrs W as her attorney, sought to maximise Mrs W’s position, this created friction in the family. Ms K then sought independent legal advice in relation to her and Mrs W’s position. A revised schedule of assets was then provided by Ms McDonnell. This reflected Mr W’s will and took into account that any jointly owned assets would pass to Mrs W by survivorship, with any other assets remaining part of Mr W’s estate for distribution to his beneficiaries. “In the committee’s view, Ms McDonnell incorrectly applied the law of survivorship and the provisions of the [Property (Relationships) Act 1976], which set this matter off on the wrong track right at the outset,” the committee said. “There is nothing to indicate that Ms McDonnell had ever advised the executors of the correct legal position or of how the estate should have been distributed in accordance with that position. “Even if all the executors and beneficiaries had agreed that the estate was to be distributed in a different manner, that should have been dealt with by a Deed of Family Arrangement, with all relevant parties receiving independent legal advice. “The committee considered that the inadequate advice provided at the outset has contributed to the disharmony between the executors and had been a cause of delay in the matter,” the committee said. The committee also noted that Ms McDonnell had failed to identify a “clear conflict between her duties to Mrs [W] and her duties to the estate”. That breached rule 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
The committee said it considered that Ms K “would have suffered significant stress and anxiety because of the way in which Ms McDonnell handled the matter” and it ordered Ms McDonnell to pay Ms K $1,500 compensation. The committee also ordered Ms McDonnell to pay $1,200 costs. On review, the Legal Complaints Review Officer confirmed all the orders made by the committee (in LCRO 3/2017 and LCRO 148/2017). The LCRO also ordered Ms McDonnell to pay an additional $1,200 costs.
Unduly delayed file release All names used in this article are fictitious A lawyer who unduly delayed releasing files to a client’s new lawyer has been fined $1,000 by a lawyers standards committee. The lawyer, Cleveland, had acted for Mr Hampshire’s family trust and in the preparation of a new will for Mr Hampshire. However, on 5 November 2015 Mr Hampshire engaged a law firm (the firm) to represent both him and the trust. The firm sent Cleveland a signed request to uplift Mr Hampshire’s and the trust’s files and documents. Some five days later Cleveland sent Mr Hampshire an invoice for taking will instructions and a statement of costs said to be outstanding from the trust. That was accompanied by advice that no files or documents would be released until all costs had been paid. Mr Hampshire settled his outstanding costs on 18 December 2015. However, it was not until 5 February 2016 (by which time Mr Hampshire had complained of delay to the Lawyers Complaints Service) that Cleveland advised that the files had been available to uplift since the beginning of the working week. As part of his complaint, Mr Hampshire
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also said he had received an invoice for work of which he had no knowledge and that a request for clarification of the invoice had not been responded to by Cleveland. In her response to the committee, Cleveland said the request for the file had coincided with the Christmas “rush”. Cleveland submitted that her availability to provide the file therefore had to be prioritised, taking into account the busy period prior to the Christmas break and the pressure of work involved in clearing the post-Christmas work backlog. The committee found Cleveland had breached rule 4.4.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and that was unsatisfactory conduct. Rule 4.4.1 imposes a duty on lawyers to “act upon any written request to uplift documents without undue delay subject only to any lien that the former lawyer may claim,” the committee said. The committee also found Cleveland had breached rule 9.6 by rendering an invoice in relation to the preparation of a will, which had not been rendered within a reasonable time of completing the matter, and that was unsatisfactory conduct. As well as fining Cleveland $1,000, the committee ordered Cleveland to cancel and refund a fee of $294 plus GST, incurred for preparing the will and to pay $750 costs. It also ordered the anonymised publication
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of its determination. On review, the Legal Complaints Review Officer (LCRO) confirmed the finding that Cleveland had breached rule 4.4.1. “What is clear is that [Cleveland]’s obligation to release the files was not in dispute by 18 December 2015, when Mr [Hampshire] settled all his outstanding accounts,” the LCRO said in LCRO 228/2016. “Whilst I have taken into consideration [Cleveland]’s argument that her ability to provide the files promptly was significantly impeded by the intervention of the Christmas break, I am not persuaded that the interruption of the holiday period provides reasonable explanation for the delay that occurred.” The LCRO noted that the committee’s finding that Cleveland had breached rule 9.6 was based on a misunderstanding that the invoice for will preparation had been for a will made eight years earlier. In fact, the complaint related to Cleveland charging fees for the preparation of a will in 2014 (which Mr Hampshire said he did not recall having discussed with Cleveland). As such, the LCRO reversed the committee’s finding that Cleveland had breached rule 9.6. However, it was noted that on receiving Mr Hampshire’s files, the law firm made repeated requests to uplift the will file. Cleveland finally forwarded what she described as an “updated draft will” and
the firm again asked Cleveland to provide the will file. Following these exchanges, Cleveland confirmed she was not holding a physical file. “[Cleveland] should have been able to provide evidence of a file being opened and compiled which comprehensively recorded the instructions received. In response to repeated and persistent requests to provide a copy of the will file, she was unable to do so, and simply provides explanation that she prepared the will on instructions,” the LCRO said. “That is inadequate. Instructions received in respect to the preparation of a will should be carefully recorded. “A written record of the instructions received on occasions assume considerable significance particularly in circumstances where the will is subjected to challenge. A failure on the part of a practitioner to have faithfully recorded the instructions provided in a form which is open to examination constitutes a significant lapse.” This amounted to a breach of rule 3 and that was unsatisfactory conduct, the LCRO determined. The LCRO also said that the order directing refund of a fee for will preparation should be varied to accurately record the total fee charged. It varied the committee’s $294 refund order to a $355 refund. The LCRO also ordered Cleveland to pay $900 costs.
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Consider confidentiality when storing documents as precedents All names used in this article are fictitious Some lawyers may not be giving “adequate consideration to their obligations of confidentiality in the retention and storage of documents for use as precedents,” a lawyers standards committee has said. “Best practice would be that client information is accessed only by those who are involved in a matter and best practice was to remove all identifying information from any documents before they were stored for use as precedents and/or circulated for this purpose.” The committee made these observations when considering an own motion investigation of a lawyer, Warwickshire. Warwickshire had previously been employed at several different firms. The own motion investigation arose when Warwickshire’s former employers notified the New Zealand Law Society that they had discovered “a significant number” of documents containing private and confidential information about identifiable current and former clients of two of Warwickshire’s former employers on the server of her most recent former employer. The two former employers also advised that Warwickshire had apologised to them and clarified that she held no other information than that found on the most recent former employer’s server and had not disseminated confidential information to any third parties in any way. 64
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The committee noted Warwickshire’s intention was to copy and retain the documents for use as precedents. In addition, Warwickshire’s response to the committee included an acknowledgement of her wrongdoing in copying and retaining documents in the manner she did. “Retention of documents for use as precedents was common practice amongst the profession, however the committee held concerns about the potential volume of documents and [Warwickshire]’s disregard for the confidentiality issues raised,” the committee said. “At times [Warwickshire] neglected to remove client information when she retained/stored the documents, and this meant that documents (including client information) were transferred to other law firms where [Warwickshire] was subsequently employed. “By transferring the documents to a firm outside of the firm where the client(s) sought representation, [Warwickshire] failed to protect and hold client information in strict confidence.” The committee considered that Warwickshire’s conduct was in breach of both rules 8 and 11 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and would therefore meet the threshold for unsatisfactory conduct. Rule 8 provides: “A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship.” Rule 11 provides: “A lawyer’s practice must be administered in a manner that ensures that the duties to the court and existing, prospective, and former clients are adhered to, and that the reputation of
the legal profession is preserved.” However, the committee observed that there were a number of circumstances that eased its concerns about the breach of confidentiality in this matter. These included: • there was no information to suggest Warwickshire had copied, retained and/ or used any confidential and/or personal client information for personal gain, against the interests of any client or for the benefit of a third party; • Warwickshire had stored the information securely on servers at the three firms, albeit in breach of the original obligations to clients of the firms; • Warwickshire’s acceptance of the issue when it was raised with her; • Warwickshire deleted the material promptly and advised she had changed her practice to ensure the issue does not arise again. The committee also gave some consideration to the wider context of Warwickshire’s conduct, including: • Warwickshire had made no secret of the precedents she stored; • she was not advised at an earlier time of the issues arising from the copying and retention of precedents in the manner that she did; • the committee’s view that Warwickshire’s conduct may not be uncommon, and its view that similar issues in relation to the storage and use of precedents may arise in other practices and for other practitioners. Warwickshire had made an “error of judgement and breached her professional obligations by copying and storing documents containing client information”, the committee said. “However, after considering these matters, and all the circumstances, the committee decided that the matter did not warrant a disciplinary finding.”
