ISSUE 918 · June 2018

The rise of the internet shadow economy

Page 46

Can true Embracing Why some Mentoring: statements be Diversity lawyers are helping those "unreliable"? underproductive who need it

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People in the law Mediation 6 · Crown Solicitor owes 29 · Embracing it to freezing worker Diversity ▹ BY PAUL SILLS dad ▹ BY NICK BUTCHER 9 · On the move Access to Justice 31 · New Zealand's ranking improves new Zealand Law Society in the latest WJP Rule of Law 12 · From the Law Society Index ▹ BY AUSTIN FORBES QC 13 · New Zealand Law Society Tikanga and Ture Update 32 · Me rehe te matau, me rehe 20 · AML/CFT: What happens on te mauī! ▹ BY ALANA THOMAS 6863 1 July? ▹ BY NICK BUTCHER 21 · Interlocutory applications and Changing our Culture appeal rights ▹ BY KATE CORNEGÉ 34 · Developments 24 · Can true statements be 38 · Take steps towards a new story: "unreliable"? ▹ BY YASMIN Bullying or harassment involving MOINFAR-YONG clients ▹ BY VALERIE BLAND 26 · Survivor stories help 40 · Canterbury law studends shape state care abuse discuss sexual harassment inquiry ▹ BY LYNDA HAGEN and bullying in the 27 · What are your Common profession ▹ BY NICK BUTCHER Reporting Standard 44 · Ontario's anti-discrimination obligations? ▹ BY JOANNE and harassment POOLE, MICHAEL WEBB programme ▹ BY ANGHARAD AND JACQUI MATHESON O'FLYNN 8898

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Future of Law 72 · The value of CPD: Legal Information 46 · The rise of the internet shadow A collaborative 84 · Cross-Examination: Science economy ▹ BY DAMIAN FUNNELL team ▹ BY KEN TRASS and Techniques ▹ REVIEWED 50 · Blockchain and the law - BY GARRY WILLIAMS irrevocable record systems and Practising Well smart contracts ▹ BY KEN MOON 73 · Mentoring: how the Law in Practice 52 · Blockchain and profession helps 86 · Mass offence does not equal bitcoin - a technology those who need hate speech ▹ BY ANGHARAD backgrounder ▹ BY KEN MOON it ▹ BY CRAIG STEPHEN O'FLYNN 54 · Contract management: Keeping 75 · Adopt the giving it simple ▹ BY GEOFF ADLAM lifestyle today. Now, with Classifieds 55 · Improving the connections boundaries! ▹ BY KATIE 88 · Will notices with a legal operations COWAN 89 · Legal Jobs platform ▹ BY ANGHARAD O'FLYNN 77 · What to do when 91 · NZLS CLE Ltd CPD Calendar 56 · Developments exercise doesn't work ▹ BY RAEWYN NG Lifestyle Practice 94 · A New Zealand Legal Crossword 58 · Advising non-English 79 · Lawyers Complaints 95 · A Golden Oldies referee's speakers ▹ BY ALAN SORRELL Service tale: Fun, Friendship and 61 · How to keep on top of Fraternity ▹ BY DON THOMAS tax ▹ BY FRANK NEIL In-house 96 · TV show that revelled in 63 · Focus on Taupo ▹ BY CRAIG 80 · Ten good reasons for the hedonism and the STEPHEN spending a very long time agonies of young lawyers 66 · Why some lawyers are on a plane ▹ BY GABRIELLE ▹ BY CRAIG STEPHEN underproductive... and what to O'BRIEN do about it ▹ BY EMILY MORROW 82 · Global challenges and 98 · Tail-end 68 · Small-Medium Law Firm Viability opportunities for in-house 101 ▹ BY ROB KNOWSLEY lawyers ▹ BY HELEN MACKAY

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5 PEOPLE IN THE LAW · PROFILE June 2018 · LAWTALK 918

PEOPLE PROFILE Crown Solicitor owes it to freezing worker dad

BY NICK BUTCHER

Mary-Jane Thomas broke the education mould when she began her legal university studies over 30 years ago: no one in her family had ever attended university. “My father was a freezing worker who left school at age 14. From the time I was five years old, he told me I’d be a lawyer. Apart from once considering journalism and toying with medicine, I knew I’d be a lawyer,” she says. Miss Thomas, who is of Ngai Tahu descent, was admitted in 1990 after gaining a First Class Honours LLB at the University of Otago. “My father didn’t have a formal education. He told me the only way to get through life was to get an education. Zealanders and even visitors, but Miss Thomas possesses He pushed that point with me even before I started a strong fondness for the city where she grew up on a school.” stud horse farm. She is a harness racing enthusiast to Some people might think that impressing such values this day. on a child before she could tie her shoelaces is overly “We still have horses. My marriage broke up a while serious and even authoritarian, but that isn’t how Miss ago so I moved back home with my parents. My dad is Thomas views it. nearly 80 years old and still trains the horses. He’s not “Nobody from both my parents’ sides of the family so good at driving anymore so my job is to drive the had ever gone to university. Very few had even finished float with the horses,” she says. secondary school. For us it was a really big deal. The Miss Thomas draws comparisons between horse truancy officers used to chase my father down because trainers and lawyers, saying they have a few tricks in he had left school and was working at what was the common. Makarewa Freezing Works. It was kind of ironic that he “They’re the eternal optimists. There’s no such thing was so keen for me to get an education yet he ran far as a bad race for a trainer – just a work in progress. It’s away from his,” she says. helpful when you’re a lawyer to be an optimist otherwise you just couldn’t do it. There are often a lot more bad Born and bred in the Deep South days than good days. I tell my young lawyers that at Mary-Jane Thomas was born and raised in Invercargill. work when you’ve had a day where things have gone She is a managing partner at Preston Russell Law, where well and you look like a rock star in court, savour it. You she became partner at 27. need to enjoy it,” she says. She was also the first woman to gain appointment as Crown Solicitor from a private firm. Hard work – then more hard work Invercargill often gets a bad rap from fellow New Mary-Jane Thomas didn’t consider the level of her degree

6 LAWTALK 918 · June 2018 PROFILE · PEOPLE IN THE LAW

as a major achievement at the time. “One of the nicest things anyone has ever said to “Again, because none of us had ever been to university. me was actually from one of our young partners who When I was growing up, my dad never really accepted described me as both a great teacher as well as a great anything other than top marks. So if I got 90% in an lawyer. Not all lawyers like me, as I can be pretty bloody exam at school, rather than say ‘that’s really good’, he tough but I genuinely like mentoring young lawyers,” would ask me who got the top mark. she says. “I’m not saying this was a good thing, but I remem- ber the day my father dropped me off in Dunedin for The lure of the courtroom university. He hugged me and said, ‘now go and beat Reflecting on her long legal tour of duty in the courtroom, them’. That’s just the way he was. I did work very hard. Miss Thomas says it’s the drama and pressure that draws Sure, I’m a reasonably bright person, but I’m also a really her in and keeps her grounded. hard worker. In saying that, I’d rather employ people “I like the theatre of it. You’re thinking on your feet. who are hard workers but less academic than an overly You have to know the law of evidence and it’s not the clever person who doesn’t know how to work,” she says. law of evidence where you get to think about it for 20 Miss Thomas believes super intel- weeks and then write an opinion. Anything you can do lect in law isn’t necessarily the key as a prosecutor can be appealed so every time you say to being good at practising law. a word wrong, you tend to think ‘will there be a person “No, because so much of law is on the Court of Appeal judging me on this’?” graft, tenacity and resilience. Just Miss Thomas says lawyers have to be incredibly tight being clever means that you can with their words in the courtroom. write a decent opinion but most “I teach this to our young lawyers. I tell them to be of what we do is much more than aware of what the words they use mean. Be aware of that,” she says. what they sound like because everything you say in the courtroom has a meaning or a point, and as a prosecutor Staying in law for you can have a safe verdict on everything other than nearly 30 years When I was ‘you said something stupid’. That could mean you have “I have a few friends who are judges. growing to do the whole thing again, and the victims of a crime It tends to happen when you’ve up, my dad have to go through it all again.” been involved in law this long. My never really friend, a judge, told me she felt that accepted Turning defence lawyer? I irritatingly enjoyed the law. She anything Mary-Jane Thomas says people have told her that she considered me lucky because of other than would excel in defence law. that. She said the extent to which top marks. So “I would be able to be far more less-restrained. I I enjoyed the law actually irritated if I got 90% would, however, have a problem defending child sex her. But I do love court. I could never in an exam at abuse cases. I’ve seen the devastation caused in our be a conveyancer.” school, rather society. There are some murderers I’ve prosecuted and, In law you’re often passing on than say supposing they were eventually released, I could sit with knowledge especially when you’ve ‘that’s really some of them and have a drink and talk. I understand had a long career. good’, he how people can murder people despite it not being And Miss Thomas has taken the would ask me justified but I cannot understand people who sexually time over the years to help young who got the abuse children. I don’t think I could cross examine a lawyers. It’s something she savours. top mark. child either,” she says.

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7 PEOPLE IN THE LAW · PROFILE June 2018 · LAWTALK 918

Miss Thomas says as a prosecutor her job is not to back on that matter wondering if I could have done strive to win. things differently. “The most difficult and challenging offending I -pros “Ironically I do not look back on any of the ‘convic- ecute is sexual offending and it is particularly hard tions’ at all. As I said, one tends to remember, I think as to prosecute where the alleged offending is against a prosecutor, the convictions with a sense of relief and children. In those cases there truly is no positive out- the acquittals often with concern you have let people come, ever. Over the years my focus has changed and if down,” she says. I know (whether there is a conviction or not) that I have competently prosecuted and allowed the complainant Blokey stuff to be heard I am content,” she says. Miss Thomas has two sons and she’s passionate about rugby. She represented the Southland province women’s Black humour to cope team. The criminal courtroom exposes all who enter it to “I’m on the board of Rugby Southland. My boys play harrowing details. rugby. I probably spent a decade serving hot chips at Mary-Jane Thomas says a little black humour has the Blues Rugby Club. I’m very good in the kitchen,” helped many lawyers and police get through some of she says. the most horrific of cases. Her eldest son, 17-year-old Thomas, is head boy at “You have to be tough and people ask how I deal Verdon College, the same school that Miss Thomas was with it. Well, somebody has to do this work. Humour head girl of more than 30 years ago. Her younger son is a great remedy,” she says. Alex is 12. However, as strong as she may appear in the warring “I’m quite blokey. I spend time with my kids, go to set of a courtroom, Miss Thomas says she can’t stomach the horse races and watch a lot of rugby.” movies that show lots of blood. The apple doesn’t fall too far from the tree and she “I can’t go to war movies. It upsets me too much. I has offered some similar career advice as her father couldn’t watch Saving Private Ryan. I can’t go to movies gave to her children. where people die. I’m just unable to view it as fiction. “I just say, whatever you choose I still haven’t seen Sophie’s Choice. I see enough horror to do, do something you enjoy in my work and don’t need to go to the movies to see and be really good at it. That’s more of it.” my father coming through me,” But while some may question the use of black humour she says. in criminal law, it needs to be remembered that some While most of her working life criminal lawyers are prosecuting the worst of society. has been in Invercargill, Mary-Jane spent five years with Crown Law Feeling relief after a in Wellington in the early stages of successful conviction “I can’t go to her career. Satisfaction isn’t a word that Miss Thomas would use war movies. “I had a husband and a baby. I’d to describe winning a case before court. It upsets me wanted to become a Crown solic- “As a prosecutor I never feel anything after a con- too much. I itor. We wanted to have one of us viction for something like murder or serious offending couldn’t watch at home with the children, so we other than relief. The problem about what we do is that Saving Private decided that I would be the main there are still victims. I often say to families of murder Ryan. I can’t breadwinner and he would stay at victims that we can’t make it any better, they have go to movies home with the kids, and we moved still lost somebody they love. To that extent, therefore, where people back south.” really you are on a hiding to nothing as a prosecutor die. I’m just Along with prosecution, she because I think when you get a conviction you are still unable to view leads the Employment Law team left with a sense of profound sadness. And when you it as fiction. at Preston Russell Law. do not get a conviction you are left with a sense either I still haven’t “It’s a good balance because of disappointment or concern that you may not have seen Sophie’s I act for employees. It’s sort of done a good enough job,” she says. Choice. I see my defence work in a way. I’m And when a case doesn’t go a prosecutor’s way, it’s enough horror acting for the underdog. I’m not not an easy outcome to stomach. in my work as restricted because when I’m in “I have experienced a situation where a conviction and don’t need the Employment Court, I’m not for murder was not gained and I believe it should have to go to the representing the Crown. I get to been. I felt personally responsible for that and although movies to see be a normal lawyer, it’s quite fun,” this happened many years ago I have continued to look more of it.” she says.

8 LAWTALK 918 · June 2018 ON THE MOVE · PEOPLE IN THE LAW

PEOPLE ON THE MOVE

Justice Francis Cooke Sir Terence Arnold QC District Court Judge, has been appointed sworn in awarded honorary to be an Acting District Court Judge and doctorate to exercise the jurisdiction of the Family Francis Cooke QC was Court. Judge Strettell has been appointed sworn in as a Judge Former Supreme Court for a term of one year commencing on 6 of the High Court in judge Sir Terence October 2018. Wellington on 4 May. Arnold QC was awarded Justice Cooke graduated an honorary Doctorate Sandra Braithwaite LLB(Hons) from Victoria of Laws at a Victoria appointed Harkness University in 1989 and University of Wellington Henry partner LLM from the University graduation ceremony on of Cambridge in 1990 before joining the 16 May. The honour was Sandra Braithwaite has UK office of international law firm Ashurst an acknowledgement of Sir Terence’s been appointed a part- Morris Crisp as a foreign solicitor. outstanding leadership as a senior judge ner of Harkness Henry. In 1992 he returned to New Zealand and and former Solicitor-General, as well as Sandra was admitted as began practice as a solicitor at the Wellington his career in private practice and as a legal a barrister and solicitor office of Chapman Tripp. He left Chapman educator, Victoria University Chancellor in December 2004 and Tripp in 1994 to join the independent bar Neil Paviour-Smith said. holds an LLB(Hons) with and was appointed a Queen’s Counsel in Sir Terence graduated from Victoria first class honours. She 2004. He argued a number of significant University with a BA, majoring in Classical practised as a chartered accountant for cases before the higher courts including the Greek (1968), and a LLB(Hons) in 1970. He 18 years before joining Harkness Henry leading Supreme Court decisions concern- was subsequently awarded an LLM in in 2004. Sandra has expertise in commer- ing the proposed extension to Wellington 1972 and lectured at Victoria University’s cial contracts, business transactions and Airport, the challenge to the Ruataniwha Faculty of Law before completing an LLM in structures, business financing, residential Dam Project and the Quake Outcasts case Criminal Justice from New York University property, commercial property, trusts, wills in Christchurch. He also appeared in many and lecturing for several years in Canada. and estate planning. leading commercial cases. On returning to New Zealand, Sir Terence Justice Cooke is the third generation of re-joined the Faculty of Law at Victoria Stephanie Grieve his family to be appointed to the bench. University. He then moved to Chapman commences practice He is the son of Lord Cooke of Thorndon Tripp and became a partner before join- as barrister ONZ, KBE, PC, QC, and the grandson of ing the bar in 1994 and being appointed Justice Philip Cooke QC, MC. He will sit a Queen’s Counsel in 1997. After serving Stephanie Grieve in Wellington. as Solicitor-General from 2000 to 2006, has started practice he was appointed a judge of the Court as a barrister sole at of Appeal before being appointed to the premises in High Street, Supreme Court in 2013. He retired in 2017. Christchurch, specialis- Writing for LawTalk ing in civil litigation and Submission of articles to LawTalk Acting District Court insurance. Stephanie is welcomed. Please contact Judge appointed was admitted in 1997 the Managing Editor, editor@ and was a litigation partner with Duncan lawsociety.org.nz in advance. All John James Dashwood Strettell, retired Cotterill from 2011. Before that, she was articles must not have appeared elsewhere, although there are no objections to them subsequently being republished. Articles should be submitted as a MS Word doc- ument by the agreed deadline. Authorship of an article must be shown. Articles will be edited and appear at the discretion of the New Zealand Law Society. Footnotes are avoided and articles of up to 1800 words are preferred.

9 PEOPLE IN THE LAW · ON THE MOVE June 2018 · LAWTALK 918

a partner in the Christchurch office of in professional disciplinary work including representatives. This appointment follows Anderson Lloyd for seven years. She has prosecutions, appeals and advisory work. Maria’s other appointments in interna- advised and appeared on many earthquake She is also involved in a variety of regulatory tional sport including as Chairperson of claims, professional liability and discipli- prosecutions, and civil proceedings for both the Working Group on Governance and nary matters and regulatory offences, in public and private sector clients. Integrity Reform for the world governing particular health and safety prosecutions. body for Athletics, the IAAF. She has also Paul Holth joins been appointed independent chair of the Three new senior Kensington Swan World Sailing Governance Commission. associates at Luke partnership Cunningham Clere Dylan Gould moves Paul Holth has joined Kensington Swan to Jon Webb Wellington Crown solicitors Luke as a partner in the national property team Cunningham Clere have appointed three and will be based in Wellington. Paul is Dylan Gould has joined Waikato law firm lawyers to senior associate. an experienced commercial property and Jon Webb as a solicitor. Dylan was admit- Catherine Gisler has construction lawyer and has advised both ted as a barrister and solicitor in March BA and LLB degrees from private sector and Government clients 2011 and formerly worked at BSA Law and Victoria University of through property and construction related Lewis Lawyers. Wellington. She was issues, including the NZ Transport Agency. admitted as a barrister Tom Elvin now Mackenzie and solicitor in 2010 and International sports Elvin partner worked as a Crown pros- law appointment ecutor in Whangarei, a for Maria Clarke Tom Elvin has been Police Prosecutor and a Judges’ Research appointed a partner of Counsel before joining Luke Cunningham Maria Clarke, of spe- Tauranga firm Mackenzie Clere. Catherine is a Crown Prosecutor who cialist sports law firm Elvin. Tom graduated conducts criminal prosecutions in both Maria Clarke Lawyers, from Otago University the District and High Courts on behalf was recently appointed and was admitted in of the Crown and various government Vice-Chairperson of the December 2010. He departments. Her practice also includes International Paralympic began his career in regulatory enforcement and professional Committee’s Governance Auckland before moving to Tauranga to disciplinary work. Review Working Group. join the firm in October 2015. He specialises Andrew Britton has BA The IPC is undertaking an extensive review in commercial property, construction and and LLB(Hons) degrees of its governance structures for the first general property law, including business from Auckland University, time since 2004 with the aim of strength- and property acquisitions and disposition, a MPhil from Cambridge ening its position as a world leading commercial leasing, construction contracts University and a MSc sports organisation. The purpose of the and business start-ups. from Oxford University. review is to assess the decision-making He was admitted to the structures within the IPC, and to make Jessica Palmer new Dean bar in 2009 and began recommendations on any changes to the of Otago Law Faculty his career at a commercial law firm in IPC constitution, rules and bylaws. Auckland before moving to New Plymouth The eight member Working Group is Professor Jessica Palmer has been to work as a Crown Prosecutor. He joined chaired by Duane Kale (IPC Vice-President) appointed Dean of the University of Otago Luke Cunningham Clere at the start of who is also from New Zealand, and fea- Faculty of Law. She succeeds Professor 2017. Andrew is experienced in criminal tures representatives from all regions of Mark Henaghan, who stepped down from prosecution, regulatory enforcement and the world, as well as athlete and sport the role of Dean on 6 April after 19 years. civil litigation and acts for a range of mainly public sector clients. He regularly appears in the District and High Courts. Adèle Garrick has BA and LLB(Hons) degrees from Victoria University of Wellington and was admitted in 2014. Before joining Luke Cunningham Clere she was a Judge’s Clerk in the Supreme Court. Alongside her role as a Crown Prosecutor, Adèle has particular experience

10 LAWTALK 918 · June 2018 ON THE MOVE · PEOPLE IN THE LAW

Professor Palmer holds BCom, LLB(Hons) criminal work. She is cyber risk practice. and LLM degrees from the University of Lawyer for Child, a Youth Courtney Brooke has six years’ expe- Auckland and an LLM from Cambridge Advocate, prosecutes for rience and has been with the firm for the University in England. She joined the Otago the SPCA and is a com- past two years. She spent four years in University Law Faculty in 2005. Before that mittee member of the London, where she specialised in financial she worked at a large commercial law firm Criminal Bar Association. services regulation, particularly wholesale and as a Judges’ Clerk at the Auckland High Bruce Hesketh was banking and unauthorised investments Court. She won the Law Foundation’s Ethel admitted in 1995 and schemes. Courtney works on both general Benjamin Prize in 2004 and completed an has worked most of his civil litigation and insurance matters. LLM at Cambridge as a result. In 2015 she career in the Waikato Bay won the University of Otago Rowheath of Plenty. He is a former Georgina Leslie joins Trust Award and Carl Smith Medal for out- President of the Waikato Ford Sumner standing scholarly research achievement Bay of Plenty branch of across all disciplines. Her research interests the Law Society and was Georgina Leslie has include the law of obligations, restitution, Deputy Public Defender in joined Ford Sumner equity and commercial law. charge of the Wellington Lawyers in Wellington Professor Henaghan has been with the office over 2015/16. He returned to the Bay of as a senior lawyer. Otago faculty for 41 years and will remain Plenty and private practice in 2016. Admitted to the bar in at Otago as a researcher and lecturer until 2012, Georgina’s experi- the end of the year when he will take up Kieran Heenan becomes ence includes commer- a new professorship at the University of Meares Williams partner cial, corporate, ICT and Auckland Law School. consumer matters. Kieran Heenan has been Duncan Cotterill appointed a partner at Wendy Andrews joins appoints two partners Christchurch firm Meares Blackstone Chambers Williams. Kieran gradu- Duncan Cotterill has appointed two part- ated from the University Wendy Andrews has ners to its Wellington team. of Canterbury with LLB commenced practice Hamish Walker joins the commercial and BA(Hons) degrees as a barrister sole at team from another Wellington firm. and was admitted as a Blackstone Chambers, Hamish was admitted in December 1999. barrister and solicitor in June 2008. He Auckland. He is experienced in acquisitions and specialises in property and commercial law. Wendy was admitted sales, structuring, financing, shareholder to the Bar in 1992. She agreements, joint ventures, governance, FairWay appoints has a broad range of civil, compliance, and contracts. His property Principal, Dispute family and criminal experience. Wendy work involves both residential and com- Resolution was a senior associate at Anderson Lloyd mercial property, and his private client and senior prosecutor and associate at work includes family trusts, asset pro- Denise Evans has been promoted to the Meredith Connell. tection, and estate planning. role of Principal, Dispute Resolution at She practises in civil law, relationship Olivia Grant works in the Wellington liti- FairWay Resolution Ltd. Denise is a lawyer, property and estate and trust litigation. She gation team. She was admitted in November mediator and arbitrator with over 30 years’ is also available to take private and legal aid 2008. Olivia acts on statutory liability claims, experience in the dispute resolution indus- briefs in criminal and regulatory matters. professional indemnity and disciplinary try. Reporting directly to FairWay’s Chief matters, WorkSafe investigations and prose- Executive, Denise maintains oversight of cutions, compliance and the implementation FairWay’s Commercial Services. Contributing information of health and safety policies and procedures, to On the Move in a range of industries. She also advises on Fee Langstone LawTalk is happy to publish a brief all aspects of employment law. promotes two summary of information about pro- motions, recruitment and retirement Adams Hesketh Fee Langstone has promoted two of its staff of members of the legal profession. to the role of senior solicitor. There is no charge. Information can Rachael Adams, Principal of Adams Law, Imogen Allan’s work regularly involves be sent as an email or a MS Word and Bruce Hesketh, barrister, have joined negligence claims, civil litigation and document to editor@lawsociety. their respective practices to form the new disciplinary complaints against profes- org.nz and should be three or four Tauranga firm of Adams Hesketh. The firm sionals. She also reviews indemnity issues sentences without superlatives. specialises in family and criminal litigation. and insurance policy wording to ensure A jpeg photo may be included. Rachael Adams was admitted in 1984 and compliance with regulatory and legal Information may be edited. practises predominately in family and requirements. Imogen is part of the firm’s

11 NEW ZEALAND LAW SOCIETY June 2018 · LAWTALK 918

NEW ZEALAND LAW SOCIETY

Embracing the power of real disruption

at itself. Why were we unaware of research report which is available on the Law Society these allegations? Why were we not website and which is also included in a link in an email aware of the potential scale of these which I am sending to all lawyers. problems? What about us stopped But by way of a very short summary: these women from talking to us? • Nearly one third of female lawyers have been sexually Why had we not been providing harassed during their working life; 17% in the last the appropriate cultural leadership five years. that our sector clearly – and now • Two-thirds of lawyers who had experienced sexual somewhat obviously – needs? harassment reported unwanted physical contact. As an organisation, we committed • 10% of female practising lawyers recalled five or more to change. It started with doing incidents of sexual harassment over their working life. something unique in our 150-year • 7% of lawyers who had experienced harassment history – we asked all 13,600 lawyers within the last five years made a complaint about it. to provide us feedback in a scien- • 51% of lawyers reported being bullied at work. tific survey exploring the safety of • 21% of lawyers reported being bullied in the last six lawyers in their workplaces, with months. a focus on sexual harassment and • 35% of Pacific lawyers and 34% of Māori lawyers We live in a world of increasing bullying. reported bulling behaviour in the last six months. disruption – most obviously in The survey was run by Colmar • 61% of lawyers who had been bullied said this affected areas such as artificial intelligence, Brunton, it was completed by 3,516 their emotional and mental wellbeing. robotics, technology and transport. lawyers and has a margin of error • 24% of those bullied resigned from their jobs as a But increasingly whole industries of 1.7%. direct result. are being disrupted by a very dif- This issue of LawTalk comes out • 40% of lawyers believe major changes are needed to ferent, but equally powerful force: on the day on which I have made the their workplace culture. the courage of individuals to speak full findings of the research publicly Unfortunately, I could go on. The report also identifies out against injustice and inequality. available to every New Zealander very concerning feedback about workplace stress and Think Weinstein in the United because the results are nothing work-life balance. States and the #MeToo movement. short of disgraceful. As a profession, Through what our own people have told us, it is crystal But this disruption is not confined we must be ashamed and embar- clear now that we have a serious and systemic cultural to other countries. This is happen- rassed at what our people have told problem in our profession. We are failing to keep our ing to our profession as we speak. us. I am also deeply saddened at the people safe, we are compromising their human rights Courageous young women have situation we are in and I am sure and we failing to treat all people with respect and taken a stand and told their stories many members of our profession consideration of the concepts of justice and equality. of sexual harassment and discrim- will be feeling the same. Thank you to the women who kicked this off and who ination within our community. In I’m not going to be accused of gave us the impetus to seek answers to these questions. doing so, they have empowered deflection here and talk about what Before we can make positive change, we must be clear other women to tell their own may or may not happen in other on the problem – there is no doubt now as to what the stories and demand change across businesses and professions. This problem is and change will start now. other industries, government survey is about the New Zealand I’m committed to the Law Society providing the departments and not-for-profit legal profession and nobody else. cultural leadership that we have not provided to date. organisations. We must collectively own the prob- I’m committed to tackling these issues in our profes- The courage of these young lems this report highlights and each sion head on and directly. I’m sorry to the members of women telling their stories of of us commit to stomping them out. our profession that we’ve been surprised and caught suffering sexual abuse in the legal I ask that every New Zealand out by these results and that we haven’t provided the profession has forced the Law lawyer makes time to read and cultural leadership and advocacy that our profession Society to have a good hard look seriously consider the full 50-page so obviously needs.

12 LAWTALK 918 · June 2018 NEW ZEALAND LAW SOCIETY

Our profession now needs greater leadership than at any other time in its history – from the Law Society, from me and from every single lawyer working in this country. Our profession is now in the middle of a serious dis- ruption. This is a very positive thing which we must embrace. It is a gift from the courageous young women who have shone a light into the corners of our profession that have been kept under wraps for too long. It is a disruption driven by what every one of us is committed to standing for – justice and equality. So, we’re clear that we have serious problems that must be solved. I believe this process of change is already underway and I ask you as a lawyer in New Zealand to ensure you are personally active in driving this change wherever it is needed. Accessing Commissioning this research and then sharing it as transparently as possible is an important step on LawTalk online this journey of change. The next step is the immediate establishment of a taskforce to drive cultural change All lawyers holding a practising certificate are and eliminate bullying and sexual harassment from sent an email upon publication of each issue of our profession. LawTalk with links to online versions of most These will be voluntary positions that work alongside of the articles and a PDF and flipbook of the the Law Society’s regulatory working group that has whole issue. The hardcopy LawTalk is sent been set up under Dame Silvia Cartwright and we are automatically to all New Zealand-based lawyers now calling for expressions of interest. I urge you to who hoId a current practising certificate. If you strongly consider putting yourself forward for one of want to access LawTalk online only you may these positions – my email to you states how to do this, email [email protected] stating or check the Law Society website. “Please cancel LawTalk hardcopy” and advising Many of you will be reading this and saying, ‘that’s not your name, lawyer ID (lawyer login), workplace me’. That might be true on one level. But on another level and address. This information is needed to every single one of us is accountable for the behaviour ensure that your name is extracted from the we observe and tolerate. It’s clear that we’ve all been automatic mailing list generation program. tolerating far too much. The hardcopy LawTalk subscription will then Every one of us is accountable to our friends, our be cancelled. families, our clients and our colleagues for demanding nothing less than complete integrity in our behaviour and actions. We all need to more consistently and clearly demand this of each other and ourselves. Every one of us is accountable for the standing of our profession in Advertising in our communities. I am hopeful. I love my work and as lawyers we do LawTalk and wonderful work which makes a difference for many people throughout New Zealand. We can change the LawPoints culture that has now been laid bare before us and we can be heartened by another finding of the research that Inquiries about advertising in LawTalk or around 80% of all lawyers said they get a great deal of LawPoints should be directed to advertising@ satisfaction from their job. lawsociety.org.nz. A media kit with details of The change must be profound but we have a strong advertising requirements and charges is avail- base from which to move forward. able on the Law Society website in the News The responsibility lies with every one of us. and Communications/LawTalk section. The Law Society has a strict policy of not publishing Kathryn Beck articles in exchange for advertising. President, New Zealand Law Society

13 NEW ZEALAND LAW SOCIETY June 2018 · LAWTALK 918

Practising fees and levies for the next year

Justice Minister Andrew Little has approved the practising fees and levies to fund regulation of the legal profession. The components are as follows: Practising fees and levies, year to 30 June (GST not included)

Component 2019 2018 Practising fee $1040 $1140 Legal Complaints Review Office levy $130 $125 NZ Council of Legal Education levy $22 $22 Total for barristers sole and employed barristers and solicitors $1192 $1287

Inspectorate fee $380 $380 Total for barristers and solicitors on own account, no trust account $1572 $1667

Lawyers’ Fidelity Fund contribution $320 $320 Total for barristers and solicitors on own account, trust account $1892 $1987

Legal aid audit ILANZ In-House policy workload Lawyer of the metrics need Year Awards clarification The winners of the ILANZ In-house Lawyer of the Year Awards were announced at the 31st annual ILANZ The Law Society has suggested that clarification Conference in Hamilton on 18 May 2018. The winners is needed for the two metrics used in the workload cat- were: egory of the Legal Aid Provider Audit and Monitoring • Artemis Executive Recruitment In-House Innovation Policy and Terms of Reference. A Ministry of Justice Award: Mercury Legal Team, Mercury NZ Ltd. consultation document has outlined a number of • AUT Law School Community Contribution Award: proposed changes. These include the addition of two Pakeeza Rasheed (Associate Counsel, Ministry of workload risk assessment metrics used during the Foreign Affairs and Trade). provider selection process: “above average number of • MAS Young In-House Lawyer of the Year Award: case approvals rejected” and “above average number Mark Boddington (In-house Legal Counsel, Scientific of case approvals refused”. Software and Systems). In comments to the ministry on the consultation • Buddle Findlay Public Sector In-House Lawyer of document, the Law Society says no guidance is provided the Year Award: Patricia Windle (Legal Manager, on what is meant by the two metrics. “This terminology Broadcasting Standards Authority). has caused confusion for members of the profession and • Greenwood Roche Private Sector In-House Lawyer it is unclear whether this means grants or amendments of the Year Award: Marise Winthrop (Corporate to grants,” it says. The Law Society says the Policy and Lawyer, Livestock Improvement Corporation). Terms of Reference should clarify what these metrics • Chapman Tripp In-House Legal Team of the Year involve and what is meant by ‘case approvals’. Award: Whitireia Community Law Centre Team.

14 LAWTALK 918 · June 2018 NEW ZEALAND LAW SOCIETY

What should I declare at Practising Certificate Renewal time?

BY CHRISTINE SCHOFIELD

• The second part relates to any matter that does or frank in your declaration. If you are The practising certificate might affect your fitness to be issued with a practising not sure whether to declare a matter renewal round is approaching with certificate (ss 41 and 55 of the Act). Some of the matters it is usually better to err on the side all current practising certificates that you must declare include: of caution and include it. lapsing on 30 June 2018. • any criminal conviction (if not previously brought There is no need to wait for the You will shortly be emailed a guide to the Law Society’s attention) which has not been practising certificate renewal round for renewal. You will already have “clean slated” under the Criminal Records (Clean Slate) if you have matters of concern to completed your CPD declaration Act 2004. This includes any excess breath alcohol report. There is an ongoing obliga- which was due on 31 March 2018. conviction and any traffic offence that resulted in a tion to advise NZLS of any matter You will need to make a “fit and conviction; that might affect your continuing proper” declaration to renew your • any pending criminal charges (in New Zealand or eligibility to hold a practicing certif- practising certificate for the 2018- overseas); icate. See Rule 8 of the Lawyers and 2019 practising year. There is a range • any mental or physical health issues that might affect Conveyancers Act (Lawyers: Practice of matters that you are required to your ability to practice law; Rules) Regulations 2008. inform NZLS about if they have • any significant financial issues, such as bankruptcy occurred since issue of your last or liquidation/receivership of a company of which Paying for your practising certificate, or if there is you are a director; and practising certificate any “fit and proper” matter you have • overseas/local disciplinary matters. Payment must also be made to com- not previously disclosed to the Law This part does not require you to declare any open plete the process. Payment must Society. complaints that are being considered by a Standards be made by or before 1 July 2018. If Committee or by the Legal Complaints Review Officer someone else in your organisation is Declaration as the Law Society is already aware of these. attending to payment please ensure The declaration is in three parts. Thirdly, you must declare whether you are comply- they do so prior to the due date. On The first is an undertaking to ing with any orders of a Standards Committee, the 1 July your practising certificate will comply with the fundamental Legal Complaints Review Officer or the Lawyers and lapse and you will then have to obligations of lawyers as set out in Conveyancers Disciplinary Tribunal. apply for a new practising certificate s 4 of the Lawyers and Conveyancers If you owe any outstanding costs or fines resulting rather than complete the renewal Act 2006 (Act). In essence you are from a disciplinary matter or have not complied with any process. If you receive emails that declaring that you are aware of other order you must declare this. If you have entered you have not completed the process, these and are complying with them. into a time payment arrangement and payments are up please do not disregard these as they Section 4 reads as follows: to date, there is no need to include this. are only sent to lawyers who have “Every lawyer who provides regu- not fully completed the process. lated services must, in the course of What will happen if I Your practising certificate will his or her practice, comply with the declare something? be issued electronically. You do following fundamental obligations: Most matters will probably not be not need to print this off unless you • to uphold the rule of law and to significant enough to prevent your would like a hard copy. facilitate the administration of new practising certificate issuing. justice in New Zealand; If any matter needs investigation, Online declaration • to be independent in providing you may be requested to provide If you have any issue with making regulated services to his or her further information and it may be the online declaration or want to clients; referred to a Law Society Practice discuss any matter please call a • to act in accordance with all Approval Committee. You will be member of the Registry Team on fiduciary duties and duties of care advised if this is the case. The Law 0800 22 30 30 for helpful guidance owed by lawyers to their clients; Society may make other inquiries and assistance. • to protect, subject to his or her if it considers these to be relevant. overriding duties as an officer of This process can take some time to Christine Schofield  christine. the High Court and to his or her complete so please complete your [email protected] is duties under any enactment, the declaration as soon as you are able. the New Zealand Law Society interests of his or her clients.” You are required to be open and Registry Manager.

