THIS WEEK’S ARTICLES
Issue 44 11 Dec 2020
How to fix online bullying legislation p1
Can a memorandum of wishes invalidate a trust? P3
Avoiding mentalhealth harm complaints p11
LawNews adls.org.nz
TECHNOLOGY
How to fix online bullying legislation By Diana Clement
Photo by Justin Paget/Getty Images
Is the Harmful Digital Communications Act 2015 working? Ask users of the legislation and you’ll hear a litany of what’s wrong: everything from bailiffs being able to serve summonses directly on children to ridiculously light sentences for the mostly male perpetrators. The Act had laudable intentions to tackle cyberbullying and protect minors from harm. There have been successes, but academics, lawyers and judges see ways for it to work a whole lot better. And it’s costing big bucks. A report for Netsafe by economist Shamubeel Eaqub estimates the annual cost of online harm to individuals and communities and the cost of intervention amounts to $444 million. The legislation was inspired by headline after headline that spoke of young people committing suicide in the wake of online bullying. The situation steadily deteriorated and in 2011 the Law Commission published a report The News Media meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age highlighting the potential for harm to young people with few avenues for redress under existing legislation. The Act was fast-tracked after a series of in-depth articles on the dangers of cyberbullying. But not all of the Law Commission’s recommendations saw the light of day. Under the Act, complaints are made to Netsafe, which acts as a first port of call/clearing house before a matter can be taken through a criminal or civil court. Netsafe is not an enforcement agency but does manage to resolve some of the complaints. It can: request internet service providers/content hosts
Cyberbullying is a crime that disproportionately affects women
to take down or moderate offensive posts; advise, negotiate, mediate or persuade victims and alleged perpetrators to resolve complaints; escalate the complaint to police; and
inform complainants of the civil process in the District Court.
Parliament was primarily concerned with the criminal side of harmful digital communications when the Act was passed, and cases have trickled through the courts with some success. Many, but not all, potential difficulties fall on the civil side and the list of complaints is long. An overarching issue, however, might be the lack of a Communications Tribunal as recommended by the Law Commission. A tribunal, say many, would have expedited complaints and helped ensure the purposes of the legislation would be fulfilled as intended.
But Bell Gully partner Tania Goatley isn’t convinced a tribunal is necessary. The main problem is that the law is not keeping pace with the online environment, she says. In some ways, says Dr Myra Williamson, senior law lecturer at The University of Waikato, Netsafe has stepped into what would have been the tribunal’s role to provide citizens with speedy, efficient and cheap access to remedies. Goatley questions whether specialist tribunals do move faster than the courts. Criminal cases Some questions arise about the criminal side of enforcement, such as the power individual police officers hold to decide what is, and what isn’t, harmful. Some might perceive online harm as less serious than physical harm, making complaints easy to Continued on page 2
TECHNOLOGY
How to fix online bullying legislation Continued from page 1 dismiss. Writing in LawNews in October, Arran Hunt cites one case dismissed by police as the victim’s own fault for taking images posted to the internet and viewed thousands of times. Read more. Williamson says it’s not a small matter to have your images and related comments posted online. “It is not a small or trifling thing even though there is no physical proof that the harm is significant.� Goatley suggests the Police Cybercrime Unit might be better placed to handle prosecutions than ordinary rank-and-file officers, whose attention is often on imminent physical harm. Failing victims? Sentences handed down in criminal cases have become gradually less severe, says Williamson. Terms of imprisonment have been steadily tracking down over the past five years and monetary penalties have also fallen away. The trend is troubling. “It’s not sending the deterrence signal.� She is dedicating a chapter of an upcoming book Harmful Digital Communications: The Global Rise of Cyberbullying and Other Forms of Digital Harm to her contention that this is disproportionately a crime against women. “That is interesting when you tie it into the sentencing. It’s an emotional harm, it’s happening to women and the men are going to prison less and less often for doing it.� Another issue in the criminal and civil courts is that for sexual crimes, victims are forced to face the aggressor. “There are a bunch of moral dilemmas about how to deal with this sort of conduct,� Goatley says. The Act allows complainants who don’t get justice in a criminal court to make a civil complaint. That’s when it starts to get murky.
Tania Goatley
Jania Baigent
Some of the issues include:
describes its purpose: to “provide victims of harmful digital communications with a quick and efficient means of redress�. That doesn’t necessarily happen in practice. What should take weeks can take many months. In the meantime, unless there has been an interim order, the communication remains online and can be accessed, searched and further distributed, says Goatley. “That becomes very difficult, because the harmful content can be left up for significant periods of time, which just in itself makes the issue harder and harder to resolve.� Unlike defamation proceedings, the continued publication of harmful digital material won’t attract aggravated damages.
Treatment of minors: Barrister and mediator Taryn Gudmanz expressed her concern about minors and the civil process in an article last year. While the best interests of children are considered in the criminal process, that’s not necessarily the case for civil matters. For example, should a bailiff come to the door, the parent cannot accept the summons. The child must front up. What’s more, parents can’t represent the child until appointed as a litigation guardian by the court. Service on overseas defendants: A complex issue when the content in question is sitting with overseas-based defendants such as Facebook, Google or even WeChat. The Commerce Commission’s proceedings against Viagogo show just how difficult service can be. The likes of Facebook and Google, however, are getting better at actioning takedown orders from the courts or requests by Netsafe, even though they may not be technically enforceable. Slowness of the process: Section 3 of the Act
đ&#x;Ž„
Merry Christmas from LawNews This is our final issue of LawNews for 2020. On so many levels, this has been a most challenging year. ADLS and LawNews wish all our members, readers, contributors and advertisers a happy and relaxing festive season. Our first issue for 2021 will be on Friday February 5.
LawNews
Editor: Jenni McManus
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz
2
The expense: Legal aid is available but is unlikely to cover all the costs. A tribunal would have made justice more affordable for more people. The financial barrier is real, says Goatley. The legal profession shouldn’t forget the cost of emotional harm as well, Williamson says. Cross-examination can cause harm to the applicant: The cross-examination process itself in criminal and civil cases can escalate the harm and sometimes pushes applicants to withdraw the action or come to an agreement they might not otherwise have accepted. Lack of published civil enforcement orders: The Act is still bedding in and this can mean a lack of certainty for litigants. Section 16(4) requires decisions to be published. Few have been and they’re not available from a central repository for Continued on page 4
All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year. To subscribe, please email reception@adls.org.nz.
ŠCOPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.
LawNews Issue 44 | 11 Dec 2020
TRUST LAW
Can memoranda of wishes invalidate a trust? By Anthony Grant
Lawyers commonly advise their clients to make memoranda of wishes and to update them regularly in the belief that trustees should generally implement a settlor’s intentions. But is this advice correct? Professors Thomas and Hudson in their distinguished text The Law of Trusts say, “[T]he role of settlor is simply that of creator and that, following the trust’s constitution, drops from the picture absolutely and has no right, qua settlor, either to direct the trustees how to deal with the trust property or to reclaim the property that has been settled on trust.” In a significant article last year in the journal Trust & Trustees, David Russell and Toby Graham – two eminent trust experts – said: “Letters of wishes are simply not relevant to an enquiry into the purposes of a trust… Once a trust is created, the settlor’s identity is no more than a matter of historical record; he has no role in the operation of the trust. To allow him, through the original (or later) letter of wishes, to frame (and re-frame) the purpose of the trust effectively gives him a power to amend the trust…. In this conception, the letter of wishes might be said to displace the express wording of the trust instrument and/or to exceed the permissible bounds for a valid trust.” In other words, giving effect to a letter of wishes, or at least to some types of letters of wishes, may invalidate a trust. Anthony Grant
Russell and Graham go further, saying “if a settlor wishes a trustee’s powers to be circumscribed in particular ways… then it is essential for those limitations and the purpose of the trust to be spelled out in the trust instrument…. a failure to do so could lead to sham or other validity problems…[and] could give rise to a negligence action against draftsmen or claims to set the trust aside.” The Russell and Graham article has been lingering in my mind ever since I read it last year. Are the New Zealand decisions which say judges should take close notice of memoranda of wishes wrongly decided because the law on this topic has not been fully argued? One of my tasks during the Christmas break is to read into this area of the law in more detail and I propose to discuss this topic at next year’s ADLS Cradle to GraveTM Conference in May. I understand the Russell and Graham article was referred in argument in the recent Kain v Hutton case concerns memoranda of wishes. If so, we may get some guidance on the subject when the decision is released. The subject is particularly important since the Trusts Act 2019 allows trusts to have a life of 125 years. On the assumption that recent New Zealand decisions about letters of wishes are to be treated as reliable, a 50-year-old settlor who makes a memorandum of wishes today may give guidance to trustees for the next 30 years but that leaves the trust with 95 more years to run. Can a settlor write a meaningful letter of wishes that is to endure for decades after his/her death and when all the named beneficiaries have died? Section 4(a) of the new Trusts Act stipulates that “a trust should be administered in a way that is consistent with its… objectives.” Can the objectives be found not only in its terms but also in an occasional memorandum of wishes? Recent cases suggest memoranda of wishes provide a helpful form of guidance to learn the objectives of a trust. If they are to be provided by a settlor, and if a settlor is bound to die long before a 125-year trust term has ended, should lawyers devise other means through which the “objectives of a trust” are to be provided to trustees, long after the settlor and the named beneficiaries are dead?
Giving effect to a letter of wishes, or at least to some types of letters of wishes, may invalidate a trust Most trusts written today contain a wide power of variation. It is also common to provide powers of resettlement, allowing assets to be settled on trusts with widely divergent terms to the terms of the original trust. Since no one doubts the validity of these two developments, might one solution be for a deed of trust to contain a term expressly recording that the settlor may, during his/her lifetime, provide the trustees with memoranda of wishes that are intended to assist the trustees to understand the objectives of the trust? If the terms of a trust can legitimately be varied by using an express power of variation, might a term of a deed which expressly authorises the use of memorandum of wishes to achieve a similar outcome but by a separate route? And since the settlor will inevitably die long before a 125-year trust term has ended, there might be an additional term that, following the settlor’s death or cognitive disability, Person A has been empowered to provide the trustees with future memoranda of wishes etc. I am not saying clauses to this effect would be lawful or effective as I have not yet read into the law in sufficient detail. But with trusts now lasting for 125 years, and with the Trusts Act stating that trustees are to administer trusts “in a way that is consistent with [their] objectives”, the subject of memoranda of wishes has taken on a new importance. Anthony Grant is an Auckland barrister specialising in trusts and estates law 3
judges to access. Some civil enforcement decisions are available on the District Court website. Williamson would like to see more guidance and cites Miller v R, a 2019 decision where the judge noted there was only one relevant case which did not purport to be a guideline judgment. The potential for vexatious complaints: Complaints that don’t reach the Netsafe bar for criminal prosecution can end up in the civil courts. Some complainants may not be willing to take no for an answer. That can be particularly difficult where the complainant and/or respondent are minors. There may be fault on both sides, but parents can be blinkered to their own child’s behaviour. Most complaints that Simpson Grierson partner Jania Baigent sees have substance. “I think there are a lot of legitimate applicants,” she says. A risk to free speech: One of the big concerns is the balancing act between protecting victims from serious emotional harm on one side and the right to free speech on the other. It’s an issue that ACT party leader David Seymour feels strongly about. From ACT’s point of view, great care needs to be taken in placing controls on free speech. Seymour accepts there must be certain common law restrictions such as a ban on inciting violence. But he points to the UK as an environment where, he says, censorship has gone too far. To review or not to review? The courts are grappling with the legislation and issues such as how to sentence and how to compare cases, Williamson says. “So, I think that a review, just to see how it’s going, would probably be quite useful. [Harmful content] is a problem that currently exists and is appearing to get worse. The emotional harm, whilst it is hard to measure, can have massive repercussions.” Before Parliament is the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, which would make non-consensual posting of intimate images and recordings (aka revenge porn) illegal. Although the existing law covers revenge porn, the bill makes it more specific and increases penalties to three years in prison or a fine of $50,000. Procedural solutions may provide some of the answer. For example, if the judge who makes the directions becomes the judge who sees the case
Photo by Hagen Hopkins/Getty Images
Continued from pages 1, 2
David Seymour
Judge David Harvey
through the civil court could case-manage the matter, ensuring it receives priority.
“The judge would then consider the application, answer, and hold a video conference using an application like Microsoft Teams for the hearing of the applicant’s case, followed by the defendant’s case on another day…. The parties, of course, would be virtually present at each hearing. The judge then delivers his or her decision within three working days.”