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Order not to employ Sarah Buschman T h e N ew Z e a l a n d L aw ye r s a n d Conveyancers Disciplinary Tribunal has made an order that no legal practitioner or incorporated firm employ Sarah Buschman in connection with the practitioner’s or incorporated firm’s practice. The order is made pursuant to section 242(1)(h)(ii) of the Lawyers and Conveyancers Act 2006, for so long as the order remains in force. The Tribunal says Ms Buschman was employed by a law firm, initially as a secretary. When the firm accountant retired, she took that role over from 29 April 2016 to 11 August 2017. “Between 26 May 2017 and 26 July 2017, [Ms Buschman] authorised the payment of eight creditor invoices by electronic transfer from the firm’s bank account. Five of the invoices had previously been paid by the firm. None of the payments were made into the creditors’ bank accounts. [Ms Buschman] dishonestly arranged for all eight payments to be paid into her own bank account. The total sum taken ... was $2,947,” the Tribunal says. It says at a meeting with her employer, Ms Buschman said the payments were either a mistake or an accident. She indicated she would repay the money but has not done so. The New Zealand Law Society’s Waikato Bay of Plenty Standards Committee No 1 charged Ms Buschman with conduct that would, if it were conduct of a practitioner, render the practitioner liable to have his or her name struck off the roll. In its decision the Tribunal said Ms Buschman did not file a response to the charge or any teleconferences relating
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to the hearing, despite being given the opportunity to do so. She is understood to be now living in Australia. The Tribunal says it is satisfied the charge has been proved. As well as its order to not employ, the Tribunal has ordered that Ms Buschman refund $2,947 to her previous employer, and that she pay total costs of $3,966 to the New Zealand Law Society.
Nola Kay Dangen suspended for two months T h e N ew Z e a l a n d L aw ye r s a n d Conveyancers Disciplinary Tribunal has suspended Auckland lawyer Nola Kay Dangen from practice for two months from 23 September 2019. This follows admission by Ms Dangen of a charge of negligence in relation to her conduct as a property manager and welfare guardian for an elderly woman. Mrs KB suffered from dementia and was in a residential care facility. Ms Dangen had been approached by a lawyer colleague to act as welfare guardian and property manager after another lawyer had declined to accept the appointments due to a history of family difficulties between Mrs KB’s husband and a son. Because a court filing timetable made the matter urgent, after agreeing to take on the roles Ms Dangen hurriedly swore three affidavits prepared by the lawyer acting for Mrs KB’s husband. These included statements that Ms Dangen had many years’ experience in the area and that she did not seek remuneration for her services. Ms Dangen swore that the affidavits were
truthful, but her only experience in the role had been 20 years earlier, and she never intended to provide her services without remuneration. Until Mrs KB’s death two and a half years later, Ms Dangen rendered invoices for a total of $62,292 and also prepared and authorised an interest-free $20,000 loan to Mrs KB’s niece. Ms Dangen subsequently agreed to repay the loan and fees in full herself. The Tribunal found that Ms Dangen had sworn three affidavits which were inaccurate, had charged significant fees without authorisation by the court and some of which could not have been authorised by the court, and had advanced the loan without any authority to do so. It said her actions were not simple and understandable errors, and they had continued for a protracted period. “In summary we consider the level of culpability to be at the very high end of the negligence spectrum,” the Tribunal said. Mitigating factors were that Ms Dangen had been prepared to put right her failures, her guilty plea – albeit at a very late stage – had indicated some understanding and acceptance of her failures, and she previously had an exemplary record as a practitioner. In considering an appropriate penalty, the Tribunal said having regard to the seriousness of the failures, the lengthy period for which they continued, and the multiple number of failures involved, no penalty short of suspension would properly mark its denunciation of the conduct, nor provide general deterrence as required. Ms Dangen’s two-month suspension was deferred until 23 September because of her obligations to undertake locum duties for sole practitioners. The Tribunal also ordered that she pay total costs of $28,242. 65
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LEGAL INFORMATION
The Ethical Lawyer: Legal Ethics and Professional Responsibility by Richard Scragg REVIEWED BY GARRY WILLIAMS
Back when I first started, the Law Society would periodically send out to practitioners the Rules of Professional Conduct for Barristers & Solicitors (the Red Book). The purpose of this publication was to clearly set out the ethical and professional duties and responsibilities of lawyers in New Zealand. The Red Book was invaluable, largely due to the fact that it not only set out the relevant rules of professional conduct but provided helpful commentary on each of the rules. Unfortunately, in 2008, when the Rules of conduct and client care for lawyers were promulgated, the practice of providing detailed commentary in the Red Book was discontinued. The Red Book simply became a copy of the Rules. This was a great pity and left a considerable vacuum. But just as nature abhors a vacuum, so too does legal publishing. In this case the void has been filled by Richard Scragg’s The Ethical Lawyer. Scragg’s work is intended to be a comprehensive account of the principles of legal ethics and professional responsibility in New Zealand and a guide to the practical application of those principles. Scragg’s purpose was to “focus on the key ethical issues that lawyers encounter on a day-to-day basis in their practices” and “give lawyers an easy-to-follow guide to complying with the requirements of New Zealand’s Lawyers and Conveyancers Act 2006 and the Rules of Conduct and Client Care for Lawyers”. 66
In my view, The Ethical Lawyer fulfils these goals admirably. It provides both thoughtful analysis and guidance in respect of what are often challenging ethical dilemmas. So, what does The Ethical Lawyer cover? There are 16 detailed chapters but the best are those which focus on the topics of Misconduct (Chapter 5), Conflicts of Interest (Chapters 11 and 12) and Advocacy Ethics (Chapter 13).
Chapter 5 – Misconduct In this chapter, Scragg explains just what will amount to misconduct under the Rules of conduct and client care for lawyers. Obvious examples of misconduct such as dishonesty, breach of fiduciary duty and charging excessive fees are canvassed and examples of such conduct explained. So too is misconduct based upon inadequate supervision of a practice and/or its employees. It is also misconduct to obstruct a New Zealand Law Society investigation and Scragg’s in-depth coverage of this topic is nicely illustrated by the High Court’s decision in Hart v Auckland Standards Committee of the New Zealand Law Society [2013] 3 NZLR 103 where it was said: “Any deliberate refusal by a practitioner to comply with a lawful requirement made by a Standards Committee tasked with investigating a complaint must be regarded as serious. It indicates a lack of candour that may be significant when considering the fitness of a practitioner to remain in the legal profession.” This chapter also touches upon misconduct
in litigation. Here Scragg considers the case of National Standards Committee v Orlov [2013] NZ LCDT 45 and whether or not the High Court was correct when it quashed an order striking off the practitioner involved. The Orlov case dealt with rule 13.2 which provides that a lawyer must not act in a way that undermines the processes of the court or the dignity of the judiciary. The Disciplinary Tribunal had found that Mr Orlov “had made statements that were false or made without sufficient foundation, and that the nature of the statements meant he was not a fit and proper person to be a lawyer”. On appeal to the High Court his appeal was dismissed except in relation to penalty. On that issue the High Court quashed the order for striking off and said: “We place weight on the fact that the practitioner’s offending conduct consists only of speech, and [was] directed against a member of the judiciary. It [did] not involve mistreatment of clients or their money.” Scragg describes the first sentence as “startling” and clearly considers that misconduct stemming from speech alone should not be considered as somehow a lesser form of misconduct.
Chapters 11 and 12 – Conflicts of interests In these two chapters, the author explains and illustrates with multiple examples typical conflicts of interest problems and, importantly, how to deal with them once they have been identified. As Scragg says conflicts of interest for lawyers can arise in a great deal of situations
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L E G A L I N F O R M AT I O N
On this last topic, the author refers to the words of McKay J – writing before his elevation to the bench: “Witnesses are under an obligation to tell the truth. Respect their integrity and do not persuade them to adopt a particular view. Ascertain exactly what the witness can honestly say as to the relevant matters. If necessary, jog the witness’s memory, and ensure that particular matters are not forgotten or overlooked. You may have to assist the witness to express themselves in a way that accords with their real meaning and not in a way which might be misunderstood. At the end of the day the evidence must be the honest evidence of that witness.” Scragg describes these words as encapsulating perfectly the function of a lawyer in preparing a witness to give evidence.
Final remarks
but can generally be grouped into categories: • Conflicts of interest between clients: over their interests in the same matter; over their interests in separate matters; and conflicts between a current client’s interests and those of a former client. • Conflicts of interest between a client and their lawyer. In dealing with these categories the author outlines the obligations on lawyers to fully disclose conflicts to clients (where that is possible) and the circumstances where it is just impossible to act fairly and adequately for both parties. The coverage of these matters is in depth and given their importance from a risk management perspective compulsory reading for practitioners.
Chapter 13 – Advocacy ethics As an officer of the court concerned in the administration of justice, counsel has an overriding duty to the court, to the
standards of the profession, and to the public, which may and often does lead to a conflict with a client’s wishes or with what a client thinks are his or her personal interests. In chapter 13, Scragg discusses this tension and the obligations of advocates before the courts. A broad range of topics are discussed, including: • The protection of court processes; • The duty to remain independent – illustrated by a discussion of the circumstances in which a lawyer can remain counsel when he or she is able to give evidence; • The obligations on counsel when presenting evidence and witnesses – in particular the obligations that arise when a witness gives evidence in support of counsel’s client’s case that counsel knows to be false; and • The extent to which counsel can help prepare a witness to give evidence in court.