15 NEW ZEALAND LAW SOCIETY June 2018 · LAWTALK 918

CPD Declarations and audits

BY KEN TRASS

those audited in 2018 will have the audit process focus What do I submit? The 2017-18 CPD year has now on the following: Details of what you are required ended. Almost 99% of the profession • A lawyer’s individualised learning plan; or to submit will be sent out in an completed a timely declaration for • A lawyer’s personal reflections on each completed email to you. However, your 2017- this period. learning activity 18 CPDPR is the main document For those of you who have yet to required. complete this requirement, you can What does this mean? You will be asked to submit still make a declaration. While a full and complete CPDPR is required the 2018 your CPDPR within five working audits will focus on these elements. days of receiving an audit request. What next for your CPD? Each lawyer who is selected for audit, will be advised It is expected that in order to have Your next step is to review your of the focus for their CPD audit. made your CPD declaration that learning plan. your CPDPR is up to date. Planning ahead, and constantly Why this focus? revising this during the year, means Learners who take the time to clearly plan and reflect on Where to from here? you will be more likely to engage their CPD activities, get more value from the CPD they Please ensure that you are familiar in learning that meets your specific undertake. They are also more likely to adopt effective with the CPD requirements. needs. Planning around your learn- practices. You can complete a confidential ing needs is part of the expectations A number of lawyers have asked for additional guid- self-assessment on your under- of CPD. ance on how to approach these elements. We would like standing of CPD, or view the range As you complete your learning to further support their development. of support resources at www. activities during the year, set aside lawsociety.org.nz/cpd some time to reflect on what you Who is audited? learnt – record this on your CPD plan In 2018, 10% of the profession will be audited. Unless Ken Trass  ken.trass@ and record (CPDPR). Considering the you have been informed otherwise, selection for audit lawsociety.org.nz is the New impact of your learning is one of is random – so you may be selected for audit even if Zealand Law Society’s Professional the most valuable parts of the CPD you have been audited previously. Development Manager. process. CPD – Audit focus for 2018 The overall aim of CPD is to build on the culture of life-long learning in the legal profession and contribute to the increased competency of New Zealand lawyers. New ILANZ The CPD rules allow for the audit of lawyer CPDPR (CPD plan and committee records) to determine compliance with the rules. The Law Society takes an educative and supportive The Law Society’s in-house section ILANZ has approach to these audits. Since CPD elected a new President and executive committee, who commenced in 2014, between 10% took office at the ILANZ AGM in Hamilton on 18 May. and 12% of the profession have been The new President, Sian Wingate, is an in-house lawyer audited each year. with Powerco in New Plymouth. Over this period, approximately The ILANZ executive committee is: President: Sian 80% of the profession have dis- Wingate (Taranaki), Vice-President: Mark Wilton played a clear understanding of the (Wellington), Secretary: Christopher Guy (Wellington), intended purpose of CPD. Some law- Treasurer: Grant Adam (Wellington), Committee yers, however, are yet to fully realise members: Caroline Beaumont (Auckland), Beverley the value of CPD as an important Curtis (Christchurch), Donna Llewell (Tauranga), Grant self-review tool. Pritchard (Auckland), Caroline Sigley (Auckland), Jeremy To further support lawyers, half of Valentine (Wellington), Herman Visagie (Taranaki).

16 LAWTALK 918 · June 2018 NEW ZEALAND LAW SOCIETY

Bill would impair Law Society MPs’ freedom Courthouse Committee of expression membership changes

The Electoral (Integrity) Amendment Bill imposes The Law Society’s Courthouse significant limits on MPs’ constitutional rights and may Committee membership has been have a chilling effect on their freedom of speech inside expanded, with more members from and outside Parliament, the Law Society says. In a sub- the regions and a new convenor. The mission to Parliament’s Justice Committee, it said more committee monitors and provides evidence is needed that the limits are demonstrably a coordinated national response to justified in a free and democratic society. issues such as court closures and Law Society spokesperson Jonathan Orpin-Dowell said restructuring, modernisation and the Law Society agreed with the Attorney-General that technology initiatives, and court MPs’ freedom of expression would security. be significantly impaired by the bill. Mark Wilton is the new convenor. “The bill empowers political party Mr Wilton is the Police Prosecution leaders to cause MPs to vacate their Service’s Principal Prosecutor. He seats, and amends New Zealand’s is a long-serving member of the constitutional provisions by chang- committee and has been actively ing the circumstances in which MPs involved in a number of key com- ▴ Mark Wilton, Police Prosecution can be removed,” Mr Orpin-Dowell mittee projects, including the Law Service’s Principal Prosecutor said. “MPs’ rights of free speech – Society response to courthouse described by the Attorney-General closures for seismic/earthquake-re- historic courthouse in Dunedin and as having ‘special constitutional lated issues and its input into the the new Christchurch Justice and value’ – and freedom of association development of the Hutt Valley Emergency Precinct. would be significantly limited, and District Court. He provides advice Members of the committee the select committee has not been on design, access, security and other are: Mark Wilton (Wellington, provided with sufficient evidence practical issues. Convenor), Maria Hamilton and analysis to justify this.” Mr Wilton also sits as a Law (Hawke’s Bay), Iain Hutcheson The Law Society pointed to some Society representative on the (Auckland), Prue McGuire (Rotorua), cases since the introduction of MMP Ministry of Justice-led Courthouse Leona McWilliam (Wellington), that would have triggered the bill’s Design Committee. Recent projects Craig Ruane (Christchurch), Kingi provisions, and recommended fur- with which the committee has Snelgar (Auckland), Max Winders ther analysis of these. been involved include the restored (Dunedin). “One rationale for the bill is that it will enhance the maintenance of the proportionality of political party representation in Parliament. The recent cases should be closely analysed to shed light on the extent to which MPs leaving their party but Legal Accounting Bureau · Save time and money Kathy Kell remaining in Parliament distorts provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end proportionality,” he said. certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure If the bill proceeds, the Law and confidential www.accountingbureau.co.nz Society has also recommended Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience changes to clarify whether MPs come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. have the protection of recourse to you remotely. services Practice Management software you can trust. the courts.

17 NEW ZEALAND LAW SOCIETY June 2018 · LAWTALK 918

Omission of Practice Briefing inquiry provisions provides details of questioned legal associations and groups Updating the State Sector Act 1988 with new provisions for the conduct of inquiries by the State Services Commissioner to reflect the more detailed The New Zealand Law Society has published a scheme of the Inquiries Act 2013 is a welcome and timely Practice Briefing focusing on the large variety of legal reform, the Law Society says. However, it has questioned associations, networks and lobby groups that are of inter- why a number of provisions in the Inquiries Act have est to lawyers and law students. These groups provide not been included. collegiality and expertise, organise events and often an The Law Society’s submission on the State Sector and annual conference. The organisation and membership Crown Entities Reform Bill notes that the bill repeals levels vary from body to body. and replaces provisions in the State Sector Act for the The briefing is arranged into different sections: conduct of inquiries. The bill puts in place a single • Areas of law investigation package aligned with the regime in the • Women lawyers Inquiries Act, with the explanatory note saying this will • Ethnic Lawyers promote greater consistency in conducting inquiries • Young Lawyers and investigations across government. • Students, and However, the bill does not adopt seven material pro- • Others visions of the Inquiries Act, the submission says, and This is a comprehensive list but if you feel an organisation comments that these omissions are not explained. While merits inclusion, please email: craig.stephen@lawsociety. there may be explanations for some of the omissions, org.nz. The Practice Briefing can be found on the Law clarity is needed in the legislation as to the applicable Society website in the Practice Resources section. processes and it is not adequate to rely on expectations of practice of information safeguards, the Law Society says. “Several of the omitted provisions … are integral to an effective, robust and fair inquiry. Such provisions provide important safeguards for individuals who are the focus of, or otherwise affected by, an inquiry. They also Law Society afford the practical benefit of forestalling disagreement over the powers and procedures of an inquiry, which lawyer can otherwise prove time-consuming and, potentially, lead an inquiry to act unlawfully by breaching natural services justice requirements.” The submission also says the general obligation of survey independence, impartiality and fairness in section 10 of the Inquiries Act should also apply to inquiries conducted by the Commissioner. All lawyers who are members “While that obligation might be taken to be implicit as of the New Zealand Law Society a matter of common law, it should be explicitly stated. (98% of practising lawyers) were The omission of a statutory obligation of such impor- sent a link to the annual New tance sends an unwelcome signal and risks creating Zealand Law Society Lawyer legal uncertainty.” Services Survey on 8 May. This is The Law Society recommends that the Governance the eighth year the online survey and Administration select committee should seek advice has been run. It focuses on obtaining from officials as to why the provisions have been omit- feedback on identified Law Society ted, and should accept omissions only if it is satisfied services to provide a measure of sat- there is a comprehensive equivalent provision in another isfaction and to inform development statute or it is plain that a given provision is unworkable of services. The survey closed on 30 in the context of an inquiry by the Commissioner. May.

18 LAWTALK 918 · June 2018 NEW ZEALAND LAW SOCIETY

Warning to be very New Zealand careful with unknown Law Society email attachments submissions

Unknown person: If the email Copies of submissions The Law Society has warned address looks unusual (not the and comments made by lawyers and law firm staff to think case in the example above as it the Law Society in its law twice before clicking on attach- uses the firm’s email addresses) reform role may be found ments in emails sent to them. The but purports to be from a lawyer, on the website under News warning was prompted by the check them out on the Register of & Communications, and appearance of an email which used Lawyers. Call them using the phone within that, Law reform the name of a genuine employee in a number given. If purporting to be submissions. genuine and reputable law firm and from a non-lawyer, check that the which asked recipients to access an email address matches the company attached document. name or other details. The email was sent by fraudsters Why are they contacting me? who had hacked into the firm’s If from someone you know, does it Law Society email system. The “document” link refer to a matter you are familiar almost certainly connected to mal- with? If you are unsure, personal Marlborough ware and anyone who clicked on the contact by phone (an email runs attachment ran the risk of infecting the risk of being intercepted by the branch their computer or IT system. fraudsters) is highly recommended. The text of the email was short If you do not know the person, why President and to-the-point: are they sending you something “out of the blue” with little explanation? and Council Good day, Please Refer to the enclosed docu- Suggested action ment for your kind reference Either contact the sender person- Kent Arnott was elected DOC.PDF ally by phone or reply to the email President of the Marlborough branch Yours faithfully stating that you do not open attach- of the Law Society at the AGM on 17 [Name of genuine lawyer] ments without some further infor- April with Laurie Murdoch elected mation about the contents. Ask for as Vice-President. Autumn Faulkner, Questions to ask detail about what the attachment Thomas Dobbs, Emma Huntley and The New Zealand Law Society’s is and what matter it refers to. Ask Savannah Carter were elected as internal email policy contains some for a contact phone number. Council members. useful questions which should be asked about every incoming email: Who is sending me this email? Can you be sure that it is in fact the person known to you who is emailing you? The email from the law firm above is a good example Following his retirement as a Judge of the of one which may seem genuine on Court of Appeal, the Honourable Rhys Harrison the face of it. However, look for any QC has returned to professional practice. unusual style in how the email is He will be available for arbitration, mediation and phrased or in how they address you. general advisory work. His office is at 5th Floor, The uncommon greeting in the text Shortland Building, 70 Shortland Street, Auckland. above, and the strange use of lan-  [email protected] guage and capitals in “Please Refer  to the enclosed document for your 021 503 324 or 09 309 1680 kind reference” should immediately  POBox 342, Shortland St, Auckland 1140 raise suspicions.

19 AML/CFT · UPDATE June 2018 · LAWTALK 918

UPDATE AML/CFT AML/CFT: What happens on 1 July?

BY NICK BUTCHER

Under the legislation, the DIA does have the option of making Many lawyers and conveyancers unannounced visits. could be wondering what the Department “Unless there was a risk requirement or intelligence that required of Internal Affairs will be doing from 1 July us to take that approach, that would not be how we would nor- when practitioners are captured under mally approach things,” he says. phase 2 of the Anti-Money Laundering While the DIA would hope not, it is possible that some lawyers and Countering Financing of Terrorism and conveyancers captured under the Act have done nothing or Act 2009 (AML/CFT Act). little to prepare for their compliance obligations. The Department of Internal Affairs Mr Stone says they’ve learned a lot from supervising phase 1 (DIA), the supervising agency responsible of the AML/CFT Act, and much of that will be utilised in phase 2. for ensuring lawyers and conveyancers “You can’t always treat everyone the same based on the range meet their obligations under the reporting and complexity of businesses out there. We have a lot of tools that regime, has a Financial Integrity (AML/CFT) we operate including engaging by phone and email, providing Team. written advice and personally visiting businesses,” he says. Its manager, Mike Stone, says come 1 The DIA also has an established system July, the DIA will continue an educative of remediation. and proportionate approach to compliance “We might assess whether a risk assess- obligations. ment and compliance programme meets “We expect that the majority of people the requirements of the Act,” says Mike with these responsibilities will be doing Stone. “There might be some shortcomings their best to meet the deadline. But with but we’d provide advice and come to an all the best intentions they may get some agreement with that firm or practitioner components of the process wrong. We to remediate those issues within a given are focused on having a cooperative rela- time. tionship recognising where businesses We expect that “Not everybody will be willing to do are genuinely trying to do the right thing, the majority that, so in some circumstances that might and therefore helping them meet their of people escalate to looking at a formal warning obligations,” he says. with these or enforceable undertaking for serious Mr Stone says increased knowledge, responsibilities non-compliance. In the worst-case sce- along with more resources for the depart- will be doing nario, civil and criminal prosecution tools ment, should provide enhanced help to their best might be used,” he says. people from the beginning of the compli- to meet the Mr Stone says from 11 June, DIA’s full- ance date. deadline. But time dedicated 17-person team, which is But while education will always be with all the best split between Wellington and Auckland, a major focus, so will their regulatory intentions they will start to increase towards a target of 56 capacity as the appointed supervisor. may get some full-time staff with a broader geographical “There will be some businesses out there, components focus. some law firms and sole practitioners that of the process “It will encompass a range of personnel we will be requesting their compliance wrong. We are including operational regulators, practice documentation from. We’ll be asking to focused on ... leaders, intelligence and policy analysts, look at their risk assessment and compli- helping them dedicated engagement and innovation ance programme and we’ll do a technical meet their staff, along with a larger management assessment of those documents,” he says. obligations team,” he says. ▪

20 LAWTALK 918 · June 2018 UPDATE · CIVIL PROCEDURE

UPDATE CIVIL PROCEDURE Interlocutory applications and appeal rights

BY KATE CORNEGÉ

High Court in civil proceedings out proceedings. Neither decision The Supreme Court’s decision in The Supreme Court may hear and determine an referred directly to s 4 of the 2003 Ceramalus v Chief Executive of appeal by a party to a civil proceeding in the High Act. Ministry of Business, Innovation Court against a decision made in the proceeding, The Supreme Court (at [8]) noted and Employment [2018] NZSC 26 is unless – that the court’s previous reliance noteworthy for what it asks, rather (a) an enactment other than this Act makes pro- on the definition in the High Court than what it answers. vision to the effect that there is no right of appeal Rules was wrong. Therefore, without The appellant had begun judicial against the decision; or the benefit of full argument the court review proceedings in the High (b) the decision is a refusal to give leave or special was not prepared to conclude that a Court. The proceedings were struck leave to appeal to the High Court or the Court of decision to strike out a proceeding out by Woodhouse J, who found that Appeal; or and therefore bring it to an end was each of the causes of action pleaded (c) the decision is made on an interlocutory an ‘interlocutory application’. by the appellant was untenable. The application appellant applied for leave to appeal Section 69 is in the same terms as s 8 of the Supreme Is a decision striking the strike out decision directly to Court Act 2003. out proceedings made Supreme Court under section 69 of Section 69(c) precludes direct appeals from decisions on an ‘interlocutory the Senior Courts Act 2016. on ‘interlocutory applications’, defined ins 65 of the application’? In its opposition, the respond- Act as: As noted by the Supreme Court, ent argued that the Supreme interlocutory application– the starting point is the definition Court lacked jurisdiction to hear (a) means an application in a proceeding or an in the Act. The Court of Appeal has a ‘leap-frog’ appeal, as the strike- intended proceeding for– previously found that the equivalent out decision was made on an (i) an order or a direction relating to a matter definition in s 2 of the Judicature interlocutory application and of procedure; or Act 1908 was apt to include an therefore precluded by s 69(c). The (ii) in the case of a civil proceeding, for relief application for summary judgment Supreme Court wondered whether ancillary to the relief claimed in the proceeding; (in Waterhouse, discussed below), a strike-out application could be an and and there can be little doubt that ‘interlocutory application’ for the (b) includes an application for a new trial; and an interlocutory application for purposes of s 69, given that it had (c) includes an application to review a decision an order striking out proceedings the potential to finally determine made on an interlocutory application would also be included on a plain the proceedings. However, it did not This definition is in substantially similar terms to the reading. hear full argument on the jurisdic- definition under the 2003 Act (and largely replicates the However, as indicated by the tion point, and so did not answer its definition ins 4 of the Act). Supreme Court, this may not be the own question. Instead, it dismissed end of the matter. Over the past cen- the leave application on its merits. Decisions under s 8(c) of the 2003 Act tury, considerable judicial attention This article considers how The Supreme Court in Ceralamus was referred by the has been dedicated to discussion of the question should have been respondent to two of its own earlier decisions under distinction between interlocutory answered had it been fully argued. s 8(c). determinations (whether defined In M v Minister of Immigration [2011] NZSC 154 and by reference to ‘decisions’, ‘orders’ Jurisdiction to hear Peterson v Attorney-General [2015] NZSC 154, the court or ‘applications’) and substantive or direct appeals concluded that a decision on a strike-out application final determinations, particularly in The Supreme Court has jurisdiction was a decision made on an interlocutory application. relation to appeal rights. to hear direct appeals under section In both cases, the court’s reasoning was based on the In Waterhouse v Contractors 69 of the Act, which provides: definition of ‘interlocutory order’ in rule 1.3 of the High Bonding Ltd [2013] NZCA 151, the 69 Appeals against decisions of Court Rules, which expressly includes an order striking Court of Appeal considered the

21 CIVIL PROCEDURE · UPDATE

meaning of ‘interlocutory decision’ under s 24G of the Judicature Act. The Court examined the definition of ‘interlocutory application’ in s 2 of the Judicature Act (in similar terms to s 65) and ‘interlocutory order’ in the High Court Rules, but con- sidered that they did not determine the meaning of ‘interlocutory decision’ in s 24G. The court concluded (departing from previous appellate authority) that “a decision is final and not interlocutory if it constitutes a final disposition of the rights of the parties in the proceeding, whether or not there has been consideration of the substantive merits” (at [33]). On this basis, the court confirmed that an order granting summary judgment was not an interlocutory decision, but a refusal to grant summary judgment would be. A ‘substance over form’ approach was also adopted in Greer v Smith [2015] NZSC 196 (on a different point). Statutory context Other references to ‘interlocutory applica- tions’ in the Act provide some assistance: (a) Sections 56 and 74 of the Act also deal with appeals from decisions on inter- interlocutory applications can only be appealed with leave. locutory applications: (ii) Section 74 provides that the Supreme Court must not give (i) Section 56(3) and (4) provide that leave to appeal an order made by the Court of Appeal on an leave is required for an appeal to interlocutory application unless satisfied that ‘it is neces- the Court of Appeal from a High sary in the interests of justice to determine the proposed Court decision on an interlocutory appeal before the proceeding concerned is concluded.’ There application, other than “an order or is no express reference to strike out decisions. decision striking out or dismissing (b) Other provisions governing how ‘interlocutory applications’ the whole or part of a proceeding, may be determined: for example, ss 62 and 82. Section 82 claim or defence” or “an order or (which mirrors s 28 of the 2003 Act and provides that interloc- decision granting summary judg- utory applications in the Supreme Court may be determined ment.” The carve out in relation to by a single judge) contains an express carve out for ‘an order s 56(4) is limited to successful strike or direction that determines or disposes of a question or an out/summary judgment applica- issue that is before the court in the proceeding.’ tions; other potentially dispositive

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22 LAWTALK 918 · June 2018 UPDATE · CIVIL PROCEDURE

Legislative history Court of Appeal under s 56. Section 56 As originally drafted, the Judicature Modernisation Bill referred represented a change to the law, at least variously to ‘interlocutory applications’ and ‘interlocutory orders’. in relation to judges’ decisions as leave Submitters supported the use of a consistent definition across to appeal was previously dealt with what are now sections 56, 69 and 74. by case law. The carve out reflects the Submitters (including the New Zealand Law Society, major law significance of that change. firms and the judges of the senior courts) also favoured theWaterhouse • In contrast, the position contended for by ‘substance over form’ approach to determining whether a decision is the respondent in Ceralamus aligns with interlocutory or final when considering the availability and extent of the decisions under s 8(c) of the 2003 Act. a right to appeal. Submitters supported incorporating this distinction While the reasoning supporting these deci- in the statutory definition of interlocutory order/application. sions can be challenged, there is nothing in Rather than amend the definition of ‘interlocutory application’ the background material or the Act itself to exclude decisions that are finally dispositive of some or all of a to indicate that Parliament intended the party’s rights, the Act addresses these concerns (at least in relation introduction of the Act to change the to s 56) by including an express ‘carve out’ from the operative approach applied by the Supreme Court provisions. The carve out reflects the end result inWaterhouse : under the 2003 Act. leave is required to appeal the refusal of strike out/grant summary Nonetheless, there are cogent arguments judgment but not to appeal an order granting summary judgment to the contrary. First, the above conclu- because only the latter is final in substance. However, as noted, sion may seem to be at odds with the the same carve out does not apply under sections 69 and 74. ‘substance over form’ approach favoured The decision not to amend the definition was made consciously, by the Court of Appeal and the Supreme to avoid the risk of dispositive applications being unintentionally Court in other cases where appeal rights excluded from other provisions dealing with interlocutory matters were in issue. Secondly, while there may (see report of the Ministry of Justice to the Justice and Electoral be policy reasons for applying a stricter Committee dated April 2014). The decision to use the same defi- approach to leap-frog appeals, these rea- nition across all three sections was also deliberate. However, it sons do not apply to s 74, as interlocutory is not clear that the decision not to include a carve out in ss 69 decisions made by the Court of Appeal will and 74 was deliberate. necessarily be ‘first instance’ decisions in substance. Finally, while I consider that Conclusion the absence of a carve out in s 69 should In my view, the respondents’ position (that the Supreme Court be taken to have been deliberate, there is lacked jurisdiction to hear a direct appeal, as the strike out decision no direct support for this in the legislative was made on an ‘interlocutory application’), would most likely history, leaving room for a court to draw a have been upheld had the Supreme Court heard full argument. contrary conclusion. This is because: • Parliament chose to adopt a broad Comment definition of ‘interlocutory application’, While applications for leave under s 69 are which does not distinguish between not common, undoubtedly this issue will applications which have the potential surface again, particularly given the doubts to finally determine proceedings and expressed by the court in Ceralamus, and those that do not. the potential for similar issues to arise in • Similarly, Parliament elected to use the applications for leave under s 74. Clarity definition of ‘interlocutory application’ in relation to the proper appeal paths will throughout, rather than ‘decision’ or Clarity in help parties avoid unnecessary procedural ‘order’. The definition focuses on the relation to the steps, and minimise the risk of would-be nature of the application, and not the proper appeal appellants missing out on the opportunity effect of any decision or order. paths will help to bring a valid appeal in time. ▪ • The drafters have included specific ‘carve parties avoid out’ provisions in relation to both s 56 unnecessary Kate Cornegé  kate.cornege@ and s 82 to reflect the policy consider- procedural tompkinswake.co.nz is a partner of ations raised by submitters and by the steps, and Tompkins Wake, specialising in civil Court of Appeal in Waterhouse. In these minimise the and commercial litigation. She is a circumstances, the absence of a similar risk of would-be member of the Civil Litigation and carve out in s 69 (and s 74) cannot simply appellants Tribunals Committee which contributed be presumed to be a drafting error. missing out on to the Law Society’s submission on the • There are arguably sound policy reasons the opportunity Judicature Modernisation Bill, but the for taking a stricter approach to leap-frog to bring a valid views expressed in this article are her appeals under s 69 than appeals to the appeal in time. own.

23 EVIDENCE · UPDATE June 2018 · LAWTALK 918

UPDATE EVIDENCE

section 28. They suggested it would Can true statements be incongruous for an obviously true confession to be excluded on the basis of a theoretical likelihood be “unreliable”? that the circumstances in which it was made may have affected it reliability. The Chief Justice disa- BY YASMIN greed, for reasons similar to those MOINFAR-YONG expressed by the Commission in the past.

was that it would usurp the function of the jury for Does the rationale The Law Commission is calling truth to be established at the preliminary admissibility hold up? for submissions on its second stat- stage. Although the select committee that considered However, the Commission has utory review of the Evidence Act the Evidence Bill 2005 agreed with this view, an express started to move away from the 2006. It released an Issues Paper provision to that effect ultimately was not included in view that the actual reliability of (Second Review of the Evidence Act the Act. a statement should be disregarded 2006 / Te Arotake Tuarua i te Evidence under the section 28 inquiry. In its Act 2006: He Puka Kaupapa) at the Conflicting decisions recent Issues Paper, the Commission end of March, canvassing the oper- Following its enactment, section 28’s silence on whether reviews the history of section 28 and ational issues that have arisen and truth was relevant to the reliability inquiry led to con- questions whether the rationale put suggesting a number of options for flicting decisions (compare R v Cameron [2007] NZCA forward for not inquiring into truth reform. 564 and R v Edmonds [2009] NZCA 303, [2010] 1 NZLR under the pre-Evidence Act law One of the provisions the 762 with R v Cameron [2009] NZCA 87), and prompted holds up under the rule that was Commission is examining is section the Law Commission to consider the operation of the ultimately enacted. 28, which sets out the “reliability provision during its first review of The Law Commission explains rule”. Where there is an evidential the Act. In its report, The 2013 Review that, under the pre-Act law (a foundation for raising an issue of the Evidence Act 2006 (NZLC R127, combination of the common law about the reliability of a defendant’s 2013), the Commission recom- “voluntariness” rule and a limited statement, the judge is required to mended an amendment to section statutory exception), confessions exclude it unless satisfied the cir- 28 that would require truth to be dis- were excluded if they were obtained cumstances in which it was made regarded. This time, the Commission by an inducement from a “person in were not likely to have affected its explained it was important to guard authority”, unless the inducement reliability. against the risk of “diverting the was not likely to cause an untrue The current wording of section court’s attention from questions of admission of guilt to be made. The 28 does not say whether the truth improper police conduct to large inquiry focused on the likelihood of the statement can be considered volumes of corroborating evidence”. that police improprieties may when assessing its reliability. What But that recommendation was not have caused an untrue admission, happens, then, if a person prone to accepted by the government. A not on the truth or falsity of the delusions makes a statement in blanket rule requiring truth to be actual confession. The rationale which he confesses to murder and disregarded was thought to be too for not inquiring into the truth of identifies the location of the victim’s restrictive – for example, where a the statement was to avoid any body, which had previously been confessional statement revealed an suggestion that police impropriety unknown to the police? Should aspect of the crime that no one but should be encouraged. The focus on the fact that the victim’s body the offender could know. external inducements also meant was located be taken into account The Supreme Court subsequently that “internal” factors potentially when assessing the reliability of his considered the issue in R v Wichman affecting the reliability of the con- statement? [2015] NZSC 198, [2016] 1 NZLR 753, fession (for example, consumption When the Commission developed in the context of determining the of alcohol or mental illness) were its Evidence Code (which formed admissibility of a confession arising disregarded (as these were factors the basis for the Evidence Act) in the out of an undercover operation. Four the police may not be able to control 1990s, it proposed a reliability rule of the judges (William Young, Arnold or be aware of). that would have made the truth of and O’Regan JJ; and Glazebrook J) The reliability rule proposed by the statement an irrelevant consid- concluded that truth was relevant the Commission in its Evidence eration. The Commission’s rationale when determining reliability under Code, however, differed from the

24 UPDATE · EVIDENCE

way of gaining access other than involvement with the offence (for example, a statement identifying elements of the crime that have not been made public)? Another important consideration is the permissible scope of ques- tioning during a pre-trial hearing or voir dire that is held to deter- mine admissibility – in particular, whether cross-examination of the defendant on whether his or her statement is true should be per- mitted. Although section 28 involves only a threshold admissibility ques- tion, cross-examination on the truth of the statement at this preliminary stage is not unprecedented – in R v Patten (HC Auckland CRI-2006-004- 3200, 8 April 2008) the prosecution was permitted to cross-examine the defendant about the truth of the statement he made to the police. Of the four judges in Wichman who concluded that truth was rele- vant in the section 28 inquiry, only Glazebrook J addressed the point. Her previous law in two important police misconduct can, of course, be dealt with under view was that cross-examination on respects: the rule did not require the other provisions in the Act (section 30 and, in extreme the truth of the statement should not statement to have been obtained by cases, section 29). The Commission acknowledges this be permitted: the prosecution should a “person in authority”; and it antic- in its Issues Paper (recognising it had occasionally put to the defendant for comment the ipated that “internal” factors could described section 28 as promoting additional policies matters that would be relied on to affect reliability. These changes beyond that of reliability in the past), as well as the logic indicate the statement was reliable, were intended to reflect what the in permitting the actual reliability of a statement to be but resist an extensive challenge Commission described at the time considered under a provision that is, after all, concerned to a defendant’s assertion that the as the “primary purpose” of the reli- with “reliability”. It is now inviting submissions on a statement was false. The exercise was ability rule: to screen out statements possible amendment to allow the truth of the statement to “assess the contents of the state- that would be unsafe to put before to be considered. ment and any obvious indications of a jury because of the risk of unreli- reliability or unreliability in relation ability. The Commission explained Formulating a workable rule to other aspects of the case and any the rule was necessary because of If the Commission ultimately makes this recommen- subsequently discovered evidence” the danger that a jury would give dation, its challenge over the coming months will be (at [535]). For that reason she specif- too much weight to a statement that in formulating a workable rule – one that is both easy ically disagreed with the approach came directly from a defendant (in to apply and does not result in judges conducting a that had been taken in Patten. particular, a confession). That danger “mini-trial” at the threshold admissibility stage. Submissions on the Commission’s justified some judicial oversight. For example, the Commission will need to consider Issues Paper can be made until In short, the pre-Act rationale for whether any brakes should be placed on the judge’s 15 June 2018. The Commission is disregarding truth (control of police ability to consider the consistency (or inconsistency) required to provide its final recom- practices) sits somewhat awkwardly of the statement with evidence that forms part of the mendations to the Government by with the expanded reliability rule in prosecution’s case: the end of February 2019. ▪ the Evidence Act – the policy jus- Should only independent real evidence that is discov- tification for excluding statements ered as a consequence of the statement (for example, the Yasmin Moinfar-Yong  ymoinfar- under section 28 is because of con- location of a murder victim’s previously undiscovered [email protected] is a legal cerns about reliability, not improper remains) be considered? and policy adviser with the Law police conduct. Concerns about What about information for which there is no other Commission.

25 HUMAN RIGHTS · UPDATE June 2018 · LAWTALK 918

UPDATE HUMAN RIGHTS Survivor stories help shape state care abuse inquiry

BY LYNDA HAGEN

and that neglect and abuse is ongoing. The Royal Commission A Law Foundation-supported hui has helped shape the final shouldn’t be closed off at all – it should be open to the date the terms of reference for the Royal Commission into Historical Abuse Royal Commission was established.” in State Care. Despite 30 years of Treaty experience, reference to it had inex- The two-day hui in February, organised by a group of human plicably been excluded from the draft terms of reference, and that rights academics and practitioners, brought together “survivor had to be rectified. Other themes from the hui included a focus groups” and experts from New Zealand and overseas. It led to new on compensation, including non-monetary assistance such as recommendations on how the Royal Commission should operate, counselling, and careful consideration of how best to deliver a including the use of “survivor panels” grouped by experience “heartfelt, authentic, frank and full” apology. and attributes such as disability. It also called for abandoning Dr Erueti was one of four leading practitioners who lobbied the proposed 49-year time limit on the Commission’s purview, hard to establish a Royal Commission to deal with historic abuse and for explicit recognition of the Treaty of Waitangi in the terms in state care. While generally he favours a broader scope than of reference. initially proposed, he has concerns about extending the inquiry One of the hui organisers, Andrew to include non-state institutions, as the Australian inquiry did. Erueti of Auckland University Law School, “It’s intended to finish the inquiry within three years, and it believes the Royal Commission’s pre-con- will be difficult enough to complete it in that time. Including sultation exercise is unique. The invited church-based institutions as well would be asking a lot of it,” he international attendees were impressed says. “Sir Anand has suggested that the churches establish their with the hui and consultations, including own inquiry.” those involved with the Australian Royal Andrew Erueti’s three co-advocates are former Chief Human Commission into Child Sexual Abuse. Rights Commissioner Rosslyn Noonan, researcher Elizabeth Stanley “They thought it was a great idea, and and lawyer Sonja Cooper. Their detailed report on the hui outcomes they wished they had done it too,” he says. will be an input into Cabinet’s decision on the final terms of Royal Commission Chair Sir Anand reference, and is available on the Law Foundation’s website at Satyanand attended throughout the hui, this link: https://www.lawfoundation.org.nz/?page_id=2565 ▪ and survivors played a central role. “It allowed survivor groups to express Lynda Hagen  [email protected] is Executive their shared experiences and points of Director of the New Zealand Law Foundation. Further infor- difference. It was the first major event Sir mation about the Law Foundation can be found at  www. Anand had attended since the draft terms lawfoundation.org.nz of reference were released, and was a great opportunity for him to get a sense of the key issues,” Dr Erueti says. A key theme was rejection of the idea that the Commission should only consider abuse that took place between 1950 and 1999, when the new Child Welfare Code Providing Professional Indemnity and specialist insurance took effect. The number of children in state care has actually doubled in the last products to the Legal Profession decade, and Dr Erueti says there is evidence Visit www.justitia.co.nz for further information and application forms of continuing neglect and abuse. Or Contact: Mr Ross Meijer, Aon New Zealand “The Government’s own expert panel 04-819-4000 report in 2016 says the current system [email protected] is fragmented and lacks accountability,

26 LAWTALK 918 · June 2018 UPDATE · TAXATION

UPDATE TAXATION What are your Common Reporting Standard obligations?