Judge David Harvey, former director of the New Zealand Centre for ICT Law, believes one option could be to take hearings online. That could be especially useful where the harm suffered continues so long as the content remains online. “A possible procedural solution is offered, along with the incorporation of aspects on the online court,” Judge Harvey has written in a yet-to-be- published paper. That would involve asynchronous hearings. Currently, as soon as practicable after the application is filed, the court registrar must refer to it to a judge for consideration of matters such as whether the matter be made ‘on notice’ or to dismiss the application. If the case proceeds through the civil court, the Susskind approach would expedite the proceedings, Judge Harvey says. “What I am proposing is a form of asynchronous hearing, not unlike that described by Richard Susskind in his recent book Online Courts and the Future of Justice. “After being put before a judge for directions, the defendant then would file a notice of opposition within a prescribed period. The registrar would immediately confer with the judge who made the directions, seeking directions as to the manner of hearing.
An approach such as this does not require statutory amendment nor the institution of the Communications Tribunal, he says. “The proposals could be dealt with by way of a Practice Note, strict adherence to timetables and the use of technology and audio-visual links to expedite the disposal of cases and remove the hearing from the tyranny of a place-based hearing. “It is suggested that these processes could ensure that the purposes of the Act are met and increase public confidence in the court as the provider of a remedy for the problems caused by harmful content disseminated online.” Another procedural solution is a greater use of the technical advisors in court, says Baigent. The effectiveness of the Act is limited sometimes by the lack of understanding of technical matters. Not all judges use technical advisors and they can help considerably when the applicant, as often happens, is asking for orders that are a physical impossibility, such as Google taking down content on third party websites.
Retirement: Peter Nolan I will be retiring from my sole practice on 23 December 2020, save for tidying up a few remaining matters in the New Year. Carson Fox Legal has agreed to look after any of my clients who wish to engage them. Practitioners wanting to contact me about matters relating to my clients should contact Matthew Carson of Carson Fox Legal in the first instance. His contact details: Matthew.Carson@carsonfox.co.nz or (09) 966 1100. Peter Nolan, Level 3, 9 High Street, Auckland Central. Email: phn@peternolan.co.nz
4
LawNews Issue 44 | 11 Dec 2020
ADLS COUNCIL
Xmas message from ADLS President Marie Dyhrberg QC Across the board, 2020 has been an unanticipated and unprecedented year. But in hard times and chaos there is often opportunity, and for ADLS the Covid-19 pandemic has given us the chance to demonstrate leadership and support for our members and the profession, and our ability to respond quickly to the rapidly evolving situation. Among the highlights of our Covid response was the ability of our committees to give direction and guidance on a myriad of new and fast-changing issues – for example, in the areas of employment, immigration and property law. ADLS also played a key role in assisting the Ministry of Justice to keep the courts functioning for urgent matters. And we helped our members with technology advice as they migrated their practices to home offices and discovered the benefits of Zoom. ADLS was one of only two organisations invited to appear before the Epidemic Response Select Committee to comment on the emergency Covid legislation the government was proposing, which a month later became the Covid-19 Public Health Response Act. This was a high accolade for ADLS, and our submissions and commentary included input from most of our committees. These committees, and all our members, are the lifeblood and strength of ADLS. During the Covid emergency, they got on with the job and did whatever they could to assist. That’s what you need in a crisis and the ADLS response was strong and fast. And Covid-19 didn’t prevent our committees from conducting their usual business. In-person meetings were rapidly transferred to Zoom and work continued on a range of submissions and projects that were already in the pipeline. Marie Dyhrberg QC
These included lobbying in favour of legislation to restore voting rights to prisoners serving sentences of less than three years, preparing submissions on proposed changes to our laws around the collection and storage of DNA and lobbying against the controversial Sexual Violence Legislation Bill which, in our view, jeopardised a defendant’s fair trial rights. On the civil side, our Civil Litigation Committee prepared excellent and extensive submissions on a consultation paper from the High Court Rules Committee that proposes a major shake-up of the way civil cases are conducted in both the District Court and High Court. This type of work enables ADLS to develop and strengthen its connections with government and regulators. Another ADLS strength, demonstrated so clearly during the Covid crisis, is our high-quality CPD offerings. I’ve had excellent feedback about the quality and value of our seminars and workshops from people who believe ADLS is doing the profession a huge service by providing ongoing quality education. Participants tell us they get so much out of it. And, best of all, the CPD team adapted quickly to the constraint of Covid by transforming upcoming workshops and other in-person events into webinars. Feedback is important to me and from what I’ve received to date, particularly at our ADLS Auckland Christmas party last week, we’re doing good things and are viewed as a dynamic organisation that is forging ahead. So, what’s in store for 2021? In October, as part of our regular two-year rejuvenation of our committees, we welcomed dozens of new members onboard. I’d like to see our committee work strengthened even further in the coming year and to give our committees more access to, and communication with, council. As an organisation, we need to take up the challenge presented this year by
Chief Justice Dame Helen Winkelmann and Chief District Court Judge Heemi Taumaunu for transformative change in our justice system, so it better serves the needs of all participants, particularly Māori and Pasifika defendants. For ADLS, this includes ensuring we’re doing everything we can for our Māori and Pasifika members to enable them to excel within the profession. We’re also keen to demonstrate our commitment to diversity by offering all members of the legal community the opportunity to develop Māori and Pasifika language skills and to become familiar with tikanga Māori. This could be done through workshops, seminars and webinars. We’ll make this happen through committee work and consultation, taking advice from experts in this area. It might take us five years but if we don’t do this work, we’ll be left behind. Diversity is an important aspect of the development of the law and the legal profession. I see us doing a lot of good work with the student connections we have with the universities and also with young lawyers who are new to the profession. Unless we get them on board and listen to what they have to say, again we’ll be left behind. Finally, we’ll be making a push next year to further expand our membership, with all its benefits, to lawyers outside Auckland. We value our members in the rest of the country so watch this space! To all our members, and on behalf of the ADLS Council, I’d like to wish everybody a happy and restful Christmas break.