Richard Scragg was one of my ‘Profs’ instructors many years ago and, in fact, taught me the ethics module of that course. Back then, the ethics module consisted of about a day and a half of lectures. It is therefore particularly pleasing to see that students and practitioners can get a substantially greater insight into legal ethics these days by reading a copy of The Ethical Lawyer. Richard Scragg has been a partner in a medium-sized firm, a Profs instructor and also an academic. He started his academic career at the University of Canterbury where he became Dean and Head of Law. He then joined the University of Auckland where he teaches the Legal Ethics course. The Ethical Lawyer has benefited from his wide-ranging experience and, given how valuable this work will be to both students and practitioners, it can confidently be expected that there will be future editions. The Ethical Lawyer: Legal ethics and professional responsibility, Thomson Reuters New Zealand Ltd, 978-1-988553-36-8, September 2018, 438 pages, $90 (excludes GST and postage). ▪ Garry Williams williams@richmond chambers.co.nz is a barrister in Auckland’s Richmond Chambers and a member of the New Zealand Bar Association’s Training and Diversity and Inclusion Committees. 67
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LEGAL INFORMATION
Recent legal books BY GEOFF ADLAM
Mental Capacity Law in New Zealand IRIS REUVECAMP AND JOHN DAWSON, GENERAL EDITORS The book contains contributions from 15 authors who include legal practitioners, academics, bioethicists and psychiatrists. Its focus is on the law governing the position of people who lack capacity to make decisions about their personal care or property, and the position of people appointed to make decisions on their behalf. It is organised into five parts, covering core concepts and processes, authority and justification for making decisions for others, decisions about personal care and welfare, and property-related decisions. The fifth part, by the general editors, presents conclusions and looks at the future of mental capacity law. The book addresses civil law capacity issues and does not address the criminal law. Thomson Reuters NZ Ltd, 978-1-988591-09-4, August 2019, paperback and e-book, 425 pages, $190 (excludes postage and GST).
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Forensic Science and the Law BY ANNA SANDIFORD Subtitled “A Guide For Police, Lawyers and Expert Witnesses”, this has been written by independent Christchurch-based forensic science consultant Dr Anna Sandiford and updates her 2013 first edition. Divided into 19 chapters, it examines the main areas of forensic evidence which are encountered in criminal and traffic cases. The first four chapters focus on expert witnesses and expert evidence. Areas covered include scene examinations, drugs, trace material, images and audio, fingerprints, document examination, bloodstains and DNA. Two concluding chapters look at the requirements for medical expertise and working with psychologists and psychiatrists. Thomson Reuters NZ Ltd, 978-1-988591-07-0, August 2019, paperback and e-book, 436 pages, $120 (excludes postage and GST).
Legal books This information is compiled from books which publishers have sent to LawTalk. It does not imply endorsement by the New Zealand Law Society and its objective is to provide information on books which might be of interest to the legal profession. Purchase inquiries must be directed to the appropriate publisher.
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LEGAL HISTORY
LEGAL HISTORY
Legal nomenclature — from prolix to trendy BY SIR IAN BARKER QC
The lawyers of the time when I started in the law would have been rather disconcerted by current trends in the nomenclature of legal firms today. Not as much as they would have been by the insistence of marketing, PR and other consultants in referring to lawyers as “the legal industry”. I hope that I am not in a minority in thinking that, despite the accoutrements and different practice styles of the 21st century, lawyers still proudly belong to a profession – not an industry. In the 1950s and 60s, it seemed to be important that one’s name should appear as or as part of the firm name – particularly when commencing practice. After all, avenues for advertising were then extremely circumscribed by the Law Society. Failing that, the names of the founding fathers of the firm might be immortalised in the firm name – particularly if they had been prominent leaders of the profession or even prominent politicians. Hence such polysyllabics as Brookfield, Prendergast, Schnauer & Smytheman; or Billing, Little, Fookes & Strombom; or Earl, Kent, Massey, Palmer and Hamer; or Baxter, Shrewsbury, Milliken & Murdoch – to mention a few firm names which paid obeisance to the past whilst naming the then current senior partners. If you were a sole practitioner, you practised under your own name, although adding an “& Co” was permissible even if there was no “Co”. Sometimes the “& Co” was a rather more junior person and since public manifestation of the junior’s name might diminish the impact of the more important personage on the clientele, the name of the junior person did not feature in the firm name. Another indication of one-upmanship was putting your first name into the firm name – even although the firm name included two or more surnames.
The only firm name I can recall – other than those of the few women sole practitioners in those days – which paid any regard to women lawyers was Alexander, J.H. & Julia Dunn, Wellington – a firm which specialised in defamation law and which had New Zealand Truth as a client.
Retaining names If you were acquiring a sole practice from a retiring solicitor or from a deceased estate, it was not uncommon to retain the name of the former practitioner and add your own name to theirs in the hope that the clients of the retired or deceased lawyer may still patronise what appeared to be a “firm”. Sometimes, firm names on this model had three names – reflecting more than one change of ownership. A proclamation from the Law Society of the day forbade a firm name which included that of a person, no longer a member of the firm, who had gone to the bar (very few did) or who had been appointed to the bench. Thus, Buddle Richmond & Co became Buddle Weir & Co when Kip Richmond was appointed a judge in 1960 and Leary, Giesen & Hillyer lost two of its names at different times when Leonard Leary and Peter Hillyer went to the bar. That particular convention seems to have been forgotten today. Some of the bigger and/or old-established firms decided, early on, to stick with the names by which they had been known for a while and which had been associated with a good reputation. For example, Bell Gully, Chapman Tripp – although at some stages of their journey, such firms might have enjoyed a longer formal name. Firms that were growing their practices often changed names when a new partner came along or an older partner died or retired. When I first met my good friend,
the late Sir Bruce Slane (as he then wasn’t), the firm’s name was Dufaur, Fawcett, Cairns & Slane. Bruce had just become a partner at a young age, as one did in the late 1950s, and went on to become New Zealand Law Society President and to demystify the profession with his many excellent PR initiatives. Not too long afterwards, the name became Dufaur, Cairns, Slane & Fitzgerald when my boarding school friend, John Fitzgerald, joined the practice – then a little later, Cairns, Slane Fitzgerald & Phillips when John Phillips came along. I hope I have got the various permutations right! The firm’s successors today are called now, simply, Cairns Slane. Country practitioners were more prone to this form of firm name change than their city counterparts, presumably because country lawyers, then as now, tend to be well-known in their communities.
Mergers Mergers often begat long names since neither party to the merger wanted to be forgotten. Thus, when Russell McVeagh & Co (which before the elevation of Barrowclough CJ had been Russell, McVeagh, Macky & Barrowclough) merged with McKenzie & Bartleet, the name of the new firm became Russell, McVeagh, McKenzie, Bartleet & Co. The merged firm was still referred to by most of the profession as Russell McVeagh – as the firm is now called. Add-ons such as “& Co “or “& Partners” or “& Son(s)” tended to fall out of favour slowly over the years. Perhaps the marketers thought them too old-fashioned? Mergers – particularly mergers of more than two firms – often saw the demise of firm names which had been a presence in a town for many years. For example, I was once a partner in a well-regarded 69
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middle-sized firm in Auckland called Morpeth Gould & Co. It had been founded by Hector Morpeth in 1910. In the latter years of the last century, a flurry of mergers of similarly-sized firms in both Auckland and Wellington saw the creation of a new firm with offices in both cities under a title which included only two names, chosen from quite a large pool provided by the names of the contributing firms. While acknowledging that the choice of a two-name firm brand was always going to be difficult and would necessarily wipe away many symbols of legal history, I was, however, mildly disappointed that the Morpeth name did not feature in the name of the new entity. The new Act governing the legal profession, which came into force in 2008, created a brave new world for the profession with things like engagement letters and information on what to do if you became unhappy with your lawyer. The new Act saw greater use of the generic descriptive term “lawyers”, instead of the traditional description of “barristers and solicitors”. Fifty years ago when there were few barristers sole, every lawyer – even those in small towns who had hardly ever darkened the door of a Supreme Courthouse since the day when they were admitted – proclaimed themselves as members of both branches of the profession. Nowadays, the generic term prevails. The thinking might be that clients want “a lawyer” and prefer this Americanisation.