BY JOANNE POOLE, MICHAEL WEBB AND JACQUI MATHESON

financial institution trusts that have reportable accounts); The Common Reporting Standard (CRS) • Financial institutions must keep records of their compliance came into effect in New Zealand on 1 July with these due diligence and reporting obligations; and 2017 and disclosures for the initial reporting • Intermediaries, account holders, and controlling persons that period ending 31 March 2018 are due to are connected with financial accounts must assist the financial Inland Revenue by 30 June 2018. Financial institution that maintains these accounts in carrying out these institutions play a pivotal role in this global obligations (ie, responding truthfully and completely to requests initiative but there are also requirements for information about their tax residency). for intermediaries and law firms. Do you Inland Revenue will exchange the reported information with know what is expected of you to meet that the person’s jurisdiction of tax residence (if that jurisdiction is a deadline? Reportable Jurisdiction). This will improve the transparency of The information in this article is a high- off-shore investments, and help to combat global tax evasion. level summary (with some exceptions) to help you determine whether you or your The CRS information chain clients may have obligations under the CRS Law firms are an important part of the wider ‘CRS information law in New Zealand. It does not constitute chain’ so you are likely to have due diligence, reporting and a ruling or binding legal advice. record-keeping obligations as an organisation and on behalf of The CRS is a multilateral initiative of the your clients. These obligations are set out in the Tax Administration Organisation for Economic Co-operation Act 1994. Law firm clients (and their controlling persons), in turn, and Development (OECD) that aims to have obligations to respond to their law- combat global tax evasion, with a hun- yers’ requests for this CRS information, in dred countries, by automatically sharing a timely manner. information about foreign tax residents Law firms and clients (and their con- that invest outside of their jurisdiction of trolling persons) can be subject to civil (and tax residence. The Common potentially criminal) penalties if they fail To achieve that: Reporting to comply with these obligations. • Financial institutions must carry out due Standard Although law firms are unlikely to be diligence on their account holders (and, (CRS) came financial institutions themselves they may in certain circumstances, controlling into effect in still have CRS obligations: persons) to identify relevant foreign New Zealand • They may set up or manage entities (such tax residents; on 1 July as corporate trustees and trusts) that • Financial institutions must annually 2017 and can (depending on the circumstances) report (disclose) prescribed identity disclosures be financial institutions with CRS due and financial information about such for the initial diligence and reporting obligations; accounts to Inland Revenue. (Financial reporting • They may manage trust accounts (for institutions will need to register with period ending clients) with other financial institutions Inland Revenue as a pre-condition 31 March (such as banks). In this context, the law to being able to report such account 2018 are due firm will need to obtain information information. The example below illus- to Inland about the tax residency of their clients trates how this registration requirement Revenue by (and their controlling persons) and pro- applies in practice – in the context of 30 June 2018. vide this information to that institution

27 TAXATION · UPDATE June 2018 · LAWTALK 918

(ie, obtaining and providing information to the bank), so that Reporting – Corporate the institution is able to comply with its own CRS due dili- trustees gence and reporting obligations. Law firm clients will, in turn, In order for a corporate trustee to report have obligations to respond to their lawyers’ requests for this on behalf of a trust: information. • CRS (and FATCA) registration requires New industry self-certification forms developed in conjunc- an IRD number for each trust with tion with the New Zealand Law Society, New Zealand Bankers reportable accounts; Association and Inland Revenue assist law firms to comply with • Each trust with reportable accounts is their statutory obligations to collect and pass on information required to have their own individual about their trust clients (and their controlling persons) to their myIR system access (this allows the trust bank(s). These can be found atwww.ird.govt/nz/crs to delegate myIR access to the corporate trustee for reporting); and Trusts (and their corporate trustees) • An existing Foreign Trust Registration with CRS reporting obligations Number is not a substitute for an IRD Inland Revenue has received a number of questions about how number, because it will not allow you financial institution trusts can register with Inland Revenue and to access the myIR portal (refer Non- report for CRS purposes (ie, if they have any reportable accounts). resident offshore business IRD number Trusts can sometimes be financial institutions for CRS pur- application IR744). poses – with CRS due diligence and reporting obligations. This Please note: In myIR a disclosure is will generally be where such trusts (including trustee documented submitted by the corporate trustee and trusts and certain foreign trusts). the information is recorded against a A New Zealand financial institution (NZFI) trust will be a Non- trust’s IRD number in the IRD’s system. Reporting NZFI trustee documented trust if it uses a trustee that is a The corporate trustee also requires an IRD reporting financial institution, to duly carry out its CRS obligations. number and their own myIR access so a The financial institution trustee will report to Inland Revenue on trust can ‘delegate’ myIR system access the trust’s behalf if the trust has any account to report. Although to the corporate trustee – to report on the the financial institution trustee will report any accounts to Inland trust’s behalf. Alternatively the corporate Revenue on the trust’s behalf, the trust itself will still be required trustee is able to ‘request’ reporting access to be registered with Inland Revenue, for CRS purposes if they’re in myIR, from a trust. managed by another financial institution (such as a financial Further details are in the CRS user institution corporate trustee or asset manager), and derive their guide available from CRS registration and income mainly from financial assets. reporting. Registration – Trusts CRS: Account freezing In order for the trust to be reported on, it needs to be registered and closure with Inland Revenue. You can only do this on behalf of the trust There are significant implications for if you are a ‘tax agent’ (as per the requirements of Section 34(b) account holders if a financial institution of the Tax Administration Act 1994) for the trust. Otherwise the is not able to obtain a valid CRS self-certi- trust will need to register directly with Inland Revenue. fication from them (ie, about whether the Registration is, in turn, a pre-requisite to being able to phys- account holder or controlling person is a ically report the prescribed information (about their reportable relevant foreign tax resident). accounts) to Inland Revenue. Both CRS registration and reporting Law firms may be asked to assist in are conducted via myIR. providing relevant information if they

28 LAWTALK 918 · June 2018 MEDIATION

MEDIATION are connected with such accounts (eg, a law firm may manage a trust account for such an account holder and may be asked by the bank that maintains the account to confirm whether that person is a relevant Embracing foreign tax resident). A financial institution – such as a bank should not open accounts until they have Diversity obtained a completed self-certification. The financial institution is then required to “validate” (check the reasonableness of) Part 4 – Celebrate the self-certification. A financial institution that adopts a “back office” “day two” pro- our differences cess to validate self-certifications needs to obtain a valid self-certification within 90 days and in time for the end of the BY PAUL reporting period. SILLS IRD has received a number of queries about what happens if the financial institu- tion is not able to obtain a valid self-certi- Globalisation should mean heterogeneity not homogene- fication (ie, on “day 91”). In order to hold a ity. Instead of creating a single, boring global village we should financial account in New Zealand, account focus on encouraging the proliferation of cultural diversity. Many holders (and other persons connected with voices, more choices, less uniformity. We could enjoy a rich array the account – such as controlling persons) of cultures and allow diverse ideologies to flourish. are required by law to comply with all CRS obligations, including self-certification “Strength lies in differences, not in similarities”. requests. If they do not comply with all — Stephen Covey of their CRS obligations then the financial institution may not open an account for Why? them, or may freeze and/or close the 1 People have diverse aptitudes and skills, whether based on account. their cultural backgrounds or different fields of interest. It is Specifically: beneficial to have individuals with various talents, whether in • If an account holder intends to open a group, company or social setting. a new account and does not provide 2 Diversity encourages individuals to embrace some of the quali- the relevant information, the financial ties of humanism, not necessarily as a religious or philosophical institution must not open the account. policy, but rather as a way of relating to others. By learning about • If the financial institution does open an and understanding the different traditions of a friend or work account (ie, because it has obtained a colleague we can become more sensitive to those traditions. completed self-certification) then it is 3 “You cannot solve a problem from the same level of thinking legally required to also check whether the that created it” (Einstein). Different backgrounds and cultures account information provided is correct. approach conflict in different ways. People with diverse back- As part of this process an account holder grounds can provide insight on new approaches to address may be asked to provide additional infor- difficult moral or other dilemmas. mation and/or documentation. 4 Diversity educates us. We learn about the traditions of other • If the account holder does not respond “tribes” through formal education and life experience and, in correctly and completely to requests for doing so, find it more difficult to judge people from those tribes. information then the financial institution 5 Research shows that productivity flourishes in culturally diverse might freeze and/or close the account. cities and that people are willing to pay to live and work in such To reinforce these points Inland Revenue fertile environments. The mind expands when encountering has updated its account holder brochures modes of thinking that differ from its own. Diversity provides for both the CRS and FATCA available from: innovation which in turn propels economic growth. www.ird.govt.nz/crs and www.ird.govt.nz/ 6 The diversity that globalisation has brought into the world’s fatca ▪ most cosmopolitan cities offers tangible benefits – for personal development, communities and the economy as a whole. For Joanne Poole is Senior Project Manager, people who appreciate cultural diversity and want to live in Michael Webb is Principal Advisor AEOI tolerant, open societies, the vibrancy of major cities like London, & FATCA and Jacqui Thompson is AEOI New York and Melbourne is a major attraction. Diversity thus Change Lead at Inland Revenue. acts as a magnet for talent, which in turn further spurs economic

29 MEDIATION

growth. 7 Diversity broadens the range of cultural experiences available in a city or country. The mingling of cultures through immi- gration leads to distinctive innovation. People are now interested in new holistic approaches to issues that blend Eastern and Western influences, spirituality and quantum physics, ancient wisdom and modern theories. People who have grown up in multicultural societies often find it not only normal but desirable to live with people of different backgrounds. Diversity is not merely tolerated, but something to be actively sought out. The biggest economic benefit of diversity is that it stimulates new ideas, which are the source of most economic growth. The exceptional individuals who come up with brilliant new ideas are often immigrants. Instead of following the conventional wisdom, immigrants tend to have a dif- ferent point of view and notice new details. As outsiders, they are more determined to succeed. For example, of Britain’s 129 Nobel prize-winners, 21 arrived in the country as refugees. Most innovations nowadays do not come from individuals but from groups of talented people sparking off each other. diversity as a nicetohave attribute. Truly successful and innovative The more diversity within the group the organisations are those that build diverse teams when they are just more expansive the thinking and therefore starting out in their own apartment or in their garage. Diversity the innovation. is a mentality, not just a strategic imperative. Diversity is vital in a range of important A cornerstone to making diversity work is to respect all people industries and sectors, because an ever- and to genuinely value the differences among them. By always increasing share of advanced economies’ putting these values into action you can overcome personal prosperity comes from companies that inhibitions and apprehensions. solve problems – whether they are develop- As John Stuart Mill remarked in 1848: ing new medicines, new computer games “It is hardly possible to overrate the value, for the improve- or new environmentallyfriendly technol- ment of human beings, of things which bring them into ogies, designing innovative products and contact with persons dissimilar to themselves, and with policies, or providing original management modes of thought and action unlike those with which they advice. are familiar ... there is no nation which does not need to Diversity is critical for an organisation’s borrow from others”. ability to innovate and adapt in a fast Coming into contact with different types of people, different points changing environment. It is essential to of view, different ways of thinking and different lifestyles, helps the growth and prosperity of any organ- us understand our own culture and the world around us better, isation that it be able to draw on diverse to grasp the values and assumptions that underpin them, and perspectives, experiences, cultures, gen- hopefully progress as individuals and as a society. As we do so, ders and ages. Why? Because diversity conflicts should be resolved more readily and effectively.▪ breeds innovation and innovation breeds business success. Paul Sills  [email protected] is an Auckland barrister Successful companies are not the ones specialising in commercial and civil litigation. He is also an that build a business and then look at experienced mediator.

30 LAWTALK 918 · June 2018 ACCESS TO JUSTICE

ACCESS TO JUSTICE New Zealand’s ranking improves in the latest WJP Rule of Law Index

BY AUSTIN FORBES QC

In an associated WJP special report on Global Insights on Access New Zealand has improved a notch to Justice (conducted on a probability sample of 1,000 adults aged in the latest World Justice Project (WJP) 18+ in Auckland, Wellington and Christchurch), 63% of New Rule of Law Index for 2017-2018. New Zealanders experienced a legal problem in the last two years, Zealand is currently ranked 7th of the the most common being in respect of housing. 113 countries assessed in the report, with Where there was an incidence of a legal problem, only 13% a score of 0.83. This is the same score as turned to a third party or authority to help resolve the problem for 2016, but represents an improvement and 5% reported that one party had resorted to physical violence. of one place owing to Austria’s score In terms of resolution, 69% indicated the problem had been falling. The WJP Index measures the fully resolved (or were done with the problem), with only 4% rule of law based on experiences and having done this by the decision of a third party or authority. The perceptions of the general public and average time to solve the problem was 7.83 months. experts worldwide. Encouragingly, the special report indicated 71% were satisfied Again, New Zealand tops the WJP with the outcome; 77% knew where to get advice; 73% were Index for the East Asia and Pacific Zone confident they could achieve a fair out- and it continues to be the highest-ranked come, and 67% got all the expert help common law jurisdiction in the world, they wanted. Concerningly however, 46% ahead of Canada (9th), Australia (10th), disclosed they had experienced hardship the United Kingdom (11th) and the United as a result of their legal problem, the most States (19th). Again, the Scandinavian common being a stress-related illness. countries (Denmark, followed by Norway, As the WJP acknowledges, there are Finland and Sweden) top the rankings. Again, New inherent limitations in the methodology In respect of particular sub-factors, Zealand tops underpinning the WJP Index and this New Zealand scores the maximum (1.00) the WJP Index can probably also be said of the special for absence of conflict and close to this for the East report. But there is nevertheless value in for absence of corruption in the judiciary Asia and Pacific assessing the areas in which New Zealand (0.96). Zone and it performs relatively well and those where However, there are several rankings for continues it does not. New Zealand that give rise to concern. We to be the New Zealand’s overall ranking in the are ranked below our overall ranking (7th) highest-ranked WJP Index is corroborated by Transparency for the broad factors of fundamental rights common law International’s Corruption Perceptions (11th), criminal justice (14th) and, perhaps jurisdiction Index which currently ranks New Zealand surprisingly, order and security (16th). in the world, the best in the world (ie, the least corrupt), New Zealand’s scores are also relatively ahead of along with Denmark. Lack of corruption is poor for the sub-factors of criminal justice Canada (9th), an integral component of strong adherence relating to the absence of discrimination Australia (10th), to the rule of law. ▪ (0.61), effective investigations (0.63), and the United an effective correctional system (0.65). So Kingdom (11th) Austin Forbes QC is convenor of the there is a need for improvement in these and the United New Zealand Law Society’s Rule of Law areas. States (19th). Committee.

31 TIKANGA AND TURE June 2018 · LAWTALK 918

TIKANGA AND TURE Me rehe te matau, me rehe te mauī!

BY ALANA THOMAS

these words and phrases in the right way and at the As legal professionals we strive to do the best right time. Questioning and fully understanding is, in everything that we do. of course, what makes an expert, yes? So, let’s get Not only for the clients we represent and the industry “hello” right: we uphold, but for our own continued legal devel- opment. Being experts in our fields is a part of what Kia ora makes us trusted and sought-after legal professionals This is informal and generally used to greet a friend, and understanding te reo Māori me ōnā tikanga within colleague, someone you may know well or see often. today’s legal sector is becoming increasingly necessary It’s more of a “g’day” type greeting when you walk into to attain (or maintain) that level of expertise. the office or pass someone at the coffee shop. Kia ora The headline, “Me rehe te matau, me rehe te mauī” can also be used to agree with something someone has literally refers to someone who is ambidextrous but said, “oh yes, kia ora, kia ora”. And you may hear it is often used to acknowledge a person who mastered during mihimihi (speeches) from people listening and their skill in its entirety. They are considered an expert agreeing with what the kaikōrero (speaker) is saying. in their field. Literally translated, kia ora means to “be well or So, in our case, if the right hand, or te ringa matau, healthy”. And you may see or hear it used within phrases is the law that we are already knowledgeable in, and like, “kia ora te reo Māori” or “let the Māori language live”. the left hand, or te ringa mauī, is te reo Māori me ōnā I would not use kia ora in the courtroom, when greet- tikanga, we need to ensure there is balance and we ing manuhiri (guests) in a pōwhiri (formal welcome), need to become knowledgeable with that side too. Let’s nor when meeting clients for the first time. I would, start with saying hello. (Yes, this will take up the whole generally, not use kia ora if I was greeting anyone for article, but bear with me). the first time (especially if they are Kuia, Kaumatua, Over the past two weeks, I have people who hold positions of leadership or respected been asked questions by several people within our community). E whai mai ana koutou? lawyers, court staff and judiciary Literally translated, (Are you following me so far?) So, in all those instances, about the appropriate way to greet kia ora means I would use Tēnā Koe. people, taking into account the set- to “be well or ting, who they are, and the environ- healthy”. And you Tēnā Koe ment in which you are greeting that may see or hear This also means hello. And this too can be used to agree person. Easy I thought, and sent out it used within with something someone has said, or to acknowledge my standard reply: you use “Kia ora” phrases like, “kia that they are there. But this greeting is much more as an informal greeting and “Tēnā ora te reo Māori” formal. It would be more appropriate to use Tēnā Koe Koe” for a formal greeting. or “let the Māori in the situations I listed in the above paragraph. But, unsurprisingly, this answer language live”. I have been asked if there is another (more formal) wasn’t enough and there were a I would not use greeting that could be used in court to address the number of follow up pātai (ques- kia ora in the judiciary. To be clear, Tēnā Koe is THE MOST formal tions). Those inquisitive people courtroom, when way you can greet a person. But there are different then received a book-length email greeting manuhiri ways of addressing whoever you are speaking to after and I’m sure quickly regretted (guests) in a the “Tēnā Koe” to give more mana or respect to that asking in the first place. But it pōwhiri (formal “hello”. made me realise that, with this welcome), nor For example: profession especially, we need to when meeting • “Tēnā koe e te Rangatira” which refers to that person ask those questions to understand clients for the first as a chief or leader; fully and ensure that we are using time. • “Tēnā koe e te Kaiwhakawā” which refers to a judge

32 particularly. Or perhaps how to say it. Alana Thomas  alana.thomas@ • “Tēnā koutou ngā Kaiwhakawā e Please NEVER use Google Translate for te reo Māori. kaupare.co.nz is a director of noho ana i tēnei tēpu rangatira” to Kei hopo koe ki te whakapā mai (Don’t be afraid to ask me Kaupare Consultancy. Before greet not one judge, but a panel instead). I would suggest adding kupu whiore (following practising law she worked as a of judges. words) like I have noted above. Deputy Registrar at the Māori This can be differentiated from a So now that we have mastered hello, start practising Land Court in Whangarei. Alana “Tēnā koe e hoa” which is still a greeting everyone you see in your day with these terms, is fluent in te reo Māori and is a formal hello but by adding “e hoa” and make sure you are using the correct kupu for each strong advocate for the use and (friend) on the end, it has a more situation. promotion of te reo Māori within relaxed nature. (FYI, I would not use Me rehe te matau, me rehe te mauī! ▪ the law. Tēnā koe e hoa to address a judge in court). I have also heard people use “Tēnā rawa atu koe” to give more emphasis to the greeting. While this is not wrong, be careful adding modifiers in between and make sure you know it is correct. I have also heard “Tēnā nui koe” Recognised industry experts or “Tēnā tino koe” because people Serving legal documents for over 30 years have looked up words like “very” and “a lot” and mistakenly used Fast, professional, nationwide process serving for solicitors & government agencies. them in this way, or this is how P: (09) 302-2476 E: [email protected] W:www.docuserve.co.nz Google Translate has told them

33 CHANGING OUR CULTURE June 2018 · LAWTALK 918

CHANGING OUR CULTURE Developments

National meetings provide excellent impetus

Meetings held by the New Zealand Law Society with organised groups across the legal community in April resulted in some excellent collaborative initiatives to work on positively changing the culture of the profession, says Law Society President Kathryn Beck. The meetings were held in Auckland, Christchurch, Dunedin, Hamilton and Wellington and were attended by repre- sentatives from a large number of legal groups and organisations. “We organised the meetings in the cities with law schools so that staff and students could be included. The students are the future of our profession and their input in assisting to change the legal culture and ▴ Law Society President Kathryn Beck has been addressing ethics setting expectations early on as to what classes at New Zealand’s law schools and professional legal it means to be part of a profession will be studies courses. She is seen here addressing law students at crucial to successfully transforming our the University of Otago about our “wonderful but difficult” profession,” Ms Beck says. profession, what new lawyers can expect, the support available As well as academic staff and student to lawyers and the measures the profession is putting in place. associations, the meetings included rep- resentatives from Te Hunga Rōia Māori o Aotearoa, the Government Legal Network, and culture of our legal workplaces.” regional women lawyer groups, the New Ms Beck says the meetings lasted for an Zealand Law Librarians’ Association, the average of two hours and the represent- New Zealand Institute of Legal Executives, atives outlined their own initiatives for Presidents and members of Law Society change and their plans for the future. local branch councils, the Public Defence The students “It was very clear that, right across Service, young and new lawyer groups, the are the future of the profession, people are committed to Criminal Bar Association, the New Zealand our profession working together to put changes in place. Bar Association, the Resource Management and their input There are also many practical initiatives Law Association, ADLS Incorporated, repre- in assisting to underway, and the meetings provided sentatives of the large law firms group, and change the suggestions for what needed to change. the Institute of Professional Legal Studies legal culture “The Law Society is now building on the and the College of Law. and setting momentum from the meetings, along with “We wanted to include all the organised expectations the findings of the Workplace Environment groups that form part of the legal commu- early on as to Survey. We are establishing a taskforce to nity,” Ms Beck says. what it means drive cultural change and eliminate bully- “It was very heartening to be involved in to be part of ing and sexual harassment from the legal these meetings. Everyone there was part a profession profession. Lawyers are now being asked of a great profession which needs to make will be crucial to express their interest in working on the some very important changes. The focus of all to successfully taskforce, which will work alongside the meetings was very much on the future and transforming regulatory working group led by Dame what steps can be taken to address systems our profession Silvia Cartwright.”

34 LAWTALK 918 · June 2018

The views of Wellington male lawyers

Law Society Wellington branch President David Dunbar sought the views of male lawyers on the recent events in the pro- fession. Writing in the May issue of the branch newsletter Council Brief, he noted that making sense of the questions over the culture of legal practice and making progress to positive change requires honest conversations among all – and men in particular. “It takes courage and being open minded to challenge my own assumptions and actively contribute to debate and change. So, I’ve sought the views of some male colleagues. Men I respect and whose experiences will broaden my own, whose reflections I want to hear – and share.” Some of the insights and views of male lawyers which Mr Dunbar provides: “The number and nature of the reported incidents is truly shocking. I had no appre- ciation of the magnitude of the problem. I am embarrassed that I had such a lack of awareness.” “As a male practitioner I see the issue “In my own practice we have tried to 

Andrea Schaffer “Maybe I worked in the wrong places, not so much as one of culture but one of address gender, culture and other issues not in a large firm, much of the time ini- a lack of basic human decency and, as I through focusing on respect for each oth- tially in the smaller regions. Many of the understand the allegations at their worst, er’s values, whatever they are. This also smart lawyers I respected and worked serious criminality.” applies to our clients and colleagues in with or for were women. Perhaps I had a “Certainly, one thing has been lost other parts of the profession. This does

jaundiced or skewed view.” - respect. Talking to a senior female not mean we are OTT, politically correct b “The news over the past few months, colleague recently she agreed. When I all the time. It does mean we try to be in some ways, does not surprise me. Law began practice the basic rule, in litigation sensitive and, when pulled up, apologise School did have the blokes who went to anyway, was that you treated everyone and change our attitudes. For me, it has the right schools, played the right sports, with respect. Today’s opponent was been a healthy process. Being open to crit- came from the right families and seemed tomorrow’s ally and there was certainly icism from my staff has been very much destined to be their fathers’ sons in law camaraderie. Of course, the Bench a part of this. At times I would like to feel firms where family name and school were and Court staff had to be particularly that I could frankly tell a colleague that important. I had heard that ‘work hard, respected. Sex was not much of an issue. they should change their ways without play hard’ was part of the culture and came More important was ability.” the issue being seen as a personal or across women – and men – who found “I did not encounter it much. However, professional attack.” the whole thing stressful, frustrating and I have encountered a certain arrogance “Honestly, it doesn’t seem that hard - demeaning and got out.” - from both men and women in large don’t sexually assault people, don’t regard “There is no getting away from the fact law firms. That seems to have become young employees as appropriate sexual that our profession has in many quarters more common. Also, it seems, people in partners and if one’s decency or self-re- been something of an ‘alpha dog’ culture smaller practices increasingly seem to straint diminishes after a few drinks, give and different people react to that, or work believe that arrogance and aggression are up the booze or don’t drink with employees within it, in different ways. I feel that, as more important than respect. Regarding present. I think the best role for middle-age a new generation of lawyers comes into bullying, harassment and gender equality, males is to make it as clear as possible senior roles within firms, and on the bench, I worry that some women can be bullies that they will not acquiesce in this sort a different environment is being created.” too.” of thing.”

35 CHANGING OUR CULTURE June 2018 · LAWTALK 918

Keeping Track: Some measures at 11 May 2018 Canterbury policy for students on internships and harassment

New Zealand-based lawyers: 13,277 Earlier this year the University of Women: 6685 (50.4%) (Up from 50.3% on 13 April) Canterbury introduced a policy for Men: 6592 (49.6%) law students entitled Internships and Lawyers in multi-lawyer firms: 7748 Harassment. This was in response to the Partners and directors: 2874 allegations of sexual harassment, assault Women partners & directors: 907 (31.6%) (up from 31.3% on and bullying directed at Russell McVeagh 13 April) during a summer clerk programme over Men partners & directors: 1967 (68.4%) two years ago. Employed lawyers: 4874 Dean of Law Professor Ursula Cheer Women employees: 2988 (61.3%) (no change from 13 April) says it was that story in the media which Male employees: 1886 (38.7%) compelled the University to examine what In-house lawyers: 2973 more it could do to ensure the safety of Women in-house: 1833 (61.7%) (up from 61.6% on 13 April) students embarking on internships or Men in-house: 1040 (38.3%) summer clerk programmes. Queen’s Counsel in practice: 119 “We wanted to provide a definition of Women QCs: 23 (19.3%) harassment, what forms it might take Male QCs: 96 (80.7%) including sexual, racial and sex or gender identity harassment,” she says. New Zealand Judiciary (permanent): The Policy also includes a concise list of situations to be aware of when working in Court Women Men % Women % Men the law profession as a student. Supreme 3 2 60% 40% “So information about perhaps the Appeal 2 8 20% 80% dangers of possibly meeting law firm High (incl partners late at night or at their homes, 16 32 33%* 67% Associate) or restaurants. Being forced to go out for alcoholic drinks,” she says. District 52 107 33% 67% Professor Cheer says other areas it warns Environment 2 7 22% 78% about include potential situations where Māori Land 3 6 33% 67% students might feel dominated or bullied. Employment 2 3 40% 60% “Things such as having to do things for more senior members of staff when Total 80 165 33% 67% actually they [the staff members] could *Down from 34% at 13 April. clearly carry out those tasks themselves This information is taken from the websites of the various and these activities were not understood courts. Note that the District Court website states that the to be part of the job,” she says. judges listed are current as at 27 November 2017. Five non-sit- At the extreme end of the situations ting full-time judges such as the Children’s Commissioner are to look out for include if a more senior included in the total. member of a law firm asked a student for sexual favours in return for preferential Signatories to Gender Equality Charter: 30 (up from 4 at 13 treatment in the workplace. April) “We’ve had really positive feedback Signatories to Gender Equitable Engagement and Instruction from former students who now work in Policy: 36 (up from 33 at 13 April) the legal profession. The ongoing feedback from the current students has also been Help make a difference: Commit to the Gender Equality good in that they’ve said they feel safer. Charter. Email [email protected] with the It didn’t cause a rush of complaints about subject line Sign Me Up. The Gender Equality Charter bad experiences in law firms. I have had and information on how to sign up to it, can be found at some students talk to me about concern- lawsociety.org.nz under Law Society services, in the Women ing situations but on the whole, it’s been in the Legal Profession section. very positive,” she says.

36 LAWTALK 918 · June 2018 CHANGING OUR CULTURE

How Wakatū Keeping Track: Update on Law Incorporation addresses Society developments harassment and bullying in the workplace 0800 Law Care phone line: The Law Care phone line (0800 0800 28) is staffed by five specially trained Law Society employees Kerensa Johnston, CEO and General and has been operating since 3 April. The service is for people Counsel of Wakatū Incorporation was in the legal community who want to discuss sensitive matters asked about the workplace environment such as workplace harassment and the options and support they for the legal team, which consists of can access. The operators are able to provide callers with options Kerensa and a Governance Executive. about the services they can seek support from. Because few calls Does Wakatū Incorporation have a policy have been received extra resources to explain and promote the and process in place which addresses any availability of the service have been prepared. These include form of harassment and bullying in the explanatory podcasts and videos for the Law Society website, workplace? and posters for display in legal workplaces. Information on the Yes. Wakatū Incorporation has a com- reasons for the low response is also being sought. The Law Society prehensive harassment and bullying remains committed to providing the service. policy, which has been recently reviewed. Online reporting facility: A facility on the Law Society website Our policy ensures any allegations or har- since 3 April allows lawyers to submit confidential reports of har- assment in the workplace are dealt with assment and other unacceptable behaviour. The online facility confidentially, impartially, and correctly. It allows lawyers to obtain information to assist in determining forms part of a suite of policies, designed whether they should submit a report, which can now be done to ensure that everyone in our workplaces online and can be submitted anonymously. is treated with dignity and respect, and Regulatory working group: Chaired by Dame Silvia Cartwright, in line with our values. A related policy the five-member working group is required to consider whether is our protected disclosures policy. This the existing regulatory framework, practices and processes enable policy ensures there is a clear process adequate reporting of harassment or inappropriate workplace in place to facilitate the disclosure and behaviour within the legal profession, along with how better investigation of serious wrongdoing and support can be provided to those making reports of sensitive to protect employees and other parties issues, and the adequacy of the regulatory framework to enable who raise concerns about any serious effective action to be taken where such conduct is alleged. wrongdoing. Online resources: A range of online and other resources are Has the Wakatu Incorporation legal available in a special section on the Law Society website, Bullying team taken any specific measures recently and harassment in the legal profession. These include practical to address the issue of harassment and guidance and information on prevention of bullying and harass- bullying in the workplace? ment and a Word template for development of a sexual harassment No, the legal team has not taken any policy and guidelines. specific measures recently to address the National interest group meetings: Feedback and findings issue of harassment and bullying in the from the series of meetings organised by the Law Society with workplace. However, as an organisation representatives of key interest groups during April will be used we have an ongoing focus on our six to establish a taskforce to drive cultural change and eliminate values: rangatiratanga, manaakitanga, bullying and sexual harassment from the profession. Expressions whanaungatanga, kaitiakitanga, hihiko and of interest will be called for membership of the taskforce. pono. Across these values are concepts of National Friends Panel: The names of a number of lawyers looking out for each other, mutual respect who are available to discuss sensitive matters such as workplace and integrity. We run regular workshops on harassment have been highlighted in the National Friends Panel our values, and our induction programme List on the Law Society website. Contact details and the location ensures that our new team members of the lawyers are shown. understand our values as well as all our Harassment webinar: The NZLS CLE Ltd webinar on preventing policies related to workplace harassment bullying and harassment in the workplace is available free of and bullying. charge on the NZLS CLE Ltd website and may be viewed online.

37 CHANGING OUR CULTURE June 2018 · LAWTALK 918

CHANGING OUR CULTURE Take steps towards a new story: Bullying or harassment involving clients

BY VALERIE BLAND

What can be done if an Extra Law though; client relationships and There’s a lot for me that’s ‘new’ employee is being harassed or employee relationships are of the – new law firm, new policies, new bullied by a client? How can the utmost importance and law firms culture, new employees, being a firm Extra Law confidently assure want safe, rewarding and continu- new employer, and new client its clients that it has taken steps ing engagements in both cases. engagements. My new firm, Extra to avoid introducing a "cuckoo in Law, provides legal services in the nest" – a lawyer employee who What the law says a new manner and I am keen to could harass or bully the client’s The Human Rights Act 1993 and look at issues that may arise for staff? Employment Relations Act 2000 my firm in a new way, too. The Bullying and harassment require an employer, in certain legal profession is reeling with between the client’s staff and the situations, to take steps to mini- recent stories of harassment and law firm’s staff is not just a concern mise the chances of a harassment bullying and the “unprecedented for Extra Law. The New Zealand episode taking place before it arises. media attention and the criticism Law Society’s recent webstream In a moral sense, we would prefer that has followed” [Tim Jones, on dealing with bullying and har- that episodes of bullying and har- LawTalk 916, April 2018 page 11]. assment in the workplace had an assment didn’t occur in the first These emerging stories have led me anticipated attendance of more place, or at least were nipped in the to focus on potential bullying and than 2,000. During the online chat, bud to attempt to alleviate further harassment episodes particularly and in the questions afterwards, damage to the participants. From a between the client’s staff and the the issue of bullying or harassment business point of view it would be law firm’s staff. by clients was raised multiple desirable to take steps before any Extra Law, as an Alternative times. Questions about client bul- episode took place that provided Legal Services Provider, provides lying or harassment focused on some confidence that we could its clients with lawyers on a flexible balancing the ethical obligation together reach a solution that is fair basis, delivering legal services as to complete a client engagement, and supportive to the participants, a temporary team member within with “firing” an abusive client. One but does not end either the client the client organisation. Extra Law’s of the presenters told us that they or employee relationship. And, if employees are working in the cli- had recently “fired” a client for that we had to take the ultimate step ent’s office on a day-to-day basis reason – and the post-presentation of “firing” a client, wouldn’t it be and an individual employee’s inter- answers confirmed the view that easier to do so if there had also been actions are predominantly with serious or repeated harassment by some ground work from the start: the client’s staff rather than other a client could be a good reason to that the client was aware of how, Extra Law staff. This increases the disengage under Rule 4.2.1 of the and why, that could happen, and odds that an episode may involve Lawyers and Conveyancers Act was involved in the process? the client’s staff and means that (Lawyers: Conduct and Client Care) The Health and Safety at Work purely internal policies on minimis- Rules 2008. Act 2015 requires the employer to ing harassment and bullying, and Being assured that a law firm take all reasonable steps to ensure processes for dealing with any epi- may have good reason to disengage, the health and safety of its workers, sodes, would not be a total solution. should not be the end of the matter and bullying and harassment are

38 LAWTALK 918 · June 2018 CHANGING OUR CULTURE

recognised hazards. Where an employee’s role involves subject of the complaint, and for client contact, it is arguably a clearly reasonable step anyone else involved; strategies to have some pre-agreed protocols about bullying and for low-key informal solutions; harassment between client and law firm, depending on and mechanisms to rebuild the extent of that contact. relationships; Where a law firm employee is on secondment to a 2 Seek input on the policies client (and based in their premises), the mental and from employees and modify as physical safety of that employee in that client’s office necessary; may already be a dual responsibility: the law firm 3 Include a concise document about employer has the duty to ensure, so far as is reasonably expectations of working together practicable, the health (physical and mental) and safety (including staff working together) of its employees at work (section 36); and the client based on the policies, at the start who manages or controls the workplace has the duty of each client engagement, or at to ensure that the workplace and anything arising from an appropriate time if the engage- the workplace are without risks to the health (physical ment has already commenced. and mental) and safety of the law firm employee who Consult, coordinate and coop- is lawfully at the workplace (section 37). A dual respon- erate with that client, including sibility under the Health and Safety at Work Act 2015 exchange of policies, and modify means that the parties must, so far as is reasonably the document as necessary; practicable, consult, cooperate, and coordinate activities, 4 Ask for feedback as part of with each other (section 34): these would be in respect ongoing client and employee of the law firm employee’s health (physical and mental) arrangements, and, following and safety, whilst he or she is on the client’s premises. consultation, coordination, and cooperation, update the policies Good sense to consult and the document accordingly. So in an engagement (new or ongoing) between client Now is a good time to share new and law firm, where there will be more than minimal stories about the steps that law contact, it makes good sense for a law firm to consult, firms are taking to address bullying cooperate, and coordinate activities, with the client, and harassment, and to minimise about bullying and harassment. We can take steps to the frequency of episodes and show an awareness that a healthy understanding will their impact, no matter where, and inform the engagement at all levels. The law firm can between whom, they occur. We are demonstrate an alignment with its client on health and in an industry based on understand- safety matters. We mutually want any stress during the ing the written and spoken language, engagement to be healthy; recognising that there may and we should back ourselves that, be challenging and robust situations at times, such as we would prefer with nuanced and sophisticated working late together or the job not going well. At all that episodes messaging, we can take positive stages of a client engagement, the law firm will be want- of bullying and steps to minimise the potential for ing to show itself in a good light, and ease of working harassment bullying and harassment, whilst together is an important element to display. didn’t occur in enhancing our employee, and our So bringing all those factors together, Extra Law the first place, client, relationships: intends to take the following steps: or at least were 1 Develop anti-bullying and harassment policies that nipped in the bud “Step out of the history that also focus on the relationship between the law firm to attempt to is holding you back. Step into and its clients. The policies in relation to clients could alleviate further the new story you are willing include most aspects recommended in the webstream damage to the to create.” — Oprah Winfrey ▪ post-presentation answers to encourage both the cli- participants. From ents and the law firm to address concerns early and a business point Valerie Bland  valerie.bland@ directly, before they become major issues, such as: of view it would extralaw.co.nz is the founder of information on reporting concerns; clear and trans- be desirable to Extra Law Ltd. She previously parent processes for dealing with reported concerns; take steps before worked in private practice for 15 natural justice and discretion; support for the person any episode took years and for five years with the who complains, for the person whose behaviour is the place Ministry of Education.

