THIS WEEK’S ARTICLES
Issue 37 23 Oct 2020
How to get hired in a post-Covid world p1
Why climate change reporting makes sense p3
The four reasons lawyers resist technology p5
LawNews adls.org.nz
RECRUITMENT
Finding a job in the post-Covid legal world By Diana Clement
Looking for a new job in 2021? Covid-19 is rewriting the rulebook. Adaptability is the new resilience and if you think law firms will offer more flexibility, think again.
Photo by Miguel Pereira/Getty Images
The legal profession has come a long way in the seven months since the phrase ‘what’s Zoom’ first arose and pyjama bottoms became suitable work attire. Employers and employees are now in a tussle over flexibility in the post-pandemic world. Some partners are demanding a full return to the office. If you’ve lost your job or are twiddling your thumbs in the wrong corner of law, security is the new buzzword. At the other end of the scale, the superconfident have grown from the 2020 experience and are out job hunting. Legal recruitment dropped off a cliff in March this year. As soon as the borders closed, the hundred or so jobs McLeod Duminy Legal Recruitment was working on dropped to a handful overnight, says director Kirsty Spears.
Post-pandemic flexibility is becoming a flash point for law firm bosses and their employees
Even now, most law firms are recruiting only to fill skills shortages. Recruitment for growth still hasn’t returned, Spears says. The signoff process is longer because the hiring risk in the current environment means more eyes need to go over the decision.
If we’re recruiting litigators, it’s not usually a good sign. But if we’re recruiting commercial property lawyers and corporate lawyers, it’s usually a sign that there is investment going on
It’s not just fewer roles and a slower process. The balance of power has moved away from candidates. Where law firms might have had just one CV to consider pre-Covid, most now have choices, says Spears. For candidates, that means being cognisant that there isn’t the same level of choice. “Where you might have had four or five offers to choose between last year, there may be only one opportunity currently. “[For candidates] there is probably more need to compromise. The question is ‘is this a good move for me at the moment?’ The job may not be ideal. But if it is taking you in the right direction, is there
enough there so there is still progress for you?” If, however, you’re one of the many returnee lawyers, one offer is a whole lot better than no job at all. The mood in legal employment land isn’t all doom and gloom in October. Those looking for jobs have an appetite to move and an expectation that is possible, says Spears. Legal Personnel directors Sarah Bartlett and Alison Ashton have found candidates to be increasingly upbeat about their prospects. Bartlett and Ashton’s own experience is a Covid-19 success story. The pair were made redundant when Covid hit, then bought the business in the first week of lockdown. Continued on page 2
RECRUITMENT
Finding a job in the post-Covid legal world Continued from page 1 Expectations of flexibility You’d think that ‘big law’ had learned to live without the office, having been through two lockdowns. The battle of 2021, however, is shaping up to be about increasing flexibility. Candidates were already demanding more of it before lockdown and many are now even more determined. “We did a survey in July between the lockdowns,” Spears says. “Eighty per cent of people wanted to be working from home on a more regular basis going forward.” Most wanted two or three days at home and the rest in the office for the social and professional benefits. There was definitely an expectation that things would change.” The reality post lockdown doesn’t match that expectation. “Not a lot has changed. It’s business as usual,” says Spears. Bartlett says that conflict is very real for candidates. “We have some candidates who have said ‘no I am not going to work like that’.” One candidate turned a role down flat because of a lack of flexibility. Spears believes that gap needs to be bridged. Candidates think employers are simply being stubborn – and some are. “I don’t think firms have been very good at communicating the difficulties [for them of providing flexible working to people]. Things are quite easy to manage when [everybody is] working from home. But when you have people working from home on different days and at different locations, it is a little bit more difficult.” Other firms won’t even start the conversation. “We have heard of firms where people don’t have laptops. [One firm] had a vote and very narrowly voted not to implement any flexible working policies.” The hesitancy towards offering flexibility can even vary between teams within the same law firm, says Bartlett. “That would be down to the partner.” More adaptable Adaptability is the new resilience in 2020 for both candidates and law firms. Bell Gully’s human resources director Louise Alexander says, for example, that instead of hiring lawyers in those areas that are busy, the firm has looked at moving
Kirsty Spears
Louise Alexander
resource from the quieter areas to those in need of more hands to the deck.
compared to pre-Covid times.
It’s an approach that Spears has seen repeated in several firms this year but was not common in the past. “It makes them way more adaptable and able to ride [out Covid-19]. Last time we went through a downturn, that didn’t happen.”
Lawyers perceiving themselves to be in a less secure field may be considering a move into other areas of law. “Some are concerned about their roles and the long-term effect the pandemic may have on them,” says Bartlett. “You’d be silly not to keep security in the back of your mind.”
She remembers presenting that idea in a different market to retain talent. “We said what firms should think about is giving people the options to get some experience in other areas. As an aside, we said it would give you more flexibility in your workforce if there was ever a downturn. It was an idea we cast out into the ether and it wasn’t particularly well taken up.”
In demand Covid-19 has driven demand in some corners of the law and left others high and dry. “It has been more on the contentious than non-contentious side in general,” Spears says. “There is definitely more litigation. It’s a bit of an economic barometer for us. If we’re recruiting litigators, it’s not usually a good sign.