Incorporation One effect of the 2006 legislation which affected nomenclature was that members of the legal profession were entitled to practise as incorporated companies. This meant, inter alia, that the firm name had “Limited” tacked on the end and partners became directors who could take the tax advantages of incorporation. I must confess a sense of regret that, before the new Act was passed, a limited liability statutory creature called a “professional corporation” or words to that effect was not enabled. Many overseas jurisdictions (including small ones) have succeeded in creating such a statutory vehicle – for example, the Cook Island lawyers thus put P.C. after the firm name. Most of the big UK firms are the same. Their letterheads often explain that they are “limited liability partnerships” and that principals in the firm are still called In the 1950s “partners”. Such legislation usually extends and 60s, it to other professions as well. seemed to I have the old-fashioned feeling that the be important word “company” does not sit well with a that one’s firm consisting of those who are members name should of a profession. Perhaps the insidious term appear as or “legal industry” is a rogue manifestation of as part of the the thinking which permitted incorporafirm name – tion for law firms but under the standard particularly company format. I certainly do not wish to when criticise those who have incorporated their commencing practices which seem to operate as ethically practice 70
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and efficiently as firms which have not incorporated, apart from the additional burden of having to comply with the requirements of the Companies Act. The permitting of incorporation (even in the less-than-optimal company guise) shows some forward-thinking by those responsible for regulating the profession. A good friend of mine – sadly now deceased – tried once to have his medium-sized firm become an unlimited company under the Companies Act 1955. His efforts were not favoured by the Law Society of the day, even although, as an unlimited company, there would be no restriction on any damages payable to a disgruntled client. (As an aside, for reasons that escape me, some useful things like as unlimited companies, common seals and company secretaries were abolished unceremoniously and without credible explanation in the 1993 Act).
Inventive nomenclature Some former rather precious restrictions on advertising have been relaxed for the profession in more recent times. This has led to some solicitors becoming inventive when naming their practices. Trendy marketers have taken over. While larger and/or more conservative firms stick with the names by which they have been known for years (often founders or legal luminaries of a bygone age in two-name format or just one brand name in the possessive form), newer firms or sole practices have resorted to what is thought to be pithy or trendy. Some refer to location or geographical names; others to an easily-remembered expression of excellence. Others, rather clunkily, use initial letters only (eg, ABCD), taken usually from the initial letters of merging practices. Examples abound of all species and I don’t refer to any New Zealand practice in this or any other category by name, lest I be considered out-of-touch or critical of anybody who wants to be a bit different. Overseas, one can see several differing examples with large firms. Ampersands and commas are out. Baker & McKenzie has become Baker McKenzie. (Despite the necessary cost in changing stationery, signage, websites etc, they must have thought the demise of the humble ampersand was worth it!) One name with a possessive “s” added (but without an apostrophe) seems common. Dentons and Linklaters come to mind. Mergers usually require some reference to the merging entities. Hence Freshfields Bruckhaus Deringer. Others keep to shortish brand names derived from founding fathers or prominent former partners. Hence, Allen & Overy and Slaughter & May. Yet others go for a set of initials appearing in the firm name – DLA for example. With all the changes in nomenclature over the years, one hopes that, whatever the name under which today’s lawyers practise, the traditions of service to the community based on professional ethics and personal integrity will still prevail. Nothing that I have seen in the interesting namings makes me fear otherwise. ▪ Sir Ian Barker was admitted as a solicitor in 1957. He has had a long career in the law, as a solicitor, barrister, High Court Judge, law academic, arbitrator and mediator.
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LEGAL HISTORY
A big story to tell US lawyers, judges and civil rights BY JOHN BISHOP
A lawyer is either a social engineer or a parasite; that’s what Thurgood Marshall, the first black person to serve on the Supreme Court of the United States, was told as a student. He got the message from another leading black jurist, Charles Hamilton Houston, who was dean of the Howard University Law School in Washington DC when Marshall was a graduate student there in the 1930s. The school was dedicated to producing “social engineers.” It had been chartered by Congress in 1869 to educate black students, and Houston defined a social engineer as “ a highly skilled, perceptive, sensitive lawyer who [understands] the Constitution of the United States and [knows] how to explore its uses in the solving of problems of local communities and in bettering conditions of the underprivileged citizens.” Before becoming a teacher and academic, Houston initiated many civil rights cases, and when he died in 1950, aged 54, Marshall took over what was to become one of the most famous, Brown v Board of Education of Topeka 347 US 483 (1954). In that case the US Supreme Court ruled that separate educational facilities for white and coloured children were inherently unequal and therefore unconstitutional. Another judge, Juanita Kidd Stout, who became a Justice of the Supreme Court of Pennsylvania, said in a documentary about the Brown case that “when Houston attacked the ‘separate but equal’ theory his real thought behind it was that ‘All right, if you want it separate but equal, I will make it so expensive for it to be separate that you will have to abandon your separateness.’ And so that was the reason he started demanding equalisation of salaries for teachers, equal facilities in the schools and all of that.” For example, in Missouri ex rel. Gaines v Canada 305 US 337 (1938), Houston argued that it was unconstitutional for Missouri to exclude blacks from the state’s university law school because there was no comparable facility for
▴ The wreckage of a burnt out bus, the aftermath of an attack on Freedom Riders. blacks in the state. This violated the Equal Protection Clause of the 14th Amendment by giving whites, but not blacks, the ability to attend law school within the state.
Marshall and the civil rights cause Thurgood Marshall was one of the students who did field work for Houston on the Brown case in the southern states. Originally from Baltimore Maryland, the son of a railway porter and a teacher, his parents instilled in him an appreciation for the Constitution and the rule of law. He devoted most of his career as a lawyer to the civil rights cause. As he grew up, the Marshall family debated current events after dinner. Marshall said that although his father never told him to become a lawyer, he “turned me into one. He did it by teaching me to argue, by challenging my logic on every point, by making me prove every statement I made.” (Howard Ball, A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (1998)). Appearing on behalf of the National Association for the Advancement of Colored People (NAACP) in Murray v Pearson 169 Md 478 (1936) he pioneered an argument he and other black lawyers repeated many times. Donald Murray was an outstanding black student denied entry to the University of Maryland Law School 71
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because of its segregationist policy. Marshall argued this violated the “separate but equal” doctrine of Plessy v Ferguson 163 US 537 (1896) because the state did not provide a comparable educational opportunity at a state-run black institution. The Maryland Court of Appeals agreed, saying ”compliance with the Constitution cannot be deferred at the will of the state. Whatever system is adopted for legal education must furnish equality of treatment.” Marshall joined the national office of the NAACP in 1940. He founded and headed the NAACP Legal Defense and Education Fund and won 29 of the 32 cases he argued before the Supreme Court. L a t e r, P r e s i d e n t Ke n n e dy appointed him Solicitor General of the United States and he won 14 of the 19 cases he took on behalf of the government.
US Supreme Court appointment In June 1967 President Lyndon Johnson nominated him for the Supreme Court saying it was “the right thing to do, the right time to do it, the right man and the right place.” He was the 96th person to hold the position, and the first African American. Marshall once bluntly described his legal philosophy as: “You do what you think is right and let the law catch up”, a statement which his conservative detractors argued was a sign he embraced judicial activism. Marshall’s statement was cited when Elena Kagan, a current Associate Justice was before the Senate during her confirmation hearing in 2010. She had clerked for Marshall at the Supreme Court, and GOP Senators queried her record of political involvement, labelling her a liberal activist. Her response was that: “If you confirm me, you’ll get Justice Kagan, you won’t get Justice Marshall.” Marshall occupies a rarefied place in American history. Many 72
African-Americans “think of Thurgood Marshall as being an even more important figure than the Rev. Martin Luther King Jr”, says David Bositis, an expert on AfricanAmerican voters and politicians at the Joint Centre for Political and Economic Studies in Washington.
Judge Frank M Johnson Another judge with an uncommonly large and direct influence on the course of events during the civil rights era is Frank M Johnson Jnr who was a US District Court Judge from the Middle District of Alabama and the US Courts of Appeals for the Fifth Circuit and later for the Eleventh Circuit between 1955 and 1999. In 1956 Johnson ruled in favour of Rosa Parkes, striking down the segregated seating on the city buses in Montgomery, Alabama. In 1961 and 1962, he ordered the de-segregation of bus depots and the airport. And in 1961, he was the judge who ordered the KKK and Montgomery police to stop beating the Freedom Riders who were trying to integrate interstate bus travel but had been attacked and the buses bombed. In March 1965, Judge Johnson overturned a ban on the Selma to Montgomery marchers put in place by segregationist Governor George Wallace who said the march was contrary to public safety. The marchers marched and were savagely attacked by police and state troopers on what became known as “Bloody Sunday”. Johnson imposed a ban but in a secret deal with Martin Luther King allowed the marchers to come to, but not to cross, the Edmund Petus Bridge leading into Montgomery. King led his people to the bridge, said a prayer for the injured of the previous Sunday and then turned around and returned to Selma. This was known as “Turnaround Tuesday” and caused much controversy within the civil rights movement with King widely denounced for his covert deal making.
▴M arching protesters, Dexter avenue, Montgomery, Alabama, 1965. On this day, a petition was presented at the Capitol building, in support of black voting rights. A few days later, after discussions with President Johnson’s representatives, Judge Johnson lifted his ban and a third march took place, under the protection of Federal Marshalls and the National Guard. This went peacefully to the steps of the Capitol building in Montgomery where the now 25,000 marchers presented their petition supporting voting rights for black citizens. Johnson died in 1999 and the Frank M Johnson Building which houses the Federal Courts in Birmingham, Alabama commemorates him.