39 CHANGING OUR CULTURE June 2018 · LAWTALK 918

CHANGING OUR CULTURE Canterbury law students discuss sexual harassment and bullying in the profession

BY NICK BUTCHER But is that reality or just the Much of the focus of the sexual harassment, assault and experience at a few firms? bullying allegations publicly directed at the law profession have It wasn’t for Bex Falconer, who says no stemmed from the experience of a group of Victoria University one forced her to drink excessively at the law students who were part of a summer clerk programme more mid-sized firm she was at. than two years ago. “It was definitely a work hard and learn LawTalk travelled to Canterbury University in Christchurch to a lot atmosphere. I think people respect meet three final year students at the School of Law. your decision on how intensely you want Hannah Lindo, Bex Falconer and Ben Hardisty are all on the to take advantage of the open bar. But then cusp of finishing their law studies and are eager to work in the there is always that stigma of ‘if I don’t profession. drink, I’m going to look stuck up, cold and As the conversation unravelled, it was apparent that the serious closed off from being able to speak with allegations that were pointed at law firm Russell McVeagh didn’t people’. But I think it’s about finding the just affect Victoria University students. happy medium,” she says. The students from Canterbury University toldLawTalk that Hannah Lindo has not worked as a clerk rumours have been swirling for some time about one of the yet but does feel the law profession has a country’s most prestigious firms. culture based around alcohol. “They didn’t come as a surprise. You hear whisperings, not from “While I haven’t had that experience, specific people but it was a ‘thing’ going through law school that I I’d hope that I wouldn’t be subjected to was aware of. Both my parents are in the profession and rumours having alcohol poured down my throat travel quickly in a small country,” says Ms Lindo. excessively, which would be wildly inap- “When it all came out in the media, it was a case of ‘I’d heard the propriate,” she says. rumours spreading through law school’. But once it all came out, Ben Hardisty clerked last summer and it was, ‘so this is real life and this has happened to real people’,” says while there were work drinks on a says Ms Falconer. Friday afternoon, there was no pressure “I was definitely in a similar boat. I spoke to people from to be there. Victoria at the end of last year and there was talk about it then, “Not everyone would go. Some people but it was hard to gauge how serious it was when it was at that would and just have a diet coke and then go stage just talk between students. It wasn’t a surprise but there back to work or home. Those who wanted was certainly an element of shock that it was 100% legitimate,” to have a few alcoholic drinks were very says Mr Hardisty. welcome to. It really depended on peo- Clerk programmes are opportunities to be mentored by senior ple’s workload. Often I’d hear people say, lawyers. They’re also a chance to prove your work ethic and ability ‘not this week for me’. I wasn’t at one of in the hope of securing a job at the firm. They’re highly competitive, the really large law firms but the culture but then that’s the nature of the law profession. of the mid-size firm I was at was really But there’s also a perceived and attractive social element to enjoyable. Even the work Christmas party the experience in that there’s opportunity to mix and mingle, was certainly not at the level some of the network and enjoy the trappings of a successful law firm such media has portrayed law firm Christmas as an open bar. parties at,” he says.

40 LAWTALK 918 · June 2018 CHANGING OUR CULTURE

Despite the students’ more sedate expe- riences, the law profession is still blighted with a stain of irresponsible after-hours behaviour and, because of the serious- ness of the allegations, Russell McVeagh is undergoing an external review of its culture. The New Zealand Law Society Regulatory Working Group is investigating whether the processes for reporting and taking action on harassment and inappropriate behaviour in legal workplaces is up to the test. Do these work streams put students in a better position with potential employers? The three final-year students have all been through, or are going through, the interview process for clerk jobs this coming summer. As Ms Falconer says they’re in a position where they can go into an interview and start a conversation about an issue that has been going on for a long time, but has ▴ From Left: Hannah Lindo, Ben Hardisty, and Bex Falconer. not been spoken about. Final year students at the School of Law. “I can comfortably say, ‘I’m really interested in your firm but what are your harassment policies because I want to why a young male lawyer would want to be assured that the know that I am going to be safe here’. I policies are up to the standard they should be at,” he says. went through my interviews before the Ms Lindo says she was torn by what to do but in the end she allegations came out. But I think if I was didn’t bring up harassment and bullying policies during her going through it again, I’d ask what their interviews and the policies weren’t offered to her either. policies on harassment and bullying are,” Her position was in contrast to, and perhaps a cautious response she says. to, a panel discussion at the law school where one of the lawyers Mr Hardisty says it’s not the same for on the panel encouraged students to ask potential employers about men. their respective harassment and bullying policies. “It’s a bit different. In some firms I chose “I was conscious of being painted as a potential complainer. It’s to ask and with some I didn’t. There was such a competitive environment in trying to get these positions. certainly no thought behind it as to why I was concerned because I have a lot of gender equality-related I should. It was always received well if I projects on my CV and that’s obviously something I’m very pas- brought it up. Finally we are in an envi- sionate about. I was worried that bringing up policies might affect ronment where we can talk about these my chances of getting a clerkship. I’m sure all firms have some things,” he says. skeletons in their closet and the last thing they want is media But while it might be less likely that a attention if something was to happen during a programme,” she male is sexually harassed, he could still be says. subject to other forms of bullying. Following the sexual harassment allegations, which weren’t “Certainly and I’d want to work at a place just pointed at Russell McVeagh, the University of Canterbury that had the best interests of all staff. On a School of Law Dean, Professor Ursula Cheer reacted swiftly with reputational level, who’d want to work at the introduction of an Internships and Harassment Policy. a firm that would risk reputational damage “Professor Cheer told us the University is behind us all the way. that has affected a firm such as Russell It’s really nice to be told this. It’s a ‘you’ represent us and ‘we’ McVeagh, so there’s lots of elements as to represent you sort of thing,” Miss Falconer says.

41 CHANGING OUR CULTURE June 2018 · LAWTALK 918

So how do you put the University career progression. policy into practice? “If I was to have a child, I couldn’t return The two-page document defines harassment, whether sexual or to work three months later, so there is racial and also provides a list of situations to look out for in a evidence showing that it does put some workplace environment, which could lead to unwanted attention. women at a disadvantage. But things are “It was really helpful to have those behavioural descriptions. becoming more flexible nowadays and I came straight from school to university and so I’ve not been perhaps back then it wasn’t the case. My exposed to the realities of the commercial environment where mother was a lawyer and definitely didn’t there are partners and senior associates and so forth. I’ve worked in progress at the same speed as my father hospitality throughout my university studies,” says Hannah Lindo. who is also a lawyer,” she says. Ben Hardisty says the policy is a valuable tool for students as it Technology is helping to pave the way removes any doubt a student may have in relation to legitimacy for a fairer system, with people being able of a possible complaint situation. to work remotely. “A definition from the law school gives us the knowledge on “There’s a lot of good research suggesting exactly what to look for, what is acceptable and what isn’t. It that in 15 or 20 years a lot more of us will was a hard stance by the law school. It’s practical in a reassuring be working from home so that’s great for way and explains to students exactly where the line is drawn in women that want to protect their careers,” a workplace. You’re able to say, ‘this has happened to me and Miss Falconer says. it is here in the policy from the law school saying that it isn’t She says, however, that often when right’,” he says. viewing websites of potential law firms Bex Falconer explains how it would be convenient to get into a to work at the partnership profiles are new job and ignore anything untoward that might occur because predominantly of men over 55. you’re so grateful to have that first job. “It would be so easy to say ‘that happened, but I just don’t want Weighing in on the Gender to deal with it or let it affect me in any Equality Charter way’. However, I think we are now able to It’s possible that some of the firms these say, ‘actually, that’s not ok, although my students will work in may have the New career is super important, I deserve to live Zealand Law Society’s Gender Equality my life feeling confident in a place where Charter embedded in their work culture. I spend 40 or 50 hours a week’. We have a The charter is about creating an equal great opportunity to be able to stand up pathway for women to achieve senior posi- for ourselves,” she says. tions in the law profession and asks work- places where law is practised to undertake What about the power an assortment of commitments to achieve imbalance within the this, including undergoing unconscious senior ranks of law? A definition bias training and gender pay audits. It’s common knowledge that over 60% of from the law “Those two things stood out for me. But law school graduates are women and that school gives us even for me, there are things that I think just over 50% of those holding practising the knowledge about and I pick up on my own prejudices certificates are women. Yet the glaring on exactly what against my own gender because of how problem of equality remains in that only to look for, what society conditions us to think. But, for about 30% of partners and directors of law is acceptable example, take Ben and I. Why in, say, three firms are women. and what isn’t. years’ time, if we are working in the same The number of women who practise law It was a hard firm, and the only difference is our gender, has been closing on men gradually over stance by the why should there be a difference in our the past 20 years. law school. It’s pay,” says Hannah Lindo. Law is definitely no longer a man’s world, practical in a Mr Hardisty agrees but stresses the despite many of the law firm partners and reassuring way business must be able to show that both directors being men from the so-called and explains to employees are even in relation to the skills baby boomer generation. students exactly they bring. Miss Lindo says that more women than where the line Bex Falconer says workplaces need to men tend to stay home with children for is drawn in a employ the Charter for genuine reasons, years that would normally have been about workplace. not as a public relations exercise.

42 LAWTALK 918 · June 2018 CHANGING OUR CULTURE

“I think the Charter would attract me to a regular media headline, the New Zealand Law Society has turned work at a firm but I’d need to know that the spotlight on itself and looked at how it can best address the they are actually using it, not just jump issues. on it, say they’re doing it but aren’t. It’s The media has in many ways been applying X-ray vision to so easy to polish your own reputation everything the Law Society has done to manage what was labelled when someone else’s is being thrown in as “Law’s dirty little secret” by one news organisation. the dump,” she says. She says firms that sign up to the Charter Do students know the regulator? should publish their audit results and prove Most law students who have attended university straight from themselves to their employees. school and have graduated will be about 23 or 24-years-old. “Total transparency because gender pay So is admission to the bar their first contact with the Law Society? gaps in particular make no sense to me,” “We have a lot of societies here on the university level but it she says. would be safe to say that but I’ve never seen or heard from the But as Mr Hardisty points out, what Law Society during my studies. I’m not particularly important about the possible scenario of a period of and while it’s not a bad thing because we are not lawyers, we parental leave of nine months and would are the next generation and are going to be the Law Society one the woman, on her return, then expect day. Just introducing themselves and saying ‘hey, we care about to be remunerated at a rate nine months you because you will be us in 20 years’ behind a male colleague of same ability? time’ would be nice,” Miss Falconer says. If she then had another child would she Hannah Lindo says the recent sexual then be 18 months behind? harassment allegations are about their “That’s difficult to answer. On one hand demographic. you can’t say it’s a disadvantage to women “I think when something like this having children because we can’t have a happens, and it’s a really big deal for the world where women don’t have children,” profession, talk to us. Tell us who you are Miss Lindo says. and what dealings you’ll be having with However, as Mr Hardisty notes, there is us in the future. Even if it was part of the also male parental leave and men wouldn’t Professionals course, perhaps explain the want to view that as disadvantageous to ethical expectations of us for our careers their careers. going forward. I know we learn this in “There’s also a huge stigma around this. A ethics but it’s not coming from the Law woman having a child doesn’t just benefit Society,” she says. her. If I returned to work after two years, Ben Hardisty agrees. I’d expect to be a couple of years behind if “I have met Kathryn Beck (President I was just a lawyer, but if I was a partner, of the Law Society) through the bullying no way, I’d expect to return to the same and harassment issues but otherwise I conditions as the other partners,” says Bex wouldn’t have had any involvement with Falconer. the Law Society. Even during summer clerk Since the widespread allegations of work. We do that three months of the year, sexual harassment and bullying became so some earlier contact would be good, even a recruitment evening. Create a Law Society table so that we know who to go Trusted practice management to if we have any problems when we start our careers,” he says. software for NZ lawyers Mr Hardisty is hoping to practise law Easy to learn, easy to use. Save time and in a large corporate commercial firm. Bex ! Falconer is planning to work in a private increase profits. That’s what users say commercial law firm, but with experience New: Document management & Internet banking. Free installation and she hopes to work in immigration law with training. Visit our website for testimonials from firms just like yours. refugees. Hannah Lindo says her interest is in employment law or environmental www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd law working on resource management act issues. ▪

43 CHANGING OUR CULTURE June 2018 · LAWTALK 918

CHANGING OUR CULTURE Ontario’s anti-discrimination and harassment programme

BY ANGHARAD O’FLYNN

The five protected social areas in the Code are accommodation There are about 50,000 licensed law- (housing), contracts, employment, goods services and facilities and yers and 7,500 licensed paralegals work- membership of unions and trade and professional associations. ing in the largest of Canada’s provinces, Ontario, all of whom are regulated by the Why was it established? Law Society of Ontario. “The DHC Programme grew out of LSO initiatives in the late 1990s To provide support for 57,500 or so legal to deal with both sexual discrimination and harassment, as well professionals, the Law Society of Ontario as racial equality, and issues of equity and diversity, within the (LSO) has long had a Discrimination and profession,” says Lai-King Hum, one of the Counsel in the DHC Harassment Counsel Programme (DHC Programme. Programme) in place to address harass- “It was conceived to be a ‘safe’ space where such persons can ment and discrimination issues. receive confidential and free information and support. The DHC Like the New Zealand Law Society’s will actively listen, support and provide a summary of possible helpline, Law Care, the DHC Programme recourses or other services that might assist the person.” is a service open to anyone in the prov- If all parties involved consent, the DHC provides a free mediation ince who has experienced or witnessed service and will attempt a resolution. discrimination or harassment by a lawyer While the Law Society of Ontario funds the Programme, the or paralegal. However, this programme has offered counselling services operate a much broader mandate than Law Care, independently. which deals with sexual harassment and “All information received by the DHC is bullying, and applies Ontario’s Human held in strict confidence, and not shared Rights Code when looking at cases of with the LSO except for anonymised sta- harassment and discrimination generally. tistical data on the number and nature of In short, the Code prohibits actions new contacts with the programme every that discriminate against people based six months,” says Mr Hum. on a protected “ground” or a protected “social area”. In both Ontario How does the DHC There are 14 protected grounds and they and New Zealand, Programme operate? apply to a person’s identity: some firms have “On a technical basis, the DHC Programme • Age, been exposed has a single telephone line and email • Ancestry, colour, race, as dealing address that is accessed by the three • Citizenship, with problems appointed DHC on a pre-determined • Ethnic origin, internally, and schedule. Anyone contacting the DHC • Place of origin, have done Programme will have the call or email • Creed, for years, and returned by one of the DHC. • Disability, affected legal “The three DHC then share the data gath- • Family status, professionals have ered from their contacts for the purposes • Marital status (including single status), publicly shared of creating the anonymised data for the • Gender identity or expression, that they actively reports to the LSO.” • Receipt of public assistance (in housing chose not to only), make complaints High levels of harassment • Record of offences (in employment only), because and discrimination • Sex (including pregnancy and they feared “I was recently a panel speaker at an breastfeeding), repercussions on event hosted by the LSO and others for • Sexual orientation. their careers. International Women’s Day. I asked the

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▸ Toronto's CN tower, Ontario audience of about 300 to raise their hands if they had experienced or knew someone who had experienced sexual harassment or discrimination. Over half the audience raised their hands,” says Lai-King Hum. A month before this event Mr Hum says the LSO released a survey it had conducted among law students in Ontario. The survey received a 28% response rate and found it a very helpful snapshot of the profession’s feelings on the harassment and discrimination issue. “The survey found that one in five current or recent articling students who completed the survey faced ‘comments or conduct’ based on their gender, race, sexual orientation, citizenship, disability or other personal characteristics. “It also showed that 17% of respond- ents felt they faced unequal or differen- tial treatment related to such personal characteristics.” Mr Hum explains that it is difficult to find reliable data on the extent of all forms of harassment and discrimination within the Ontario legal profession. In fact, the LSO has, over the last few years, had consultations about challenges faced by racialised licensees, which resulted in a report in December 2016 with recommen- dations on how the issues of systemic bias can be addressed. The DHC Programme is complaints because of the fear of conse- repercussions on their careers. conceived as a key component of the LSO’s quences on their careers,” Mr Hum says. On a more positive note, law societies initiatives to address issues of systemic It is interesting to note that the anecdotal are starting to reach out to each other to bias. To help with this, the DHC Programme evidence in Ontario has similarities to the tackle the problem of harassment and serves a double function. New Zealand legal profession. discrimination in the profession on a “Not only do we provide information In both Ontario and New Zealand, some global scale, working together on how to and support to those who contact us, but firms have been exposed as dealing with approach and implement both education the DHC Programme is also intended to problems internally, and have done for and support systems to help their legal provide the Law Society with data to deter- years, and affected legal professionals have professionals. This is an important step mine the extent of issues of harassment publicly shared that they actively chose not toward ridding the profession of this and discrimination. to make complaints because they feared ongoing problem. ▪ “What we do know, from available sur- veys and reports, is that issues of harass- ment and discrimination in the profession QUEENSLAND AGENCY WORK are serious and ongoing. “What we also know is that what we see Situated on Queensland’s Gold Coast, we have over 40 years’ experience advising clients throughout in the DHC Programme is likely only the Queensland. Two of our solicitors have practised in New tip of the iceberg, as not everyone who has Zealand and we have many New Zealand clients. experienced discrimination or harassment All types of agency work accepted: www.gsslaw.com email: [email protected] contact us. • Estate Administration (including resealing of Probate) phone: +61 7 5532 5944 “Anecdotal evidence suggests that there • Conveyancing, settlements, property searches Australian Member of may be many confidential settlements • Family Law International Lawyers Group of issues, and also that many students, • Commercial law, commercial litigation, debt recovery (www.ilgonline.org) lawyers or paralegals, choose not to make

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LAWTALK 918 · June 2018 FUTURE OF LAW

FUTURE OF LAW

The rise of the internet shadow economy

BY DAMIAN FUNNELL

taxes aren’t paid, and regulations aren’t When I was a kid we knew the shadow economy as the strictly followed”. Although it is relatively black market. It primarily comprised the illegal trade of goods and small here, Forbes estimate that the shadow services, all under the table, within relatively small communities. economy makes up 9% of Australia’s GDP In my neighbourhood we had a guy who printed his own T-shirts and 20% of Italy’s. and sold them under the table. There was a guy who stole retail I define the internet shadow economy products almost to order and sold them to friends and family at as being where this shadow trade is con- a five-finger discount. There was even a mate’s dad who would ducted anonymously online. As well as fill his garage with crates of beer on Friday so he could sell them the anonymity that the web affords, the at inflated prices to neighbours over the weekend (back when internet shadow economy is facilitated by weekend alcohol sales were still illegal). encryption tools, trading platforms (such as And then, of course, there were the tinny those commonly found on the dark web), houses. Needless to say it wasn’t the most online clearing houses and even digital salubrious of neighbourhoods. currencies. When combined these compo- The ‘black market’ of the pre-internet era nents provide a platform for international was decentralised and location-specific. commerce (legal or otherwise) that can be Vendors had to be intimate enough with Welcome to completely anonymous and untraceable their community to be known to their the age of using conventional means. potential customers, while remaining small the internet However you define it, the internet enough to be invisible to the taxman and shadow shadow economy is huge. As has always to law enforcement. economy, been the case with the internet, pornog- All that has changed and, like so many where you can raphy and illicit activity are leading the other aspects of our lives, the black market/ buy just about way (pornography revenues in the US alone shadow economy is being totally disrupted anything from exceed the combined revenues of ABC, CBS by the internet and the technologies that just about and NBC television networks), although it has enabled. anywhere the volume of more legitimate forms of Welcome to the age of the internet in the world commerce is increasing at a considerable shadow economy, where you can buy just via your rate. about anything from just about anywhere smartphone or Although the size of the ‘traditional’ in the world via your smartphone or web web browser. shadow economy (the black market) browser. And your neighbours no longer And your continues to decline (see Medina and have to know what you’re up to. neighbours no Schneider, 2017) the internet shadow TheWall Street Journal defines a shadow longer have economy is growing rapidly and it has an economy as being “described by those to know what outsized (and increasing) impact on society operating in it: work done for cash, where you’re up to. as a whole.

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Drugs and other illicit products and services The dark web is disrupting criminal enterprise. Anyone with an internet con- nection can now compete, completely anonymously, with organised criminals in the importation and distribution of illicit substances. It’s infinitely safer and more efficient to buy and sell illicit substances via the dark web than via the traditional black market, as neither vendor nor cus- tomer need ever be known to each other. Cryptocurrencies such as bitcoin not only support this anonymity, they also make the transactions almost impossible to trace. This is likely to result in increased illicit drug use over time within our communi- ties. It is, after all, natural to expect con- sumption to increase as the cost of illegal drugs decreases and many of the barriers to buying and consuming them (eg, fear of prosecution, variable product quality, procurement difficulties, etc) decrease. Regardless of your views on drugs, it’s clear that the criminalisation of them hasn’t worked. Hundreds of thousands of New Zealanders sell or consume illegal drugs every week. What will happen if we experience an unprecedented increased in drug use? Will an arrangement at any time or otherwise this force us to rethink our approach to the treat her unfairly in a variety of ways that criminalisation of drugs? are, quite rightly, illegal here. This type of service has already disrupted Professional services many creative industries, where entire As I write this I’m considering hiring a creative teams can be replaced by highly new junior administrator for my business. skilled, unseen workers who will gladly I could pursue the traditional option of work longer for less. hiring someone on the local labour market, It’s infinitely This ‘peer to peer’ outsourcing of ser- or I could hire someone like ‘Andrea’, who safer and more vices isn’t without risk, but it is often fast, lives in Ukraine, has her masters degree in efficient to buy effective and, most important, inexpensive. commerce (and over 10 years commercial and sell illicit Ongoing technology and communica- experience) and who will work for less than substances via tions improvements allow these remote our minimum wage. the dark web than workers to become increasingly produc- Not only that, but Andrea will also work via the traditional tive. I already have no doubt that Andrea unsociable hours, night after night, six or black market, as would be considerably more productive seven days per week so that her working neither vendor nor than a less-qualified local costing more hours are compatible with ours here. customer need than twice as much per hour. Is this legal? I’m not entirely sure. Is it ever be known Will we see a big increase in such ethical? That’s debatable, but it certainly to each other. micro-outsourcing (ie, on the scale of an would feel exploitative to me. Cryptocurrencies individual person or role) as the barriers What is clear is that it is possible. I such as bitcoin to it decrease? If so, how will this affect could hire Andrea, or one of millions of not only support our taxation and labour laws? Will we seek other qualified professionals from around this anonymity, to tax the use of overseas employees in the world, within minutes using one of they also make the same way we add GST to products thousands of ‘freelancer’ websites that the transactions purchased overseas? Will we try and imple- cater to almost any professional services almost impossible ment minimum employment standards for requirement. I could also terminate such to trace such remote employees?

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respond to larger and larger amounts of capital moving to the internet shadow economy, where it can become completely untraceable/un-taxable? What impact will this have on our taxation system, on banks and on the average consumer? Regulation difficulties The internet shadow economy makes it easy to maintain complete anonymity and to hide our activities online. This raises obvious questions about what visibility and control regulators will have over it going forward. There are already ‘businesses’ within New Zealand that operate 100% within the internet shadow economy, completely out of view of regulators. I suspect that most of these businesses are drug dealers and other vice merchants, but there is a significant (and growing) number of businesses that sell legal products and services, but choose to do so in the shadows. These shadow businesses are typically very small, as any enterprise with more than one or two people becomes hard to hide, although their combined effect can be huge. There are Bitcoin millionaires in New Zealand, as well as freelancers providing Even if we could implement such controls would they help or everything from clerical to pornographic harm people like Andrea, who would still be earning more than services from the safety of their bedrooms. the local average wage if she got the job? It’s impossible to know how much of this commerce is being conducted under the Financial services table, but I doubt that much of the income Although their prices are still highly volatile, the emergence of cryp- is being declared. tographic currencies (‘cryptocurrencies’ such as Bitcoin, Ethereum Consider the example of the por- and dozens of others) has given birth to an entire financial services nographic webcam industry in Romania, industry that exists entirely within the internet shadow economy. where tens of thousands of ‘camboys’ and Here I can buy and sell currencies, invest in a range of securities ‘camgirls’ generate hundreds of millions and even offer or buy various types of insurance. of dollars per annum, much of which is This industry is in its infancy, but it is superior in many ways untaxed. This has a material effect on the to the traditional financial services industry: Romanian economy, yet this activity is • It is truly global, allowing customers to connect with service almost impossible to regulate. providers from all over the world. No one really knows how big the internet • Regulation is sparse or non-existent. shadow economy is in New Zealand and, • Consumer protections are often built into algorithms and while it’s relatively small, no one cares blockchains. very much. • Markets are extremely efficient, lowering friction and cost for What will we do as it grows big enough all participants. to have a material impact on our economy? • Although fraud is rife (fools and their money are being parted How can we tax and regulate something on a daily basis), the cryptographic tools exist to offer vastly that we can’t see? ▪ more security and protection (for all parties) than with our banking-centric economies. Damian Funnell  damianfunnell@ • Parties and transactions can remain anonymous. It’s entirely choicetechnology.co.nz is a technologist possible to become wildly rich (or to lose everything) without and founder of Choice Technology, an anyone else knowing about it. IT services company and  panaceahq. How will government, private enterprise and society as a whole com, a cloud software company.

49 FUTURE OF LAW June 2018 · LAWTALK 918

FUTURE OF LAW Blockchain and the law – irrevocable record systems and smart contracts

BY KEN MOON shows where every transacted item goes. New transactions can be posted by anyone without an intermediary such as a bank. Blockchain and the Current and proposed uses of legal profession blockchain as a legal tool A 2017 report from the International Bar Association, The not-so-distant future: Legal registers Blockchain and the legal profession said: 1 Land registers “…. with the rising importance of smart Because blockchain stores data permanently and irreversibly, it contracts and the potential for blockchain may be used to record all manner of legal facts to provide legally technology to be used in other facets of irrefutable public registers. For example, title to land, or indeed legal practice, the role of the legal practi- any other property whether tangible or intangible. tioner will likely evolve to require lawyers Many countries do not have land registration systems and to have at least basic coding knowledge using a blockchain register may be the easiest way to set one up and programming skills. and minimise operating costs. Two countries investigating this “At the very least, the blockchain revo- are Honduras and Greece. But can people be required to register lution may result in law firms beginning a change of ownership on the proposed blockchain registers? to employ candidates from STEM or with In Japan, even with a traditional land register, people are not coding and programming backgrounds.” legally required to do so and 11% of Japan’s surface area appears Is this an overstatement? How might unclaimed. blockchain impact the law? 2 Copyright registers Elements of blockchain There are also proponents of blockchain for copyright registers giving rise to non- and copyright licensing registers. Of course a copyright register crypto-currency uses in the true sense is only useful in countries where registration Bitcoin was the first crypto-currency of copyright is either required or is at least advantageous. In the system [see follow-on article, Blockchain former, and the United States is an example, a federal copyright and bitcoin–a technology backgrounder]. register run by the Copyright Office has long existed and is the Bitcoin stores transactions in a distributed only legally recognised register. However, blockchain registers have (shared) database of transactions, with been proposed to provide proof of the date of creation of a work if every participant in this peer-to-peer that should be contested by a subsequent infringer of copyright. system holding a copy on their computers. A copyright licensing register was being set up by Blockai in the The database stores transactions in blocks US for all or many copyright works, but this has been downgraded which are linked together to form a chain, to a photograph copyright licensing register and the operating hence ‘blockchain’. Blockchains provide a company renamed as Binded. Another company, Copytrack, also tamper-proof, non-reversible database of operates a photo licensing register. transactions. Each transaction is guar- As well as the registration function, the licence itself may be anteed genuine by the initiator’s digital executed as a smart contract (see below) upon payment of the signature. required royalty. A blockchain may be public (‘unpermis- sioned’) like bitcoin, but even then, parties 3 Share registers are anonymous and only identified by a Blockchain registers could impact on the traditional function of binary ‘public key’ generated by a public stock exchanges. key encryption algorithm. The blockchain

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4 Certification systems simple as a pre-set clock time or someone Political concerns Blockchain certification systems have also entering a door in a flat let under a smart Unpermissioned blockchain systems been proposed and there are already a few contract. function without central or regulatory set up to certify wine as to its province in authority such as government. This con- combination with scanning the QR code 3 Initial coin offerings cerns many governments, even some on the wine bottle labels. A driving force Initial coin offerings (ICOs) are already which are democracies and not autocratic. here is the prevalence of wine fraud in in use in place of initial public offerings As has been commented, crypto-currencies China with bottles of wine valued in the (IPOs) to raise significant new capital. constitute “the separation of money and thousands of dollars, such as Bordeaux They are a sale of virtual tokens issued on state”, among other things. A worrying first growths. a blockchain in exchange for conventional consequence is that bitcoins may be used An electronic proof of identity register currencies or even crypto-currencies. to anonymously pay for illegal goods and using blockchain has also been suggested services on the dark web. in Europe to replace the use of passports Legal concerns The security of crypto-currencies is and electronic systems so far implemented • When a transaction has gone wrong another common government concern. In in only a few EU countries. Estonia is there is no known human to complain January 2018 there was the $534 million leading the way with a blockchain system. about; theft of NEM currency from the Coincheck • Bitcoins may be used to pay for illegal Crypto Currency Exchange in Japan. A Smart contracts goods and services on the dark web; famous attack on Ethereum occurred in 1 The concept • Does an intangible bitcoin or other 2016, where a hacker stole $50 million of The term ‘smart contract’ was devised crypto-currency constitute property? $150 million raised in a DAO crowd funding by Nick Szabo in 1996, well before the • At common law maybe, but not in for venture capital. It is not certain whether inception of bitcoin. For Mr Szabo, ‘smart’ jurisdictions following the German there were flaws in the crowd-funding meant ‘functional’ rather than the notion civil law system. smart contract code or even in the solidity of super-clever AI (artificial intelligence). • Do any rights or obligations attach language itself. And functionality meant self-executing and to it? The implementation and use of block- self-enforcing. • A bitcoin can be considered as simply chains may also infringe encryption laws. The primitive example he gave was a data in a database. For example, China and Israel make it ille- vending machine for soft drinks, chocolate • Can data be property? gal to import encryption software and/or bars, cigarettes, etc. On verifying payment • New Zealand Inland Revenue consid- encrypted products. Blockchain software has been received, a vending machine ers crypto-currencies to be intangible can be said to use encryption elements as delivers goods (and, if necessary, change) property like shares. its building blocks. without human intervention. • Privacy law breaches Many other countries such as the • The blockchain is a public database. Wassenaar Treaty signatories (which 2 Ethereum and smart contracts • How will the new EU General Data include New Zealand) regulate the export of A number of blockchain-based cryp- Protection Regulation (GDPR) handle encryption products and ‘export’ includes to-currencies now exist alongside bit- blockchains? internet transfers of encryption software. coin. One is called Ethereum, where the • What about the CJEU ‘right to be A licence from the government would be crypto-currency is called Ether. However, forgotten’? required for online transfer of blockchain the distinguishing feature of Ethereum, so • These issues may be circumvented software from any of these countries. far as legal innovations are concerned, is because blockchain participants There is also concern about those that Szabo-type smart contracts may be are known only by their public key countries which do not legally recognise stored in the Ethereum blockchain just addresses. transactions executed by digital signatures, like a monetary transaction. In Ethereum, • Contract law bearing in mind that this is the basis for user programmable ‘virtual machines’ are • A judge can’t construe a smart authentication of participants in block- set up at each node to run or execute the contract. chain transactions. smart contracts when required. Computer • Contract already executed. The whole notion of non-regulated cryp- programmes are written to implement the • No terms can be implied to address to-currencies has frightened some coun- terms of the smart contracts. The most perceived injustices. tries such as South Korea, China and India, popular programming language used is • No possibility of rescission for mistake. who have banned crypto-currency trading Solidity. • And not all software is bug-free. in their own countries. However, potential An Ethereum node will start running a • Notarisation and consular legalisation voter backlash has resulted in South Korea stored smart contract when it receives a are side-stepped. backing down, at least temporarily. ‘message’ and enough ‘gas’ (transaction • Matrimonial property law Finally, there are the obvious issues of fees in the ether currency) from a user, • Problems in finding out if bitcoins are tax avoidance and money laundering. In an ‘oracle’, or another smart contract. An part of matrimonial property. relation to income tax in New Zealand, ‘oracle’ is an input generated by an elec- • How to divide them up between Inland Revenue has decided that income tronic device which senses and detects husband and wife? from crypto-currency trades and payments real-world events, which could be as is taxable. ▪

51 FUTURE OF LAW June 2018 · LAWTALK 918

FUTURE OF LAW Blockchain and bitcoin – a technology backgrounder

BY KEN MOON

Blockchain and bitcoin history A pure virtual world? Bitcoin is a digital currency used as a means of payment on This may have been the aim, but in prac- the internet. Blockchain can be thought of as the platform or tice there must be some way to convert operating system for bitcoin and, subsequently, also for other between virtual bitcoins and real-world crypto-currencies. currencies. Thus, bitcoin currency The bitcoin crypto-currency was inspired by what the originators exchanges. There are many bitcoin and perceived as disadvantages in conventional internet commerce, other crypto-currency exchanges today such as the need for trusted intermediaries/third parties (banks, and the top 10 make $US3 million in fees etc); high transaction costs; and merchants requiring excessive per day. private customer information. Unfortunately for crypto-currency Digicash was an earlier crypto-currency, but it used a trusted proponents, while digital shared ledger third party. Digicash went into demise in 2002. systems are immune to direct government Bitcoin was conceived by ‘Satoshi Nakamoto’ in 2009. It is interference, exchanges can be regulated thought Satoshi Nakamoto is a pseudonym for one or a group or closed by governments. of persons. The essential elements of Nakamoto’s proposal were: • Decentralised digital/virtual currency called bitcoins with no Public key cryptography role for governments or banks; Bitcoin/blockchain is built on cryp- • A peer-to-peer payment network with tographic concepts and, in particular, those transactions and balances transparent from public key cryptography. The basics to all participants or ‘nodes’; of the latter are: • Participants to be anonymous and rep- • For each participant a pure maths algo- resented by encrypted address codes; rithm is used to generate a public key/ • Transaction payments made in ‘bit- private key pair; coins’ or ‘satoshis’ (1x100 millionth of • The public key becomes the bitcoin a bitcoin) held in participants’ digital pseudonym or address of a participant; wallets; • Their private key is kept secret to them; • Low transaction costs (1% compared • The probability of deriving a private key with 2-4%); from a public key is virtually nil. • Transactions held in a distributed In the absence Public key cryptography concepts which database (shared ‘ledger’) which no one of a trusted third are used in blockchains are hashed digital can change and nor can transactions party bank... signatures, and the use of hashing to create be reversed. That is, tamper proof, or as a mechanism links between adjacent blocks of data in some proponents express it, ‘censorship is required to the blockchain. resistant’; minimise the A hash is a mathematical process • A copy of the ledger is stored by all possibility of which takes any quantity of data (a participants – ‘shared ledger’; fraudulent ‘string’ of data of any length) and pro- • The bitcoin system was to be ‘unper- alteration of a duces from it an output which is a string missioned’ and anyone could post a transaction by a of fixed length. The output will always transaction; node. In bitcoin, be the same length (the same number of • The ledger is stored as an endless chain this objective digits or characters, whatever the length of linked blocks of transactions in is achieved by of the input string may be). However, of historical order – unlike conventional making it a course, the value of the outputted fixed databases – and thus came to be known matter of pure length string will be unique to every as ‘blockchain’. chance input string.

52 LAWTALK 918 · June 2018

Facilitating, verifying and recording bitcoin transactions in blockchain The essential steps are: • Enter transaction crediting recipient’s account and debiting sender’s account; • Hash the transaction with sender’s private key to create a digital signature; • Broadcast to all nodes; • Nodes verify the sender using send- er’s digital signature in combination with their public key and then check the shared ledger to verify sender has enough bitcoins – that is, authentication and authorisation; • Nodes assemble the latest group (say eight) of broadcast transactions into a block; • To minimise fraud they then must solve a mathematical puzzle (see below) and the node solving the puzzle first then broadcasts the block to all nodes; • Other nodes cease their own puzzle solving work and verify the received puzzle solution. If found valid, they add the new block to their copy of the stored add the block of transactions to their copy number of bitcoins to the winning node. blockchain by hashing the new block of the blockchain by linking (hashing) it The nodes set up to do this work are in the to the previous block in the blockchain. to the previous block. business of ‘searching’ for bitcoins. They Any rogue node attempting to tamper have therefore been dubbed ‘miners’ or Security against fraud by with a transaction in a block inevitably ‘mining’ nodes. nodes – ‘proof of work’ also changes the block header. Because the In the absence of a trusted third party bank, next block is hashed to the header of the Blockchain beyond in addition to the steps of authenticating previous block, the next block then would crypto-currencies and authorising a transaction, a mecha- also have its header changed. This ripples The characteristics of blockchain suggest nism is required to minimise the possibility up through all subsequent blocks up to it could facilitate a variety of online legal of fraudulent alteration of a transaction by the latest block. applications. Inherent features, such as a node. In bitcoin, this objective is achieved Other nodes will reject this chain stored being a public tamper-proof distributed by making it a matter of pure chance as by the attacker because the latest block has database, have led to proposals for and to which node participating in blockchain a discrepant header when compared with the establishment of a variety of legal updating first updates the distributed the latest consensus approved block. To registers, such as land registers, copyright database with the new block. succeed, an attacker would need to redo licence registers and identity registers. Nodes undertaking this work are proof of work for all transactions in its In addition, Ethereum is more than just required to solve a mathematical ‘puzzle’ chain and surpass the length of the honest a another crypto-currency system and with the first to find the solution gaining consensus chain. This is not realistic from supports ‘smart contracts’ which execute the right to update the blockchain. The a computer processing point of view. automatically when receiving appropriate process is called ‘proof of work’. The puzzle input data [see related article, Blockchain is to find a number which, whenhashed Mining – the incentive to and the law]. ▪ with the block data, gives an answer that carry out ‘proof of work’ falls within a set range of numbers. Each To solve the ‘proof of work’ cryptographic Ken Moon is a consultant for AJ Park, node guesses a number and tries it. If it puzzle fast enough to have a chance of practising in their Auckland office. He ini- gets the wrong answer, it has to guess again being the first node to do so requires tially graduated in electrical engineering and try again. This can go on for millions considerable computing power – more and has experience in electronics, com- of guesses and, even with the highest than normally available to office and home munications technology and engineering computer processing power, can take 10 users. This requires considerable capital. programming. One of his specialties with minutes. The first node to succeed adds In addition, with conventional comput- AJ Park since 1978 has been software law, the block to the blockchain it stores and ing systems, there will be high electricity both contentious and non-contentious. broadcasts it to all the other nodes. They usage. The incentive for running such a He now focuses on software copyright check the answer number and if correct, system is provided by awarding a certain litigation and internet law.