Spears pitched the idea in the context of firms losing lawyers because they wanted to do something new. “You can give them the opportunity to do something new in your law firm,” she says. Security The other driver in the current market is a thirst by candidates for stability. It makes sense. A survey by SEEK of New Zealand workers in September found 60% of Kiwis were open to taking a lower salary for more security and 67% viewed job security as more important now,
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Editor: Jenni McManus
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“But if we’re recruiting [commercial] property lawyers and corporate lawyers, it’s usually a sign that there is investment going on,” she says. “But that’s not particularly scientific. It’s a general trend.” Another area of demand has been conveyancing in a booming residential property market, Bartlett says. Smaller law firms have been inundated and some are even turning work away. Demand is so high for conveyancing that as well as full-time recruits, Legal Personnel has placed some candidates in contracts with smaller firms and legal Continued on page 4
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LawNews Issue 37 | 23 Oct 2020
ENVIRONMENT LAW
Why climate risk reporting makes sense By Craig Fisher
Likely effective date? Assuming parliamentary approval of the legislation amendment, and the creation and issuing of a suitable reporting standard, 2023 is likely to be the earliest date for these disclosures to be mandatorily required.
Before discussing climate risk reporting and the challenges and opportunities it will likely bring, let’s first look at ‘why’. There is extensive and mounting evidence that the physical effects of climate change are real. A heightened awareness of the significance of this risk has resulted in phrases like ‘climate crisis’ and ‘climate emergency’ becoming part of the global vernacular. Aside from the obvious worst-case existential threat posed to the planet and life on Earth, the economic impacts on entities and the entire global economy could be alarmingly significant. This has not escaped the attention of the (then) Governor of the Bank of England, Mark Carney, who in December 2019 said, “changes in climate policies, new technologies and growing physical risks will prompt reassessments of the values of virtually every financial asset”. More recently, the New Zealand government announced mandatory climate-related financial disclosures for certain New Zealand entities. For organisations to manage risks, they must first be aware of them. Mandating a level of comparable reporting through the introduction of climate risk reporting will help drive that awareness. Reporting risks leads to a better understanding of the potential financial impacts and hopefully more informed, and greener, investment decisions. The Ministry for the Environment explains it as follows: The goal of mandatory climate-related financial disclosures is to:
promote greater transparency and more accurate pricing signals in the market;
But it is worth noting that some New Zealand entities are already voluntarily reporting climate change risk information in response to the growing importance of this risk to their stakeholders. Additionally, other entities, such as large charities, might choose to disclose such risks to help assure their stakeholders of the sustainability of their strategy. Craig Fisher
The plan The government plans to make climate-related financial disclosures mandatory for certain organisations. This would take effect via an amendment to the Financial Markets Conduct Act (2013) which will be subject to approval by Parliament. The requirement is proposed to apply to: all registered banks, credit unions, and building societies with total assets of more than $1 billion; all managers of registered investment schemes with greater than $1b in total assets under management;
incentivise low-emissions investment; and create a level playing field for businesses already considering climate change in their longer-term risks. This would help New Zealand meet its international obligations and achieve its target of zero carbon by 2050. It would also help to address climate change risks outlined in the National Climate Change Risk Assessment by making our financial system more resilient. So far there is no standardised climate reporting but the expectation is that climate risk reporting would need to consider risks such as: physical climate change risks, including extreme floods, droughts, forest fires and rising sea levels; policy and legal risks from carbon pricing, regulation and potential exposure to litigation; and
transition risks such as stranded assets from technological change, increased cost of raw materials, changing consumer behaviour, reputation risks and the corresponding impact on social licence to operate.
all licensed insurers with greater than $1b in total assets under management or annual premium income greater than $250 million;
all equity and debt issuers listed on the NZX; and
Crown financial institutions with greater than $1b in total assets under management.
Reporting would be against a standard to be developed and issued by the External Reporting Board (XRB). The expectation is that this New Zealand reporting standard would be developed in line with the recommendations of the Task Force on Climate-related Financial Disclosures (TCFD). These recommendations are recognised as international best-practice for climate-related financial disclosures. However, the XRB has the challenge of drafting requirements that are New Zealand-appropriate and achieve a balance between the cost benefit trade-offs.
Challenges There are a few. Here are some of the main challenges that spring to mind: keeping this important issue on the parliamentary agenda, particularly amidst the social and economic disruption caused by Covid-19;
the XRB drafting a suitably pragmatic, onpoint standard appropriate for New Zealand that aligns with the best of international thinking but is not over-engineered, overly complex or a costly compliance burden;
gaining acceptance and buy-in from reporting preparers will be key. To be frank, however, if there are significant entity boards not already starting to seriously consider the risks of climate change on their organisation, their strategy and business models, and the broader economy, then I fear for them; and
comparability and usefulness of information for investment decision-making. Ultimately, the real value of reporting comes when it's actively used and applied.