Fred David Gray Fred David Gray, now 88, was a black lawyer, activist and preacher in Alabama over six decades. His historical marker on the main street of Montgomery, Alabama down the street from the Capitol Building and close to Martin Luther King’s church says, “forced by segregation to leave Alabama to attend law school he vowed to return and ‘destroy everything segregated I could’. He won cases that desegregated transport, education, housing, law enforcement, public accommodation and government.” In his early days Fred David Gray defended first Claudette Colvin and then Rosa Parkes who (separately) faced charges of disorderly conduct for refusing to sit in the black section of the segregated buses in Montgomery, Alabama. He also successfully defended Martin Luther King who was facing charges of tax evasion in 1960, winning the case before an all-white jury. In total, lawsuits filed by Gray helped desegregate more than 100 local school systems, as well as all public colleges and universities in his home state. In 1956 he won the Montgomery Bus Boycott case in the US Supreme Court (Browder v Gayle 352 U.S. 903 (1956)
which ordered an end to segregation after a boycott lasting 380 days. Another Supreme Court case (Gomillion v Lightfoot 364 US 339 (1960)) ended gerrymandering in electoral boundaries and established “one man, one vote” in the state. Gray also represented the 623 victims of the Tuskegee syphilis study. From 1932 to 1972, the US Public Health Service conducted a study on uninformed black subjects from Macon County in Alabama of the effects of not treating syphilis even though penicillin was available and known to be effective. It was seen at the time as a major breach of medical ethics. The subjects were not informed that they were part of a study and many of them (and their families) suffered and died from the disease. Gray didn’t expose the scandal but he did win the compensation for the survivors and their families and an eventually an apology from President Clinton. He still lives in Montgomery. ▪ John Bishop info@johnbishop.co.nz recently visited cities in the southern United States at his own expense as part of a lifelong interest in the civil rights movement. 73
WILL NOTICES · CLASSIFIEDS
O ctober 2 0 1 9 · L AW TA L K 9 3 3
Will Notices
Tamaki, Stewart Tamahau Would any lawyer holding a will for the abovenamed, late of 33 Nikau Road, Otahuhu, who died at Auckland City Hospital on 15 July 2019, aged 65 years, please contact Maurice Burney: maurice@mhblaw.co.nz (09) 5271311 PO Box 14 663, Panmure, Auckland 1741
Taylor, Garth Taylor, Ian Henry Bell, Robert Francis Kramer (nee Budd), Amanda Dorothy Pearce, Alan Ralph Edwards, Hurae Phillip Stewart, Nicola Jane Tareha-Tahere, Horitina Georgina Tamaki, Stewart Tamahau Taylor, Garth Chant, David John Katene, Marumihi Pii (aka Marumihi) LAL, Bijendra Rule, Reitoa Enua O Atiu Rautangata (nee Kelly), Sandra Rose Maui, Robyn Murray, Scott Hamilton Dinnen, Avro Hudson Whyte, Brian William Mu, Faataualofa Tuiuli Mu (aka Faataualofa Tuiletoa Tuiuli & Taataualofa Mu Tagaloa) Reed, Beau Ross Riri, Tamure Tom (aka Tamure Keepa) Yu, Kun-Chou
Kramer (nee Budd), Amanda Dorothy
Would any lawyer holding a will for the abovenamed, late of Tokoroa, Achievement Centre Worker, born 10 May 1968 who died on 28 July 2019, please contact LMC Law:
Would any lawyer holding a will for the abovenamed, late of Auckland, Retired, born on 28 April 1957, who died on 20 June 2018, please contact Andrew Kennedy:
renay@lmclaw.co.nz (07) 8860553 PO Box 250, Tokoroa 3444
andrew@prudentia.co.nz (09) 912 1985 PO Box 340 Shortland Street, Auckland 1140
Chant, David John
Pearce, Alan Ralph Would any lawyer holding a will for the abovenamed, late of Otahuhu, Auckland, who died on or about 15th July 2019, please contact Mark Henley-Smith of Henley-Smith Law: mark@henleysmithlaw.co.nz (09) 818 6153 PO Box 20067, Glen Eden, Auckland 0641
Edwards, Hurae Phillip Would any lawyer holding a will for the abovenamed, late of 67A Dunkirk Road, Panmure, Truck Diver who died on the 16th of August 2019, please contact Bruce Dell, Bruce Dell Law: bruce@brucedell.co.nz (09) 570 5036, fax (09) 527 1669 PO Box 14224, Panmure, DX EP80508
Would any lawyer holding a will for the above-named, late of Cambridge, born on 15 September 1950 who died on 1 August 2019, please contact Rebecca Whittall at Cooney Law, Solicitors: rebecca@cooneylaw.co.nz (07) 823 1555, Fax (07) 823 2442 PO Box 369, Cambridge 3450
Katene, Marumihi Pii (aka Marumihi) Would any lawyer holding a will for the abovenamed, late of 45 Thomas Place, Foxton Beach, born 10 March 1930 and who died on 10 August 2018, please contact Allison Te Maro, Wakefields Lawyers: allison@wakefieldslaw.com (04) 296 1177 PO Box 352, Paraparaumu; DX RP 60014
LAL, Bijendra
Taylor, Ian Henry
Stewart, Nicola Jane
Would any lawyer holding a will for the abovenamed, late of Auckland, Retired, born on 4 October 1947 who died on 27 July 2019, please contact Sarah Wells Gaze Burt:
Would any lawyer holding a will for the abovenamed, late of 36 Glenbervie Crescent, Massey, Auckland, please contact Karen Connelly, Cook Morris Quinn:
Would any lawyer holding a will for the abovenamed, late of Sandringham, Auckland, who died on the 5th day of August 2019, please contact Manu Rogers of Rogers Barristers and Solicitors:
sarah.wells@gazeburt.co.nz 09 4149800 PO Box 301 251, Albany, Auckland 0752
karen.connelly@cmqlaw.co.nz (09) 831 0033, fax (09) 833 1880 PO Box 84 203, Westgate, Auckland 0657
rogerslegalfirm@gmail.com 021 131 5533 PO Box 380 Kaikohe 0440
Bell, Robert Francis
Tareha-Tahere, Horitina Georgina
Rule, Reitoa Enua O Atiu
Would any lawyer holding a will for the abovenamed, late of Ohingaiti, Retired born on 10 December 1931 in Otaki who died on 30 July 2019, please contact Michael J Toner, Solicitor:
Would any lawyer holding a will for the above-named, late of Dargaville who died on 4 February 2019, please contact Dave Dennis, Hammonds Solicitors:
enquiries@tonerlaw.co.nz 07 577 9966, Fax: 07 577 6015 PO Box 13394, Tauranga 3141
dave@hammondslaw.co.nz (09) 8439 7099 Fax (09) 439 6464 PO Box 16 Dargaville 0340 or DX AA23502
Would any lawyer holding a will for the abovenamed, late of 28A Waitangi Road, Onehunga, Auckland, Youth Tutor, born on 10 February 1969 who died on 02 September 2015, please contact Alan Williams of Kidd Legal:
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a.williams.kiddlegal@gmail.com (021) 0245 7033
L AW TA L K 9 3 3 · O ctober 2 0 1 9
Rautangata (nee Kelly), Sandra Rose Would any lawyer holding a will for the abovenamed, late of 173 Clarkin Road, Fairfield, Hamilton, born on 31 May 1954, who died on 30 September 2018, please contact Natalie Whitelock, McCaw Lewis: natalie.whitelock@mccawlewis.co.nz 07 958 7435 or fax 07 839 4652
Maui, Robyn Would any lawyer holding a will for the abovenamed, late of Tokoroa, Home Executive, born 28 March 1951 who died on 25 July 2019, please contact LMC Law: renay@lmclaw.co.nz (07) 8860553 PO Box 250, Tokoroa 3444
CLASSIFIEDS · WILL NOTICES
Dinnen, Avro Hudson
Reed, Beau Ross
Would any lawyer holding a will for the abovenamed, late of 54 Cobham Avenue, Dargaville, who died on 16 March 2019, please contact Dave Dennis, Hammonds Solicitors:
Would any lawyer holding a will for the abovenamed, Farm Technician, late of 275 Parker Lane, Buckland, born on 28 May 1994, who died on 25 August 2019, age 25 years, please contact Charnelle Pluim, Complete Legal Limited Solicitors:
dave@hammondslaw.co.nz (09) 439 7099, Fax (09) 439 6464 DX AA23502 or PO Box 16 Dargaville
charnelle@completelegal.co.nz (09) 238 7004 PO Box 264 Pukekohe 2340 DX EP77026
Whyte, Brian William Would any lawyer holding a will for the abovenamed, Dispatcher, late of 81D Maybury Street, Point England, Auckland, born on 22 October 1954 who died at Ellerslie, Auckland on 18 August 2018, please contact Adrienne French, Public Trust: adrienne.french@publictrust.co.nz 0800 371 471
Murray, Scott Hamilton Would any lawyer holding a will for the abovenamed, late of Te Puke, New Zealand, Aluminum Joiner, born 15 February 1963 in Australia, who died on 22 April 2019, aged 56 years, please contact Karen Sunnex , Fenton McFadden: Karen@fentonlaw.co.nz (07) 573 8681, Fax (07) 573 6745 PO Box 36 Te Puke 3153
Yu, Kun-Chou
Would any lawyer holding a will for the abovenamed, late of Glenfield, NSW, Australia, born on 23 June 1955, who died on 3 May 2019, age 63 years, please contact Lena Wong, Complete Legal Limited Solicitors: lenaw@completelegal.co.nz (09) 238 7004 PO Box 264 Pukekohe 2340 DX EP77026
Wellington The partnership of Wellington Family Law is dissolving on 30 September 2019. With effect from 1 October 2019, the partners of Wellington Family Law, Caroline Hannan, Sija Spaak and Chris Dellabarca will practice as Barristers from Wellington Family Law Chambers. We have space in our premises for a barrister to join our chambers, or alternatively for a sole practitioner who wishes to consider sharing premises. Please apply to any of us at our email addresses: caroline@wnfamilylaw.co.nz, sija@wnfamilylaw.co.nz, chris@wnfamilylaw.co.nz We look forward to hearing from you.