53 FUTURE OF LAW June 2018 · LAWTALK 918

FUTURE OF LAW Contract management: Keeping it simple

BY GEOFF ADLAM arrived. Like the identified need which led Since it was founded, Contract Eagle to the company’s birth, it needed an actual has stuck to providing a way of managing problem to make a sale. contracts. The one major change has been There are more and more software “It was easy to get people to say ‘Yes, the development of a cloud-based solution solutions available for routine business this is a good idea, we could really use alongside the on-premises software. tasks which have a legal component. something like that’, but to get them to Providing one part of the jigsaw that Making sense of the ever-increasing range spend money on it was another matter is the automation of legal processes has of single and multi-function packages entirely,” Mr Aspden says. meant Contract Eagle is a keen observer of available can be daunting, especially as It wasn’t until a business suffered “some the ongoing advances in legal technology. they will all claim to be the best, the most real expensive pain” that the first sale was “If you go to any trade show you are cost-effective, and “the answer”. made. exposed to all the aspirational hype, but Keeping it simple and focusing on “They had a highly valuable lease on a there are some fantastic technologies out solving one particular problem has plot of land and they’d had it roll over and there,” Simon Aspden says. been the focus of New Zealand contract cost them a large amount of money. They “But you can still take the ‘keep it simple’ management software provider Contract used that to justify the cost of the system,” approach. In terms of contract manage- Eagle. It has been in business since 2003, he says. ment, the contracts haven’t essentially although it was not until 2007 that it got That often seems to be the way – actual changed, the points of pain haven’t really its first big customers. Now it does busi- pain is needed before a business will finally changed since we started. The only thing ness in 15 countries and its New Zealand be driven to purchase and install a software now is that there are different options open, clients include TSB Bank, Paymark, Otago solution. different ways of solving the problems. Polytechnic and Ballance Agri-Nutrients. “They try and cope with a spreadsheet or “Essentially, if your lease rolls over, it Like many businesses founded on an a manual solution and it’s really not until rolls over and it’s going to have the same identified need, Contract Eagle started from there is an actual incident that they think effect now as it did 20 years ago and the the experiences of its founders. Mark Aspden ‘Actually, maybe those manual techniques way of solving it can be pretty simple. It and David Ross had legal backgrounds while aren’t quite up to scratch’ – and that’s when doesn’t need AI or blockchain; it needs a CEO Simon Aspden was an experienced we might get the call.” consistent or reliable process to manage it.” commercial software developer. He notes that the company’s experi- Mr Aspden recently returned from the “The seed idea came from an in-house ence is that the same “real pain” exists CLOC Annual Corporate Legal Operations legal perspective,” Simon Aspden says. in Australia and the United States, but Institute which was held in Las Vegas from “Contracts were getting thrown in the businesses there have more of a tendency 22-25 April. This was described as the largest drawer and they spent a lot of time finding to justify a purchase based on perceived gathering of corporate legal professionals them or not finding them. There were often risk and following best practice – rather in the world and focused on optimising the milestones and date-related provisions in than waiting for the pain. delivery of legal services to businesses. those contracts that weren’t being man- While in-house lawyers are an impor- “One thing I’ve observed among the aged because of that.” tant group of customers for the company, bulk of available solutions is that they do Surely it was possible to build a solution they’re not the only ones. Many have a seem to be doing a good job of making their to effectively manage contracts? “Absolutely. procurement team or contract manager interfaces clean and simple and friendly,” We can do that. With IT and software we and not having to worry about managing he says. can do anything,” says Simon Aspden. And a large number of contracts is something “That’s helpful, but being able to set a New Zealand-developed contract manage- which greatly appeals to the lawyers. aside all the fanciest technology and just ment web-based software package entered “If you ask a general counsel they’ll agree to look for something that’s practical and the market alongside a number of existing that their role is to ensure contractual does what you need it to do – something solutions from global providers. compliance and to provide a service to the you can trust – you can’t really go wrong. The company traded as i-Scio Ltd until it business in managing its legal relationships. Sometimes the simple is best. Fear of tech- changed to Contract Eagle Ltd at the end But the contract management can be some- nology failure by not going for the latest of 2016. It took few years of hard work thing they’re often left with in their role and solution is understandable, but keeping it and marketing before the first customers nobody necessarily wants to do it.” simple is still a good way to go.” ▪

54 LAWTALK 918 · June 2018 FUTURE OF LAW

FUTURE OF LAW Improving the connections with a legal operations platform

BY ANGHARAD O’FLYNN

While running your own law firm has Sam Kidd fielded some many benefits, one not so fun aspect is questions about the platform. the reporting burden often placed on firms by their larger corporate clients. With the quick advancements in tech- What is LawVu? nology, there are now many technology “We all come from strong project man- systems available for law firms’ billing, agement backgrounds, and initially, admin and other processing. But they can we attempted to take the key elements be confusing for both clients and lawyers of what we knew about legal project alike – and you didn’t spend five, gruelling management, productise it, and give it years studying law to become a software to the client side of the market as a way engineer. of empowering them when they sent A cloud-based legal operations plat- instructions. We wanted to ‘automate’ the form, LawVu, is revolutionising the way structured dialogue – that should have corporate legal teams manage their been taking place but wasn’t – throughout operations, and engage and collaborate the course of a transaction. with law firms. However, we quickly discovered that “Our vision is to build a platform that the legal industry had little appetite for connects the people working on legal retraining as project managers because of the effort required to establish a legal problems directly with the best solution planning is often perceived as non-charge- operations function. to help them deliver better outcomes, able work. From a product management We also place a huge emphasis on whether its people, process or technol- perspective, we were a solution seeking improving the way corporate legal depart- ogy,” says Sam Kidd, one of LawVu’s a problem like so much of the legal tech ments engage with their trusted law firm founders. industry to date.” partners. The two other founders are Tim Boyne Our ‘service provider’ portal allows firms and Shaun Plant. In what way is LawVu to work directly on legal matters with their Mr Kidd was involved with a SaaS pro- different to other companies? clients, and our invoicing module takes all ject management company Teamwork, "Legal teams around the world are being the effort out of end-of-month reporting based out of Ireland, before moving back asked to deliver 'more for less' but there for law firms.” to New Zealand and co-founding LawVu. are a daunting number of areas to address Tim Boyne was an IT and operations when transforming a legal department, and How secure is the software? director who worked with several law often it requires a cross-functional effort “We’ve rebuilt LawVu twice because we firms, most notably, Sharp Tudhope from legal, IT, finance and management to weren’t completely satisfied with the core Lawyers in Tauranga. create a cohesive framework. infrastructure. Shaun Plant was an engineer who What separates us is that we bring The security side of the operation is retrained as a lawyer and applied his all of the technology components in a something we take very seriously and to project management background to the legal operations stack into one software that end we’ve engaged a third party secu- practice of law in law firms and as head package, and integrate with best of breed rity advisory firm which works with our of legal services for the Waikato Regional ‘point solutions’ to offer legal departments own in-house security team to continually Council. a complete offering that removes much audit our processes and infrastructure.

55 FUTURE OF LAW June 2018 · LAWTALK 918

FUTURE OF LAW

We also have a schedule for testing the platform and have engaged a Crest certified security testing company that performs penetration tests on our system. Developments Data security is at the forefront of everything we do. The battle between the security of having data in the cloud vs on-premise is over for most organisations. New Zealand Legal Technology Index The cloud wins hands down because of LawFest NZ has launched the New Zealand Legal Technology the robustness of the infrastructure offered Index, which lists specialist legal technology businesses providing by the likes of Microsoft Azure where we solutions to legal services business challenges. Presented as a series host LawVu. of business listings, the Index includes information on what the The Panama Papers fiasco occurred business does, key contact people and links for more information because of poor standards upheld by the about each provider. IT directors at the law firm where terabytes “A lot of legal professionals, both in-house counsel teams and of sensitive client information were stored firms, have challenges in how they can deliver their services behind an unlocked door. Frighteningly, faster, more accurately and for a lower price, but aren’t sure what that’s not a unique situation.” solution they’re looking for, or where to even look,” says LawFest NZ founder Andrew King. What does LawVu offer? “The LawFest NZ Legal Technology Index is the place to start “It [the workflow process] all starts at the and doesn’t result in spending needless hours searching the web.” interface with internal in-house clients.” It costs $199 for a standard listing (valid until 31 March 2019) and We have contract automation tools that $599 for a premium listing. The standard listing covers company let clients draft their own contracts and name, key person contact details, a website link, 3-4 points about intake forms that streamline requests for the business and social media profiles. The premium listing includes advice or more complex contracts. those plus logo, placing above standard listings, a banner in a These requests are triaged in our matter member e-newsletter and other LawFest promotional opportunities. management interface, which is the heart More details: The Index can be found atwww.lawfest.nz on of LawVu. This is the tool teams use to stay the top menu. on top of their workloads, share documents and collaborate. Typically, 70% of issues are Law changes needed for driverless vehicles handled internally, but for the 30% that Law change is needed to ensure driverless vehicles can be used are briefed out, we have an engagement legally on New Zealand roads, according to a major new study. process that streamlines the distribution Realising the Potential of Driverless Vehicles for New Zealand was writ- of work to their preferred providers. ten by Michael Cameron who was awarded the Law Foundation’s Our simple workflow helps both sides International Research Fellowship in 2016 to research the subject. agree on a scope of work, set expectations Mr Cameron says a complete overhaul of law and policy around and communicate easily during a matter. driverless vehicles is required, and while we can afford to take time All invoices are then uploaded to LawVu to get the comprehensive change right, some targeted reform is which creates data that feeds our spend needed more urgently. He says certain types of driverless vehicles management tools. – such as the taxi fleets being deployed by General Motors in 2019 We store contracts in a central repository – may not legally be allowed in New Zealand roads, regardless and track their lifecycle while ensuring of how safe they are. expiry dates don’t go unnoticed. “Many hope that driverless vehicles will eliminate traffic acci- Our system helps organisations collect dents, end congestion, spark economic growth and provide cheap a lot of important business information and convenient mobility for all. But countries that want to fully which is generating data that populates realise these benefits, and avoid the pitfalls, will need to ensure the reporting suite and provides our users their legal houses are in order,” he says. with insights they haven’t previously had Mr Cameron says driverless vehicle manufacturers should pre- to hand.” pare safety assessments for New Zealand, as they do in the United LawVu has received support from within States, so our authorities can better utilise existing consumer New Zealand and is growing in capacity. protection and land transport rules to protect the public. “We’re heartened by the enthusiastic “Law changes are also needed to clarify liability for offences response to LawVu and the fact that we’re a involving driverless vehicles such as speeding or illegal parking,” Kiwi company looking to take on the world he says. and transform the legal tech industry,” adds Other issues covered in the report include regulation of testing, Mr Kidd. ▪ cyber-security, mandated vehicle connectivity, radio spectrum use,

56 LAWTALK 918 · June 2018 FUTURE OF LAW

urban planning, special lanes and reserved addressing them now, in order to ensure no unnecessary barriers roads, privacy, parking and ethics. are established [to] prevent the opportunity of AI being realised. Michael Cameron’s study involved “For example, compared to other countries, New Zealand businesses research in New Zealand, the United States, do not have the same legal copyright protection that is necessary Europe, Singapore and Australia. for data mining. This arguably places local businesses at a perceived More details: The full report can be disadvantage to competitors overseas.” found on the Law Foundation website In general, the report says, the research participants con- www.lawfoundation.org.nz under the March sidered there was currently not enough thought of the legal 2018 News items. or regulatory implications of AI. They urged it to be addressed proactively, to avoid unintended implications such as reduced Artificial Intelligence in global competitiveness. NZ: Shaping a Future More details: The report is available on the AI Forum website The Artificial Intelligence Forum of New https://aiforum.org.nz/ under Research. Zealand has released a report on AI in this country. The report makes a number LifeLot – everything in one place of recommendations, including a review The LifeLot portal aims to assist people with putting a lifetime of employment practices, law and obliga- of information into one secure location. Relevant information tions, and a review of high priority legal can then be shared with a delegate or trusted professional, such implications of AI. as a lawyer, doctor or financial adviser at the appropriate times. Artificial Intelligence: Shaping a Future “With delegates in place a person can rest assured that when New Zealand concludes that New Zealand they pass, or become medically unresponsive, their important needs to engage substantially with AI now documents can be dealt with, their wishes are clear and their “to shape a prosperous, inclusive and legacy in this world is captured for their family,” says LifeLot thriving future”. founder Angela Calver. “New Zealand’s AI journey is approach- If a LifeLot client does not have a will or an Enduring Power of ing a crossroad, where we either choose to Attorney (EPOA), there are templates in LifeLot which the client proactively help shape its impact on our can complete and send to their lawyer for the document to be economy and society, or we passively let completed. AI shape our future lives. To shape, or be Ms Calver says lawyers have told her the portal would assist shaped?” them if their clients had a LifeLot account as their documents The report says that by 2035, AI has the would be in one place. potential to increase New Zealand GDP by “LifeLot’s new Trusted Professional delegate type enables the up to $54 billion. Analysis by Sapere and safe and secure sharing of selected client files 24 hours a day, Schiff estimated the range of economic seven days a week. Instead of emailing files back and forth or benefits of labour efficiencies in the -pro running into trouble sending large files, securely share them with fessional, scientific and technical services LifeLot,” says Ms Calver. sector (which includes legal services) as “A number of security concerns have arisen in the recent years between $2.2 and $5 billion. Included are as increasing amounts of sensitive information at every level have the results of an online survey targeted at found their primary existence in digital form. This is where LifeLot firms considering or using AI, plus inter- steps in, allowing for the secure sharing of the really sensitive stuff. views with 46 active participants from six “With LifeLot, when a client shares an important document, they sectors, one of which was law. can give a trusted professional permission to view and edit it so It notes that AI presents a significant different copies don’t have to be sent around in unsecure emails.” opportunity to make legal services more More details: The LifeLot website is atwww.lifelot.co.nz . ▪ widely accessible and inclusive through the widespread deployment of AI-based automation. “Regardless of new law or regulations, some industries will need to reconsider how Developments aims to provide information on new the law applies to them in an AI environ- products, services, research and other information on ment. Our research participants all agreed the Future of Law which is likely to be of interest to New that New Zealand businesses also need to Zealand lawyers. The Law Society does not warrant or start understanding potential legal implica- endorse any of the items included. tions stemming from the use of AI and begin

57 PRACTICE June 2018 · LAWTALK 918

PRACTICE Advising non- English speakers Part 2: Legal advisor obligations when dealing with a non-English speaking client

BY ALAN SORRELL

This is the second of two articles looking at legal practice Assessing a client’s competency with non-English speaking clients. Part 1 (LawTalk 917, May It is often difficult to measure the level of comprehension 2018, page 58) looked at aspects of contract law. This part of a client dealing with unfamiliar and often complex considers the role of a legal advisor in New Zealand dealing legal issues. When that client’s first language is not with a non-English speaking client. English the difficulties increase. Cultural differences common among those without English as their first language can also make it more difficult for an advisor “Fundamentally the function of the lawyer is to to assess comprehension. In Mikitasova v ASB Bank Ltd assist the client in achieving the client’s objectives,” is [2016] NZHC 897 the legal advisor did not identify any the statement found in Duncan Webb, Kathryn Dalziel lack of comprehension. Some cultures mandate agree- and Kerry Cook, Ethics, Professional Responsibility and the ment or expressions of agreement when dealing with Lawyer (3rd ed, LexisNexis NZ Ltd, 2016). The lawyer’s those older, in positions of status or authority or of a duties arise from the general law, the client contract and particular gender. professional rules. The three overlap and are cumulative. Distinguishing between written The relationship generally begins with a formal and spoken language comprehen- retainer but that can be assumed from conduct. While sion is also important. Often oral the general commercial wisdom of a transaction may communications can obscure the not be within the retainer, its actual and potential legal lack of comprehension of written effects are. Rule 1.6 of the Lawyers and Conveyancers Act language. Further conversational (Lawyers Conduct and Client Care) Rules 2008 provides: Distinguishing language skills sufficient for social “All information that a lawyer is required to provide between written and interaction may not enable the to a client under these rules must be provided in a spoken language communication of complex or manner that is clear and not misleading given the comprehension specialised subject matter. This, in identity and capabilities of the client and the nature is also important. turn, suggests caution in substitut- of the information.” Often oral ing clients’ friends or employees for This is consistent with the other obligations in elab- communications can formally engaged interpreters. Such orating the retainer, giving clear advice and keeping obscure the lack informal interpreters may lack suf- clients informed. The client must be treated with respect of comprehension ficient proficiency in either or both and courtesy and without discrimination. Lawyers are of written languages. encouraged not to act in areas they are not competent. language. Further Australian solicitors Holding This would seem to include declining to act where they conversational Redlich have a subsidiary, Adviceline are unable to obtain instructions, impart advice or report language skills Injury Lawyers, dealing with a vari- in a language they understand to the requisite level. sufficient for social ety of compensation claims with a Experience in certifying Property (Relationship) Act interaction may free first appointment and no win, Agreements, advising as to wills (Re Sheward; Drummond not enable the no pay services. They encourage the v Davidson [2016] NZHC 1888) and dealing with clients communication use of interpreters but are reluctant with other disadvantages or disabilities will inform of complex or to work family members or friends consideration of what is appropriate in dealing with specialised subject in that role. They also admirably the non-English speaker. matter. and starkly state: “If you are not

58 LAWTALK 918 · June 2018 PRACTICE

receiving clear legal advice you can understand, there is little point receiving it at all.” There are other reasons for care in using informal interpreters. In due course it may be necessary to prove what was discussed. The process by which advice is given is sometimes reviewed by the court when the quality or content of advice is put in issue (Jung v Templeton [2010] 2 NZLR 255). Independence of an interpreter may be important. The costs of dealing with this must be factored into the engagement with the objectivity of the interpreter maintained. Engaging and recording a qualified interpreter participating by telephone seems efficient and cost effective. Engaging a formal interpreter A solution would often be the involvement of an independent interpreter. If the interpreter is capable of discussing and compre- hending the matters in English, and has suitable qualification in the rel- evant other language, it would seem likely that the lawyer will be able to receive instructions and report adequately. The level of technical- ity or complexity involved in the subject matter or legal issues may indicate a need for more specialised interpreters. Interpreters are relatively common in court where they might interpret for parties to the case, witnesses or the judge. The Ministry of Justice has issued Guidelines for when interpreting – the inter- interpreter need to have a con- Interpreters which may be applicable pretation should be precise versation for the sake of clarifying more or less when not working at including, as far as possible, something. the court. Even where there is not translating offensive language • Immediately inform the court or a hearing, provided they have good such as derogatory terms and tribunal if a statement or question notice, the courts will provide an swear words. cannot be accurately interpreted interpreter for those wishing to • Ask for a statement to be because of cultural or linguistic interact with the court in another repeated, rephrased, or explained differences between the two language. Sometimes the interpreter if it is unclear. languages. If possible, the inter- is not actually present but joins by • Immediately acknowledge mis- preter should help the lawyer, telephone or video link. takes by informing the court and representative, party, or presiding The key competency stand- parties. The interpreter can ask for officer to re-phrase the statement ards give some insight to what is a pause, and inform the court or question so it can be accurately required of interpreters in court. when they are ready to continue. interpreted. Competency standards expected • Immediately inform the court • Decline to interpret in a case, of an interpreter are to: or tribunal if the interpreter and or ask to be replaced if the case • Not alter, add, or omit anything the person who requires the has begun, if they feel their

59 PRACTICE June 2018 · LAWTALK 918

interpreting skills are not ade- acting for Ruying Jin. Greater care is still required with interpreter when preparing a quate for it. such clients. witness statement. There are commercial translation 6 If the witness cannot read or write services providers as well as a Evidence from non-English speakers in their own native language, the number of independent providers Court rules provide for the filing of affidavits in languages interpreter must carefully read (see NZTC International). Their other than English – see rule 1.15 High Court Rules 2016, the statement to the witness in services provide insight into the rule 1.19 District Court Rules 2014, and rule 160 Family his/her own language and set this various aspects of interpreters’ roles. Court Rules 2002. They must be accompanied by an out in the translator’s jurat or affi- One such organisation offers con- affidavit from an interpreter exhibiting the non-English davit, using the words prescribed secutive, over the phone, simulta- affidavit and provide an interpretation of that affidavit wordings. neous, video remote and whispered into English. This would suggest two separate documents 7 Once the statement has been simultaneous interpreting and sight rather than alternating paragraphs separately verified completed and signed in the translation. as to translation. native language, it should be In terms of written language Suitable procedure for witness statements, or briefs translated by a certified transla- there may be choices that war- of evidence, was the subject of submissions and useful tor who should then either sign rant consideration. An example guidelines in a decision of Peter Jackson J in a custody a jurat confirming the translation is written Chinese which has two dispute where witness statements were produced in or provide a short affidavit con- main strands. Simplified Chinese English by witnesses who did not speak English (NN v firming that s/he has faithfully is used in China and Singapore. ZZ [2013] EWHC 2261). The starting point was a rule in translated the statement. Elsewhere – such as Hong Kong the same terms as our courts. Following submissions 8 If a witness is to give live evidence and Taiwan – Traditional Chinese on the point his Honour also recorded these principles. either in person or by video-link, is more commonly used. It seems 1 There must be clarity about the process by which a a copy of the original statement in those who comprehend Simplified statement has been created. In all cases, the statement the witness’s own language and Chinese cannot be assumed to read should contain an explanation of the process by which the English translation should be Traditional Chinese while those who it has been taken: for example, face-to-face, over the provided to them well in advance understand Traditional Chinese are telephone, by Skype or based on a document written of the hearing. likely to comprehend Simplified in the witness’s own language. 9 If a statement has been obtained Chinese. 2 If a solicitor has been instructed by the litigant, s/he and prepared abroad in compli- Access to justice is a significant should be fully involved in the process and should ance with the relevant country’s issue for non-English speakers. not subcontract it to the client. laws, a certified translation of that It costs more and is slower. There 3 If presented with a statement statement must be filed together are greater risks the facts will not in English from a witness who with the original document. be fully or accurately ascertained. cannot read or speak English, In criminal proceedings the Crown Choices may not be fully understood the solicitor should question will pay for interpreters while in by the client or instructions not its provenance and not simply civil cases the cost will be that of the understood by the lawyer. Working use the document as a proof of party calling the evidence except if it partnerships between solicitors evidence. is only required to cross examine (Li who understand the clients’ own 4 The witness should be spoken v Commissioner of Police [2016] NZHC language and barristers who have to wherever possible, using an 1383). In the discovery process there the necessary specialist legal skills interpreter, and a draft statement is no obligation to provide transla- can minimise these factors. should be prepared in the native tions of non-English documents Case law shows that language language for them to read and (Amatal Corp Ltd v Marahu Corp skills are only part of the necessary sign. If the solicitor is fluent in (2003) PRNZ 968). repertoire. In Young v Zhang [2016] the foreign language then it is Dealing with the changing nature NZHC 3018, [2017] NZCA 622 one permissible for him/her to act of our society and facilitating access party was a solicitor admitted in in the role of the interpreter. to our legal system, perhaps even New Zealand who claimed, among However, this must be made justice, seems critical to the role other things, that the interpreter clear either within the body of of lawyers. It is hoped these two was faulty – and while he avoided the statement or in a separate articles have contributed to that a contempt finding, the judge’s affidavit. (In New Zealand this endeavour. ▪ adverse comments were referred would appear to place the solici- to the New Zealand Law Society. In tor in the role of witness possibly Alan Sorrell  [email protected] is Lee v District Court [2017] NZCA 616 infringing professional conduct a barrister at Bankside Chambers, proceedings were so badly handled r13.5.1 and see Vector Gas Ltd v Auckland. He has acted in a wide the court awarded indemnity costs Bay of Plenty Energy Ltd [2010] 2 range of contract, partnership and against Yoon Lee (note that there NZLR 444 [148].) shareholder disputes, securities seems to be more than one lawyer 5 A litigant in person should, regulation issues, and real prop- of this name) who was the lawyer where possible, use a certified erty, trust and estate matters.

60 PRACTICE How to keep on top of tax

BY FRANK NEIL

If the practice runs a trust Group, and has acted for the Inland Every year lawyers in practice on their own account, the tax monies should not Revenue concerning lawyers with account, along with any self-employed person, need be held in the trust account. This tax issues. to meet tax obligations. With some planning and is to ensure compliance with regu- “When we have solicitors leaving preparation, meeting these obligations can be relatively lation 8 (restriction on use of trust Meredith Connell to become barris- stress-free. accounts for personal transactions) ters or sole practitioners, I always There are two simple ways for lawyers to tackle this: of the Lawyers and Conveyancers tell them ‘get a good accountant. by putting a set amount of money aside during the Act (Trust Account) Regulations Don’t try and do it yourself. Think year (such as the appropriate amount each time a client 2008. about putting a third of your gross pays an invoice), or to get an accountant to look after Failure to put a plan in place can revenue aside. That’s a rule of your tax affairs. result in lawyers playing catch-up thumb, but I think it’s probably Large law firms tend to set up two bank accounts for and potentially incurring late pay- what you’ll need’,” he says. each partner. Around two-thirds of the partner’s earnings ment penalties and interest. It is important to put money aside goes into one account, and about one-third goes into right from the beginning. a “tax account”. Rule of thumb “In your second year, you have Although the money in the tax account can be accessed Meredith Connell partner Nick to pay income tax for the previous at the partner’s discretion, the firms tell their partners Malarao is a tax specialist and year, as well as having to pay pro- this is not only to be used for tax-paying purposes. a member of the Tax Working visional tax for the year you are in,”

61 PRACTICE June 2018 · LAWTALK 918

Mr Malarao says. Medium Enterprises. “That is where a lot of businesses fail and they could “That said, lawyers are really no different from many avoid this by planning a bit better and getting good of our customers and some do get behind on occasions,” advice. he says. “By putting money aside right from the start, you don’t Those lawyers who are salary and wage earners with end up paying your first year’s tax plus provisional tax PAYE deducted by their employer have less to worry from your second year’s income. about if they have no other sources of income. “Lawyers often think that they are good with numbers. However, lawyers who are recently self-employed are I don’t think they are,” he says. more likely to struggle initially with understanding their “Having an external accountant brings discipline tax obligations. that may otherwise be lacking. It is a job best left to “Inland Revenue recognises that any new business those who do it day in, day out, and the cost is worth owner will be focused on building their client base when it in my view.” they’re starting out. Administrative tasks such as filing GST returns or employer monthly schedules can easily Unexpected absence from the practice slip down the priority list,” says Mr Owen. “The other thing I see quite often is when an illness “But setting up systems and processes or even engag- has affected a lawyer. Whenever something like that ing a professional such as a tax agent is really critical to happens, they struggle to keep their practice alive and any new business getting their tax right from the get-go.” compliance with the tax system becomes difficult,” Mr For those lawyers who do find themselves in difficulty, Malarao says. Mr Owen recommends they make contact with Inland “You may have to pay a lot of money for medical Revenue as soon as possible. expenses, and that comes out of the money you would “In most situations we can work out a satisfactory otherwise have to pay your tax, which solution that works for the customer and Inland you then have to find later.” Revenue, and ultimately helps them get back on track.” GST and PAYE Tax system improvements GST is another tax that some law- Richard Owen says the department has introduced a yers need to come to grips with. number of recent initiatives to make it easier for people “Lawyers can be tempted to go in business to meet their tax obligations. with a six-monthly filing option. In One development is the accounting income method, my view, that is a mistake, because or AIM, which allows businesses to pay tax ‘as they go’ that is a lot of paperwork to do, with when they make a profit. the outcome that there might be a This means tax payments are in line with a business’s lot of tax to pay. I suggest a two- cash flows from month to month, Mr Owen says. monthly filing option even if you “At the moment businesses have to pay provisional qualify, or think you qualify, for By putting tax based on what their income was last year, or what the six-monthly filing option,” Mr money aside they think they’ll do in the current year. That can easily Malarao says. right from result in an under-payment, meaning they’d be liable And for those with employees, he the start, you for penalties. says all PAYE should be paid as soon don’t end up “And we know that many businesses intentionally as it is due. paying your overpay just to avoid the risk of penalties or interest, and “It is a criminal offence to know- first year’s then have to wait until the end of the year for a refund. ingly not pay PAYE when it is due. tax plus “AIM will eliminate the guesswork from paying provi- The offence carries a maximum five- provisional sional tax, which our customers have told us needed to year term of imprisonment, for each tax from your be simpler and more aligned with their business cycles. instance of offending.” second year’s It provides more certainty about how much tax is owed income. and makes managing cash flows simpler.” What if you are Lawyers often AIM is for businesses with an annual turnover under struggling? think that $5 million and works through accounting software. It is important to note that the vast they are good “You don’t have to be a tax genius to make the calcu- majority of lawyers meet their obli- with numbers. lation,” Mr Owen says. “The accounting software does it gations on time, says Richard Owen, I don’t think all for you. And as long as you pay on time and in full, Inland Revenue’s Lead for Small and they are there’s no risk of penalties or interest.” ▪

62 LAWTALK 918 · June 2018

PRACTICE Focus on ... Taupo Lakeside resort with the super-fast commmute

BY CRAIG STEPHEN

From a sleepy backwater as recently as the 1970s, Taupo’s immaculate location on the banks of its name- sake lake has resulted in a phenomenal growth with tourists powering their way through the Central North Island and agricultural and conservation industries sprouting up. Reflecting this, the legal profession of the town has seen a spike in the number of law firms. Louise Foley has been working at Le Pine & Co for more than 18 years and practises civil, criminal and employment law. She says the local profession has developed exponentially. “When I first arrived, there was just Le Pine & Co and a couple of other small firms that traded under a partnership style. But now there are a couple of other larger firms, though we remain the biggest because we have grown along with the market.” She says the rise in population, and with it numerous subdivisions, has been mirrored in the nature of law in the town. “There has been a growth in property and commercial ▴ Huka Falls, under 10 minutes drive from the main lawyers; I don’t think there’s been much growth in liti- Taupo town.  Susanne bn gators; family law and the criminal bar have remained steady whereas commercial and property seems to have and come for all the lifestyle advantages the area has,” expanded.” says Mr Mounsey who specialises in property and Tom Mounsey, a partner at Malcolm Mounsey Clarke, commercial law, and trusts. says the town’s perpetual growth, which includes a “It is very central. Rotorua with its High Court is only massive bypass completed in 2010, provides the firm an hour away and Hamilton isn’t much further away with plenty of work. for court matters. We also work at the District Court in “New developments are rolling out in the town and Taumarunui and Tokoroa so we cover a large patch.” most developments in the last couple of years have sold out before titles have been issued, so there’s a lot of Birds and stones interest in the new subdivisions. Louise Foley notes the legal profession benefits from “Because Taupo and Turangi are such popular holiday people outside Taupo coming in to do other tasks. destinations we have clients all over the globe – the “There are lots of rural areas that feed into Taupo, like United Kingdom, Dubai, Hong Kong, Australia – who Turangi and Reporoa, and there are a couple of strong have holiday homes here, so we have built up a portfolio accountancy and insurance firms in Taupo, so a lot of of clients from all over the world who have a connection people from outside – even as far as Taumarunui and with Taupo because of their property investments. They Waikato – will come into town for the day, and they love the winter skiing, trout fishing and the environment, might see their accountant and their lawyer at the

63 same time, so we really benefit from strong professional ▴ Central Plateau from Lake Taupo businesses here.”  Dave Tyrrell bn Ms Foley completed her final semester at the University of California School of Law in San Diego, the ministers, I got a feeling that I was writing reports which led to a period of travel throughout the Americas, that no one was ever going to look at again.” from Bolivia to Mexico and over to Cuba before returning Raised in Taupo, she returned there to work at Le Pine to New Zealand. & Co, which was established in 1953. Her first job was in Parliament in Wellington “and although that was quite fun mingling with the MPs and No-brainer Bonny Daniell-Smith is an associate at family law spe- cialists Daniell Associates with her mother Judy Daniell and Judy’s husband Donald Fuller. She arrived in Taupo The Taupo district, which includes Turangi and in 2014 via Auckland, London and Sydney. Mangakino, as well as a vast rural area around When she returned to New Zealand, she was pregnant the lake, had a population of 32,907 in the 2013 with her first child and an opportunity came up in the Census. family practice. “My partner is a Gizzy boy, and we wanted to live Of those, 29% are Māori, compared with 14.9% somewhere small with reasonable house prices, a good for all of New Zealand. lifestyle, all the normal things that we are lucky enough The next most populous ethnic groups are to be able to tap into. It was a no-brainer really. My Pacific peoples 2.7% – compared to 7.4% for partner, who is a project manager, has lived here before NZ nationally and Asian 3.5% – compared to so he knew what it was like here.” 11.8% nationally. Bonny was doing insurance law in Auckland and Sydney. She is now practising family law and has a lot The median age is 40.6 years, higher than the more interaction with local practitioners than in the national median age of 38.0 years. past – which she describes as beneficial.