5
ADLS EVENTS
Great turnout for ADLS Christmas party On Thursday 3 December, ADLS held its annual Christmas party, once again at the Maritime Room on Auckland’s Princes Wharf. It was a great event, giving us all the opportunity to reflect on the year that
was 2020 and come together to celebrate the festive season. ADLS thanks all those who attended, and others who couldn’t make it, for giving so much of their time, energy and commitment to ADLS and the advancement of New Zealand’s legal profession.
Judge Jonathan Moses and ADLS President Marie Dyhrberg QC
Emma Priest, Judge Gerard Winter, Gary Gotlieb and Julie-Anne Kincade QC
Auckland Law School dean Professor Pene Mathew and chief coroner Judge Deborah Marshall
Sarah Wroe and Paul David QC
Margaret Robins, Ben Molloy, Tim Orr and Jenni-Maree Trotman
6
Professor Warren Brookbanks and Judge Peter Spiller
Judge Gerard Winter, Judge Dale Clarkson and Judge John Adams
LawNews Issue 44 | 11 Dec 2020
Amanda South, Joanna Pidgeon, Alex Sheehan, William Fussey, George Lello and Hannah Hellyer. Background: Just-retired Judge Mark Perkins
Judge John Adams and Amy McCormick
Mike Whale and Anthony Grant
Raynor Asher QC and Justice Geoffrey Venning
Congratulations to the winner of the ADLS CPD survey prize draw. Thank you to everyone that completed our 2020 survey. We are pleased to confirm that the gift basket was won by a barrister from Tauranga.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz
7
ADLS CPD EVENT
Cross-examination workshop a winner The ADLS cross-examination workshop on Saturday 28 November 2020 was again well supported by our skilled facilitators who provided not only fantastic and immediate feedback to the participants but also put on some practical and “silky” demonstrations at the end of the workshop. Thanks also to the student volunteers who acted as witnesses to be cross-examined by the participants. The workshop followed the now well-tried formula of the participants each undertaking two crossexaminations of different witnesses in front of a different judge and counsel. Manukau District Court was an excellent venue, adding to the realism of the occasion.
Judge David Sharp addressing the workshop
Judge Jonathan Moses, Judge Noel Sainsbury; Paul Borich QC, Judge David Sharp, Judge Gerard Winter, Julie-Anne Kincade QC, Paul Dacre QC, Rachael Reed QC, Marie Dyhrberg QC, Ish Jayanandan, Aieyah Shendi and Panama Le’au’anae
The workshop in full swing
NEW BOOK
Family Violence Act and Analysis
8
Authors: Cuba Family Law and Judge Rosemary Riddell
overview of key changes made by the new Act, practice and procedure.
A practical, user-friendly text containing key family violence legislation, commentary and guidance.
The second section of the introduction covers the protection of children from violence.
This book is a one-stop-shop and developed to meet the needs of busy practitioners, members of the judiciary, government agencies and other parties navigating the Family Violence Act 2018.
The book contains the full text of the Act with section-based analysis, comparative tables between the old and new legislation, checklists and the Family Court Practice Note pertaining to Domestic Violence as additional resources.
It begins with a practical introduction to family violence law, with an introduction to the context of family violence in New Zealand and an
The section-based commentary is derived from Brookers Family Law (online loose-leaf service).
Price for non-members: $100.80 plus GST* Price for ADLS members: $90.72 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz. The physical bookstore is currently closed
LawNews Issue 44 | 11 Dec 2020
INSURANCE LAW
Regulator seeks insurers’ views on solvency By Tim Williams, Penny Sheerin & Bradley Kidd
The Reserve Bank (RBNZ) is consulting on the second phase of its Insurance (Prudential Supervision) Act (IPSA) review and on its review of insurer solvency standards. We encourage licensed insurers and others involved in the insurance sector to engage in all aspects of the consultation process to ensure the regulatory regime is fit for purpose.
Tim Williams
The RBNZ is hosting a webinar on Monday 14 December to discuss the consultations. Email rbnz-info@rbnz.govt.nz if you wish to participate. The Option One paper is wide-reaching, covering a broad range of issues on which the RBNZ seeks the industry’s views. Definitions and scope: currently, every person who carries on insurance in New Zealand must have a licence and adhere to IPSA. The RBNZ wants input on whether the definition of ‘contracts of insurance’ and ‘carrying on business in New Zealand’ are still appropriate.
Branches of overseas insurers: should branches of overseas insurers continue to be exempt from certain aspects of IPSA where their home regulation is satisfactory? Or should they be required to hold assets in New Zealand or to set up a New Zealand-based company to ensure the availability of capital in insolvency?
Overseas reinsurance: are the current regulatory settings (under which reinsurance is simply one type of insurance contract) appropriate, given the importance of accessing overseas markets? Or should the regulation of inwards reinsurance be tightened, either through extending IPSA’s coverage or by enhanced requirements on insurers to manage reinsurance contract risk?
Group supervision: an insurer’s relationships with its other group companies can alter the risks to which the insurer is exposed. Should the RBNZ be given more powers to take a ‘whole-of-group’ approach to supervision or continue its focus on individual entities, but pay more attention to group level interactions?
Outsourcing: should there be additional requirements on how insurance companies manage their outsourcing relationships? For example, should there be risk-based rules covering outsourcing and risk management? Or should they also be covering contingency plans to enable business continuity where an insurance company’s business partners can no longer fulfil their contracts?
The RBNZ is seeking comments on the options proposed in relation to each of the above, and also welcomes general comments. Insurer Solvency Standard Review The review into the adequacy of insurer solvency standards is necessary ahead of the advent of IFRS 17 and is consistent with RBNZ’s broader focus on the resilience of the financial institutions under its remit.
Penny Sheerin
Bradley Kidd
individual components of the solvency standards. Interim standards will be introduced following completion of the first phase, followed by the final standard on completion of the second stage. Offered for consultation now is the broad approach the RBNZ should take to the design of a new Solvency Standard, including: Purpose and principles: the purpose statement the RBNZ is proposing would read: “The purpose of solvency capital is to ensure that, in adversity, an insurer’s obligations to policyholders will continue to be met as they fall due.”
Application of solvency standards: should a total balance sheet approach be adopted for solvency calculations and should there be a single solvency framework covering all sectors?
New accounting rules: to what extent should the RBNZ ask insurance companies to alter their accounts when calculating how much solvency capital to hold in light of changes coming from IFRS 17?