The opportunity It is a truism, but at the heart of challenge lies opportunity. Climate risk reporting has the potential to lead to more sustainable practices and improved business models in Aotearoa New Zealand. Our opportunity is in capitalising, rather than resisting, climate risk reporting and harnessing our natural and unique attributes. The opportunity to truly integrate a Te Ao Māori world view and adopt kaitiakitanga /long-term stewardship philosophy of the whenua into our businesses, our economy, and our financial systems cannot and should not be underestimated. As an island state with abundant natural resources such as clean energy, we can cope better with climate change than many other nations. We can also build on our existing reputation and brand internationally and make New Zealand products and services even more desirable, and therefore Continued on page 10 3
Continued from pages 1, 2 execs in temp roles. “Some firms are simply looking for extra resource as a reprieve for their hardworking staff, allowing them to take some time off.” Many in the profession are expecting matrimonial law to spike, but recruitment in that field hasn’t yet taken off. Returning expats Returning Kiwis are proving to be a Covid bonus for law firms. About 30% of candidates being placed in jobs are returnees, says Spears, compared to 10% to 15% pre-pandemic. “If you are thinking about dynamics of that portion of the market, usually when we see returnees it’s people who have been overseas for quite a long time. Three, four, five years. They are usually coming home because they have reached the age and stage where they are starting a family or thinking of starting a family and it’s nice to be home in New Zealand. “The people who we are seeing as returnees are still those people. But we are seeing many more junior-level people coming home. Three or four years out. Purely for pandemic reasons.” Many of the returnees are knocking directly on the doors of law firms. Alexander says some of Bell Gully’s alumni have returned to New Zealand a year or more earlier than they might have under normal circumstances. Many, but not all, are at the senior level. Typical was one such candidate Spears was aware of who was in managed isolation and considering several offers on the table. Most returnees are starting the recruitment process before heading home. An exception was one of Bell Gully’s newest recruits, Alix Boberg, who happened to be visiting New Zealand when Covid-19 hit. Boberg holds an LLM from Harvard Law School and had made a name for herself.
Sarah Bartlett and Alison Ashton
“That was a real win for us,” says Alexander. “She is an incredibly impressive lawyer. She had worked at Sullivan & Cromwell LLP in New York and Simmons & Simmons LLP in London, where she advised clients under investigation by the US Department of Justice, the UK Serious Fraud Office and the Financial Conduct Authority.” That flow of returning lawyers is now slowing, says Spears. In many cases, lawyers with secure jobs in London, Hong Kong, Singapore and Australia have decided to sit it out and see what happens, knowing they can return home if need be. Juniors and mid-graders Junior and mid-level lawyers are the ones who may be squeezed. Most, but not all, of those who planned to head overseas this year have stayed, which means their roles aren’t opening up for those beneath them to step up to. The roles above them, in some cases, are being taken by returnees. Mid-graders still want to move, Spears says. In fact, much of the current recruitment is in that middle ground. “We had put that down to where there
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have been gaps in the past and they struggled to find those people precisely because they go overseas, which had created a gap. Also, they are people who are not especially expensive for a firm but are quite useful in terms of charge-out to a client.” Students and grads The class of 2020 has had a rough year, full of uncertainty. Remote learning has meant many don’t have the interactions with faculty they might have had in a normal world. Not everyone has adapted to online exams and the uncertainty means some law firms that may have taken on graduates or offered clerkships haven’t done so. Some, such as Bell Gully and DLA Piper, have continued their graduate recruitment process through lockdown and it’s business as usual. Not all graduates have been so lucky, however. Bartlett has seen graduates taking support roles in law firms just to get a foot in the door.
LawNews Issue 37 | 23 Oct 2020
TECHNOLOGY & LAW
The four reasons lawyers resist technology By Antonia Modkova
are not evolved to excel at repetitive tasks. Technologically-enforced workflow automation increases compliance with a law firm’s standard procedure and improves the consistency of service delivery. Document automation reduces the chance of errors and typos.
The luddites were a group of English workers in the early 1800s, known for destroying machinery capable of displacing manual labour and threatening their jobs.
Newer technologies such as artificial intelligence are even exceeding lawyers in highly skilled tasks. An example is LawGeeks’ AI robot for reviewing contracts, which was tested against 20 lawyers. The robot could pick up 94% of the risks in the NDAs, compared to the human lawyers who picked up only 85% of those risks.
Today, the term is used to describe anyone who resists new technology or new ways of working. How many lawyers today fit this description? Many lawyers see technology as a threat – whether that be a threat to their ego, to their income or to the profession. But what if lawyers saw new technologies as opportunities, not threats? According to McKinsey & co research, 23% of lawyers’ and 69% of paralegals’ daily tasks are ripe for automation. However, many lawyers have no interest in pausing to re-examine the way they work, instead falling for the argumentum ad antiquitatem or the “appeal to tradition” fallacy that goes like this: “We have always done it this way, therefore it must be the (only) right way.” A 2019 UK Law Society Report found that despite an increase in legal technology offerings, there was no increased adoption of such technology among lawyers. So why are so many lawyers slow to embrace new technology? And are they right to do so? Broadly speaking, the reasons can be categorised as denial, pessimism, protectionism and passiveness. Denial Lawyers in the denial category believe their job is far too complicated to be capable of automation, even if they recognise how technology has changed other professions. This is an example of the “illusory superiority bias”, reflecting the same thinking as the majority of car drivers who consider their driving skills to be “above average”. In one survey, nearly two-thirds of Americans thought robots would replace more than half of human jobs within the next 50 years. But in the same survey, 80% thought their own job was not capable of automation. Often the assertion that lawyers are indispensable is backed up with examples of “hard” cases – specific problems that lawyers claim a new technology could not possibly solve. But it is a misleading argument because it focuses on extreme examples instead of conceding that many day-to-day challenges can be tackled in better ways. Pessimism Another form of resistance is to accept that automation is possible but portray it with a negative focus, as destructive of profits and jobs. Pessimistic lawyers believe that adopting tech will reduce how much they can charge for their work.