The top three industries in the district are Traffic jams? What traffic jams accommodation and food services with 2,250 As a mother, Louise Foley finds there are massive benefits employees, retail trade with 1,800 workers and to being out of the urban sprawl. agriculture, forestry and fishing with 1,750 “I can leave home, do two drop-offs, and be at my employees. desk in half an hour – you couldn’t even do one of those in that time in a city. If I want to go and watch my kids

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do, say, cross-country, I can shoot on, perhaps, to an overseas role. away for an hour, it’s no big deal; “We appreciate that if we take on it’s only a 10-minute drive out to a graduate they are not going to be the schools.” around forever, but those people For Tom Mounsey, who graduated who are originally from the area and from Waikato University in 1998 and have travelled and have had children spent time travelling in the United and who now want to kick back and States, Canada and Mexico, his have a lifestyle, are moving back. It commute is even shorter. can be difficult, from a social per- “It takes me three minutes to get spective, for young graduates, but home on a good day; even at about in saying that you get a grounding 5:30 there’s very little congestion, in a reasonably broad area of law there’s only one set of traffic lights by working here.” in the whole town. I went for a spot He says there’s a lot of collegiality of paddle boarding at lunchtime, among the town’s practitioners, so you can do those kind of things with most firms within a block even during the day,” says Tom, who or two of each other so “it’s easy ▴ Bonny Daniell-Smith moved from Rotorua nine years ago to walk to an office a couple of to set up the firm with his wife Kate minutes away to drop off some Mounsey and Phil Clarke. documents”. And because everyone “The town is big enough for in a small town tends to see each a strong infrastructure – there’s other in supermarkets or elsewhere, two good high schools, a vibrant people in the profession have an business community and the added incentive to keep good town prides itself on being the relationships. ‘events capital’ of New Zealand. But we don’t have the issues that Leaving it all behind come with a bigger population like Ms Daniell-Smith finds the change traffic. The average house price is from city life to a more rural envi- about $450,000, under half of what ronment works for her and her Aucklanders have to pay, so it’s family. pretty affordable.” “Law is inherently a stressful Bonny Daniell-Smith describes career and although there is some her daily commute as “the best stress in the work I do, it’s nothing thing ever”. compared to my previous jobs with ▴ Louise Foley “Daycare is right in the middle of the late nights and the work dread home and work, so in the morning it that I am sure lots of lawyers have takes less than a song on the radio to on a Sunday.” get there. I finish at about 4:30 in the She says the growth in the town afternoon to collect the children.” has created extra pressure on the local economy. But while there is Struggles for a need for lawyers, she thinks the young lawyers roles would suit more experienced Like many provincial towns, Taupo practitioners – perhaps with fami- has trouble in attracting and retain- lies – who want to create a life in ing young professionals, something Taupo. Mr Mounsey says they have had to “For me it’s been a huge change. adapt to. The previous work I did would have “People with little or no family been unsustainable with a young connection with the town can strug- family. I am 35 and for someone of gle here, and what we’ve found is my age, a place like Taupo is perfect, that we bring in graduates and they and we certainly haven’t looked ▴ Tom Mounsey do two or three years and then move back.” ▪

65 PRACTICE

PRACTICE Why some lawyers are underproductive … and what to do about it

BY EMILY MORROW

into a meaningful context. Either approach Some lawyers hit the ground running; they make their can waste time, effort and energy. Highly way through work like a hot knife cutting through butter, billing productive lawyers focus simultaneously efficiently, writing off very little time, keeping clients and -col on the necessary details and the bigger leagues happy and getting great results. These are highly productive context for their work. lawyers. I tend to be very practical about this Other lawyers, although technically very skilled, are underpro- when I work with lawyers. First, I identify ductive financially and temporally, struggle to meet clients’ and the individual’s natural preference for detail colleagues’ expectations, and generally flounder. What causes or the big picture and I bring this explicitly some lawyers to be the latter rather than the former? What can to the individual’s attention. If the latter I such lawyers and those who work with them do to enhance their often say “What details will you need to productivity? consider to get the outcomes you want?” When I consult with underproductive lawyers I appreciate how If the former, I will inquire “What is the larger, meaningful context difficult their work style is for them as well as those with whom for these details and how do they fit into that context?” Then I give they work. No lawyer chooses to be underproductive and many clients the opportunity to practice addressing both in the context struggle to address the challenges they encounter or inflict upon of a sample piece of work. This approach seems to get good results. themselves. Here are some suggestions about how lawyers can be more productive. Lack of self-confidence Despite being gifted professionals, some lawyers worry they do The wheel spinners not have the skills they need to be successful. They procrasti- Some lawyers have difficulty getting traction on a project, and nate, overwork files, create self-inflicted time pressures and feel when they do get stuck in, spend unnecessary time on unbillable chronically incompetent. matters and distractions that do not add value. They struggle to When lawyers experience a lack of confidence, a colleague or identify what their clients really want to accomplish in a practical consultant can assist by having a conversation about what causes rather than academic way. They may not fully accept that law is those feelings and what can be done to address them. Reassurance a business as much as a professional practice. goes a long way, as does acknowledging how common such feelings When working with such lawyers, I suggest they consider the are, particularly amongst lawyers. Also, it is helpful to create a work following question: “What practical, achievable outcomes does my environment in which it is OK to fail so long as one learns from client want, how much is my client willing to pay me to achieve the experience, does not repeat mistakes and takes responsibility those and what do I need to do consistent with that?” for having done so. Blaming never helps. I ask them to articulate, in a detailed, sequential way, what exactly needs to be done to achieve those outcomes, including Perfectionism initial steps. Finally, I tell them to set objectively quantifiable time Many lawyers are Type A personalities who waste enormous and financial boundaries for themselves and their work. Then I amounts of time, energy and resources seeking perfection. They hold them accountable for their own success. become over-anxious, micromanage, delegate poorly, and believe that no one else can do as good a job on a matter as they can. Too many trees or too many forests? They don’t achieve perfection and they create bottlenecks and By naturally focusing on the big picture context for their work, poor team morale. some lawyers know what they want to achieve long-term, but Such lawyers need to be reminded that while excellence is can’t see how they are going to get there. Other lawyers see all of possible, perfection is usually unattainable. They can benefit the details of what they need to do, but are unable to put those from understanding that, over time and with more experience,

66 PRACTICE

lot of personal hours, but are unlikely to leverage their time and be top producers for a firm. They may be the ones who ultimately find their career path blocked or delayed. Interestingly, even lawyers who work alone (such as barristers and solo practi- tioners), will be more productive if they establish “virtual teams” and collaborate regularly with them. By this I mean choosing to work with other practition- ers (outside of the lawyer’s own office), delegating/referring appropriate work to such individuals and utilising these outside resources effectively. If a lawyer does not delegate well, I suggest he or she get some instruction on how to do so and commit to making some workstyle changes. It’s that simple. Is private practice for you? Although low productivity and being in the wrong career do not always correlate, sometimes chronic underproductivity can be a symptom of having made the wrong career choice. If you really don’t like billing your time and working in a commercial environment (which is, after all, what a lot of private practice is about), then maybe their anxieties about achieving perfection Red herrings you should consider doing something else. will naturally diminish. Highly productive Some lawyers have never met a distraction There are many ways to use one’s legal lawyers know they can achieve excellent that they did not like and want to get to training without being in the private outcomes even if such outcomes are not know better, including other people’s prob- practice of law. Making that kind of choice perfect. lems or interesting but fruitless professional can, under the right circumstances, be an pursuits. Whatever the modality, the out- appropriate outcome. Poor “billing hygiene” come is the same; wasted time and energy. Unfortunately, there is neither a “one Lawyers who consistently fail to record Because these individuals struggle to size fits all” reason why some lawyers are their time or who write off time will always focus and bring closure to their work. I underproductive, nor is there is a single be financially underproductive even if they suggest they set realistic and achievable remedy. Generally, I find that individ- work many hours. Full stop. Some lawyers boundaries for themselves and identify ualised, tailored approaches work best are so disorganised they don’t record their what happens when they become dis- with high potential but underproductive time, others claim they are so busy that tracted. What are the red flags that will lawyers. If one is supervising an underpro- they don’t have the time to record their alert them to the problem so they can ductive lawyer, I suggest patience, focus on time and still others, I believe, may be control it? How do they want to respond identifying bad habits and replacing them philosophically opposed to the whole to these and what will the benefits be of with better approaches, and combining notion of time recording. doing so? What do closure and focus look praise and accountability. If one self-di- Whatever the reason, these billing defi- and feel like? agnoses as being underproductive, then I ciencies need to be addressed. If a lawyer suggest honesty, realism, and getting the can’t or won’t comply, then I sometimes Poor delegation assistance you need to address whatever it recommend that a firm assign someone Optimal delegation involves putting is that ails you, sooner rather than later. ▪ else to assist in the process, such as a together a great team with which you support staff member. If the problem still can work, investing in those individuals Emily Morrow  www.emilymorrow.com persists, then I suggest that draws/salaries and delegating appropriate work to them was a lawyer and senior partner with be docked until the problem is addressed. in an appropriate way. Failure to set up a a large firm in the United States. She This is strong medicine for a significant high functioning team and delegate work now resides in Auckland and provides problem. If that does work, then the lawyer effectively to it will correlate almost 100% tailored consulting services for lawyers, may be better served to consider leaving with being underproductive as a lawyer. barristers, in-house counsel, law firms the private practice of law. Lawyers who don’t delegate may record a and barristers’ chambers.

67 PRACTICE June 2018 · LAWTALK 918

PRACTICE Small-Medium Law Firm Viability 101

BY ROB KNOWSLEY

purpose of this article, I would set an arbitrary number of law- For some years now there has been a yers in total at 19, for the upper limit of small-medium practices. lot of discussion about the viability of Numerous statistics use different numbers. My reasoning is that, small/medium legal practice – unfortu- above this level, practices tend to have genuinely experienced nately, much of it quite negative. managers. For at least the last 30 years various Around 97% of New Zealand firms fit into this grouping, as at pundits have signalled the eventual dis- 1 February 2018. appearance of the smaller, general, legal Importantly, although the range of numbers used to delineate practice. ‘small’ or ‘medium’ can be a bit rubbery, the principles of viability Commentators more recently have for practices are pretty much standard. argued that we are heading to a gross In looking into the definitions of ‘viability’ as my logicaI starting over-supply of private practice lawyers, point I came across these: firstly from the New Zealand Inland assuming that there will not be enough Revenue (IR) website tools for assessing the viability of your work to go around, and that revenues and proposed business, and from the Australian Tax Office (ATO). profitability will inevitably fall. IR… I have a much more positive view of the “Your … venture will need to generate profits each year to future and have penned this article from meet your requirements. Profits are needed to generate an that perspective, looking back across the acceptable return on investment (ROI) decades since my admission in 1975, to and pay salaries or wages”. draw on a wide range of experiences in ATO… the trenches with small-medium practices. “Viability is defined as the ability I freely acknowledge that my thoughts to survive. In a business sense, that on what is important to viability will not ability to survive is ultimately linked necessarily align with what might be found to financial performance and position. in a textbook on the subject. A business is viable where either: • it is returning a profit that is sufficient Preliminary points What size to provide a return to the business Law is a profession, with very special con- delimits a owner while also meeting its com- siderations applying, but for the majority ‘small-medium’ mitments to business creditors of practices similar considerations apply as legal practice in • it has sufficient cash resources to to those for ‘normal’ businesses. Viability New Zealand? sustain itself through a period when is important in both. For the purpose it is not returning a profit.” What ‘viable’ is understood to mean will of this article, Readers should immediately discern differ widely, even wildly, from practitioner I would set an therein an important difference between to practitioner. arbitrary number ‘surviving’ and ‘thriving’. Many readers might consider that of lawyers in It is difficult to discuss viability without current conditions are somewhat less total at 19, for examining carefully what is meant by ‘a than favourable, but as always, those the upper limit return to the business owner’. In my view participants in any marketplace who best of small-medium that has to be clarified in terms of impli- understand the keys to success and best practices. cations in day-to-day operation of a legal react, getting the fundamentals right, will Numerous practice. achieve the best outcomes. statistics If the owner works in the business (as is What size delimits a ‘small-medium’ use different the case in most small practices), the owner legal practice in New Zealand? For the numbers. has to, at least nominally, be allocated a

68 salary commensurate with their effort and ‘return on investment’. the critical qualification, ‘well-managed’. market value of their work, plus normal After the ‘remuneration package’ of a It should go without saying that respon- benefits. working owner, what is considered a rea- siveness to enquiry, quality communica- Why would employees be provided sonable return on investment? That could tion, and doing the legal work well and with various benefits beyond base salary be the subject of a separate article. promptly are givens. as a matter of legal obligation, or market Practice management guidance from At the heart of viability are profitability forces, and the owner working alongside lawyers’ professional bodies seldom, if and management of working capital. them not? ever, addresses what is considered to be Think annual leave, long service leave, a reasonable profit margin in percentage Planning carer’s leave, superannuation, etc: it can terms, whether before or after principal’s Planning is essential, but it is important be quite a list. salaries. not to over-complicate planning at the In determining a remuneration for the Businesses are valued every day includ- expense of continuous execution of a good owner’s efforts in working in the business ing a calculation of the level of risk that basic plan. alongside employees, it is important not historical (last 2-3 years often) genuine Identify a manageable group of key to use a figure that is purely nominal and profit is likely to be maintainable for a things you need to always do well to unreasonably low. To do so is to risk real reasonable period in the future. achieve reasonable goals, and arrange to confusion about whether the practice is The higher the risk perceived to the do them, regularly tracking performance. properly profitable and viable. maintainability of the historical profit, the Too many firms invest a lot of effort in It may indeed be ‘surviving’, but at what greater return an investor in the business overly-elaborate plans, and begin to fail hidden impact on the owner? should want to see, so they can recover on execution the moment the plans are In this regard I regularly see principals their investment more quickly before any completed. The plan is not the end goal, paying (or notionally allocating) them- big risk factors may kick in. only the preparation for the start of the selves a salary that is considerably less Simply put, the higher the risk, the next stage of the journey. than that being paid to some employed faster the investor should be wanting to Identify a level of profitability that would lawyers in the firm. Where that scenario get their capital invested repaid. That said, be acceptable, and work out how you is actually appropriate, it should be the it is reasonable that different owners will would achieve that, generating sufficient exception rather than the norm. be happy to live with different expectations revenue to cover expenses (including all It should also be noted that the mere about returns, but need to be mindful that salary of owners discussed earlier), and ‘allocation’ of a reasonable salary to an potential successors may well have differ- creating an acceptable profit margin. owner who works in the business, for ent expectations, that could well impact Identify the types of work that you the purpose of better assessing practice their perception of the value of the practice. believe are available that you and your viability, is not to be confused with issues (More on this later). team have strong skills in, and that gen- of taxable income. Well-managed small-medium legal erate acceptable fee levels. This basic remuneration for working in practices are, on average, only moderately Build into the planning a strong under- the business is one part of an owner’s total risky in my view, and ROI sought might standing that the majority of revenue will return, but it is not to be confused with be expected to be 20-25% typically. Note go to expenses, including all salaries and

69 PRACTICE June 2018 · LAWTALK 918

associated outlays. It is only after all that revenue is generated types and volumes of work, effective timely that additional revenue will create your genuine margin. This is attendance to the work, and sensible pric- a key part of the reason not to take planning lightly. ing of the work. If you haven’t done this exercise before it would be wise to target Despite this critical ‘recipe’ few a modest margin of 10-15% of revenues. This is where the vast small-medium firms do much planning majority of small-medium firms sit anyway, and once achieved, around the required flow of new work provides a very sound platform for significant improvement. needed to keep each person/team properly This exercise will, in effect, give you a basic budget. busy. The revenues in the main will come from the labour of your people applied to the clients’ files. Doing some careful human Marketing resources planning will show you how much of the available labour In my experience this failure ties in to can be applied to client files if they are available to be worked on, many lawyers dislike of marketing. That and how much labour needs to be allocated for investment into is, they would prefer not to accept that the what I term, FirmTime. volume and type of work that will come FirmTime covers such things as marketing, technology, training, to the firm is a direct result of the quality knowledge management, supervision, services development, of execution of the range of activities they premises and general administration. undertake now. In this aspect of your planning, appreciate that the cost to you of Many tend to believe that the work will each available hour of labour is the same whether the investment ebb and flow naturally, and will come at is applied to ClientTime or FirmTime. Plan both carefully, matching satisfactory levels in the future if they skill sets to whatever type of work that you expect to need/want simply do a good job on the work they to get done in each planning period. already have. The reality is that even when the existing Cash flow and credit control work is done well, there are many reasons There will be few lawyers who don’t appreciate the very practical why new work can reduce to a level where difference between when a file gets worked on, when it can be the practice can no longer generate a invoiced in whole or part, and when the fees may be paid. margin at all, let alone a reasonable one, Only a limited number of firms are well-enough organised to not and owners have to take less and less from need a cash flow budget, simply because in most firms invoicing the firm, or worse, have to inject more of doesn’t immediately follow the work being done, and in many their own capital to keep the firm going. firms payment to you doesn’t immediately follow invoicing. A firm should view sensible marketing as Take into account cash flow expected from debtors carried helping existing clients, referrers, contacts forward from earlier planning periods, and the wider public with information that and of course factor in the availability or is useful to them in navigating their lives otherwise of an overdraft facility to assist and/or businesses. in smoothing cash flows, and the need to Experience shows that practical mar- expend funds on capital items not included keting can be done reasonably easily, at in your expenses. reasonable cost. There are plenty of other items to plug There are many potential channels for into your cash flow, especially GST flows in information, and it is not particularly and out, and anticipated regular drawings difficult to test some. Websites and over and above salary. Populations social media may have a place, as may Credit control has not historically been a are growing, seminars and newsletters and speaking strong point in a lot of legal practices, and it families are engagements, to name just a few. Sadly, is essential to have clear, reasonable terms continuing one-size-fits all is not applicable. for all types of work, and you do not slip to change, An effective contact database is an into the error of honouring terms more in business is important tool to underpin many of the breach than the observance. continuing to these efforts, and keep track of them and Cash can dry up quickly, and as it starts develop rapidly their relative success, and your return to flow less regularly than it should, pres- (both local and on investment of time and money. Not sure comes on owners first. That pressure global), laws all ‘off-the-shelf ’ practice management can impact owner performance on legal are continuing systems incorporate contact databases work and running the practice, further to become of sufficient power and flexibility for this impacting the financial and general health more complex, undertaking. of the practice. and people will In financially healthy businesses, mar- The fees you can create through the need quality keting and pricing are closely inter-linked. work of your team, and invoice and col- legal assistance All of us recognise that when new work lect, depend on the availability of the right more than ever. is pouring in we are usually more confident

70 LAWTALK 918 · June 2018 PRACTICE

with setting out our pricing and payment competitors seem to be using it. behind that situation is poor management terms, and then sticking to them. The Technology needs to be in a practice for over considerable periods of time. opposite is true when the possible piece a clear purpose, and the potential to assist On the other hand, where practices can of work we would like to be instructed on is undoubtedly huge. be demonstrated to be profitable beyond is one of very few on the horizon. However, the relationship between principals’ salaries, financially stable and Being heavily tied up in work that technology and its perceived purpose relatively low risk, with strong client bases cannot ever produce a decent margin is is often not managed by lawyers such and excellent marketing, good sales are very inhibiting, dispiriting, and almost that the benefits are highly tangible. still being achieved. certainly preventing any clear thinking All too often the cost is incurred, but In the real world beyond ill-informed on the right way to get out of the maze. the training has not been undertaken opinion and urban myth, goodwill still Aside from the need for confidence when properly to ensure that at least the bulk exists, and is being bought and sold in scoping and estimating fees for potential of the benefits are actually delivered. profitable practices. new instructions, there is great scope for Expensive equipment and software sits lawyers in small-medium firms to improve largely unused. Summary their skills in pricing. As professionals we are blessed by the Populations are growing, families are con- With all the discussion of the failure of range and power of the technology avail- tinuing to change, business is continuing lawyers to record their time spent accu- able to us, far greater than ever before to develop rapidly (both local and global), rately, it is easy for lawyers to assume that in history. To quite a degree technology laws are continuing to become more com- if they do record accurately, the time they has closed the capability gap between plex, and people will need quality legal will thus be able to charge will be both smaller firms and large, but only if it is assistance more than ever. acceptable to clients, and provide a good used smartly to help achieve clear goals. There is an ever-increasing array of ser- profit margin. vice offerings in the marketplace aimed at Neither of those assumptions are nec- Succession different segments of the population. The essarily correct. As with so many other aspects of legal internet is playing an increasingly large Many clients are looking for better practice, what a particular owner hopes role. value in the services they receive, and for by way of succession will vary greatly Nevertheless, there is a very bright the thoughtful lawyer will combine an from the hopes of others. future for small-medium legal firms that improved level of skill in communicating Some hope for little more than a smooth are clear in who they want to assist, with value to each particular client in each transition for their remaining clients to what services, and in what manner. particular matter, with a wider range of a new lawyer, while some others have They do need to plan and organise well, pricing options to meet the wide range of inflated views of the value of what they deliver excellent services that clients per- circumstances. perceive they have built over many years ceive to be good value, charge sensibly, The thoughtful lawyer will be aware of hard work. have quality credit management, be good that psychology plays an important role The main debate these days appears to leaders and managers, good marketers, and in clients’ perception of value. be whether succession can reasonably be good financial managers. Again, the vigorous debate over the inap- achieved by a sale in which one or more Beyond merely being “viable” there propriateness of charging clients by time purchasers pays an owner of a small-me- remains great opportunity to thrive. ▪ spent regularly obscures the harsh reality dium practice for a share of the practice that charging merely by time is often a assets including goodwill. Rob Knowsley LLB  robkkms@ very poor outcome for the lawyer given Certainly, it is happening much less bigpond.com is a principal at Knowsley the value the client is delivered. frequently than it used to. Management Services. His client law Planning for your team to be properly In my view the main reason for that is firms have a wide variety of practice busy to planned levels involves knowing that the vast majority of such practices structures and services, and been situ- how much new work that will entail from are hardly profitable, and the key factor ated in very diverse locations. time to time, approximately what it should produce in revenues, and how to go about ensuring you do in fact get it -through sensible, cost-effective, marketing. DOING DISCOVERY? www.lawflow.co.nz Having enough work and charging properly for it will, of course, go a long LawFlow is a web-based discovery system designed, developed and way to guaranteeing viability. hosted in New Zealand, used by New Zealand law fi rms since 2012. Technology ∂ Generate discovery lists and electronic bundles Make your technology choices based on Full-text search your discovery documents ∂ Remote access via any web-browser a clear understanding of how they will ∂ And much more! improve your achievement of your par- ∂ ticular goals, not because something seems Take a free, fully-functional trial today! Visit our website for details www.lawfl ow.co.nz exciting or interesting, or because many

71 [Practice]

PRACTICE ▴ The New Zealand Police legal teams encourage all lawyers to look for opportunities to create learning groups and share knowledge and The value of CPD: expertise. From left: Scott Spackman, Cathryn Curran-Tietjens, and A collaborative team Mark Wilton. BY KEN TRASS

So, while not all of these activities Mark Wilton, Principal Prosecutor Embracing the flexibility of CPD has enabled the are necessarily recorded towards an of the Police Prosecution Service, New Zealand Police legal teams to deliver some unique individual’s CPD requirements, all says the flexibility of CPD has ena- and collaborative learning experiences, and in doing so are reflected on and shared across bled the Police to be responsive to added a new dimension to their working environment the three teams. specific CPD needs. This has included and professional competence. This approach affords New delivering in-house training on Police lawyers work in one of three legal teams – the Zealand Police lawyers the time and amendments to legislation or specific Police Prosecution Service, Police Legal or Employment opportunity to research and prepare individual requests, and in contrib- Relations. feedback to the wider team on their uting back to the wider profession These groups have utilised their own expertise, along- learning. In the employment rela- through its advocacy courses held side the unique and varied resources at the Police to tions team, lawyers convene each at the New Zealand Police College. create some highly diverse learning opportunities. month as a study group where they Mr Wilton says the courses have This has seen a number of the teams experience take turns in sharing their learning. provided a wider and unexpected on-the-job ride-alongs with sworn officers, sitting in As well as broadening the contextual collaborative effect with lawyers with Police communications, or attending court with understanding of the position and from the Government Legal Network PPS prosecutors. This, in addition to other legal and value of the legal team at the Police, attending these advocacy sessions. non-legal activities, has meant a great deal of varied this also encourages individuals to He feels that the learning experience learning for the Police legal teams. take responsibility for the learning is greatly enhanced by this mixture The Police also encourages its lawyers to actively look of the whole team. of lawyers from other prosecuting for CPD outside of the Police. Scott Spackman of Police “The collaboration between the var- departments and that their shared Legal suggests that the learner-centred nature of CPD ious work groups facilitates stronger experience and various practices has allowed force legal staff to explore different learn- working relationships within Police and experiences positively benefits ing mediums and bespoke learning events. These have together with the benefit of individ- the professional development of provided invaluable learning activities that have aligned uals getting an understanding and everyone involved. with the learning needs of the legal team and the Police. appreciation of the work of others Mark Wilton suggests that this which will only be of advantage in team approach is providing valu- Investment across whole legal team their own legal practice,” says Cathryn able and tangible CPD as well as The Police have added another layer of value by investing Curran-Tietjens, National Manager, enhancing the understanding of and in how this learning can permeate the whole legal team. Employee Relations. competency of the entire legal team. ▪

72 LAWTALK 918 · June 2018 PRACTISING WELL

PRACTISING WELL Mentoring: how the profession helps those who need it

BY CRAIG STEPHEN

The legal profession’s mentoring programmes often go under the radar but they are an invalubale resource for new, young and even highly-experienced lawyers. The work on the programmes is ongoing and there’s been considerable work this year already to provide mentees for those who work in the Bar, young lawyers and female Māori practitioners. The New Zealand Bar Association has had a mentoring programme in place for many years, but despite being well promoted on the website, in articles, and member communications, it didn’t have a great deal of uptake. That prompted a rethink by the Association as Executive Director Melissa Perkin explains. “We had a Strategic Plan and this was one of the areas the Association’s Council was really keen to refocus on and reinvigorate the programme. So we strengthened the guidelines establishing a more precise framework so that the mentors and the mentees knew exactly what they should expect from a mentoring relationship and ▴ Kathryn Beck, Prue Kapua, need due to the “levels of stress in also what was beyond the realms of that relationship.” Judge Sarah Reeves at the the profession”. To tie in with this, the NZBA has hosted two events, launch of the Ngā Wāhine Rōia The NZBA’s mentoring pro- in Auckland and Wellington. At the Auckland meeting Māori Mentoring Programme gramme is unconnected to its Bar Kate Davenport QC and one of her mentees Alison Todd Care Committee, which provides a from Crown Law both spoke. they would want to get some advice confidential advice service. “This was particularly well received and we have also on career options.” But with the bullying of practi- made an effort to particularly promote it to younger Melissa Perkin says starting out tioners by judges in current focus members though it is not all one way in terms of age; as a barrister or moving to another – as discussed in full in LawTalk older members can very learn from younger profess- region can be an intimidating pro- 917, May 2018 – Ms Perkin says sionals,” says Ms Perkin. cess particularly around having to there could be an opportunity for In the past few months, Ms Perkin says between 16 and market yourself. barristers who are unhappy about 20 people have signed up to be part of the programme “It’s quite a solo existence. And their treatment in the courtroom to and a “good number” of lawyers want to be mentors. one of the things that barristers seek assistance from a mentor. The NZBA is keen to get more intermediate level are not always especially good at “But that may go a bit outside the mentors (5 to 15 years PQE), and more regional, female is promoting themselves; they don’t mentoring programme remit and and ethnically diverse mentors. get taught at law school how to be a could also be dealt with by some- The mentor can provide a helpful “sounding board” for marketer or how to run a business one on the Bar Care Committee who the mentee in advancing their professional development. so there’s a range of areas where might be able to provide assistance “It can be for a very junior person to be mentored the mentors can provide advice on.” in that regard.” by someone who might be, say, five years down the She says barristers, given their track and they may be able to give them assistance, for independent existence, are less Student mentoring instance, over day to day things like file management able to rely on colleagues in a firm A punt for mentors for budding then they might also like to have a mentoring relation- for advice and support. She says a lawyers has led to 56 people put- ship with someone who is 15 or 20 years out because mentoring programme has a real ting up their hands to answer a call

73 PRACTISING WELL June 2018 · LAWTALK 918

insight to the range of legal roles In-house mentoring outside of the oft-advertised career Many law firms have their own paths at national firms. mentoring programme. Emily Morrow, a former US-based Mentoring Māori Lawyers lawyer and now a consultant The Ngā Wāhine Rōia Māori in Auckland to lawyers and law Mentoring Programme 2018 is a firms, says a successful mentoring Māori Law Society initiative which programme encourages the devel- was launched at Parliament in April opment of professional relationships to prepare and support lawyers and so everybody benefits. senior law students. It particularly “It should embed well and aids Māori women to establish become part of the fabric of a law networks with senior practitioners office – in other words, ‘how we do and strengthen networks between things in this office’. When this hap- Te Hunga Rōia Māori o Aotearoa pens, it encourages the development ▴ Melissa Perkin members. of more generalised, informal high Organisers say the road to setting trust/high communication profes- up the programme has not been sional relationships by enhancing easy. everyone’s interactions with each “For the past four to five years, a other,” she says. key group of amazing wāhine have “The formal programme provides worked tirelessly gathering data and the momentum for enhanced infor- listening to the wāhine in our hunga mal interactions and how everyone about what support they need to treats each other in the work place. stay and progress in the profession,” Law firms predictably experience says Ophir Cassidy, Tumuaki wahine better retention, higher morale, of Hunga Rōia. enhanced communication and pro- “Based on the tuakana-teina ductivity, better work flow and so on. relationship model, the programme “Mentoring is important because, pairs teina (junior) with tuakana without it, younger lawyers will (senior) members and aims to equip need to learn by trial and error and participants with tools for career will lack the benefit of a quicker development.” ramp-up into true professional The programme has 68 wāhine competency.” signed up from all over Aotearoa. ▴ Emily Morrow There are 39 tuakana and 39 teina, Business mentoring with some wāhine signing up to be For all lawyers, the actual business both. of law can be challenging. Therefore, from the Wellington Young Lawyers “There have been times when the New Zealand Law Society has a Committee and Victoria University I would have benefited from the relationship with Business Mentors Law Students’ Society. opportunity to discuss a particular New Zealand. Their mentors act as The Bridging the Gap programme issue or situation in my career, with guide and sounding board for small- is sponsored by the Institute of a more experienced colleague, to get to medium-sized businesses to help Professional Legal Studies and con- a perspective which is connected, develop their business potential. nects law students completing their yet still objective,” Judge Sarah Business Mentors has assisted studies with experienced lawyers, Reeves said at the launch. more than 72,000 businesses since it to help those students prepare for “But I can also recall when other was established in 1991. Its Business entry into the profession. Māori women have extended the Mentoring Programme provides 12 Events are also held during hand to pull me up, or through. months of one-on-one advice for the year to facilitate interaction “The ultimate objective is to ensure business owners. between law students and young we have more wāhine Māori not Volunteer business mentors with lawyers. The Wellington Young just entering the profession, but experience and empathy for small Lawyers Committee also co-ordi- flourishing, and going on to attain business offer guidance, act as a nates a workplace tours initiative senior roles in all areas of the law in sounding board, challenge your as part of the programme, which greater numbers. We have no interest thinking and provide you with an focuses on offering students an in being the exception to the rule.” independent and fresh perspective.▪

74 LAWTALK 918 · June 2018 PRACTISING WELL

PRACTISING WELL Adopt the giving lifestyle today. Now, with boundaries!

BY KATIE COWAN

I used to think that thinking of giving like this was wrong. I was Let me give you a beautiful, research- raised Catholic, where there is a lot of focus on giving and a lot backed, thoroughly reliable recipe for a of admonishment for feeling good. But then I read Adam Grant’s good life: be a giver with excellent bound- book Givers and Takers, and Brene Brown’s Daring Greatly. These aries. Boom. What a delicious recipe: rich books set out all the evidence for the richness and ease that come with humanity, loaded with promise, and from being a giver (with boundaries, which I will get to). no raisins. Though these scientists wrote very nice books, the simplest I was reflecting on this after checking in citation of this principle came from Kristen Bell in a podcast. with what other lawyer advice columnists Bell is an American actress who has starred in Veronica Mars, have been saying. The Americans are very Frozen, and The Good Place. She also famously gives a lot of her intense. There is a lot of insistence that you time and money to charity, including helping homeless families work hard ALL THE TIME and NEVER GIVE move into new homes, spontaneously offering shelter to hurricane IN, and PROTECT YOUR REPUTATION AT victims, and giving money to countless charities. When asked why ALL COSTS, all of which is fine and good, she does it, she says she feels enormously fortunate in her life if a bit myopic and terrifying. and a duty to share her good fortune. But she emphasises that she Something that I and the angry advice mostly does it because the giving makes her feel good. It makes columnists might agree on though, is the her feel connected to people. She has anxiety and depression, and benefit of being a giver. Of course, when she finds that giving, especially her time, makes her feel better. For they talk about it they say, “IF YOU STOP her, the simple fact that giving feels good is a good reason to do it. THINKING ABOUT YOURSELF ALL THE There was a period, not as distant as you might think, when I TIME MAYBE YOU CAN MAKE US MORE wanted to be Kristen Bell, so I found this very persuasive. MONEY,” said with a sneer and a chest Note, of course, that generosity runs the gamut from time and bump to the other columnists. The angry money given to charity, right through being advice columnists are very concerned with thoughtful and warm to people, learning earning more money and do not think names, standing up for yourself or others, much of their young lawyer readers. writing thank-you emails, pre-empting While I would decline the chest bump someone’s needs, being aware that some- and the focus on material reward, the truth one is struggling and offering them a kind is that people who orient towards giving ear, affirming people’s work or courage or rather than taking generally have happier, It generally their own generosity, and any other big or more successful lives in the long-term. And feels good to small thing besides. It is not so much about they are this way not just because giving do something resource distribution as it is a mindset of is by its nature good person territory, and for someone care for people. they earn a shiny halo; they are this way else. It makes All of this is subject to the giant caveat because giving feels good. you feel that successful givers have clear, robust, Let me explain. Humans are social. We connected, well-enforced boundaries, including are hard-wired to care for needs other than and if they being mindful of takers looking to exploit. our own, because humans need to care are grateful Successful takers do not give indiscrimi- about each other for a group to survive. it makes you nately. To be a successful giver is not to be What this means is that it generally feels feel liked and weak or walked over, to give just because good to do something for someone else. powerful. We she was asked. (Equally, it is also not to It makes you feel connected, and if they get lovely, stop being a giver when the occasional are grateful it makes you feel liked and emotional churlish person does ask or take too much.) powerful. We get lovely, emotional rewards rewards for Let’s come back to the legal and work for giving. giving. context. Law is a notoriously competitive

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world where the maxim “nice guys finish last” is often treated think that empty (or non-existent) vessels like law itself. make pretty useless tea. Adam Grant examined the idea of “nice guys finish last” and Living life from a place of generosity, found that, often, they did. Givers who give indiscriminately, who including to yourself, is easier. It makes are people pleasers without concern for their own needs, or who choices easier. It invites you to pay are not mindful of swindlers and quick to turn them down, will attention to others’ generosity and builds burn out eventually. relationships of trust and care and light- But givers also often finished first, as in, way out in front. The ness and affection. You don’t have to pay difference between the two categories was whether the givers had as much attention to score-keeping and strong boundaries around their own needs and against exploiters, cut-throat competition. The odd time when or whether their giving impulse, or people-pleasing habits, simply a taker wins instead of you is not such a depleted everything they had over time. big deal, because you make a priority of These findings are reinforced in Brene Brown’s work on whole- meeting your own needs. People respond heartedness. The people who were found to live wholehearted lives to you more positively, and you feel good were people who were both generous, giving of their time and more often. You are playing the long game. money and selves to others, and had strong boundaries around Over time, giving usually gets you more their self care and own needs. anyway, since people like giving to people A lot of people struggle with boundaries. I definitely do. The idea who are themselves generous. Which, if I that my own needs are really important and I am allowed to meet am being generous, is perhaps what all the them still feels a bit rude. I used to think if I had any capacity at angry advice columnists were trying to say. ▪ all then I should be using that capacity to give, relentlessly, every second, and it was exhausting. I ended up giving less in the long Katie Cowan  katie@symphonylaw. run as my capacity dwindled away to nothing. co.nz is a former lawyer. She is now a But I have noticed that the more boundaries I really stick in director of Symphony Law, a consulting the ground and defend, the more space I have in my mind and practice for lawyers. Katie hosts the New schedule to give, and the better I feel all round. The old adage Lawyer podcast and writes on matters goes that you cannot pour from an empty vessel, but I also like to affecting the legal profession.