Ladder of intervention framework: the current rules set a single amount of solvency capital. The consultation suggests two control levels consistent with the ladder of intervention framework suggested by Insurance Core Principle 17 (Capital Adequacy) by the International Association of Insurance Supervisors. These are:
a prescribed capital requirement (PCR). This is the highest solvency control level. Above this level, the supervisor does not intervene on capital adequacy grounds; and a minimum capital requirement (MCR). This sets the minimum solvency level, below which insurers could not operate effectively. It acts as an ultimate safety net for policyholders. If the insurer breaches the MCR and has not taken timely corrective action to strengthen its capital resources, the supervisor would invoke its most stringent powers. The supervisor’s actions increase in intensity as the insurer’s capital position approaches the MCR. Solvency calculations: what is the appropriate analysis to determine how much capital an insurer needs? Is it enough to look at the capital held by the insurance company as a whole? And, if so, how can the RBNZ ensure there is enough capital to cover particular businesses, such as life insurance? And to what extent should insurers be able to set off losses in one area of the business against profits in another?
In October, the RBNZ consulted on eight principles that it applied in the Bank Capital Review and will also apply to this exercise.
The review will be conducted in two phases over a three year timeframe: first, structural changes and issues requiring immediate attention, then the
Tim Williams, Penny Sheerin & Bradley Kidd are partners at Chapman Tripp 9
WELLBEING
Lawyers ignore emotions at their peril Katie Gray, a former banking and finance lawyer and partner at global firm Herbert Smith Freehills, discusses the dangers of stifling feelings in the workplace and ways of dealing with one of the most powerful emotions experienced by lawyers – resentment. She is the founder of Principals for Practice and an Auckland-based executive coach who works with lawyers and other professionals.
Do lawyers have feelings? Google this and it seems to be a popular question, though lawyers are generally high performers and it’s well established that emotional intelligence is crucial to success in the workplace and in life. Self-awareness and the ability to recognise and understand emotions is an important aspect of emotional intelligence. But awareness of your emotions and being emotionally literate is not limited to organisational leadership or the impact we have on others: it is also a core ingredient of developing resilience and managing our mental and physical wellbeing. Poor mental health in the legal profession is not new. In the 2019 Australia and New Zealand Meritas Wellness Survey of legal professionals, 63% of respondents said they or someone close to them in the workplace had experienced depression, while 85% said they or someone close to them in the workplace had experienced anxiety. A proactive approach Many firms and organisations are taking steps to support staff who are suffering from mental health issues but what if we could approach this topic from further upstream? What if we could encourage lawyers to manage and regulate their emotions in ways that promote sound mental health? In this process of looking upstream, I started to wonder about the moods and emotions that are prevalent in legal life. Are lawyers aware of their emotions and how to navigate them? My sense is that if you asked a typical lawyer how they are going (because surely you wouldn’t ask how they are feeling) you would likely get one of three responses: “stressed,” “busy” or “quiet”. What are the limitations of lawyers not being emotionally literate? And what might they gain if they could harness their emotional vocabulary and effectively regulate their emotions? Emotions motivate us into action. Their purpose is to procure us to do something. But what then do we do with them? If you’re anything like I used to be, you’d: ignore them and carry on with the task at hand;
distract yourself with something else or try to wait it out until you start to feel better; or
10
vent to anyone who will listen about the situation that gave rise to the emotions, without touching on the emotion at all.
The dangers in these approaches include:
Suppressing emotions (choosing not to acknowledge them and failing to act on or express them) has been linked to: poor mental health;
poor personal leadership, often in the form of displacement (eg, your boss yells at you and rather than resolving the issue, you yell at your juniors or bottle it up and let loose at home); and
but is less enthusiastic about supporting the deal;
in extreme cases, poor physical health.
Masking emotions and bodily expressions to conceal an emotional status, otherwise known as repressing emotions, has been linked to:
Katie Gray
decreased immune system function;
mental health conditions such as stress, anxiety and depression;
muscle tension and pain;
nausea and digestive problems;
appetite changes; and
fatigue and sleep issues.
Sometimes it is not appropriate or professional to show the full extent of your emotions or let them take over. But when you start to understand more about emotions you can recognise them in yourself, and learn more about what they mean and what the emotion is prompting you to do. Resentment Lots of emotions come to mind when I think about legal practice: trust, devotion, shock, contempt, anxiety, relief, satisfaction, despair and yes, at times, even regret. However, one other mood is frequently raised in my conversations with lawyers and warrants closer attention: resentment. Feelings of resentment are built upon a story that you are the injured party of an unfairness, someone or something is to blame and it is outside your control. In the legal world, this can show up when: A ‘rainmaker’ partner excels at bringing in work
A client who has been ignoring your calls and emails all week contacts you on Friday afternoon with an urgent update that requires a new draft by Monday morning; or
The pandemic squanders hope of a pay rise or promotion, despite you being utilised more than ever.
This perception of unfairness is often coupled with a belief that things should be different but there is nothing that can be done about the situation. This could sound like:
This lifestyle is not sustainable but it is part of being a lawyer in a high-performing firm.
The client is asking for the near impossible but if we don’t promise to do it, someone else will.
This doesn’t make sense but I can’t ask for anything more right now.