Antonia Modkova
Pessimistic lawyers believe that adopting tech will reduce how much they can charge for their work But lawyers who do not keep improving the value for money they provide can be easily outcompeted by those who do – or even by startups outside the legal profession. Efficient technology (such as self-service contracts) improves turnaround time for clients and removes bottlenecks, shortening the queue for new legal requests. Law firms can move from selling time to selling their intellectual property. Unlike the billable hour, intellectual property scales and can empower lawyers to serve clients in a many-to-one fashion. The potential market for legal services is far from saturated. In the same way that Uber created a brand new market of people who did not traditionally catch cabs, there is an untapped goldmine of individuals who cannot afford legal advice under current market offerings and companies who have been in-sourcing legal functions to save costs. Protectionism Protectionists accept the impact of technology but worry it would compromise the quality of legal services and the reputation of the legal profession. The underlying belief is that human oversight is always superior to a machine. But there is a reason they call it “human error”: human brains, as intelligent as they are,
As technology becomes more advanced and widespread, failing to use suitable technology may even invoke professional liability. This is already the trend in the United States. In California, it was held that: “An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.” Passiveness The final category is lawyers who appreciate the significant benefits technology can bring but nonetheless continue business as usual. In some cases, lawyers blame a lack of time or money. In others, lawyers do not know where to begin or do not feel comfortable enough with technology. There are simple steps every lawyer and law firm can take to adopt relevant technology and everyone can start with the basics. There is no need to dive straight into the deep end with advanced or unproven technologies – the time of the “early adopters” is long gone. Software for document management, workflow automation and e-discovery are ripe and readily available in the New Zealand market. Most software providers offer free trials and tutorials, allowing lawyers to feel comfortable before making an investment. Law firms can foster innovation by hiring lawyers with knowledge and interest in exploiting technology and empowering all employees to identify workflow steps that could be made more efficient. Today, no lawyer should be “copy-pasting” an existing client’s details into an existing template. Technology is a huge opportunity to attract clients, improve quality and take the mundane out of legal practice. For those who are willing, the opportunity is magnified only by most of the profession’s resistance to change. Antonina Modkova is a patent attorney at Soul Machines. For information about an ADLS on demand seminar, click here. 5
POLITICS
What to expect from the incoming government By Matt Yarnell
Labour has a mandate to govern alone and without NZ First can accelerate its agenda. But Jacinda Ardern’s inherent caution will continue to dictate the pace.
Ardern remembers the searing disappointment when the Key government reversed several of the policy changes the Clark government had achieved so her leadership style is to sacrifice speed for durability. She will not run ahead of public opinion and will continue to seek change that can endure.
Photo by Hagen Hopkins/Getty Images
What to expect this term? A ‘softly, softly’ approach.
Matt Yarnell
She will also be careful not to burn her political capital or to antagonise the votes Labour brought across the line from National: the fact that Labour won the party vote in all but four seats speaks to this effect.
of the groundwork has been done across several portfolios which is now on the point of delivering significant reform.
Another consideration for the government is that the economy is in recession and businesses are in poor shape to face extra costs or disruptive change.
Health Labour has accepted the direction of change identified in the Heather Simpson-led review into the health and disability system.
All these factors suggest continuing incrementalism. But Labour’s base will also be looking for positive change and Ardern will not have forgotten her 2017 promise to be “transformational”.
We would expect the new government will move quickly to create Health New Zealand, a new national agency to drive consistent operational policy and to lead the delivery of health and disability services. This will include the District Health Boards, and the creation of a Māori Health Authority.
required to reduce transport and industrial heat emissions. Labour’s election policies on this were conspicuously timid – a nationwide roll-out of hydrogen refuelling stations, increased funding to support businesses to lower their vehicle emissions, fuel efficiency standards for new vehicles and $70m to help major industrial users decarbonise.
Resource Management Act (RMA) The Randerson expert panel has recommended replacing the RMA with a Natural and Built Environments Act (which would reduce the number of RMA policy statements to 14) and a Strategic Planning Act.
Labour market law The legislation to introduce fair pay agreements will be passed. Labour owes it to the unions. But it will seek to avoid a fight with the business lobbies by focusing on the lowest-paid industries.