76 LAWTALK 918 · June 2018 PRACTISING WELL

PRACTISING WELL What to do when exercise doesn’t work

BY RAEWYN NG

behaviours can come into play, that it’s not as simple as calories I’m sure we’ve all got a broad like increased food intake because in/calories out. While it’s true that understanding of the benefits of of increased hunger or reduced inci- if you consume fewer calories exercise for health, which include: dental activity because of tiredness than you expend, weight loss will • Muscle mass preservation, caused by the increase in structured occur, bear in mind that calorie • Improving aerobic and anaerobic exercise. It’s apparent that exercise calculations (both the number of fitness, on its own isn’t going to be adequate calories in food and the number of • Reducing disease risk and mor- for significant weight loss. calories expended in exercise) can tality rates, So we need to be considering be imprecise and have been shown • Improving cognitive function, other things. to vary up to 50%. Also, we don’t all sleep, energy and mood. absorb or burn calories the same, But if you’re relying on exercise Diet food preparation can make calories alone for weight loss, it’s not The emerging fields of epigenetics more readily absorbable and often enough. and personalised health are proving we underestimate the calories in our In studies by the University that there is no ‘one size fits all’ diet. portion sizes and overestimate our of Texas and the University of Some people will thrive with 4-6 calorie expenditure. Oklahoma, participants were small regular meals through the day Philip Stanforth, professor of supervised for exercise five times while others only need 2-3. Some exercise science at the University a week with no other lifestyle or will do better with a mostly plant- of Texas, says that in the short- nutrition guidance for 10 weeks in based diet while others will respond term, diet is more important than one study, 12 weeks in the other. to more animal-based protein each exercise for weight loss but over Fat loss in both these studies was day. the long-term, regular exercise is negligible – resulting in an average There are however, a few simple critical for keeping the weight off of under 1kg of fat loss. common-sense guidelines that I and maintaining fitness. Without dietary and lifestyle think will help everyone to improve modifications, exercise alone will health and assist with the weight Sleep not be effective if weight loss is loss journey: Our body follows a natural rhythm the goal. • Drink 8 to 10 glasses (2 litres) of to light. We’re meant to slow down, The reality is that physical activity water each day, filtered if possible, relax and get ready for bed as the only accounts for a small portion of • Include all macronutrients sun sets and awaken to get ready our energy expenditure each day. (carbohydrate, fat, and protein – for the day as the sun rises. Your basal metabolic rate – the whether plant or animal based) in Our stress hormones and repair energy used for basic functioning all your meals and snacks, hormones also go through a cycle when you’re at rest – accounts for • Focus on unprocessed throughout the day and have an between 60-80% of total energy wholefoods, inverse relationship. As the sun expenditure and energy for digest- • Vary your fruit and vegetables rises, cortisol rises – this is our ing food takes up another 10%. from day to day and week to wake up hormone and it peaks in That leaves only a small amount week – try to eat according to the morning. As the day progresses, of total energy expenditure each the seasons, cortisol drops and melatonin rises. day (between 10-30%) to be used • Avoid refined, highly processed Melatonin release helps us to wind on physical activity, of which struc- foods, especially those that down and get to sleep. tured exercise is only one part. include additives like MSG, sugar, Many things interfere with these Add to this the fact that when white flour, poor quality salt and rhythms – coffee, sugar, alcohol and we start to increase our structured vegetable oils. other stimulants will elevate cortisol exercise, other compensatory It’s also important to remember and depress melatonin as will bright

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interfere with other body functions including weight regulation. When we think of stress, we must start thinking of it not just as the mental/emotional kind. Work, family, relationship and financial stressors seem to be the ones that come to mind when stress is discussed. But there are other stressors that promote the same hormonal response which we may not always consider – poor food quality, chemicals (such as ingredi- ents in our toiletries, cosmetics and cleaning products), electromagnetic (laptops and other devices), lack of sleep, under- or over-exercise and negative thought patterns. All these things also elevate the stress response and if they are constant day after day, our stress levels stay high causing an increased propensity to gather fat around the mid-section as well as several other wider effects: • Raising blood sugar levels and making your cells less sensitive to insulin, • Increasing fatty liver, • Reducing the ability to burn fat, • Causing hormonal imbalances by disrupting the HPA (hypothala- mus, pituitary, adrenal) axis, • Encouraging constant hunger and sugar cravings, • Reducing DHEA (the precursor to repair and sex hormones), testosterone and growth hormone levels.  lights and electronic devices. As we spend more time cool. People typically sleep best Reduce or manage your chronic See-ming Lee under a stress response, cortisol is elevated for longer when there is fresh air in the room stress load: periods and our melatonin is suppressed which, in turn, and the temperature is between • Replace your toiletries, cosmetics interferes with the body’s rest and repair mechanisms. 15 and 18 degrees, and cleaning products as you run If you’re not getting adequate rest and repair, the weight • Waking up at the same time most out with brands with less chem- will not shift. days. icals and endocrine disruptors, b Physical repair generally happens between 10pm and • Minimise your time on electronic 2am and psychological repair between 2am and 6am Stress devices, especially your ‘free’ time and we need to be asleep for both. As stated above, cortisol is one of or downtime, If you’re not getting to sleep before 10 to 10.30pm or our stress hormones and is needed • Implement meditation or mind- you routinely have poor quality sleep, you’re eating into to get us going in the mornings. fulness practices to reduce anx- your physical repair time, further increasing your stress It’s also released whenever we get iety and improve mental health, load, compromising your exercise efforts and impacting stressed. Acute or short-term stress • Find relaxing activities that help on your weight loss results. is a good thing, it’s helpful for push- to build your energy up and intro- Maximise your rest and recovery time by: ing us into action and getting things duce them to your day. • Avoiding coffee after midday, done. We’re designed to be able to If weight loss is your goal, take a • Starting to wind down for bed 1-2 hours before bed- deal with this. However, when stress more holistic approach and look at time. Dim the lights and switch off your electronic becomes chronic and long-term, making lifestyle changes to support devices, cortisol production is consistently your exercise routine and make the • Making sure your bedroom is completely dark and elevated over time and starts to most of your efforts in the gym.▪

78 LAWTALK 918 · June 2018 LAWYERS COMPLAINTS SERVICE

LAWYERS COMPLAINTS SERVICE

Complaints Resolution Summaries

Ian David Hay Ian Hay, who had been a lawyer for 32 “While we consider that personal mit- years, was struck off the roll on 17 April. igating factors may carry less weight in struck off He has been ordered to pay $25,000 to the disciplinary context because of the the complainant, which is the maximum public protective aspect, we consider A Wellington lawyer has been struck off amount of compensation the Tribunal is that this particular young woman who the roll of barristers and solicitors for able to award. has now faced up to her responsibilities disgraceful and dishonourable conduct. He has also been ordered to pay costs to and has learnt a very hard lesson ought to Ian David Hay was found guilty of one the Law Society’s prosecuting standards be given another opportunity to practise,” charge which included a reckless breach of committee of $33,095. the Tribunal said. Rule 5.10 of the Lawyers and Conveyancers The legal profession’s regulator, the New As well the suspension, costs of $8,743 Act (Lawyers: Conduct and Client Care) Zealand Law Society, is to pay the Tribunal were awarded to the prosecuting lawyers Rules 2008. costs of $14,922. standards committee, and the New Zealand The charge before the Disciplinary Law Society was ordered to pay costs of Tribunal related to circumstances sur- $4,549, with Miss Shi to refund 100% of rounding his guarantee of a $200,000 loan Yipu Shi that to the Law Society. from the complainant to a company he was Miss Shi is also prohibited from practis- associated with and then failing to repay suspended ing on her own account until authorised her the money. by the Tribunal. Mr Hay used the funds largely to pay off from practice his own debts, rather than putting them into the Queenstown development which Auckland practitioner Yipu Shi has been Failed to inform had been discussed with the complainant. suspended from practice for a period of 15 Ian Hay’s defence counsel had sub- months beginning 7 June 2017. court of cancelled mitted to the New Zealand Lawyers and Miss Shi admitted two charges of mis- Conveyancers Disciplinary Tribunal that conduct to the New Zealand Lawyers and fixture a censure and imposing restrictions on Conveyancers Disciplinary Tribunal. These his practice would be a more appropriate related to her acting for both parties in two [The name used in this article is fictitious] penalty. conveyancing transactions. The Tribunal disagreed. The Tribunal found that as well as acting A barrister has been censured and fined New Zealand Law Society President where there was a conflict of interest, she $2,500 by a lawyers standards committee Kathryn Beck says the Tribunal’s descrip- falsely certified documents necessary for after she failed to advise the District Court tions of Mr Hay’s behaviour were very apt. the property transfer by stating she had she was not proceeding with a pre-trial “Terms such as ‘outrageous’, ‘disgraceful’, witnessed both of the vendors’ signatures. fixture. ‘dishonourable’ and ‘blatant obfuscation’ She had not witnessed the complainant’s The barrister, Chivery, also failed to leave no doubt as to the impact of his signature – the complainant was out of attend court on the day the hearing was actions on the complainant and also on the country at the time. scheduled, which the committee found to the reputation of the legal profession.” In deciding to suspend Miss Shi rather be unsatisfactory conduct. Mr Hay had three previous disciplinary than to strike her off, the Tribunal said The committee conducted an own findings against him and was also declared there were mitigating factors. It said her motion investigation of the matter after bankrupt in 2014. conveyancing experience was relatively the Lawyers Complaints Service was “The consequences of his actions to the limited and there appeared to be deficien- provided with a District Court judge’s complainant have been extremely grave. cies in the level of supervision she received. decision, where the judge made a costs She obtained a judgment against Mr Hay Miss Shi had also admitted her wrong- award against Chivery under s 364 of the for $227,293. However, none of this money doing and cooperated. She had suffered Criminal Proceedings Act 2011 following was repaid to her because Mr Hay was significant financial consequences as a her failure. bankrupted,” Ms Beck says. result of her inability to practise subse- The judge issued a minute dated the The Tribunal noted that Mr Hay has since quently. There was no element of personal same day as the scheduled pre-trial fix- come out of bankruptcy and his circum- gain and she had expressed her remorse ture. In it she advised Chivery that she was stances are described as modest. and apologised to the complainant. considering making a costs award against

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IN-HOUSE

her and inviting her to respond. Chivery did not respond, and the judge ordered her Ten good to pay $500 costs. The committee invited Chivery to make submissions to its own-motion investiga- reasons for tion. However, no response was received by the due date to that invitation, nor to a further invitation. spending a More than a month after the due date for submissions following the committee’s second invitation, Chivery provided a very long time response. She explained that her chambers had changed telecommunications providers on a plane and this led to a failure of her xtra.co.nz email address. Chivery said she had sent emails to the court the day before the pre-trial fixture BY GABRIELLE saying that she no longer required the O’BRIEN fixture. The committee noted however, that Chivery failed to provide further requested information or respond to the request for an explanation regarding her failure to engage with the committee. Anyone who has sat in an economy class seat on a long- The committee said it considered haul flight will appreciate that the glamour of international travel Chivery’s “failure to supply the email is fleeting. So, in these days of videoconferencing, webinars and correspondence was telling. It concluded podcasts is there still value in attending an international confer- it was more likely than not that [Chivery] ence? Having just returned from the joint Canadian Corporate did not, in fact, send the correspondence Counsel Association (CCCA) Conference and In-house Counsel in question”. Worldwide (ICW) World Summit, the answer for me is a resounding The committee also noted that the bar- "yes" and here are 10 reasons why. rister did not mention when she became 1. Over the course of four days, I gathered information on a range aware her xtra.co.nz email address was of jurisdictions that would have taken a lot longer if I had been malfunctioning. cruising the internet. Some of this information included things It also said it was “surprising” that I had specifically set out to find (for example, progress with the Chivery did not appear to have made any implementation of a competency framework for in-house counsel attempt to contact the court to offer an in Singapore) whilst some was accidentally discovered along the apology or, at the very least, an explanation way. I heard about new legislation that is currently in train in to the judge. Canada which prohibits prospective employers from asking for The committee considered that Chivery’s ‘current salary’ information from job applicants. It is hoped this breaches of her professional obligations will lead to people being paid what they are worth and reduce were “relatively serious”. It noted that the perpetuation of gender pay discrepancies. “there is a very real need for lawyers to 2. When you discover something new – whether in a presenta- ensure that scarce court resources are tion or in casual conversation, there’s time to quiz the source or not wasted and that the various actors gauge the reaction of those who have a deep understanding of the in the court system are not unnecessarily topic. Who better to talk to about the impact of the EU General inconvenienced”. Data Protection Regulation (GDPR) than the ICW President Nina While the committee considered order- Barakzai who is also the head of Data Protection and Privacy for ing publication of Chivery’s name, it did Sky in the United Kingdom. not do so as Chivery had not been the sub- 3. There’s a chance to hear different perspectives on issues. ject of any previous adverse disciplinary Who knew that in-house lawyers were the Jiminy Crickets of findings. the corporate world? That’s according to Philippe Coen, who, As well as the censure and fine, the given the metaphor, is rather aptly legal counsel for Disney in committee ordered her to pay $1,500 costs. Paris. Mr Coen and his fellow panel members kept us riveted

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with their observations on the universal competencies of technological knowledge, business acumen and understanding the role of the legal department in the con- text of a business or organisation. Their advice included: spending 5% of your time focusing on what’s new; ensuring that new technology was being pursued to meet a need rather than for its own sake and “cool factor”; and not forgetting the basics – what value are you adding? 4. There’s time for some reflection and big thinking. A powerful film (I Am Jane Doe) and subsequent discussion on the night before the conference proper began, stayed with many of us over the course of the conference. With a focus on the sexual exploitation of children and teenagers, the film examines the role of a website business that along with a second hand goods service, ran a booming business advertising for the “escort” industry and provided advertising for underage victims who were enslaved sex workers. The film follows the efforts of some of those vic- tims, their families and legal counsel to hold the business to account. Questions about the ethical and moral obligations of the business's in-house counsel (the main Silicon Valley. ▴ Jeremy Valentine, ILANZ Committee spokesperson and therefore defender of 7. There is the chance to discover some member and Vice President of ICW, their stance) and what one reviewer new resource material to support our day- announcing that the ICW World described as “the courts seemingly endless to-day work. For anyone who wants to take Summit in 2020 will be held in New capacity for denial of the law’s real-world a deep dive into design thinking, I can now Zealand consequences” made for some interesting recommend the resource material available  Monique de St. Croix, Canada discussion. on the Vanderbilt University Law School 5. There’s the ability to learn from others. website http://legalproblemsolving.org got me thinking about some new ways we We have so much in common with our 8. There is the opportunity to build and could work to connect ILANZ members international counterparts. The conference cement relationships with international here. covered innovation, building blocks for colleagues from different jurisdictions. 10. And then there’s seeing the benefit in-house counsel, digital marketing, trade Every lawyer knows that the key to getting of international relationships. I was very agreements, the role of the board in ensur- things done is through building strong rela- proud to be present as Jeremy Valentine, ing business integrity cybersecurity, big tionships with those you need to deliver ILANZ Committee member and Vice data, whistleblowing, dispute resolution with. A day of face-to-face meetings with President of ICW, announced to the con- and ethics. It is valuable to hear different ICW counterparts sustains and supports ference that the ICW World Summit in 2020 cultural perspectives of and solutions for the late night or early morning teleconfer- will be held in New Zealand. Not only does the same issues. There is no need for us ences that suffice for both our committee this mean that we get to showcase our to grapple with problems alone when we representative and me in between and wonderful corner of the world, we also can collaborate with and learn from our allow for work on projects of joint interest provide the opportunity for many of us to in-house colleagues from around the globe. to continue. have the experience I and my fellow ILANZ 6. There is the chance to be inspired. At 9. There is the opportunity to share our representatives enjoyed in Toronto – all the end of the conference, the CCCA held ideas to help build the in-house profession without that need to spend a very long ‘The Pitch’. This was a slick offering where everywhere. Many are curious about the time on a plane. ▪ LegalTech start-ups from around the globe way we do things in New Zealand and pitched their ideas to a panel of discerning want to learn from us. During my time in Gabrielle O’Brien  gabrielle.o’brien@ judges. The finalists included legal tech Toronto, I got to meet with the board of the lawsociety.org.nz is Executive Manager solutions for billing, mass-discovery and CCCA and share how we run our satellite of the In-house Lawyers’ Association of fast patents. The coveted prize was worth networks and discuss the commonalities New Zealand (ILANZ), a section of the over $100,000 and included some time in and differences for them. That discussion New Zealand Law Society.

81 IN-HOUSE June 2018 · LAWTALK 918

IN-HOUSE Global challenges and ▸ New Zealanders at the conference in Toronto: ILANZ President Erin Judge, ILANZ opportunities Executive Manager Gabrielle O’Brien, Conference MC Helen Mackay, ILANZ Committee for in-house member and ICW Vice- President Jeremy Valentine. lawyers  Monique de St Croix software vendor to tackle a signif- BY HELEN icant process or technology issue MACKAY and develop solutions together. Not all of the examples given were high-tech and the key philosophy Human-centered design, co-creation and the need was one of open-mindedness by to be “more than a lawyer” were key themes at the the firm or provider to a new way recent In-house Counsel World Summit in Toronto. of collaborating and to share the In-house lawyers from Canada and around the world creative process with the end user. gathered to explore how the in-house legal profession The role of sophisticated technol- is changing and the new skills that lawyers need to ogy solutions as the means to an face these changes. The conference theme was “Beyond end rather than the end itself was Borders: Business and Law in the Global Village” and also explored. In the start-up zone it was apparent that the challenges and opportunities which showcased new LegalTech faced by in-house lawyers are consistent globally. providers, one company ran a Delegates heard that the legal profession needs to blockchain-enabled IP database implement customised technology solutions but with for in-house legal teams. They found more human input. These seemingly contradictory that the functionality and the intui- challenges can be met through human-centered design tive design of their IP repository was which aims for systems to be usable and useful by the main attraction for customers focusing on the users, their needs and requirements. and the fact that the service is ena- In-house legal teams are acquiring new skills in design In a world where bled by blockchain is an additional thinking to crystallise their needs and translate them so much of the quality assurance benefit not a core as user stories for the internal IT team or external IT learning and focus for in-house counsel. provider to develop solutions. information we I had an interesting discussion I was relieved to hear the old “more for less” maxim gain is online with one speaker, Richard Stock of was superseded with strong encouragement from several and remote, the Catalyst Consulting, about whether General Counsel to simplify and streamline the work opportunity to in-house legal teams should call done by in-house legal teams to ensure high value, high hear from and their internal customers “clients”. risk matters are given priority. In their teams, everything connect face- In-house lawyers know their actual else is ruthlessly disaggregated and either outsourced or to-face with client is the entity by whom they self-managed in the business with legal team guidance. thought leaders are employed or engaged but many In-house lawyers tell us they have never been under in the in-house have fallen into using “client” as greater pressure and the outdated belief that they have legal profession shorthand to describe a colleague to to do everything that comes through the door but with was invaluable. whom they are giving legal advice. fewer resources, is ultimately unhelpful and leads to It is hard to see Mr Stock’s view is that the use of lower productivity, stress and burn-out. how technology this term drives unhelpful behav- Co-creation was another common theme. A number will ever replace iours internally where customer of examples were described where legal teams have this vital human satisfaction guides prioritisation partnered either with their external legal provider or a connection. decisions rather than an objective

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analysis of risk and value. He noted terms of the value delivered to their in the in-house legal profession that other internal service provid- organisations and many have added was invaluable. It is hard to see ers such as finance, HR, comms decision-making accountabilities how technology will ever replace and IT don’t call their internal in their roles. We are also seeing a this vital human connection. ▪ customers “clients” for this reason rise in hybrid roles where in-house and contended that in-house legal counsel are performing commercial, Helen Mackay  helen.mackay@ teams need to relentlessly focus on procurement, legal operations or junolegal.com is the founder and delivering value for the real client policy roles in addition to or as an Director of Juno Legal. She has entity and eliminate all language adjunct to their core legal roles. worked in-house for over 20 years and behaviour that suggests any In a world where so much of the and has been President of ILANZ other client. learning and information we gain and ILANZ Executive Manager. I also had a spirited debate with is online and remote, the oppor- Helen was MC of the ICW World the American legal commentator tunity to hear from and connect Summit in Toronto from 29 April Mark Cohen who argued that face-to-face with thought leaders to 1 May. there is a growing convergence between the different parts of the legal profession. My view and the views of several conference speak- Global legal thought leaders to follow: ers suggested the opposite – that Cat Moon – Vanderbilt University Law School on Design Thinking the roles of in-house and external for Lawyers. lawyers have significantly diverged Joanna Goodman – Independent UK journalist on law and over the past 10 to 15 years and will technology. continue to further differentiate. Mary O’Carroll – Head of Legal Operations at Google. In-house lawyers are taking on roles Mark Cohen – Legal commentator at LegalMosaic. and responsibilities that position Jordan Furlong – Legal commentator at Law21. them as “more than lawyers” in

83 LEGAL INFORMATION June 2018 · LAWTALK 918

LEGAL INFORMATION Cross-Examination: Science and Techniques By Larry S. Pozner & Roger J Dodd, 3rd Edition, LexisNexis

REVIEWED BY GARRY WILLIAMS

inclined to debunk – but a science and that I think I first saw Irving Younger’s The Ten Commandments of the relevant techniques could be learned. Cross-Examination on VHS when I was a summer clerk at the end But there was a problem. While there of 1991. By then, it had been around for over 15 years and the copy were numerous books on cross-exam- I saw was grainy and not in the best condition. The video would ination or which dealt with the topic, jump and the sound quality was poor. Nevertheless, it was a superb not many of them covered the subject in and entertaining lecture which sought to define the principles a particularly helpful way. Many of the that underlie successful cross-examinations. older volumes on the subject read more Younger’s Ten Commandments were: like a collection of famous courtroom 1 Be brief, incidents or “war stories”. The oft-men- 2 Short questions, plain words, tioned The Art of Cross-Examination by 3 Always ask leading questions, Francis L. Wellman (1908) and Notable 4 Don’t ask a question to which you do not know the answer, Cross-Examinations by E W Fordham (1951) 5 Listen to the witness’ answers, fall into this category. While interesting, 6 Don’t quarrel with the witness, these older volumes just don’t approach 7 Don’t allow the witness to repeat his or her direct testimony, the subject as if it is a teachable or learn- 8 Don’t permit the witness to explain his answers, able skill-set. 9 Don’t ask the “one question too many”, 10 Save the ultimate point of your cross for summation. Cross-examination The lecture itself is still worth a watch and can be found on YouTube as a science – just type in “Irving Younger” and it will be the first selection. That is why when Daisy found Pozner However, even back then, I thought that some of Younger’s Ten and Dodd’s Cross-Examination: Science and Commandments had severe limitations. Techniques and suggested that I should For instance, often it is simply not possible during a cross-ex- have a look at it, I was intrigued. amination to ask only questions to which you know the answer. Here was a book which its authors Sometimes it is necessary to probe to get what might be there. expressly indicated was intended to Nor is it always possible or desirable to ask only leading questions. “pass along to the trial bar … the many And, the admonition not to ask the “one question too many” techniques of cross-examination that have is all very well but is rather dependent on counsel recognising been used by skilful advocates for many that the next question is apt to produce, at best, an unhelpful generations”. response or, at worst, a disastrous retort. The problem is that It was clear from the work’s table of con- the importance of this particular commandment is often only tents that the authors had approached their recognised seconds after it has been breached. subject on the basis that cross-examination But despite their limitations, Younger’s Ten Commandments is a science with firmly established rules, made it clear to me that cross-examination was not a mystical guidelines, identifiable techniques and art closed to all but those special few who could somehow just definable methods, and that these can be perform it – a myth that some members of the profession are not described, practised and learned.

84 LAWTALK 918 · June 2018 LEGAL INFORMATION

We bought a copy. I won’t lie, it wasn’t This system is said to allow the cross-ex- cheap. It comes in a hardback volume or aminer to devise safe leading questions you can buy the eBook version. The eBook in advance and to identify impeachable is the better option as it has eight bonus inconsistencies with ease. chapters which are not in the hardcopy version. Either will set you back a cool Destroying safe havens (Chapter 13) US$309. However, it’s worth the invest- A safe haven is, as its name suggests, an ment. Why? Well, Pozner and Dodd’s excuse that is likely to be used by a witness work is the definitive guide to preparing to avoid arriving at the factual destination and delivering predictably successful the lawyer will seek to establish. This chap- cross-examinations. ter offers techniques to block off such safe So, what’s in the book? Well, a lot more havens before they are used. than can be described in a short book review like this. But the names of some Controlling the runaway of the chapters and a short description of witness (Chapter 15) them will give you an idea. A chapter on strategies for dealing with unresponsive witnesses. Importantly, not cross-examinations. The chapter method of cross- only do Pozner and Dodd provide such Juxtaposition is a technique that con- examination (Chapter 2) strategies, they emphasise that an unre- trasts different sets of behaviour in order Pozner and Dodd advocate that a lawyer sponsive witness is not something to be to demonstrate parallels between them. must think of the cross-examination of feared, but rather a source of opportunity. Trilogies are a literary device designed to any witness as a series of small discus- Unresponsiveness speaks to the character cause a fact-finder to better hear the facts sions (“chapters”) on individual topics of of a witness and the techniques suggested referred to in the trilogy, and to instantly importance to the theory of the case and can highlight this and thus undermine the recognise that they are facts of real signifi- not as a flowing discussion with a single credibility of such witnesses. cance in relation to the contrasting theories unifying purpose. They explain the benefits of the case. Looping is a questioning tech- of approaching a cross-examination in this Dealing with “I don’t know” or “I nique that enables important facts to be way and how to break topics (or more pre- can’t remember” (Chapter 16) highlighted by repetition in a legitimate cisely, the facts sought) down into appro- This chapter outlines techniques that take way. priate “chapters” for cross-examination. advantage of such evasive answers and As I have said, there is much, much more which punish the witness, at least, in terms in this text, and a studious reader will find Developing a theory of of their credibility. It also outlines tech- it and use it to dramatically improve their the case (Chapter 3) niques to take advantage of such answers abilities as a cross-examiner. This contains the now familiar guidance even when it is true that the witness can’t about the need to develop a theory of the remember or doesn’t know. One word of warning though, this is an case and how it must be consistent with American text and, as a consequence, the “facts and inferences beyond change”. Impeachment by inconsistent not all of the suggestions can or should statement or omission be taken up in this jurisdiction. The rules Cross-examination preparation (Chapters 19-20) of the game are different here and there systems (Chapters 6-9) These two chapters contain useful guidance are some quite important rules in play here These chapters provide guidance on a on the steps that should (and which can) be which have no equivalents in the US. number of different cross-examination taken when impeaching on these grounds. So, with that caveat, I’ll sign off this systems. One involves the use of topic Some of the techniques outlined will leave review by giving you a commandment charts in which all relevant material is particularly powerful impressions on the of my own: Get your hands on a copy of grouped together by topic in a system- fact-finder (whether that be a judge or a Cross-Examination: Science and Techniques atic way. An alternative system proposed jury). and spend the time required to make your is that described as “sequence of events way through its 744 pages. ▪ charts”. In this preparation system, the Juxtaposition; Trilogies; and Loops, cross-examiner evaluates and breaks down double loops, and spontaneous Garry Williams  williams@ each relevant event chronologically in sub- loops (Chapters 24-26) richmondchambers.co.nz is a barrister stantial detail, but the cross-examination These are the chapters which contain practising from Auckland’s Richmond itself is performed in the most favourable some of the most interesting material. Chambers. He is a member of the New sequence. The third system outlined is They relate to questioning techniques Zealand Bar Association’s Training that called “witness statements charts”. that can and should be adopted in most Committee.

85 LAW IN PRACTICE

LAW IN PRACTICE Mass offence does not equal hate speech

BY ANGHARAD O’FLYNN

There are certain phrases in the English lan- guage that are incredibly powerful. ‘Hate speech’ is one of them. Australian sportsman Israel Folau has taken a public flogging in the last couple of months. The backlash he received is the result of his response to a question asked on his social media account, Instagram. An Instagram user asked Folau “what was God’s plan for gay people?” Folau replied “HELL! Unless they repent of their sins and turn to God.” The post has since been removed, but, screenshots remain and have been circulated. The exchange generated public opinion articles by the dozens where writers vehemently supported or condemned Folau. But, no matter which side you’re that path where we’re monitoring on, many of the articles had one everything anyone says because we thing in common – there was no find it objectionable or repugnant?” definition of “hate speech” when As both point out, there is a very a ‘change the law!’ exclamation fine line between hate speech and was made. offensive comment. And then, of course, there’s Twitter. A car crash of opinions and What’s the law on this? language so foul I’ll refrain from So, opinion aside, let’s look at New quoting any of it. Many people Zealand’s legal definition of hate New Zealand’s Prime Minister appear to speech and how it can be applied. responded to Folau’s comments, base their “There is no general prohibition saying “…I disagree with them interpretation of under New Zealand law on saying but I’m very careful around how I hate speech by hateful things against any minority categorise someone’s speech.” how offended group”, says Honor Ford, a barrister National MP Paula Bennett also they are. at Auckland’s Shortland Chambers commented saying “I do think that What’s the who has a specialist interest in as someone who could be a role legal difference human rights law. Mrs Ford is model, he perhaps didn’t need to between what is also a member of the New Zealand say it…but to go to hate speech feels considered hate Law Society’s Human Rights and like another whole step too far.” speech and what Privacy Committee. Ms Bennett then posed the ques- is considered “New Zealand is a party to the tion, “Do we really want to go down offensive speech? International Convention on the

86 LAW IN PRACTICE

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contexts like employment, educa- tion and the like.” “[Though] it would be a bold move to apply section 62 in that way,” says Mrs Ford. Israel Folau’s comment offended a lot of people, but he didn’t encourage anyone to commit violence upon anyone, nor was he in any kind of educational or employment setting. And Israel Folau’s side of the story... For content balance – another concept many related articles didn’t have – Folau explains his point of view in an article he wrote for PlayersVoice after the event. “I believed he [the user] was look- ing for guidance and I answered him honestly and from the heart.,” Elimination of All Forms of Racial that are said about a racial, ethnic wrote Folau. Discrimination (ICERD). One of or national group. While racial slurs “My response to the question is our obligations under ICERD is to are highly offensive and upsetting, what I believe God’s plan is for all introduce measures to eradicate the to fall foul of section 61 they must sinners, according to my under- incitement of racial hatred or hate also expose the racial or ethnic standing of my Bible teachings, speech. We have implemented that group to hostility or contempt from specifically 1Corinthians 6: 9-10.” obligation in part through section another group of citizens. This opens another can of worms: 61 of the Human Rights Act 1993 “It is not enough that the tar- How to approach expressions from (HRA).” geted group feels insulted.” the Bible. A book widely used as “However, we are also a party Is there any measure which could a life guide by at least 20,000 to the International Covenant on result in action being taken for Christian denominations, with an Civil and Political Rights, which comments that discriminate and estimated global total of 2 billion requires us to have due regard to cause harm to the gay/LGBTQ+ believers. However, we will stick freedom of expression and ICERD community? to the topic at hand: Hate Speech itself recognises the importance of “Section 61, unfortunately, does and the Law. free speech,” says Mrs Ford. not help as it only concerns racially Do we really want to go down Many people appear to base motivated hate speech. Potentially, a path implementing laws, where their interpretation of hate speech section 62 of the HRA – dealing with we’re monitoring everything by how offended they are. What’s sexual harassment – could be relied anyone says because we find it the legal difference between what is on where ‘hate speech’ is directed objectionable or repugnant? Or, do considered hate speech and what is against a person based on their we respectfully agree to disagree considered offensive speech? sexual orientation, so long as the and acknowledge the right to an “Section 61 applies only to things comments were made in certain opinion? ▪

87 WILL NOTICES · CLASSIFIEDS June 2018 · LAWTALK 918

Brannen, Brian James Frederick Will Would any lawyer holding a will for the above named, late of Hillsborough, Auckland, who died on 5 May 2018, please contact Bryce Williams, Gibson Sheat Lawyers: Notices  [email protected]  04 916 6436 Littleton, Brian Charles  Private Bag 31905 Lower Hutt 5040 or DX Would any lawyer holding a Will for the abovenamed, RP42008 late of 2-53 Howard Hunter Avenue, St Johns, Abbott, Peter Murray Auckland, Storeman, who died on 19 April 2018 in Auckland, please contact Joanne Savage, Holland Allen, Richard Peter Falconer, Kevin John Beckett Law: Would any lawyer holding a will for the above named, Ball, William Harold  late of 5 Vickery Place, Maryhil Dunedin who died on [email protected] Black, Lyall Edward  16 April 2018 please contact Jeff Holloway: 07 577 8006 Brannen, Brian James Frederick  Private Bag 12011, Tauranga 3143  [email protected] Falconer, Kevin James  03 477 2262 Fernandes, Ivy Lawrie  Downie Stewart Lawyers PO Box 1345, Dunedin Marshall, James Malcolm Glavish, Marino Daniel 9054 Hazak-Colley, Nelly Vanda Would any lawyer holding a will for the above-named, Hodges, James Hunter late of 30 Cradock Street, Avondale, Auckland, retired Fernandes, Ivy Lawrie Knauf, Emma Louva ex Civil Servant, born on 6 March 1931, who died on 11th January 2018, please contact Susan Marshall: Littleton, Brian Charles Would any lawyer holding a will for the above named, late of 10 Alton Terrace, Pakurange Heights,  [email protected] Marshall, James Malcolm Auckland, Retired, born on 12 April 1929, who died  022 5647954 Parsons, Douglas John on or about 17 January 2018, please contact Phillip  3F, 73-75 Lorne Street, Regency Apartments, Pickering, William Graham Wong, Wong and Bong Law Office : Auckland 1010 Tupai, Patricia Doreen (nee Allen)  [email protected] Zhou, Decai  09 535 5886 or fax 09 535 594 Parsons, Douglas John  PO Box 51454, Pakuranga, Auckland 2140 Would any lawyer holding a will for the above-named, late of Kennedy Bay, Coromandel, who died the 8th Abbott, Peter Murray Glavish, Marino Daniel May 2018, aged 63 years, please contact Jane Hunter, Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, Solicitor: late of 31 Bluecliffs Beach Road, Tutapere, Bee late of Ahuroa, Farmer, born 23 October 1974 who  [email protected] Keeper, born on 24 May 1954, who died on 21st April died on 13 September 2012, please contact Jackie  07 868 8666 2018, please contact Scott Donaldson, Hewat Galt: Woolerton:  PO Box 77, Thames or DX GA255523  [email protected]  [email protected]  03 2183137  09 425 8037  PO Box 11, Invercargill 9840  PO Box 22, Warkworth 0941 Pickering, William Graham Would any lawyer holding a will for the above-named, Allen, Richard Peter Hazak-Colley, Nelly Vanda late of Wellington, whose date of death was between Would any lawyer holding a will for the above named, 9 March 2018 and 16 March 2018, please contact late of 283 Bankwood Road, Chartwell, Hamilton, Would any lawyer holding a will for the above-named, Amy Haste: Builder, born on 20 October 1984, who died on or late of Auckland Compliance Manager who died  [email protected] about 25 November 2017 please contact Andrew in Auckland on 9 November 2017, please contact  (04) 576 1412 Thomas, Thomas Law: Margaret McKinnon, Gaze Burt:  4th Floor 44-56 Queens Drive, PO Box 30614,   [email protected] [email protected] Lower Hutt  09 529 1325  09 414 9805  PO Box 28647, Remuera, Auckland 1541 Tupai, Patricia Doreen (nee Allen) , James Hunter Ball, William Harold Hodges Would any lawyer holding a will for the above named, Would any lawyer holding a will for the above-named, late of 8D Totara Road, Te Atatu Peninsula who died Would any lawyer holding a will for the above named, late of Waikanae, Publican, who died on 16 December at Auckland on 16 January 2015 please contact Linda late of Dargaville, Painter, born on 18 April 1952, 2017, please contact Sharon Burnet, Gibson Sheat Muller, GM Legal: who died on 1 February 2018, please contact Ritchie Lawyers:  Flitcroft, Nicholsons Solicitors: [email protected]  [email protected]  09 839 4000  [email protected]  04 916 6447  PO Box 45167, Te Atatu Peninsula, Auckland  (06) 7575 609  Private Bag 31905, Lower Hutt 5040 or DX 0651  PO Box 68, Taranaki Mail Centre, New RP42008 Plymouth 4340 Knauf, Emma Louva Zhou, Decai Black, Lyall Edward Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above- Would any lawyer holding a will for the above named, late of Manurewa, Auckland, born on 20 July 1945, named, formerly of China, late of 4/568 Remuera late of Katikati, Retired, who died on 5 December who died on 3 April 2018 please contact Scarlett Road, Remuera Auckland, Retired, born on 12 March 2017, aged 85, born 19 February 1932 please contact Ericson, McHardy Parberry Lawyers: 1929, who died on 13 May 2017 please contact Royal Sue Adams, Kaimai Law, Katiikati:  [email protected] Reed, Prestige Law:  [email protected]  (09) 481 1190  [email protected]  (07) 549 4890  PO Box 34051, Birkenhead, Auckland 0746 or  09 303 4400  PO Box 56, Katikati 3166 DX BP 65504  PO Box 305 379, Triton Plaza, Auckland

88 LAWTALK 918 · June 2018 CLASSIFIEDS · LEGAL JOBS

PART TIME PRACTICE MANAGER/FACILITATOR SOLICITOR Thinking about taking the next step to automating (3 – 5 YEARS PQE) your practice management and accounting systems, upgrading your office infrastructure, If you’ve been getting bogged down by the constant grind and or simply doing a "tidy up"? expense of city living and have been thinking of moving to the regions to join a top-quality firm for lifestyle, affordability or career Contact: Sue Hardy Dip.Bus. (I.T.) progression reasons then this opportunity may be a fantastic life changing one for you. 15 years’ experience in computer training and Dean & Associates is a national award winning regional law firm practice management software implementation, based in the Waitaki, Otago. 15 years’ experience in practice management The firm offers an excellent opportunity within our innovative Mobile: 021 552 017 general practice for a self-motivated, confident and bright individual whose work ethic and drive fit with the values and dynamic of our Email: [email protected] very busy and growing organisation. You will support the directors across a broad range of interesting and challenging work principally in the areas of commercial, JUNIOR BARRISTER WANTED property, employment, dispute resolution and private client law. This role is ideally suited to a mid-level general practitioner (3 - We are looking for a young lawyer to join a busy barrister’s 5 years PQE) with a transactional focus who can establish good practice. The successful candidate will: rapport with clients and other critical stakeholders. • be remunerated well; On offer is: • work with a range of lawyers and on a variety of civil, ■ A genuine commitment to and understanding of work/life balance commercial, and criminal litigation; ■ Close proximity to the South Island’s world class ski-fields, • be extremely organised and able to work effectively to overcome mountain bike trails and lakes legal challenges with a high degree of autonomy; and ■ Quality housing at a median price of less than $310,000.00 • preferably have relevant legal experience (c.1-4 years) and a ■ Life in a safe environment in a coastal town with beautiful heritage strong academic record or other means by which they can buildings, a thriving regional economy, a fun tourism sector and demonstrate excellence in drafting, and diligence in their research. quality schools This is a rare opportunity to start a career at the independent bar, as opposed to progressing through the ranks of a firm. This If you are interested, please email your covering letter and CV typically means a greater exposure to litigation, the running of a to our general manager [email protected] or telephone legal practice, and ultimately a more flexible lifestyle. Enquiries her on +64 3 434-5218 for a confidential discussion. should be directed to [email protected]

LAW REPORTS FOR SALE JUNIOR CRIMINAL LAWYER We are assisting a barrister with the sale of the Junior lawyer required to join a busy South Auckland based following reports: criminal law practice. Assisting other barristers in the conduct • A volume of NZLR Leading cases from 1840 to 1967 of a large and busy practice incorporating a wide range of criminal offending including bail applications, jury trials, • NZPCC volume of cases from 1840 to 1922 Criminal Proceeds (Recovery) Act proceedings and appellate work. Strong research and written skills are essential as is an • A complete set of NZLR volumes from 1962 to 2016. ability to prioritise and multitask. All in mint condition. This role provides exposure to a range of serious criminal Our client will entertain all reasonable offers. offending and matters spanning the District Court, High Court, Court of Appeal and Parole Board.