These feelings might well be valid but how many lawyers understand why resentment arises and how they can manage and work through it? When you experience resentment, it is signalling that you have suffered an unfairness. Executive coaches Dan Newby and Curtis Watkins assert that the purpose of resentment is to allow you to identify what you believe is fair and unfair. While resentment is in the same family of emotions as anger, sociologist Dr Rafael Echeverria explains that while anger is expressed publicly, “resentment is hidden, it is maintained as a private conversation. It grows in silence and it rarely manifests itself directly.” Continued on page 16
LawNews Issue 44 | 11 Dec 2020
WORKPLACE SAFETY
How to avoid a mental-health harm complaint By Myriam Mitchell
ensuring adequate resourcing for work; discussing work demands to ensure reasonable workloads;
In 2018, WorkSafe Victoria issued an improvement notice to King Wood & Mallesons, one of Australia’s most prestigious law firms, following an investigation into the management of employee fatigue. The notice arose from complaints about hours worked for clients who retained KWM to handle the deluge of work arising from the Haynes Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Such was the workload that KWM’s lawyers said they sometimes had to sleep at the office. Back in New Zealand, NZLS’ performance and wellbeing study, released earlier this year, revealed that 46% of lawyers reported they felt burnt out at work and 61% of 18-34-year-olds year said their mental health had suffered as a result of burnout. Research shows a range of workplace risks can impact on a worker’s mental health. If not addressed and left unchecked, they may lead to mental ill-health, illness and physical injuries. According the ADLS’ Health and Safety Law committee, overlooking mental health issues is a significant problem for organisations. Most have health and safety plans in place that identify physical hazards and their associated risks, but few adequately address workplace mental health risks. Obligations under Health and Safety at Work Act 2015 Law (HSWA) HSWA requires all organisations to eliminate or minimise risks to health and safety, so far as reasonably practicable. The Act defines health as both physical and mental health. Organisations are therefore required to identify and assess all risks that could impact on a worker’s mental health and have a management system that sets out controls for these. Most causes of mental health harm in the workplace result from psychosocial hazards. These stem from the design, management or workplace culture and can include factors such as job content, workload, demand and pace, environment and equipment, interpersonal relationships, control and career development. If not managed properly, they have the potential to cause mental or physical harm. While WorkSafe New Zealand is unlikely to intervene in one-off cases, it will consider investigating where an organisation has failed to manage significant mental health risks. Thus, organisations have an obligation to objectively review all psychosocial hazards in the workplace to identify whether they pose possible risks to mental health and carry out regular monitoring to ensure the controls in place are
having and using adequate administration support;
encouraging workers to take regular breaks and to use annual holidays;
providing wellness programs, including EAP, subsidised health care, gym memberships and lifestyle programs; considering flexible work practices;
Myriam Mitchell
providing the right equipment, training and materials;
Organisations have an obligation to objectively review all psychosocial hazards in the workplace to identify whether they pose possible risks to mental health effective and fit for purpose. One of the major difficulties is that individual characteristics impact on whether a person experiences mental harm as a result of a particular hazard. Regardless, steps to eliminate and/or minimise these risks are still necessary.
setting clear job expectations; training managers on mental health issues; and
implementing clear policies on discrimination, bullying and harassment and health and safety.
There are several good online resources on managing mental health, including: Worksafe; Mental health; Well place; Sitesafe. Covid considerations News of Covid-19 vaccines has offered a glimmer of hope that life may return to normal but the uncertainty around the virus and its long-term effects have impacted many people and their mental health. Organisations have been quick to implement physical measures to operate within government guidelines to prevent the spread of the virus, but few have considered the mental health toll on workers or the psychosocial hazards created as a result of the pandemic, such as: reintegration anxiety;
Managing hazards Common psychological hazards can include:
concerns around redundancies;
fatigue; work-related stress and/or burnout;
encouraging good communication and regular contact to promote connectedness;
shorter timeframes and a smaller workforce to complete the same amount of work;
bullying and harassment;
exhausted annual leave entitlements;
discrimination;
financial pressures – personal and work-related;
alcohol; working alone; and violence and threats. None of these is an obvious hazard; mental health issues are often invisible in the workplace. No single psychosocial hazard can be deemed more important than others as the impact varies depending on the individual worker. To manage these hazards, organisations need to determine what workplace factors, systems and processes contribute to them and implement strategies to eliminate – or where that is not reasonably practicable, minimise – their impact. For example, such hazards can be minimised by:
additional work due to Covid-19 restrictions; and working in isolation. Any change to routines, structures and workload can have an impact on mental health and workers may feel vulnerable or anxious as a result. Organisations are strongly encouraged to focus on these considerations, identify risks and understand how workers’ mental health issues can be properly managed. Myriam Mitchell is a senior associate at Copeland Ashcroft Law and a member of the ADLS Health & Safety Law Committee 11
To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278
Featured CPD Civil Appeals: Being Effective in a Civil Appeal In person | Live Stream Covering crucial core content and the latest procedural and case law developments, this seminar will provide a roadmap for lawyers involved in bringing and arguing Civil appeals.
Learning outcomes: Click here
Seminar
Livestream
CPD 2 hrs
Thu, 4 Feb
Presenters: Jim Farmer QC; Jane Standage, Partner, MinterEllisonRuddWatts Chair: The Honourable Raynor Asher QC
4pm – 6.15pm
New Tax Rules for Property or Business Transactions
Webinar
Anticipated to be of relevance for transactions taking effect from 1 April 2021, the new tax rules for purchase price allocation will impact both vendors and purchasers in respect of property and business transactions. Legal advisors will therefore need to be apprised of the new rules, and their tax implications for clients, when deals are being negotiated and agreements are being signed. Presented by an experienced tax lawyer, who has been working with Inland Revenue policy officials in respect of the impending legislation, this webinar will provide key information with practical examples at a vital time.
CPD 1 hr
Learning outcomes: • • • • •
12pm – 1pm
Presenter Helen Johnson, Partner, PwC Legal
Gain a better understanding of what the new tax rules for purchase price allocation are, who they will affect and how they will work. Become apprised of the risks of not allocating purchase price, or of getting it wrong. Gain insights into when obtaining valuations would be advisable, and the type of valuation needed. Benefit from worked examples. Learn about what questions remain unanswered and how these will be addressed in practice.
Essentials to Consider when Considering a Proprietorship Offer In person | Live Stream Just what does a partnership, directorship or other proprietary interest in a law practice mean these days? Are any terms negotiable? What’s reasonable? What’s wise? Are you compatible? Do you have what it takes to be a leader? Can you really achieve a work-life balance? While it’s flattering to be asked, is it truly what you want? In this seminar, our experienced panellists will answer these and other questions for those considering moving up or into a proprietorship, merging practices or reviewing their arrangements.
Learning outcomes: • • • •
Thu, 4 Feb
Become apprised of what’s negotiable and what’s not with a partnership offer, and how to assess the offer on the table. Gain insights into how to conduct due diligence – not only on the practice, but also on yourself. Get across the various financial aspects involved, including buy-in, the capital account, insurances and poor-performing colleagues. Develop a better understanding of what it takes to step up into a leadership role in a firm, what your gaps may be and what to focus on to fill them.