And after famously devoting much of its first term to policy reviews, Labour is now entering the decision and implementation phases across a number of key areas. Quick ticks The jobs initiatives will be high on the ‘to do’ list – free apprenticeships and trades training courses in industries affected by skills shortages, higher abatement thresholds for beneficiaries, expanding the flexi-wage program, the extension of the small business cashflow scheme, and jobs for nature. We also expect priority action on:
implementing the 39% tax rate on incomes over $180,000, to apply from 1 April 2021; sign-off for the Auckland Light Rail project, which was thrown off the tracks last term by New Zealand First;
progress on the promised market study into the supermarket sector; and
legislation for the new Matariki public holiday, to come into effect from 2022.
Structural reform Much of the commentary about Labour’s first term was focused on its delivery failures – in particular, KiwiBuild and capital gains tax. But a lot 6
This will require a painstaking reform process and is potentially controversial. The fact that Labour does not need the Greens’ vote in the House will allow more radical reform than would otherwise have been the case, although Labour will also want to ensure adequate environmental protections are retained. Climate change Labour advanced its 100% renewable electricity generation target to 2030 against advice from the Interim Climate Change Committee that the last few percentage points would be expensive to achieve and the resultant increase in electricity prices would slow the decarbonisation of the rest of the economy. Labour is hanging its hat on the Lake Onslow pumped hydro project and has allocated $30 million to a business case analysis, but expert opinion is that the economics will be tricky. In any event, stronger mechanisms will be
Sick leave entitlements will also be doubled. Water Labour’s Three Waters program is already in gear and its water quality reforms will remain in place, although possibly with some further softening around the edges. The big issue is allocation, which will require addressing Māori interests in water and disturbing some existing water-use rights. Labour will leave this in the too hard basket. Housing Labour’s election manifesto does not mention KiwiBuild but Labour is committed to significantly increasing the stock of public housing and to improving healthiness, warmth and security of tenure in the private sector rental market. Matt Yarnell is partner at Chapman Tripp. Andy Nicholls, the firm’s Wellington managing partner, and consultant Frank McLaughlin also contributed to this article
LawNews Issue 37 | 23 Oct 2020
ADLS COMMITTEES
The tricky stuff you don’t learn at law school QUESTION Dear Newly Suited committee I have been working as a junior lawyer for several years and have been lucky enough to try out a few different areas of law. With all the on-the-job training, I feel as if I have come a long way since graduating from university. But recently I’ve realised I could benefit from a refresher on some of the more basic principles – in particular, around legal ethics. I know I need to comply with the Conduct and Client Care Rules, and act in the best interests of my clients. But sometimes issues arise that don’t seem to fall squarely within the bounds of my Ethics 101 notes.
Should you already hold shares in a company which later becomes a direct client, you should let your supervisor know. Usually in these situations you would be expected to simply hold your shares and not sell them nor buy any more
I’m hesitant to ask my supervisor in case the response is “you really should know this!” Can you please help? #askingforafriend…
ANSWER Dear #askingforafriend There is no denying that professional ethics are important; there is a reason that passing a legal ethics paper is mandatory before you can be admitted to the bar! However, there is a significant difference between learning these principles in the abstract and putting them into practice, the latter being much more challenging. This is especially so, given that potential conflicts of interest can arise in many different shapes and forms and will not necessarily have been discussed at law school. We have set out our responses below, which illustrate the potential issues that can arise when a lawyer’s personal life intersects with his or her professional obligations. My brother has recently invested in Company X, which happens to be a client of the firm I work for. He has told me he thinks his investment will double in value in the next few months and is encouraging me to invest in Company X too. Can I buy a few shares? As lawyers, we are regularly exposed to confidential information which is not available to the public. Some of this inside information, if it were to be disclosed to the public, has the potential to affect the share prices of a company listed on the stock exchange. Not only must we keep this information strictly confidential, even from our family members, but we must also refrain from using this information for our own personal gain. This could constitute insider trading, which can attract serious civil and criminal sanctions. Of course, it could also amount to a breach of the Conduct and Client Care Rules, particularly the rules around confidentiality and conflicting interests. Even if you are not aware of any confidential inside information, your firm may have a policy preventing you from buying or selling shares in a company for which your firm acts. Consider any applicable policies carefully before proceeding and be sure to raise any questions you may have. Should you already hold shares in a company which later becomes a direct client, you should let your supervisor know. Usually in these situations you would be expected to simply hold your shares and not sell them nor buy any more, as by taking either of these actions you could be seen to be acting on inside information. If you are otherwise concerned about a potential conflict of interest, it is always
best to raise this with your supervisor and err on the side of caution. When working on a civil litigation matter, I learnt of some concerning allegations against a person who works with my friend. I don’t think my friend is aware that these allegations have been made. Given what I have heard, I am worried for my friend’s safety. Can I tell her what I know? This is an example of one of the more difficult situations where your moral judgment may be directly opposed to your professional judgment. In the first instance, before jumping to any conclusions, keep in mind that allegations are not always substantiated (innocent before proven guilty). From an ethics perspective, lawyers are under a duty to protect and hold in strict confidence all information about a client and his or her affairs acquired during the professional relationship. This duty of confidence continues even after the person has stopped being a client. While there are limited exceptions, these will apply only on rare occasions – for example, where a lawyer reasonably believes disclosure of confidential information is necessary to prevent a serious risk to a person’s health or safety, or where the information relates to an anticipated commission of a serious crime. Even then, the disclosure may be only to an appropriate person and to the extent reasonably necessary for this purpose. Because of the competing considerations, we would recommend proceeding with extreme caution. In the first instance, it would be best to consult with your supervisor and advise him or her of your concerns. Your supervisor can give you guidance about what you should do next. We at the Newly Suited committee know you will come across other ethical and moral dilemmas in legal practice. As a first port of call, do not be afraid to approach your supervisor. No question is a stupid question and it is always best to ask because there could be serious repercussions for you, your client and your firm. Otherwise, if you would like to chat with the Newly Suited committee, feel free to visit our Microsoft Teams group or contact us on committeefeedback@adls.org.nz. We look forward to hearing from you. 7
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Learning outcomes: • • •
Learn more about the Evidence Act 2006 pre-conditions to the admission of expert opinion evidence. Understand better how to: º identify issues that require expert evidence; º elicit expert opinion evidence that will be admissible, and which will assist your case and the Court; º Competently object to expert opinion evidence being tendered by the opposing party. Gain insights into how expert opinion evidence is perceived by the Court (how “substantially helpful” is it?).