Please contact Sam Perry at Brandons: All applications will be treated in confidence. 04 498 3560 or [email protected] Please forward your curriculum vitae to [email protected]

LOOKING TO LEAVE THE RAT RACE? VACANCY — INTERMEDIATE CROWN PROSECUTOR OR READY TO GO OUT ON YOUR OWN? Almao Douch has a vacancy for an Intermediate Crown Prosecutor. The firm is the office of the Crown Solicitor at Hamilton and Due to personal circumstances this firm is available to a solicitor with experience in criminal jury trials is required to purchase in the sunny Bay of Plenty. conduct the prosecution of trials in both the High and District Courts together with attendances in relation to other aspects of With 4 great qualified and experienced staff and a the Crown Solicitor’s practice. diverse client base this firm is ready for someone who Applications from interested practitioners with appropriate may be looking to move to the Bay or someone looking experience are sought. to head out on their own but wanting the benefit of In each case the terms of employment will be negotiated to reflect the experience and ability of the successful applicant. systems and client base in place ready to go. Applications accompanied by a CV should be addressed to: Confidential enquiries to Advertiser 18-2 Almao Douch, PO Box 19173, HAMILTON 3240 - Attention: R G Email: [email protected] Douch or emailed to [email protected]

89 LEGAL JOBS · CLASSIFIEDS June 2018 · LAWTALK 918

We require two motivated and enthusiastic team members for our busy general practice in beautiful Taupo. SENIOR SOLICITOR FAMILY LAWYER (8years+ experience) First, a family litigator with at least 2 years PQE and Lead Provider status. You will be working with a primary focus on family matters including Experienced senior solicitor wanted for our firm’s Alexandra Office. Protection Orders, Care of Children Act Proceedings, Oranga Tamariki If you love the outdoors and want a change of lifestyle for you and Advocacy and Relationship Property. your family away from the rat race and the daily grind of sitting in If you have general civil litigation or employment experience that would be traffic and staring at concrete buildings, this is the job for you. No an advantage. commuting time to work, flexibility to attend your children’s school You will: activities and special events, while developing your career and • Be capable of total file management advancement within the firm. • Have excellent oral and written communication skills • Be a confident advocate comfortable with regular court appearances With trail and mountain biking, water and outdoor activities abundant in the Alexandra area and Queenstown and Wanaka LEGAL SECRETARY/EXECUTIVE on our doorstep you can have the outdoor lifestyle you always Second, a legal secretary/executive to provide support to a number of dreamed of. Your money will also go a lot further to buy a home or authors working primarily in conveyancing, but also with some legal lifestyle property. drafting and relationship property. You will: We are a progressive five director firm with offices in Wanaka, • Have excellent typing skills Alexandra, Cromwell and Ranfurly with a team of approximately • Be organised and efficient 30 loyal staff. • Have excellent attention to detail The preferred applicant will have 8years+ experience in commercial We provide a friendly and capable team with relaxed offices from which & residential conveyancing, subdivisions, leasing, financing, wills, you can walk to Court, no parking hassles, zero traffic worries and trusts and estate planning. Other areas of expertise would be access to a wonderful lifestyle in the central North Island. A competitive considered. remuneration package is available depending on experience, and you will Start date is flexible and could be in early 2019 to allow you time to have the opportunity to participate in an attractive bonus structure. make the move and settle. This is a position for someone wanting You can drive these roles as hard as you like and be able to participate in to make a life for themselves and family in Central Otago. other areas of interest available in the firms general practice. There are good career prospects for the right applicants. Applications accompanied by a CV should be sent by email to [email protected] or by post to: The Directors, Checketts Applications with accompanying CV should be made by McKay Law Limited, PO Box 41, Alexandra, 9340. 29 June 2018. Email: [email protected] – with “Job For further information please contact any of our Directors or Application” in the subject line. visit our website www.cmlaw.co.nz.

TENANCY ADJUDICATORS Manawatu and Waikato

Adjudicators are required for the Tenancy Tribunal in the Manawatu and Waikato areas. Junior and Intermediate These are part time positions with a standard commitment of one Litigation Lawyers to two days per week, but more days may be available if desired. Gilbert Walker is a specialist advisory and dispute resolution Some flexibility may be necessary to fit the demands of the roster. practice based in Auckland. We practise across a broad The Manawatu position will require the appointees to sit in both range of civil disputes, including commercial, construction, insurance, property, trusts and regulatory matters. We are Whanganui and Palmerston North. The Waikato position will currently acting on a wide range of interesting and be primarily based in Hamilton but will require circuit travel to challenging matters for high profile clients. Thames, Te Kuiti and Huntly. We are seeking two lawyers to join our busy team, one with The successful applicants will have a legal qualification 1-3 years’ experience and one with at least 5 years’ or relevant experience in adjudication. Applicants must experience. We maintain a low ratio of senior to junior demonstrate a capacity for impartial adjudication, the ability lawyers. You can expect to work with each of our three to conduct a hearing professionally, and an ability to manage partners. All of our lawyers engage directly with our clients hearings with self-representing parties. They must also be able to and appear regularly in court and in other dispute resolution demonstrate efficient work habits, good time-management and forums. We work in an open and collegial environment. an ability to make clear, logical decisions. Good oral and written communication skills are essential, as is computer literacy. We are interested in hearing from candidates with an outstanding record of academic and professional Application forms can be downloaded at: http://www.justice. achievement. govt.nz/statutory-vacancies/

Applications should be sent to: Martin Smith, Gilbert Walker, For more information about the position, contact Tania Togiatama, PO Box 1595, Shortland Street, Auckland, or emailed to PA to Principal Tenancy Adjudicator – email: tania.togiatama@ [email protected] justice.govt.nz or phone (07) 921 7478.

Applications for the For further information about our firm, please position close at contact any of our partners or sta, or visit our 5.00pm, Thursday 28 website: www.gilbertwalker.com June 2018.

90 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN ARBITRATION

ARBITRATION 2.0 – Matthew Dunning QC Arbitration is frequently adopted as an alternative to Webinar 26 Jun MOVING BEYOND AD litigation for New Zealand and international disputes. HOC ARBITRATION This practical webinar focuses on recent developments in CLAUSES arbitration, particularly the amendments to the Arbitration Act 1996, and why further consideration of the benefi ts 1 CPD hour of an institutional arbitration clause could prove to be of signifi cant assistance to your clients. CIVIL LITIGATION

LITIGATION SKILLS Director: This highly regarded residential week-long advocacy training Christchurch 26 Aug - PROGRAMME Daniel McLellan QC course is open to applicants with at least two years’ litigation 1 Sep experience. It’s hard work, great fun and most participants 55 CPD hours Deputy Director: say it’s the most eƒ ective value-for-money course they’ve Belinda Sellars ever attended! Applications close 6 June.

INTRODUCTION TO CIVIL Nikki Pender This workshop is an excellent opportunity for recently Wellington 15-16 Oct LITIGATION SKILLS Paul Radich QC admitted practitioners to develop practical skills in civil Christchurch 26-27 Nov Pru Steven QC litigation in an intense small-group workshop. You will learn 9 CPD hours James Wilding how to handle a single fi le from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation fi les, competently and confi dently. COMPANY, COMMERCIAL AND TAX

MĀORI BUSINESS Chair: Māori collectives and iwi are major players in the New Wellington 27 Jun CONFERENCE: Matanuku Mahuika Zealand business landscape. This conference will take a close CONTEMPORARY LEGAL look at the practical and legal considerations to be aware ISSUES of, whether as part of or engaging with Māori collectives and iwi. It will cover structuring, tax, intellectual property, 6.5 CPD hours investment, social enterprise and more – plus two superb keynote speakers.

TAX CONFERENCE Chair: This year’s NZLS CLE Tax Conference, chaired by Denham Auckland 6 Sep Denham Martin Martin, will oƒ er sessions focused on the most relevant tax 6.5 CPD hours developments and issues for lawyers, whether tax specialists or commercial or private client advisors, to ensure you keep abreast of the tax developments aƒ ecting your clients.

CRIMINAL

DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Jun-Nov PROGRAMME Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is 11* CPD hours made up of several parts. *CPD hours may vary, see website

INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Auckland 20-21 Jun CRIMINAL LAW PRACTICE being an eƒ ective criminal lawyer. This workshop will benefi t all practitioners wanting to be appointed to level one of the 13 CPD hours criminal legal aid list, and those recently appointed to level one.

YOUTH ADVOCATES Chair: Youth Advocacy is rightly considered a specialist area of Auckland 27-28 Aug CONFERENCE Clare Bennett practice. This conference for appointed Youth Advocates will provide a great opportunity to keep up to date with 13 CPD hours developments in this specialist area and to further develop your skills and knowledge. Speakers include judges, lawyers, medical professionals and more. GENERAL

AUDITING – THINGS YOU Robert Buchanan This webinar will give a practical understanding of the audit Webinar 7 Jun NEED TO KNOW Craig Fisher and assurance environment, its interface with legislation and corporate governance practice, and how auditors do their 1.5 CPD hours work. It will also cover a number of important international and local developments in the area of fi nancial reporting and accountability, and their impact on corporate governance.

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz91 Online registration and payment can be made at: www.lawyerseducation.co.nz CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN GENERAL PROPERTY

AML/CFT COMPLIANCE – Henry Brandts-Giesen 1 July 2018 is fast approaching - the date by which lawyers Webinar 13 Jun RESIDENTIAL PROPERTY Lauchie Griffi n This small group intensive workshop o ers you the Christchurch 16-17 Jul ARE YOU READY? Neil Russ and conveyancers must be compliant with their obligations TRANSACTIONS Nick Kearney opportunity to be guided step-by-step through the Wellington 30-31 Jul under phase 2 of the AML/CFT Act. If you are looking at Michelle Moore conveyance of a stand-alone fee simple residential dwelling, Auckland 13-14 Aug 1.5 CPD hours this issue for the fi rst time, you cannot a‚ ord to miss this 13 CPD hours Duncan Terris a cross-lease dwelling and a unit title property. webinar. Whilst this webinar is primarily designed for those Hamilton 27-28 Aug who are looking at the issue for the fi rst time, it will also be of benefi t to those who have had some training and want to TRUSTS AND ESTATES gain a greater insight from a recap. WILLS AND ESTATES Vicki Ammundsen When clients are contemplating making their wills, the Webinar 6 Jun KUA AO TE RĀ: Te Amohaere Morehu This one day workshop is designed to enhance your ability to Wellington 23 Jul Stephen McCarthy distribution of assets may make perfect sense to them but MĀORI CULTURAL connect with Māori who you may be working with as clients, Te Arepa Morehu Auckland 24 Jul 1.5 CPD hours issues can quickly emerge upon death. This webinar will DEVELOPMENT FOR Alana Thomas stakeholders, partners or in another capacity. By attending provide an update of the latest cases regarding the Family LAWYERS Apimaera Thomas this workshop you will have greater confi dence engaging Protection Act and the Testamentary Promises Act, refl ect within te Ao Māori environments and be able to provide a on some key Property (Relationships) Act issues, and 6 CPD hours working environment ideal for developing and embracing consider the practical implications of these developments productive, successful and enduring working relationships. for your clients. MEDIATION FOR Virginia Goldblatt Mediation knowledge and skills are an increasingly important Wellington 12-14 Oct IN SHORT LAWYERS PART A – Adam Lewis adjunct to legal practice. Many more clients are taking disputes UNDERSTANDING to mediation (because it works) and the more that legal EVIDENCE – HOSTILE & Nick Chisnall All criminal lawyers need to be able to confi dently deal with Auckland 26 Jun MEDIATION advisers know about how it works the better. In addition, DIFFICULT WITNESSES Lynn Hughes di‹ cult and hostile witnesses if they are to represent their practice as a mediator extends the service that lawyers can clients e ectively. This seminar will help equip you with the o‚ er the public. 14.5 CPD hours 2 CPD hours relevant skills by taking you through the law, and taking a practical approach in working through the key issues that you are likely to be confronted with. PRACTICE & PROFESSIONAL SKILLS PROFESSIONAL Andrea Challis There are many factors that lawyers need to be mindful of Auckland 28 Jun TRUST ACCOUNT Philip Strang To qualify as a trust account supervisor, you must complete Various Jul-Nov INDEMNITY INSURANCE Kiri Harkess when considering their professional indemnity insurance SUPERVISOR TRAINING 40-55 hours’ preparation, attend the assessment day and pass arrangements or when advising insureds and/or insurers PROGRAMME all assessments. The training programme consists of self-study 2 CPD hours about professional indemnity claims and policy response. This learning modules to help you prepare for assessment. seminar will consider some of the key issues facing insured 7.5 CPD hours professionals and recent developments of interest.

ADVOCACY ETHICS – Paul Collins Independence of judgement and freedom from compromising Auckland 3 Jul STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 2 5-7 Jul DISQUALIFYING Tim Mullins infl uences or loyalties are essential to courtroom advocacy. FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a Wellington 20-22 Sep CONFLICTS AND OTHER So too is knowledge of acceptable conduct in litigation. This PRACTISING ON OWN barrister, will be required to complete this course. (Note: CURRENT TOPICS seminar will explore the current law in this area, including the Auckland 3 8-10 Nov ACCOUNT 2018 From 1 October 2012 all lawyers applying to be barristers sole circumstances in which a lawyer may be disqualifi ed from are required to complete Stepping Up.) Developed with the 2 CPD hours acting in litigation and the requirements of an advocate as an 18.5 CPD hours support of the New Zealand Law Foundation. o‹ cer for the court.

MEDIATION PART B – Virginia Goldblatt This workshop has a special focus on, and is tailored to, the Wellington 24-26 Aug EDUCATION DISPUTES David Patten specifi c kinds of disputes that are typically encountered in Denise Evans the education sector. Participants will practise skills, and 15 CPD hours complete an assessment exercise, leading to a certifi cate of achievement.

TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Auckland 19 Sep ADMINISTRATORS training is for new trust accounting sta‚ , legal executives, Hamilton 20 Sep legal secretaries and o¡ ce managers. 4 CPD hours

PROPERTY

PROPERTY LAW Chair: The Biennial Property Law Conference will provide Auckland 18-19 June CONFERENCE Debra Dorrington practitioners, at all levels, with an unmissable opportunity for CHANGE: IT’S two days of stimulating engagement on topics of essential INEVITABLE! importance and interest in the property law fi eld. Members of the NZLS Propertly Law Section are entitled to a 13 CPD hours $100 discount off their conference registration fee.

PRA INTENSIVE – Chair: Relationship property law in New Zealand continues to Auckland 20 Jun KEEPING AHEAD OF THE Amanda Donovan evolve and adapt rapidly. This intensive will look at the PACK recent Supreme Court decision Scott v Williams, both the legal implications, as well as forensic accounting analysis. It 6.5 CPD hours will delve into contemporaneous relationships, update you on the PRA and trusts and provide practical tips and tricks to ensure your practice and procedure are up with the play.

To contact us | Visit: www.lawyerseducation.co.nz 92 Email: [email protected] | Phone: CLE information on 0800 333 111. For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROPERTY

RESIDENTIAL PROPERTY Lauchie Griffi n This small group intensive workshop o ers you the Christchurch 16-17 Jul TRANSACTIONS Nick Kearney opportunity to be guided step-by-step through the Wellington 30-31 Jul Michelle Moore conveyance of a stand-alone fee simple residential dwelling, Auckland 13-14 Aug 13 CPD hours Duncan Terris a cross-lease dwelling and a unit title property. Hamilton 27-28 Aug

TRUSTS AND ESTATES

WILLS AND ESTATES Vicki Ammundsen When clients are contemplating making their wills, the Webinar 6 Jun Stephen McCarthy distribution of assets may make perfect sense to them but 1.5 CPD hours issues can quickly emerge upon death. This webinar will provide an update of the latest cases regarding the Family Protection Act and the Testamentary Promises Act, refl ect on some key Property (Relationships) Act issues, and consider the practical implications of these developments for your clients. IN SHORT

EVIDENCE – HOSTILE & Nick Chisnall All criminal lawyers need to be able to confi dently deal with Auckland 26 Jun DIFFICULT WITNESSES Lynn Hughes di‹ cult and hostile witnesses if they are to represent their clients e ectively. This seminar will help equip you with the 2 CPD hours relevant skills by taking you through the law, and taking a practical approach in working through the key issues that you are likely to be confronted with.

PROFESSIONAL Andrea Challis There are many factors that lawyers need to be mindful of Auckland 28 Jun INDEMNITY INSURANCE Kiri Harkess when considering their professional indemnity insurance arrangements or when advising insureds and/or insurers 2 CPD hours about professional indemnity claims and policy response. This seminar will consider some of the key issues facing insured professionals and recent developments of interest.

ADVOCACY ETHICS – Paul Collins Independence of judgement and freedom from compromising Auckland 3 Jul DISQUALIFYING Tim Mullins infl uences or loyalties are essential to courtroom advocacy. CONFLICTS AND OTHER So too is knowledge of acceptable conduct in litigation. This CURRENT TOPICS seminar will explore the current law in this area, including the circumstances in which a lawyer may be disqualifi ed from 2 CPD hours acting in litigation and the requirements of an advocate as an o‹ cer for the court.

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz93 LIFESTYLE June 2018 · LAWTALK 918

LIFESTYLE

1 2 3 4 5 6 7 8

9

10 11

A New 12 13 14 Zealand 15 16 17 Legal 18 19 20 21

Crossword 22 23 24 25

SET BY MĀYĀ 26 27

28 29

Across Down K R I S T I N E S E L I N A O N E E X N I 1/2 Snoopers can buy case and 2 See 1 Across B E N J A M I N S H I N E R digital camera for snapping (9,9) 3 Make "The Saint" better on the L O B G C U E S 6 Singer heard in a valley (5) condition that you're leader (7) E U S T A C H I O M A R S H N E G B U E I 10 Idiot taking part in harm 4 Poles dip into gin mixer during Z O N K S O W N E R S H I P directed against student taking this month (4) S U T U finals, say(10) 5 Happy taking shelter in stormy P R E S S U R E D P O R E D O W I R A R O 11 Puff piece from Eva Perón (4) gulf (7) P I E C E N E A R T H I N G 12 You're so lucky you keep heads 7 Judge diamond occasionally lies C T A G C R C C turning - at, that is, about 50 (5) in river (7) O T H E R S T U S I T A L A R E I L O N R 13 The Chills, or Sneaky Feelings? (8) 8 Flower of Maurice Leblanc's work N Y L O N S B A R T L E T T 15 Get all itchy about local "Almost like the wolf" (5) government (4,4) 9 Without ties? Make it last as long 16/20A/19 Recently launched as possible! (9) Solution to May Terminator, electronic and 14 Question the Crimea being 2018 crossword well-made, taking companion into racially motivated? (4,5) Across ancient order (6,8,7) 17 Become thinner, though I hear 1. Kristine, 5. Selina, 9. Benjamin, 18 Awkward, loveless South you consumed X (ten) (9) 10. Shiner, 12. Eustachio, American horseman heading east (6) 19 See 16 Across 13. Marsh, 14. Zonks, 15. Ownership, 20 See 16 20 Vote in the Sun God? She's 17. Pressured, 19. Pored, 21. Piece, 22 Darling creator has jam, brie and complex (7) 23. Near Thing, 24. Others, lobster's tail cooking (1.1.6) 21 See female ending in charge of 25. Tusitala, 26. Nylons, 27. Bartlett. 24 Bright to not rate Auckland windblown sediment (7) Down council? (5) 23 Had an (unpleasant?) encounter 1. Koblenz, 2. In No Sense, 26 Back the offensives ... no, as you with head of organisation and 3. Tea Bags, 4. Neighbouring, were! (4) second in command, and made a 6. Exhumer, 7. Inner, 8. Airship, 27 A celebration of dams? (7,3) hash of it (5) 11. Count Dracula, 16. Hurricane, 28 Michèle A’s follower reportedly 25 Exist to headline Liberal often 17. Popcorn, 18. Swear In, 19. Patriot, apprehended (5) found in 28 (4) 20. Dog Cart, 22. Ethel. 29 Crash experts hold one or more misconceptions (9)

94 LIFESTYLE

LIFESTYLE ▴ Don Thomas keeps an eagle eye A Golden Oldies on the play. referee’s tale: Fun, Friendship and Fraternity

BY DON THOMAS

its ability to host international activities. “Fun, Friendship and Fraternity” was the theme The rugby week was the last week of the festival. It in 2016 in Cardiff, Wales (seeLawTalk 897, 21 September saw about 2,500 players in 112 teams from 12 countries 2016) for me and the Golden Oldies Rugby Festival. In taking part. The organisers are developing a festival 2018 it was Christchurch’s turn. This time with a dif- specialist team of referees. This year, myself and three ference when, at the behest of the Christchurch City others from the Auckland Rugby Referees Association, Council and central government, the festival ran over controlled games over the week as part of that team. four weeks in April featuring over 5,000 participants Sir Graham Henry and ex-Wallaby, now assistant plus supporters in six different sports. Wallaby coach, Stephen Larkham were the festival Usually, the festivals run as stand-alone sports at ambassadors, and both played during the week. I con- different dates/venues. On this occasion they were trolled two of the games Larkham played in, and he was combined in a single event centred in South Hagley as quick and smart as we remember him. Park. The city council and central government were keen The festival more than lived up to its catchphrase to use the festival as a promotion of Christchurch, and “Fun, Friendship and Fraternity”. Some of the teams

95 LIFESTYLE June 2018 · LAWTALK 918

LIFESTYLE

TV show that revelled in the play “regularly” at home in senior compe- titions. Others get together just for these hedonism and biennial events. The team from Sydney, which included the oldest player at 87, came from all over Australia. They are ex the agonies of club members who have moved elsewhere – the 87-year-old now lives in Brisbane, for example, and included two players living young lawyers in Japan. The rugby week experienced fine weather throughout. This was a piece of BY CRAIG good fortune for the rugby participants STEPHEN with four games a day. The following post-festival Saturday local game was different, with a morning’s rain before a local senior club game which I refereed. This Life was a ground-breaking British television series The surface water turned to mud over the in several ways. Set in the legal profession in London, it wasn’t course of the game. A bit awkward when I centred around court, nor was it fixated by experienced, high-flying had to return to my hotel covered in mud. criminal lawyers. The festival opened with the tradi- This Life focused instead on five young practitioners – Egg, Milly, tional Parade of Nations. However, it was Miles, Anna and Warren – all living in the same terraced flat and curtailed this year when the council’s who are trying to establish themselves in the legal fraternity. largesse did not extend to closing inner They did things that lawyers do, but we are not supposed to city roads for the parade from the festival know that. Nor did it shy from the fact that the profession isn’t headquarters. The closing awards dinner as egalitarian as it thinks it is. was a sit down function for over 2,500 “It was all middle-class characters, people who’d been to uni- guests held in a marquee in South Hagley versity, and they were drinking, swearing, taking drugs, having Park. sex. We didn’t want to make this stuff a The next Rugby Festival is scheduled big issue, though. If someone took drugs, to take place in early June 2020 in they wouldn’t die; if there was a gay man, Denver. Male and female participants he wouldn’t get Aids,” says writer Amy are welcome, either in combined teams Jenkins who drew on her own experiences or in separate teams. Any senior players as a lawyer for the series. who still have the urge to get out and “I’d hated law. I found it boring and play should be starting to think about left after a year. So, though This Life was organising a team to go. Or register your- about young lawyers sharing a house, I self as an individual as the organisers didn’t want them in court. I was watching make up combined teams. Go to www. American cop shows like Hill Street Blues, gorugbydenver.com/ for the preliminary where the police work seemed almost details for this festival. ▪ incidental. And I wove in ideas from my other script, real flatshares I’d been in and Don Thomas  [email protected] is the bohemian characters I was mixing managing director and a notary public with,” Jenkins told the Guardian. at West Auckland law firm Thomas & Co. All the central characters were por- He is a long-standing member of the trayed as any young lawyer would be – Auckland Rugby Referees Association. flawed, human, characteristic. They could

96 LAWTALK 918 · June 2018 LIFESTYLE

There are pix of Andrew Lincoln (Egg) in Flickr, also of Martin Freeman who had a small role in one episode

be selfish, elitist and made mistakes. Miles was an arrogant public ▴ Andrew Lincoln Anna and Miles. A myriad of secondary schoolboy/Oxbridge type from the provinces who could turn to (Egg) speaking characters added intrigue, humour and his parents for money if need be. Egg was a slacker with lofty at Comic Con anguish. ideals, Anna was mostly seen with a glass of red in her hand.  Gage “Obviously, the writing was great, but The first series, made in 1996, was largely ignored but the Skidmore ba I guess it’s [popular] because people saw summer repeats were picked up and it turned into a slow-burn. themselves, and because it presented life A second series of 21 episodes was commissioned, picking up as messy,” adds Jenkins. “I love it that where the last episode left off. when the second series ended, Miles is To understand the show is also to understand Britain in the marrying the wrong woman and Egg has 1990s: it was a time when the political landscape was changing as just found out that his partner’s had an nearly two decades of Conservative rule was on its way out, and affair. Basically, everyone is miserable, Tony Blair’s New Labour project was poised for a three-term rule. apart from Ferdy, who’s getting a blowjob Music was a central feature of the programme and reflected the in the toilets. That really is life.” so-called Britpop scene of the time, which revelled in the British In a radical move the makers used a music scenes of the 60s and 70s. Oasis, Supergrass, the Manic handheld camera formula and it often Street Preachers, Blur, Pulp et al were heard in the background. seemed more like a reality show than a “Cool Britannia” resonated everywhere as a celebration of music, stylised drama. film and art from the Isles. A sub-culture for twenty-somethings The stars of the show had all been had prospered with TV, magazines and books reflecting the new unknowns before filming, other than mood. cameo appearances in soap operas and With no social media at the time its success was due largely the like, but had offers galore after the to word of mouth, as it was on BBC2, the broadcaster’s outlet second series wrapped up so were unable for experimental and specialised programming. to star in a third series. A 10-years on This was mainly due to an empathy for the main characters, special reunited all the characters in a as viewers honed in on the rows between ambitious Milly and highly contrived manner, and, despite a her boyfriend Egg, who quits law to ‘become a writer’; Warren’s large amount of publicity, was critically struggle to hide his homosexuality from his conservative Welsh panned, and didn’t seem to have a purpose family; and the on-off love affair between the hard-drinking, cocky other than to have another episode. ▪

97 TAIL-END June 2018 · LAWTALK 918

TAIL-END

Five judicial proceedings involving parrots

“Bird” and the damning DNA evidence Kevin Butler, 48, was stabbed to death in his home in through the testimony of the defence’s private investigator Dallas, Texas on Christmas Eve 2001 after a violent struggle. who had spoken to the pet shop owner. Superior Court Judge Investigating Police found the body of Mr Butler’s pet white- Raymond Giordano, however, held that evidence of what Max crested cockatoo, named Bird, in the kitchen. Bird had also had said was not admissible. Mr Rasp is now serving a life been stabbed. From the feathers scattered throughout the sentence for murder. house and evidence of the strong bond between parrot and owner it was clear he had attacked the assailants. Blood was The noisy Nelson parrot found on a light switch and DNA analysis led police to Daniel A noisy parrot got so much on the nerves of a Nelson family Torres. Torres and Johnny Serna were later convicted of murder living next door that they felt unable to go outside into their after a trial in which prosecutors told the jury Bird had pecked back garden and decided to move. “They could no longer at Torres’ head, drawing blood. Torres wiped the blood and tolerate the parrot’s screeches which went on all day long,” then touched the switch. He also unfortunately stabbed Bird said the Broadcasting Standards Authority (Bowen v TVNZ (named after former basketballer Larry) with a fork as the [1997] NZBSA 29 (10 April 1997)). The dispute ended up in valiant bird repeatedly attacked him. the Authority after the local newspaper ran an article. This attracted the attention of TVNZ’s Holmes Show, which ran an Max the unsuccessful witness item on the dispute on 28 November 1996 complete with shots The body of Jane Gill was found in her bedroom in Santa Rosa, of the houses and the names of the anti-parrot neighbours. California in November 1991. She had been smothered two days Mr Bowen said TVNZ had not honoured an agreement not to earlier. Her African Grey parrot Max was found dehydrated include shots of his house or to broadcast his family name as in his cage. Max was taken to a pet shop to recover and the he wanted to sell the house quickly. TVNZ, however, denied shop owner reported that Max cried out, “Richard, no, no, no!” this and the Authority accepted that there had been previous several times. Meanwhile, police arrested Ms Gill’s business publicity about the dispute and the filming would not have partner Gary Joseph Rasp and charged him with her murder. been possible without the cooperation of the Bowens. They Mr Rasp’s lawyer, Charles Ogulnik, aware that his client was not had forfeited their right to privacy, it decided and declined called Richard, sought to get Max’s utterances into evidence to uphold the complaint.

Notable Quotes

❝ [31] … The butterfly may beat its wings and cause an ❝ The court acknowledges that lawyer well-being earthquake on the other side of the world, but this is not contributes to organisational success, influences ethics the principle on which loss is to be recoverable in law.❞ and professionalism and is a humanitarian concern.❞ — O’Donnell J delivering the decision of the Supreme Court — Part of the West Virginia Supreme Court of Appeals order of Ireland in Rosberg Partners v LK Shields [2018] IESC 23 establishing a Task Force on Lawyer Well-Being. The task on the way to reducing an award of damages against a force is required to report to the court by 31 December. firm of solicitors from €11 million to €5.25 million. ❝ It’s illegal in Queensland, it’s unethical, it’s something the ❝ [1] At the heart of this case is a humble comma.❞ legal profession is concerned about.❞ — Associate Judge Johnson begins his decision in Volumex — Queensland lawyer Travis Shultz discloses that claims Nominees Ltd v Attorney-General [2018] NZHC 647, which harvesting is happening. Marketers, who are not lawyers, involved interpretation of the impact of an Oxford comma convince people who have been in a motor accident to on a provision in a lease relating to responsibility for file a claim. They take down the information and then sell electricity charges. it on to a law firm as a case to pursue.

98 LAWTALK 918 · June 2018

 Marc Feldmann bn ▸

Tequila’s day in court Boca Raton, Florida citizen Angela Colicheski bought an African Grey parrot in 1996 and named him Tequila. They were outside one day in 2006 and Tequila took flight. “He flew over the pool, over the fence,” Ms Colicheski said. Another Boca Raton inhabitant, Sarita Lytell, found the parrot and adopted him, with the name Lucky. Three years later the two women got chatting at a Dunkin’ Donuts. They discovered a mutual love of parrots, and then (it was unexplained how) discovered they were talk- ing about the same parrot. After Ms Lytell refused to return the bird, Ms Colicheski sued for recovery. The matter ended before Palm Beach County Judge James Martz, who ordered Tequila/Lucky to attend court. “Pets are chattels, they’re no different than your automobile,” Judge Martz decided, and ordered Tequila to be returned to Ms Colicheski as he was lost property. He also dismissed Ms Lytell’s claim for the cost of caring for Lucky. “They treat a living, breathing animal like a car. Is that fair? Is that justice?” she unhappily told reporters. Look – there’s a very strange owl! Oops… Rugby County Court in England in May 1879 was the scene of proceedings in which a cockatoo made an appearance. The Pall Mall Gazette reported that “a lady of independent means” sued a butcher for damages of £5 for illegally killing her cockatoo. Both parties were represented, and the butcher’s defence was that he had mistakenly shot the cockatoo in the belief that it was an owl. “The fellow bird of the deceased was brought into the court, and while the solicitors were arguing pro and con, never ceased to suggest a compromise of the action, strongly recommending the litigants to ‘shake hands’, also to ‘shut up’. His remarks might, perhaps, have had more weight had he not interlaced them with requests of ‘sugar’, the Pall Mall Gazette reported.

❝ They had no right to do it the way they did it, and that’s ❝ The precinct is a magnificent achievement but it is one I quite serious. There’s a whole list of breaching his civil hope we never repeat. I think, every day in small towns rights – it’s quite outrageous to be dragged out of your around the country, we give school children a lesson workplace.❞ in civics when they walk down the street and see the — Keith Jefferies, lawyer for Mark Middleton, who was police on one side of the road and the court house on threatened with deportation as an “overstayer” by the other. It is symbolic of the functional disconnection Immigration New Zealand after arriving here in 1962 as a between the branches of government. It is an important four-year-old. He can now stay after Associate Immigration lesson.❞ Minister Kris Faafoi intervened. — Court of Appeal President Stephen Kós after the Court of Appeal sat in the Christchurch Justice and Emergency ❝ It’s very important in our system that judges are able to Services Precinct for the first time. be criticised and that their judgments can be criticised. So we’re not talking about encasing the judges in cotton wool ❝ [59] … In my judgment, this was a run of the mill dog but ensuring they are not subject to unfair and excessive attack, in which Bear jumped a fence, attacked two cats abuse.❞ and killed four chickens.❞ — National MP and former Attorney-General Christopher — Justice Wylie ponders run of the mill dog attacks in his Finlayson QC speaking during the first reading of his decision to overturn an order for Bear’s destruction, Administration of Justice (Reform of Contempt of Court) Bill. Fountain v Auckland Council [2018] NZHC 591.

99 STEP NEW ZEALAND CONFERENCE 2018

Trustees: Are you properly managing the risks of litigation and compliance penalties?

Trustees are under increasing risk of potential litigation from co-trustees, beneficiaries and interested parties, not to mention exposure to penalties for non-compliance with regulatory obligations under AML, CRS and FATCA. Recent case law, tax/regulatory compliance developments and impending changes to legislation are enabling an expanded group of parties to question trustee decision making and penalise trustees for non-compliance. This conference will cover various common law and legislative changes putting trustees and practitioners at risk.

SPEAKERS CONFERENCE DETAILS Mark Herbert QC UK, Keynote Speaker Date Thursday and Friday Paul Heath QC New Zealand 21st and 22nd June 2018 David Marks QC, TEP Australia Location Regatta room AD, The Pullman Hotel, Noel Ingram QC, TEP New Zealand Cnr Princes St and Waterloo Quadrant, Professor Nicola Peart, TEP Faculty of Law, University of Otago Auckland 1010 Vicki Ammundsen Director, Vicki Ammundsen Trust Law Ltd Conference Dinner will be held on Thursday, 21st June 2018 Jeremy Johnson, TEP Partner, Wynn Williams Gary Hughes Barrister Terry Baucher, TEP Director, Baucher Consulting Ltd REGISTRATION FEES Matthew Griffin Treasurer, Blockchain NZ Members $1,000 + GST Jack Wass, Barrister Stout Street Chambers CAANZ (TSIG) & ETPC Members $1,100 +GST Rebecca Rose Senior Associate, Bell Gully Non-Members $1,200 +GST

CONFERENCE PROGRAM FOCUS • Keynote address: A fond farewell to Rolls-Royce trust litigation? • Update on AML • Beddoes applications in trustee/beneficiary disputes – process and principles • Accounting issues for cyber-currency • Seeking the Court’s Blessing in New Zealand: In re PV Trust Services Limited • Trusts and Dispute Resolution • How to decide - A critical assessment of the exercise of trustee discretion and matters for trustees to take into account when making decisions • Trustees and dissatisfaction - what lessons can be learned from recent cases? • Blockchain - what is it? And why would you want to own it? Proudly supported by • Liquidators of Corporate Trustees – Australian Themes • When is a trust a trust? The validity of trusts and their interface with relationship property law • The multi-jurisdictional trap: drafting wills and trust documents to manage cross-border issues

Spaces are limited. To reserve your ticket contact Megan Llewellyn on +64 21 189 5546 or [email protected] today.

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