Would any lawyer holding a will for the abovenamed, late of Taupo, Driver Operator, born on 7 October 1947 who died on 2 August 2019, please contact Dineen Grantham of Grantham Law Ltd: dineen@granthamlaw.co.nz (07) 376 0014 PO Box 1346, Taupo 3351
Mu, Faataualofa Tuiuli Mu (aka Faataualofa Tuiletoa Tuiuli & Taataualofa Mu Tagaloa)
CHAMBERS/SHARED PREMISES OPPORTUNIT Y
Riri, Tamure Tom (aka Tamure Keepa)
Would any lawyer holding a will for the abovenamed, late of Kaohsiung City, Taiwan and 28 The Parade, Bucklands Beach, Auckland, born on 10 March 1936, who died on 22 April 2019, please contact Jeanna Wu of Daniel Overton & Goulding Lawyers: Jeanna@doglaw.co.nz (09) 6222 222 PO Box 13017, Onehunga, Auckland 1643
QUAY CHAMBERS ROOM AVAILABLE An opportunity has arisen for a barrister to take up a good sized office space with unimpeded sea views, in Quay Chambers (www. quaychambers.co.nz). Located on the Auckland waterfront and adjacent the Britomart Transport Centre, Quay Chambers was established in 2007 and has a positive, down to earth culture. There are currently 11 members with various litigation and dispute resolution specialist areas. For more information please contact Harry Waalkens QC by email at waalkens@quaychambers.co.nz. Quay Chambers, Level 7, 2 Commerce Street, Auckland
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LEGAL JOBS · CLASSIFIEDS
O ctober 2 0 1 9 · L AW TA L K 9 3 3
Your Recruitment Partners
CORPORATE/COMMERCIAL SOLICITOR 4+ YEARS Working with a team at the top of their game you will be involved in a variety of quality work including securities, acquisitions, divestments, restructurings, joint ventures and general commercial work. The list of clients is impressive and includes multinationals, private held companies entrepreneurs, start ups and business individuals. Feedback from a current team member on how the firm stands out from other workplaces: Approachable partners from diverse legal backgrounds exposure to different methods of operation. High morale and support amongst peers Individual offices Work life balance Ability to build relationships with clients is actively encouraged This role is ideal if you have a strong commercial background and can produce high quality work with an eye for detail. If you are looking for a firm that provides a real variety of work and to be mentored by some of the best in the business, this is the role that will make your career. Apply now by getting in touch with Elizabeth Butler on 021 144 7200
LawTalk - Quarter page Ad.indd 1
22/08/2019 11:38:07 AM
Outstanding lawyers required Due to growth and increased workload we have 3 exciting opportunities available in our leading Christchurch firm. Harmans has an enviable reputation both as an employer and for excellence in the law having served the Canterbury region for over 131 years. We are proud to be a signatory to the NZLS Gender Equality Charter and we have a strong presence in a variety of professional committees.
Property and Commercial/Private Client Lawyers We are looking for two lawyers with 1-3 years PQE who are passionate about property. One position will have a commercial property focus and be involved in other commercial transactional work such as business sales and franchising. Ideally candidates for this role should have attained a commerce degree as well as law. The other will practice predominantly in the private client/ conveyancing field but will be expected to cater for a variety of other legal needs of our valued clients including asset protection and trust work. Both will have excellent inter-personal qualities and communication skills and will possess a desire to build a practice in their respective areas. Each will operate in a team environment with appropriate degrees of autonomy and partner supervision.
Litigation Lawyer
CORONER POSITIONS AT PALMERSTON NORTH AND ROTORUA The Attorney-General is seeking expressions of interest from persons wishing to be considered for appointment to coroner positions at Palmerston North and Rotorua. The positions will be full-time. Coroners are appointed under section 103 of the Coroners Act 2006. To be appointed as a coroner, the Act requires that the appointee must have held a practising certificate as a barrister or solicitor for at least five years. A position description and application forms are available from the Ministry of Justice website http://www.justice.govt.nz/about/statutoryvacancies/. Expressions of interest are sought by Friday 18 October 2019.
76
We are looking for a senior litigation lawyer with approximately 5 years post admission experience primarily in the civil and commercial litigation area.The successful candidate will have excellent academic ability in the law, proven advocacy, negotiation and drafting skills and be innovative in resolving disputes in the best interests of our clients. Handling all types of disputes, our team is particularly renowned in the insolvency area, estate and trust litigation, lease disputes, insurance and construction matters and employment issues. The work will include immediate client contact, autonomous file handling – with partner supervision and assistance where appropriate and court appearances. Opportunities exist for future advancement within the firm for the right individual. We offer a great work atmosphere in a modern office environment, a competitive remuneration package and a commitment to developing the skills and knowledge base of our lawyers, including both internal and external professional development.
If this sounds like you please respond with a curriculum vitae to: Julie Knowles Practice Manager, Julie.knowles@harmans.co.nz
CPD Calendar PROGRAMME
PRESENTERS
CONTENT
WHERE
WHEN
Hon Justice Miller Hon Justice Jagose Bronwyn McKinlay Laura O’Gorman
Electronic casebooks are becoming the desired medium in document-intensive trials and on all civil appeals in the Senior Courts. Used well, consistently with the updated Protocol, they are tools for persuasive advocacy. The updated Senior Courts Civil Electronic Document Protocol came into effect in March this year and is intended to encourage and facilitate the use of electronic casebooks for civil cases in the High Court, Court of Appeal and Supreme Court. This seminar will help you to use and construct electronic casebooks effectively, and will provide the perspectives of the Judiciary and senior lawyers.
Auckland
29 Oct
Wellington
30 Oct
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.
Wellington
CIVIL LITIGATION AND EMPLOYMENT CIVIL ELECTRONIC CASEBOOKS – SENIOR COURTS
2 CPD hours 2 CPD hours
INTRODUCTION TO CIVIL LITIGATION SKILLS
9 CPD hours
Christchurch
31 Oct
Live Web Stream
30 Oct
21-22 Oct
Auckland
4-5 Nov
Despite the steady increase in commercial regulation over recent years, case law remains a vibrant and powerful source of legal evolution in this area. This outstanding programme highlights key developments that all commercial law practitioners need to be aware of, whether their practice is transaction or litigation focused. With dynamic speakers and topical subjects including contract law, directors’ duties, negligence, confidentiality issues and litigation funding, this promises to be a day of stimulating presentations and challenging discussion.
Auckland
26 Nov
Live Web Stream
26 Nov
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
Note: Douglas Wilson Scholarship applications close 23 Sept.
COMPANY, COMMERCIAL AND TAX COMMERCIAL CASE LAW INTENSIVE
Chair: Jenny Cooper QC
6 CPD hours
CRIMINAL DUTY LAWYER TRAINING PROGRAMME
Local Presenters
11* CPD hours
Oct
*CPD hours may vary, see website
FAMILY TESTAMENTARY PROMISES ACT – CLAIMS
Vicki Ammundsen & Andrew Steele
The stated aim of the Law Reform (Testamentary Promises) Act 1949 is to “... make better provision for the enforcement of promises to make testamentary provision in return for services rendered”. This seminar will be delivered in two parts; the first part will cover the key elements of a Testamentary Promise claim, the breadth of eligible claims and reflect on recent developments from the courts. The second part will consider a new cause of action in the family law and estate planning context.
Auckland
22 Oct
Live Web Stream
22 Oct
Jo Leech Professor Bruce Smyth
“High-conflict” divorce cases – especially those involving entrenched interparental hatred – have been consistently identified as difficult, complex, time consuming, and costly. They place great strain on individuals (including children), practitioners and courts, as well as on the family law system more generally. In this session the presenters will: explore “interparental hatred” as a key relationship dynamic driving some high-conflict cases; discuss strategies for lawyers working with parents in the grips of entrenched hatred; and offer strategies for working with cases where children may be resisting or refusing contact as a consequence of a parent spreading the culture of hatred on to children.