Jumping off the page The use of extrinsic material in the interpretation of contracts and statutes In person | Live Stream The late Justice Antonin Scalia (and RBG bestie) once quipped that “the main business of a lawyer is to take the romance, the mystery, the irony and the ambiguity out of everything [s]he touches”. A large part of that exacting business is the task of interpretation. It is the bedrock of our legal work. Many disputes turn on the meaning of a written contract, or of a statute, or both. Lawyers constantly fret: “what on earth do these words mean?” The answer, often knife-edge, can have enormous consequences. The New Zealand courts have been tightening up their approach to interpretation, re-emphasising the primacy of the text. Judges have admonished parties for excessive reliance on external material that is inadmissible, only remotely relevant, or “singularly unhelpful”. This seminar will explore what may properly be put before the court.
Seminar
Livestream
CPD 2 hrs
Thu, 11 Feb 4pm – 6.15pm
Presenters Denis McNamara, Law Practice Consultant Sam Bassett, Director, Moore Markhams, Chartered Accountants Carmel Byrne, Partner, Stepshift
Seminar
Livestream
CPD 1.5 hrs
Mon, 15 Feb 4pm – 5.30pm
Presenter Gillian Coumbe QC, Barristers at Chancery
Learning outcomes: Click here Mortgagee Sales: Avoid the Pitfalls With businesses closing or downsizing, incomes being affected and jobs being lost, it likely won’t be long before the economic turmoil wrought by Covid-19 plays out in an increase in mortgagee sales. These present a special status and rights. Are you prepared for advising and acting? Providing property and litigation perspectives, this webinar will assist you to advise those contemplating, or confronted with, a mortgagee sale.
Learning outcomes: In respect of mortgagee sales: • Deepen your knowledge of when the process might be commenced, and what is involved. • Explore the options that exist, and trends in play. • Get to grips with the twists and turns the process can take. • Delve into where challenges to a proposed sale might arise. • Gain insights into common traps and complications and how to avoid or deal with them.
12
Webinar CPD 1.5 hrs
Tue, 16 Feb 12pm – 1.30pm
Presenters Nicola Robertson, Director, Sanderson Weir Limited Tony Johnson, Partner, Martelli McKegg
LawNews Issue 44 | 11 Dec 2020
CPD in Brief Future Planning: Alternative Mechanisms for Selling the Family/Small Business
Webinar
Globally, 80% of businesses are family owned, however only 25 to 30% of these businesses will successfully transfer to the second generation, leaving two thirds of business owners to find an alternative mechanism to sell their family-owned businesses. This webinar will focus on preparation for sale, compare sale processes, discuss the value of the business, the role of management or joint venture partners and working with advisors.
CPD 1 hr
Bully or Client – Where is the Line?
Seminar
In person | Live Stream Lawyers are ethically obliged to accept instructions in their practice area from any client, unless they have “good cause” to refuse them. But at what point does the client’s behaviour justify terminating or rejecting an engagement? There has been considerable recent focus on bullying in the workplace, bullying between professionals, and bullying from the bench. We have heard less about the bullying client, and it’s a fraught topic!
Your Legal Business: Practice Management in the Cloud: A Practical Demonstration In person | Live Stream Does practising from the beach, bush or mountains sound appealing? Has Covid-19 got you thinking about the need for a robust yet flexible practice management system? Do you know a bit about the Cloud but would like to know more and understand how it could serve you and your practice? Through the use of a practical demonstration and reference to reallife insights, at this seminar you will be able to see and hear how systems can talk to each other, the sort of problems that operating in the Cloud can solve, and what limitations exist.
Property Law Half-Day Conference 2021 In person | Live Stream Save the Date – More Information to Follow. The Half-Day Conference will again provide practically-focused sessions on a range of pertinent and interesting property law topics presented by experts in their fields. It will be of value to all those practising in the area of property law.
Youth Advocates Conference In Person | Live Stream The Youth Justice system in New Zealand has always been pioneering. It is a brave, exciting, new world and a time to make the most of what the Act, the Convention and the Treaty offer. The Youth Court is a specialist jurisdiction, requiring Youth Advocates to have special characteristics in order to be appointed, and special skills to do their work in addition to their legal skills. This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom. The conference will focus on: The Youth Court, Family group conferences, Arrest, Police procedures and remands, Disposition – sentencing
Wed, 17 Feb 12pm – 1pm
Livestream
CPD 1.5 hrs
Thu, 18 Feb 4pm – 5.30pm
Seminar
Livestream
CPD 1.5 hrs
Mon, 22 Feb 4pm – 5.30pm
Conference Livestream CPD 4 hrs
Thu, 25 Feb 12.30pm – 5pm
Conference Livestream CPD 4 hrs
Fri, 26 Feb 10am – 2.30pm
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.
Becoming an Accounting-Savvy Lawyer Thursday 18 March | Seminar & Live Stream | 2 CPD hours Visit adls.org.nz for more information.
13
MEDIATION Nigel Dunlop Barrister
Experienced Property Lawyer Required • Quality, varied work
• Mentoring
• A medium-sized firm with great prospects of advancement and succession
EXPERTISE & EXPERIENCE Recognised industry experts. Serving legal documents for over 30 years.
We are looking for an experienced property-based lawyer who is interested in good and rewarding work on a wide range of investments and transactions. We are seeking a person with between 5 and 10 years’ experience who is clientfocused and has excellent interpersonal and communication skills and is able to competently manage files. We see a long-term future within the firm including partnership prospects.
Fast, professional, nationwide process serving for solicitors and government agencies.
If you wish to apply in confidence for this position please email: jradley@lovegroves.co.nz
P: (09) 302-2476 E: team@docuserve.co.nz W:www.docuserve.co.nz
021 685 910 nigel@nigeldunlop.co.nz www.nigeldunlop.co.nz
Offices Available Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes. The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area. Telephones, internet connection, printing and secretarial services also available and some furniture available. Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required. Photographs of the Chambers can be viewed at www.hco.co.nz/gallery. Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481
SOUTH AUCKLAND LAW PRACTICE FOR SALE A highly profitable boutique law practice with a large and longstanding client base offers the potential for both lifestyle and success for a general practitioner. Situated in the South Auckland area, this is a unique opportunity to walk into a solid and ever-expanding profitable base of private and small to medium business clients. The practice has a substantial conveyancing, commercial, trusts and estates clientele with room to expand into civil litigation and family law. The possibilities are endless for an ambitious general practitioner. Very flexible arrangements are available for transition to the new ownership. Expressions of interest c/- Matthew Pasley, Keegan Alexander, Lawyers Auckland, mpasley@keegan.co.nz
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
14
Lovegroves is a long-established successful law firm with quality clients.