Your Legal Business: Project Management and Other Tools for Improving Effectiveness In a year like no other, legal professionals and firms have dug deep and adapted to new ways of working. This begs the question: what else can be achieved – and not just now, but in the longer term? Through the use of relatable examples, the presenters will help you garner a set of tools to help you raise the bar even higher, enabling you to take control and make improvements all-round.
Learning outcomes: • • •
Become apprised of the general principles and specific stages of legal project management, and how these can be tailored to your firm or organisation’s size, areas of practice and culture. Gain a better understanding of how tools – technology, templates and checklists – can empower and streamline, resulting in reduced stress, increased profitability and enhanced client satisfaction. Benefit from receiving templates that can be used in/adapted for your practice.
Fri, 23 Oct 12pm – 1pm
Presenters Mark Colthart, Barrister/Arbitrator, FortyEight Shortland Barristers Catherine Green, Executive Director, New Zealand Dispute Resolution Centre
Livestream
Seminar CPD 2 hrs
Wed, 28 Oct 4pm – 6.15pm
Presenter Fletcher Pilditch, Barrister, Richmond Chambers Angus Everett, Senior Solicitor, Legal Group, WorkSafe
Chair Her Honour Judge Jelas
Webinar CPD 1 hr
Mon, 2 Nov 12pm – 1pm
Presenters Caroline Ferguson, Director of Business Transformation and Innovation, Simpson Grierson Kathryn Low, Associate General Counsel – Legal Operations, Kāinga Ora – Homes and Communities Karen O’Leary, Senior People & Culture Manager, Chapman Tripp
Burning Issues in Employment Law Forum 2020
Forum
This Guy Fawkes night, the Burning Issues Forum 2020 has it all – bon fires, camp fires and wild fires – a veritable barbecued smorgasbord of the hottest and spiciest issues to emerge in these times of global challenge. First “The Covid Conundrum” – a blistering review of the Covid caselaw and a meaningful insight into the challenges faced by employment lawyers and their clients. Next, a scorching commentary on recent judgments clearing the smoky blurred lines between employees and independent contractors. Lastly, come fireside as the Chief Judge illuminates the path towards meaningful access to justice in employment law.
CPD 2 hrs
Learning outcomes: • • •
Discover how employment lawyers and their clients are balancing the desire to be kind and the obligation to comply with emerging Covid caselaw, with the need to be prudent in times of economic uncertainty. Gain a useful insight into recent judgments of the Employment Court (including Leota and Southern Taxis). Learn more about the developing emphasis on achieving broad and meaningful access to justice in employment law.
Burning Issues in Employment Law Forum 2020 Thursday 5 November | Forum | 2 CPD hours Visit adls.org.nz for more information.