Wellington
6 Nov
2 CPD hours
THE IMPACT OF ENTRENCHED INTERPARAEMTAL HATRED ON CHILDREN
3.5 CPD hours
This is a Pre-Conference Workshop to the Family Law Conference – additional charge applies
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
Chair: Rachael Dewar
We extend to you the warmest of invitations to register for the Family Law Conference which has the theme: The Winds of Change: Mā te hau tōrua. This biennial event has become a sell-out, “must-go” occasion, noted as much for its enthusiastic collegiality as for the high quality of the business sessions. Both practical and provocative, the programme will provide practitioners at all levels of experience with two days of stimulating engagement on topics of essential importance and interest. See you in Wellington!
Wellington
7-8 Nov
It is a challenging time for the construction industry. This intensive has practical guidance and insights to help you provide the best advice for your constuctions and infracture clients. Topics covered include: procurement models; effective use of dispute resolution, and case law developments.
Christchurch
23 Oct
Auckland
24 Oct
Live Web Stream
24 Oct
An update on key cases and developments in the environmental law field including: resource management system overview and update; the RMA and interface with other legislation; environmental law and our constitution; Marine and Coastal Area (Takutai Moana) Act proceedings; scientific uncertainty and environmental decision making; and, moving towards a transformative recognition of tikanga Māori in environmental jurisprudence.
Christchurch
18 Nov
Auckland
19 Nov
Live Web Stream
19 Nov
Julian Long Susan Loveys David Lucas Barry O’Connor
This seminar will give you a better understanding of how Standards Committees work from the inside. All the presenters are past or present lay, legal, and administrator members of Standards Committees. They will show you what they deal with each month. They will share candid reflections and insights into the complaint process, how it evolves from incident complained about, to the first consideration of it, the investigation that may follow, and ultimately to a Committee decision. The session will highlight the different ways many lawyers deal with being complained about: both the good, and the bad.
Auckland
15 Oct
Live Web Stream
15 Oct
Virginia Goldblatt David Patten Denise Evans
Building on the prior workshop Mediation Principles and Process (previously Mediation for Lawyers Part A) you will learn and practise essential mediation skills in order to prepare to become a mediator. Will offer area-specific coverage as well as generic skills.
Auckland
18-19 Oct
Jane Chart
Negotiation is a vital skill for every lawyer. Few aspects of representation can have a greater impact on whether the best results are achieved for your client. The District Court Rules have underscored the significance of negotiation for effective practice. Improved negotiation skills can help avoid unnecessary litigation, and produce better settlements more efficiently. Skill in negotiation also increases effectiveness in client interviewing, as well as in representing clients in mediation and judicial settlement conferences.
Auckland
30-31 Oct
All lawyers wishing to practise on their own account whether alone, in partnership, in an incorporated practice or as a barrister, will be required to complete this course.
FAMILY FAMILY LAW CONFERENCE
13 CPD hours
PROPERTY AND TRUSTS CONSTRUCTION LAW – ISSUES AND OPPORTUNITIES
Chair: Andrew Skelton
6 CPD hours
OTHER PRACTICE AREAS ENVIROMENTAL LAW INTENSIVE
Chair: Bronwyn Carruthers
7 CPD hours
PRACTICE AND PROFESSIONAL SKILLS WHAT HAPPENS BEHIND CLOSED DOORS: THE WORKINGS OF THE STANDARDS COMMITTEE
2 CPD hours
MEDIATION SKILLS AND STRATEGIES – CIVIL/ COMMERCIAL, FAMILY, EDUCATION DISPUTES
13 CPD hours LAWYER AS NEGOTIATOR
11.5 CPD hours
STEPPING UP – FOUNDATION FOR PRACTISING ON OWN ACCOUNT
Director: Warwick Deuchrass
18.5 CPD hours
To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111
Welington
13-14 Nov
Christchurch
25-26 Nov
Auckland (full)
21-23 Nov
Online registration and payment can be made at: www.lawyerseducation.co.nz
PRACTICE AND PROFESSIONAL SKILLS READING ACCOUNTS AND BALANCE SHEETS
Lloyd Austin
7.5 CPD hours
TRUST ACCOUNT SUPERVISOR TRAINING PROGRAMME
7.5 CPD hours
Philip Strang
It may not be necessary for you as a lawyer to have the financial insight expected of an accountant, but you should know how financial statements are put together and how to: interpret the figures; use the figures in financial statements to assess the “health� of a business; ask the right questions and identify warning signs; discuss financial statements intelligently with a client; and know when to call in specialist assistance and be able to communicate effectively with them. This workshop will make you more effective and confident when providing guidance to your clients on financial matters.
Auckland
Under the Financial Assurance Scheme all practices operating a trust account must appoint a qualified trust account supervisor. A candidate must be a lawyer and must pass the NZLS trust account supervisor assessments, which take place during a full day programme. The training consists of self-study learning material (approx. 40-50 hours) to help you prepare for the assessments.
Auckland
5 Nov
Christchurch
12 Nov
To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111
4-5 Nov
Hamilton
6-7 Nov
Christchurch
11-12 Nov
Wellington
13-14 Nov
LIFESTYLE
O ctober 2 0 1 9 · L AW TA L K 9 3 3
A New Zealand Legal Crossword SET BY MĀYĀ
A perimetric jigsaw! The edge letters, from top left clockwise, form the answer to: Mediation may be a clue to denier's oil outputs? (11, 7, 10). The other answers should be fitted in, jigsaw fashion, where they will go.
Topping once and a time separator
Hold the dairy products! (6)
(4)
Standing suspicion about trinkets (6)
Faith losing the start of oxidation (4)
Leftover greeting from the
Green drops worker and changes
mouthparts of an insect (6)
ends for oil (4)
Bird call (nonstandard) entered
Raised grub without a... (4)
water (4,4)
1. Saturnine, 9. Reveal
...beginner Betty roped in (4)
Imagines drink spiked with drug,
10. Solarwind, 11. Tuttut
Press club (4)
just a little (6,2)
12. Illicitly, 13. Picnic, 17. USA,
Opening for singular member of 60s
Northern relly taking in the ocean
19. Earthen, 20. Lingula,
rock band? (4)
(it makes her sick?) (8)
21. Amp, 23. Cosmos,
Bird’s home points to time (4)
The service of atmospheric
27. Grillroom, 28. Rocket,
Bloody saint, a man who's easily
pressure? (3,5)
29. Pianistic, 30. Aldrin,
overcome (5)
I hear sailor's girlfriend used to
31. Blatantly
Quietly, James indicates disbelief (5)
cook (5,3)
About a type of dance available as
Roaming around, I meet bears of
needed (2,3)
little brain (8)
2. Apollo, 3. Urania, 4. Newbie,
Old age spies on 90s rock band (5)
No loud, quiet rock in coastal
5. Nonplus 6. Venusians,
Office desk? (6)
waters (8)
7. Neptunium, 8. Plutocrat,
60% of the NZLS's run is getting on (6)
Anagram for 80s rock band? (3,5)
14. Mercurial, 15. Dresscode,
Fruitless ends yielding units of
It's a friendly relationship - abandon
16. Theoretic, 18. Alp,
wisdom (6)
the lie detector, Anne! (7,8)
22. Martial, 24. Planet,
Have the gentry arrived? (6)
Fish's a cold fish I'd note yields
25. Prison, 26. Jovial
Said to reduce schooling (6)
sweet little things (15)
Solution to September 2019 crossword Across
Down
80
L AW TA L K 9 3 3 · O ctober 2 0 1 9
LIFESTYLE
LIFESTYLE
Garrow’s Law The Old Bailey in the 18th century BY CRAIG STEPHEN A time of massive change This BBC production is a relatively new series, being broadcast from late 2009 to December 2011 over three series. It is an historical drama, set around trials at the Old Bailey in London (although mostly filmed in far-off Edinburgh) in the late 18th century, against a backdrop of corruption and social injustice. The Garrow in the title is a barrister William Garrow, who was involved in some of the most famous, and infamous, cases of the period. The series is based on real legal cases from the time, as recorded in the Old Bailey Proceedings often with the court dialogue repeated almost verbatim. Long before it was established as the central criminal court for England and Wales, the Old Bailey of the late 18th century was a miserable place. The court was attached to Newgate Prison from which the defendants emerged, often reeking, and infected with fever. In 1750 the Lord Mayor, two judges and many others died of typhus. In an age when few accused people could afford defence counsel, the youthful Garrow – played by Andrew Buchan – and his associate John Southouse – played by veteran TV actor Alun Armstrong – work to uncover the truth and fight for justice. They were among the first practitioners to pioneer the rigorous cross-examination of prosecution witnesses that paved the way for the modern legal system.