Applications should include a covering letter detailing relevant experience, CV and academic transcripts.
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 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. Basil David DUTCH, Late of 1/3 Flaxdale Street, Birkdale, Auckland, retired electrician, aged 78 (died 09’04’19) Alan Edward FITZJAMES, Late of Auckland, retired office manager, aged 69 (died 18’06’20) Norman William GOOD, Late of 72 Aranui Road, Mt Wellington, Auckland, truck driver for L W Bonney and Sons, aged 64 (died 18’10’20) Jason Andrew HAIGH, Late of 12 Karina Place, Glen Eden, Auckland, yardsman, aged 45 (died 06’11’20) Alison Margaret INGHAM, Late of 67 Whitakker Road, Rotorua, aged 61 (died 07’12’19) Wen LUO, Late of 53 Chequers Avenue, Glenfield, Auckland, aged 51 (died 19’02’20) Kenneth George RAFFERTY, Late of 5A Inkerman Street, Onehunga, Auckland, single, retired, aged 70 (died between 08’11’20 & 13’11’20)
LawNews Issue 44 | 11 Dec 2020
LITIGATION LAWYER – PQE 1-4 YEARS
Trustees (2) Auckland Community Law Centre is looking to appoint two new trustees, including a new Chairperson, who can bring fresh thinking and energy as we implement our new strategic plan. We are looking for people prepared to make a commitment for 2-3 years. You will be a lawyer qualified to practise on your own account, with strong connections at senior levels of the profession, strong connections to your community, and experience in governance.
LeeSalmonLong is a fast-paced, thriving Auckland City-based, specialist commercial litigation firm. We are looking for talented litigation lawyers with one to four years’ post-qualification experience to join our respected firm. We challenge our lawyers to develop their legal experience in a working environment that offers a high degree of mentoring. Our lawyers work on a range of files and engage in high levels of client contact and file responsibility in a modern working environment. They also work directly with external counsel and senior counsel and are given opportunities to develop their own ‘brand’. Our lawyers regularly appear in the District, High and Appellate courts, in arbitrations, specialist tribunals and mediations. This is an opportunity not to be missed.
You will be passionate about promoting access to justice and be able to demonstrate your commitment to it. You will have opportunities to engage with senior members of the profession on the future of access to justice, including the judiciary, regulators, professional associations and policy makers. Candidates for Chairperson will also have strong leadership and governance experience. While these are voluntary roles, the trust has discretion to provide small honorariums. To apply for these roles please email a short cover letter and CV (one page is sufficient) to: Darryn Aitchison, General Manager, at: recruitment@aclc.org.nz Applications close 18 December 2020 A full overview of the roles can be viewed here.
If this position sounds like you, please email in confidence your CV and impressive academic record to: kiaora@lsl.co.nz
Relationship Property Lawyer Established busy, expanding, central city law firm. 1 principal, 1 senior lawyer, 2 junior lawyers, supporting law clerks and up-to-date systems. Seeks to engage an experienced Relationship Property Lawyer. Partnership and practice acquisition opportunity. Contact; Warwick Wright, RAINEY COLLINS WRIGHT LAWYERS Mob: +64 27 294 4102, Email: wwright@rainey.co.nz
Upcoming events in February •
Civil Appeals: Being Effective in a Civil Appeal
•
Essentials to Consider when Considering a Proprietorship Offer
•
Jumping off the page
•
Mortgagee Sales: Avoid the Pitfalls
•
Future Planning: Alternative Mechanisms for Selling the Family/Small Business
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz
15
Continued from page 10 Resentment thrives when there is a power imbalance, such as when:
Most of a fledgling sole practitioner’s revenue stems from an extremely demanding, disorganised and belligerent client.
lead to the promising senior associate opposing initiatives put forward by her sponsor partner once she is elected into partnership
A senior associate believes his or her only chance of promotion lies in being the executor of deals for a partner who blocks the associate’s ability to build relationships with clients and leaves them to churn out the work behind the scenes.
cause the junior associate to make disparaging comments about his supervisor to his peers.
A junior associate looking forward to an evening at the theatre arrives at work early to finish a draft advice which he then sends to his supervisor by 9am, only to (yet again) receive his supervisor’s comments 5 minutes before he is hoping to leave the office.
Unresolved resentment Resentment breeds disconnection and separation in relationships. It closes us to people and possibilities and stifles action and commitment between the affected parties because it motivates us to get even. Using the examples above, if left unresolved resentment could: destroy the rapport between the sole
practitioner and her client
Unfortunately, dealing with resentment is not as easy as simply recognising its existence. Once it is acknowledged, what is the next step? Echeverria describes the opposite of resentment as peace or acceptance, or otherwise coming to terms with that which you cannot change. Drawing from the work of Echeverria in his paper The Four Basic Moods About Life, here are some ways you can shift out of resentment:
Examine the accuracy of the allegation fuelling the resentment. For example, is your sponsor partner blocking you from forming deep relationships with clients or is something else at play? Put your lawyer skills to use and pull together a counter-argument for your allegation. If it can be substantiated, move onto the next step.
Assess whether you really cannot do anything about the situation. Much of human suffering
is said to stem from our inability to ground our views about what is possible. Can you speak up, make a complaint or ask that this situation does not happen again or even seek some form of compensation for the “unfair” treatment?
For the sake of your own freedom from resentment and the relationship at stake, can you forgive? In this context, forgiveness means not letting what happened in the past interfere with future possibilities to work together.
If forgiveness is not possible and you consider the wrongdoing is unacceptable, is it time to close that relationship? If not, consider whether you can:
a. create clarity around the expectations and promises that are at the core of the relationship; or b.
rebuild the relationship based on open communication and dialogue so concerns are raised promptly with little time for the seeds of resentment to be sewn.
The next time you find yourself lamenting unfairness, consider the concept of resentment and whether you can move towards acceptance. This could preserve the relationship or improve a situation while also asserting your personal leadership and managing your wellbeing.
Youth Advocates Conference Friday 26 February | 4 CPD hours In Person & Live Stream
This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom. Click here to view the full brochure
T 09 303 5278
16
E cpd@adls.org.nz
W adls.org.nz