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Thu, 5 Nov 4pm – 6pm
Presenters Her Honour Chief Judge Inglis Garry Pollak, Solicitor Rachael Judge, Senior Associate, Simpson Grierson Chair: Catherine Stewart, Barrister
LawNews Issue 37 | 23 Oct 2020
CPD in Brief Fairness in the Consumer and Commercial Sphere: An Update In recent times, we have heard a lot about being kind. In relation to consumer and commercial law, fairness may be kindness’ cousin. How does this translate to the consumer and commercial sphere? In this seminar, the presenters will provide an update and refresher on key areas which affect or will affect some consumer and commercial relationships, such as fair trading, (un)fair contract terms, and (un)conscionability. Presenters: Tania Goatley, Partner, Bell Gully; Anne Callinan, Partner, Simpson Grierson; Dot Benson, Credit Deputy General Counsel, Commerce Commission Chair: Steve Dukeson, Principal, Dukesons Business Law
Are you Trust Fit? – Varying, Resettlements, Winding Up and Mediation
Livestream CPD 1.5 hrs
Mon, 9 Nov 4pm – 5.30pm
Livestream
In Person | Live Stream The new Trusts Act and continuing developments in relationship property laws have led many clients to reconsider existing trust structures, and either look to update old trust deeds, or to take the opportunity to substantially restructure, resettle or simply wind-up existing trusts. This seminar will examine the processes which can be adopted to vary, resettle or windup a trust and the issues that can arise from those processes. The seminar will also look at the Trusts Act from a mediation perspective and will cover the specific ADR provisions in the Act, as well as how trustees’ costs are likely to be treated on compromise. Presenters: Jarrod Walker, Partner, Chapman Tripp; Carole Smith, Barrister, FortyEight Shortland Barristers Chair: Bill Patterson, Partner, Patterson Hopkins
Seminar
Corporate Restructuring: Navigating Covid-19
Webinar
Covid-19 has already had a dramatic impact on the tourism, accommodation, hospitality and retail sectors, but the broader economic impact of Covid-19 is yet to be felt by the wider economy. In this session, we will provide you with an overview of the restructuring tools available to corporates, so that you are aware of options should your clients call seeking advice to manage risk or distress. We will also touch on relief for directors and businesses and early warning signs to look for. Presenters: Conor McElhinney, Partner, McGrathNicol; Laura O’Gorman, Barrister, Bankside Chambers
Family Law Conference 2020 In person | Live Stream This conference will cover how to run a Relationship Property case from go to whoa. With a focus on the different stages you’ll have to navigate, the presenters will guide you through the various issues you will have to consider. Presenters: Brian Carter, Barrister, Bastion Chambers; Alissa Bell, Partner, McVeagh Fleming; Sarah Bush, Partner, Inder Lynch Lawyers; Inger Blackford, Barrister, Trinity Chambers Chair: Lynda Kearns, Barrister, Bastion Chambers
Leading in Law Workshop – Leading Others This distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best-practice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience. Facilitator: Tony Gardner, Managing Director, Archetype Leadership + Teams
CPD 2 hrs
Tue, 10 Nov 4pm – 6.15pm
CPD 1.25 hrs
Tue, 17 Nov 4pm – 5.15pm
Livestream Conference CPD 7 hrs
Wed, 18 Nov 9am – 5pm
Workshop CPD 4 hrs
Thu, 19 Nov 9am – 1.15pm
CPD Pricing Delivery Method
Member
Non-Member
Webinar (1 hour)
$80 + GST
$115 + GST
Webinar (1.25 hour)
$90 + GST
$130 + GST
Seminar (2 hour in person)
$130 + GST
$185 + GST
Seminar (2 hour live stream)
$130 + GST
$185 + GST
On Demand (1 hour recording)
$90 + GST
$130 + GST
On Demand (2 hour recording)
$145 + GST
$205 + GST
CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd
For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases. Terms and conditions apply.
Expert Evidence in Health and Safety Cases Wednesday 28 October | Seminar & live stream | 2 CPD hours Visit adls.org.nz for more information.
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EMPLOYMENT LAW
All-woman bench sits to consider its first Covid-19 employment case For the first time, a full bench of the Employment Court has sat with three female judges. The court met in Auckland on 13 October to consider an appeal against one of the first Covid-19 cases to be decided by the Employment Relations Authority (ERA). Because of the significance of the case, a full court comprising Chief Judge Christina Inglis (centre), Judge Joanna Holden (left) and newlyappointed Judge Kathryn Beck (right) was convened. The case, the first Covid-19 case to reach the Employment Court, was Gate Gourmet NZ Ltd v Sandhu & ors. Read more. Gate Gourmet, which provided inflight catering for domestic and international flights, was deemed to be an essential service during the level 4 lockdown, even though most flights were grounded. The company remained open with a skeleton staff, with most of its 130 employees told to stay at home because there was no work for them. They were told they would receive 80% of their normal pay if Gate Gourmet got the government’s wage subsidy. But on 1 April, only a week after the lockdown began, the new minimum wage came into effect, boosting workers’ pay from $708 a week to $756. Gate Gourmet decided it would pay the new minimum wage only to those who were actually working. The union objected, saying Gate Gourmet was in breach of the Minimum Wage Act 1993. The company said regardless of its “essential” status, it had no work for its staff as airlines were grounded and the government had issued stay-at-home orders. But the ERA said because Gate Gourmet had taken no steps to restructure its
Judge Joanna Holden, Chief Judge Christina Inglis, Judge Kathryn Beck
business (for example, by making workers redundant), Covid-19 restrictions were not the reason its employees were prevented from working. Gate Gourmet itself had made the decision to close down most of its business, the ERA said, and in paying employees only 80% of their wages the company was in breach of the Minimum Wage Act. The ERA disagreed with Gate’s view that because its employees were not working, it wasn’t required to pay them anything.
Continued from page 3 valuable, in global markets.
interesting and strategic opportunities.
We are also a nation of highly capable people backed by innovative organisations. We can balance creativity with pragmatism and be nimble and quick to seize opportunities.
The trick will be to use awareness (to paraphrase Eckhart Tolle) as an “agent for change” so first and foremost we must be aware of the climate risks we face. Climate risk reporting will be vital to that.
New Zealand can lead the way and be a role model for the world by demonstrating what is possible and encouraging others to make positive change.