Story editor and legal and historical consultant on the programme, Mark Pallis, says he was drawn to the late 1700s as it was a time of massive change around the world. There were revolutions in America and France, the beginnings of the end of the slave trade, and the emergence of the women’s and reform movements. And he saw in the legal profession a push for change from the likes of William Garrow. “When you read the Old Bailey cases from this period, Garrow is everywhere, almost always for the defence,” Pallis wrote in The Guardian. “His personal life is intriguing too – particularly his ‘irregular relationship’, as contemporary commentators put it, with Sarah, who’d had a child with politician and landowner Sir Arthur Hill.” The Sarah referred to is Lady Sarah Hill, an aristocratic figure with an interest in justice and the law. The relationship is a major subplot throughout and almost costs Garrow his life. In one episode he challenges John Silvester, his main courtroom rival, to a duel when Silvester insinuates that Garrow and Lady Sarah’s relationship has become intimate and then refuses to withdraw the allegation.
A stand against inequality In the first episode, Garrow takes a stand against the inequality of the courtroom, where the accused often had no access to a barrister, by
offering his cross-examining services for free as amicus curiae. The episode is based on two actual cases that took place in the 1790s. The case of Phebe Harris in episode two focuses on a woman sentenced to be burnt at the stake for counterfeiting money. At her execution, an estimated 20,000 people turned up to watch. In an episode in the second series, Garrow defends a British sailor imprisoned at Newgate for exposing the ill treatment of his fellow sailors. In the final episode, Garrow successfully defends a man falsely accused of murder at a polling day riot. The series also includes other non-fictional characters, such as Sir Francis Buller, a controversial judge of the age, and John Silvester, barrister and senior Circuit Judge at the Old Bailey. But while it is based on real cases and with documented court records used, it is not a biographical documentary, and Garrow was not involved in all of the cases depicted. According to Mark Pallis, the show “is a drama that aims to give viewers a real sense of what life was like in legal London towards the end of the 18th century; to give people a chance to experience the big legal landmarks and the cases that caused a stir at the time”. He says a case in the series that Garrow was not involved in, but which would have suited him, was that of a slave ship, from which 132 African people were thrown into the sea. “While this case did not involve Garrow, he would doubtless have been aware of it – and we felt we simply wouldn’t be doing justice to the period if we left it out, and so in our drama it is Garrow who tackles it,” Pallis notes. He points to Garrow’s policy of refusing to defend slavers. Later in his life, he oversaw the first prosecution under the Abolition of the Slave Trade Act of 1807. Sir William Garrow would become Solicitor General for England and Wales, then Attorney-General, and an MP for the reformist Whig Party. Garrow’s Law: the Complete Collection is available on DVD, and all 12 episodes are available to see on the BBC iPlayer and YouTube. ▪ 81
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Some cases where matchboxes played a part Cocaine in the matchbox Police were called to Willie Gatlin’s Florida residence after an argument between him and his girlfriend. He was charged with battery and arrested. Gatlin was only partially dressed and put on a pair of trousers which had been lying next to his bed before being led to the police car. On arrival at the car he was searched and several pieces of crack cocaine were found in a matchbox in his trouser pocket. At his trial for possession of a controlled substance, Gatlin attempted a number of explanations as to how the matchbox got in his pocket. These conflicted with evidence given by the police and his girlfriend. “If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed,” the jury was told, and Gatlin was found guilty. On appeal to the Florida District Court of Appeal (556 So. 2d 772), he argued that the instruction was violative of due process as it created a mandatory presumption. The Court of Appeal disagreed. The jury was free to accept or reject the inference regardless of any defence which may have been put forth, and there was no suggestion made to the jury that their factual determinations should hinge upon the presentation of evidence by the defence, it held.
Notable Quotes ❝ I’ve been doing this for over 20 years now, and never once did it cross my mind, not even an iota of concern there ... that something like this could happen to me.❞ — Public defence attorney Vladimir Gagic who was punched in the face by his client Lamont Payne while representing him in an Arizona court on assault charges. 82
The battle of the Rhinos and Elephants Kenyan matchbox maker Match Masters Ltd developed an attractive design for its “RHINO” brand. It obtained a trademark in 1998 for the word RHINO and sold its matches in a box with “RHINO” and a rhino logo on a yellow background on the front. The brand sold well and people started asking for a box of Rhinos when they bought matches. In 2006 a company called Rhino Matches Ltd started importing matches from Tanzania under the brand name “NDOVU” (elephant in Swahili), shown on the front with an elephant design on a yellow background. The problem was that the back of the box had a yellow background “and very prominently and in bold is the word ‘RHINO’ and in smaller letters is ‘matches Ltd’,” the High Court of Kenya stated. The court was considering Match Masters Ltd’s application for an interim injunction ([2006] eKLR). It did not accept Rhino Matches Ltd’s argument that “rhino” was an ordinary English word that could never be the subject of a trade mark, and granted the application.
❝ An extraordinarily sad life when you look at it, and I regret that he didn’t make it to November and hear what the Supreme Court hears of his case ... and the hopeful vindication that would’ve come with that.❞ — Nigel Hampton QC reflects on the life of Peter Ellis after his death on 4 September. On 31 July the Supreme Court granted him leave to appeal his convictions on 13 counts of sexual offending at the Christchurch Civic Childcare Centre in 1993. The approved ground is whether a miscarriage of justice occurred. ❝ It is our collective duty to work to ensure a fair and just process for those who come to the courts. It is how we behave, as critical players in criminal justice, that does the most to shape whether those goals of a fair and just process are achieved.❞ — Chief Justice Helen Winkelmann addresses the Criminal Bar Association’s conference.
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The infamous “matchbox trick” William Symms, alias George Murphy, alias William Sell, alias Charles Sweeney, alias James John Gardner, appeared in the Dunedin Resident Magistrate’s Court in April 1883. He was charged with conspiring to defraud William Agnew by what was (relatively) well-known in the 1880s in New Zealand and Australia as the “matchbox trick”. This involved showing the target an unusually-shaped matchbox and offering to bet that it could not be opened. The matchbox owner would suddenly leave the room on “urgent business” and a confederate would show the target how to open the box. The owner returns, the target eagerly takes the bet but doesn’t see another box being substituted, tries to open it and loses. Mr Agnew lost £8 to Symms and his colleague, a “red-whiskered man”, in trying unsuccessfully to open a wooden heart-shaped matchbox. The red-whiskered man remained elusive and was not brought to justice. Symms’ lawyer Alfred Catomore conducted a vigorous cross-examination of the complainant, asking questions such as “Have you ever been in the lunatic asylum?” and counselling his client to “take my advice and keep your mouth closed”. Symms himself was most concerned about the number of aliases under which he had been charged. However, he was convicted and sentenced to 12 months’ imprisonment with hard labour. Just over a year later he was back in court, charged with gambling in a railway carriage by performing the “three card manouevre”. Cases involving the matchbox trick appeared regularly into the 20th century.
The lawyer, the bribe and the matchbox Californian lawyer Barry Sands’ disbarment for professional misconduct was upheld by the Supreme Court of California (Sands v State Bar (1989) 49 Cal.3d 919). Sands
❝ I did not steer them in that direction. I am surprised they took up law. There was no pressure from me.❞ — Gisborne lawyer Neil Weatherhead after the third of three daughters, Izis, was admitted to the bar. Izis works as a marketing coordinator at Burger King Corporation, while Raine works for Origin Energy in Queensland and Zaria is branch manager of the Gisborne branch of the New Zealand Law Society. ❝ True, women have not reached Nirvana. But the progress I have seen in my lifetime makes me optimistic for the future. Our communities, nation, and world, will be increasingly improved as women achieve their rightful place in all fields of human endeavour.❞ — US Supreme Court Justice Ruth Bader Ginsburg after receiving an honorary law degree from the University at Buffalo.
was a bit too keen to dip into his clients’ funds in some personal injury actions, but the clincher came from his representation of several clients in driver’s licence suspension proceedings before Department of Motor Vehicles hearing officer Michael Tarrish. Sands took Tarrish out to lunch four times, paid for the meals and discussed matters related to his clients. He also passed Tarrish a matchbox each time. Inside was a $100 note. Tarrish later pleaded guilty to bribery, and also expressly testified that the money influenced his decisions. Sands argued strenuously that the money was “putative loans” and that Tarrish’s testimony was not worthy of credit. However, the court found that whether the money was a loan or a gift, it was a bribe in substance and effect, and while Tarrish was “not an admirable character”, he was a convincing and credible witness. Sands is no longer an attorney. ▪
❝ … every three months I will get a report on you telling me how you are performing on these sentences. If I consider that you are wallowing in despair, that you are not attending the courses, that you are not moving on with your life, I will have you back before me and we will have to reshape the sentence. So, you will not get any second chances. You are to do exactly what you are told.❞ — Judge Spear delivers a strong message in the Hamilton District Court when sentencing Shari De Wys to six months’ community detention, 12 months’ intensive supervision and 300 hours’ community work on a charge of arson after she threw a firework into a school classroom ([2019] NZDC 2767). 83
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