We have only one planet, and the clock (or is it time bomb?) is ticking...
Parting thought Clearly, the climate emergency presents potentially significant risk to organisations and communities. But, as I’ve discussed, it also presents some
Craig Fisher FCA is a consultant at RSM, a chartered accountant with 25+ years of audit and assurance experience, a specialist in not-for-profit and charitable entity issues and an ADLS councillor. Craig is also chair of the XRB’s External Reporting Advisory Panel. The views expressed here are his own. For information about an ADLS on demand seminar, click here.
ADLS members and non-member lawyers who have registered their Airpoints™ details with ADLS can earn Airpoints Dollars™ on all eligible purchases. Learn more
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LawNews Issue 37 | 23 Oct 2020
Office to Lease Due to my impending retirement, my offices will be available to lease from 1 April 2021, subject to notice of renewal being given to the landlord before 31 December 2020. Superb location in High Street, close to Shortland Street. Two large offices, meeting room, reception area, file storage area, kitchenette and bathroom. Ideal for a sole practitioner or barrister. Architect-designed fitout, complete with all desks, furniture, filing cabinets, shelving and other office equipment. Contact me for further details: Peter Nolan phn@peternolan.co.nz, (09) 307 6935 or 021 608 955
WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270
Wills
Senior Solicitor/Senior Associate with Partnership Opportunity We are seeking a motivated individual with 5-6+ years’ PQE to join our busy practice. The role is full time, Monday to Friday from 8.30am to 5.00pm starting immediately. Experience in trust work (including good knowledge around the new Act), estate work, commercial transactions (including leasing) and conveyancing are essential. In addition, strong communication skills, the ability to give practical advice and work independently are keys to success in this role. Succession partnership opportunities may be offered to the right candidate as the firm is currently in the phase of succession planning and looking for a change in partnership in the next 12-18 months. You will be provided with your own office and will be welcomed by a friendly and supportive team working in the heart of Cambridge. If you are looking for your next career opportunity with scope to grow and independence, please send your CV and covering letter to sabrina@cambridgelaw.co.nz by Friday, 20 November 2020.
This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week. Get your message in front of them. Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz
Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document. Earl Mark DAVIS, Late of Auckland, retired, aged 84 (died 23’08’20) John LEINS, Late of 19 Panorama Avenue Ferry Landing, Whitianga, de facto, marine engineer, aged 58 (died between 31’08’20 and 01’09’20)
ROOM AVAILABLE Vulcan Building Chambers has a spacious room in the historic Vulcan Buildings in Vulcan Lane available to a barrister wishing to share reasonably priced facilities with six other collegial barristers. Facilities include: Website, boardroom, library, kitchen, shower, ultra fast broadband, networked printing and photocopying and VOIP phone system. The chambers have a dedicated and capable office manager. Please email: eden@vulcanbuilding.co.nz or phone 09 300 1253
Christchurch Sundowner Thursday 26 November 2020 | 5.30 pm - 8.30 pm Fiddlesticks Restaurant & Bar Corner of Worcester Boulevard & Montreal Street Learn more
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Senior Lawyer – Trust/Property/Business Role We are looking for a senior lawyer with a minimum of 5 years’ PQE to join our team. This role is to ease the workload of a Director who is moving towards retirement. This is a great opportunity for an ambitious and dynamic person with a sound understanding of trusts, property and business. The ability to supervise estate work undertaken by another team member would be beneficial. Key attributes required for this role: • Have experience in dealing with clients and able to manage your
own files with minimum supervision
• Relate well to clients and referrers • Have good time management, interpersonal skills, attention to
detail and operate in a collaborative team environment
• Be able to work in a Paperlite office and manage an electronic file
using Infinity Software
We offer: • An innovative firm with a great team environment • An opportunity to be part of one of the eastern suburbs’ largest
• • • •
legal practices Market salary, team monthly and annual bonus schemes Excellent established precedents, systems and technology Free parking and iPhone The excellent training, conferences and benefits that are available to members of NZ LAW legal firms
CAREER OPPORTUNITY TAKAPUNA BEACH AUCKLAND Morton Tee Limited is an established firm based in Takapuna Auckland with a settled client base offering a variety of interesting work. An exciting opportunity exists for a Property Solicitor ideally with 4-5 years’ PQE to work in our general practice and supervise our residential conveyancing team. The role will suit someone seeking greater autonomy and prospects of advancement together with a better work life balance including the benefits a Takapuna beach-based practice provides. Confidential applications and expressions of interest should be directed to: Cristine Tee ctee@mortontee.co.nz P O Box 33133 Takapuna 0740 Auckland.
Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz. No Agencies please
ADLS/SCA (NZ) Unit Titles/ Bodies Corporate Half-Day Conference 2020 Thursday 19 November | 4 CPD hours Venue: Ellerslie Event Centre, Ellerslie Once again, the half-day conference will be packed with a great selection of pertinent and practical topics relating to unit titles and bodies corporate, presented by experienced lawyers, property managers and other professionals. The conference will be followed by a networking function from 5pm.
T 09 303 5278
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E cpd@adls.org.nz
W adls.org.nz