ISSUE 933 · October 2019
Public Defence Service An important influence on criminal law practice
Reflections on a Pro bono legal Red flags! Is your US lawyers, ground–breaking services support law office as judges and Feminist Moot Canterbury healthy as you civil rights Muslim think? community Page 19 Page 42 Page 51 Page 72 Need Research? Use us as your legal research provider
The NZLS Library, legal research and document delivery service is fast, e cient and thorough. With our extensive resources we can provide comprehensive cost-e ective searches of case law and commentary both in New Zealand and internationally. FOR MORE INFORMATION ABOUT OUR SERVICES: www.lawsociety.org.nz/law-library AUCKLAND [email protected] 09 304 1020 WELLINGTON [email protected] 04 473 6202 CANTERBURY [email protected] 03 377 1852 Photo by Sippanont Samchai Sippanont CC-By-NC-ND by Photo A BEQUEST TO THOSE WHO NEED IT MOST
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6 · From the Law Society Update 24 · Barriers to participation in New Zealand Law Society the employment institutions 7 · New Zealand Law Society ▹ BY CHIEF JUDGE CHRISTINA INGLIS 18 · A Changing Profession 26 · New Incorporated Societies ▹ BY GEOFF ADLAM Act ▹ BY MARK VON DADELSZEN 29 · Supreme Court provides 6832 People in the Law guidance to lawyers on 10 · On the move testamentary capacity ▹ BY SALLY 16 · Wellington via golf, Gore and MORRIS AND FREYA MCKECHNIE Glasgow ▹ BY ANGHARAD O’FLYNN 17 · Top barrister not afraid of a fight Access to justice ▹ BY TEUILA FUATAI 32 · Public Defence Service 19 · Reflections on a ground– ▹ BY GEOFF ADLAM breaking Feminist Moot 39 · New technology aids access ▹ BY REBEKAH HILL, ELLEN LELLMAN to justice ▹ BY LYNDA HAGEN AND EMILY SCRIMGEOUR 41 · Lawyers battling for justice 21 · The value of friendship in around the world law ▹ BY NICK BUTCHER 42 · Pro bono legal services 23 · The Innovators ▹ BY ANDREW KING support Canterbury Muslim community ▹ BY NICKBUTCHER 8857
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4 Contents
Alternative dispute Technology Legal history resolution 56 · New death notification service 69 · Legal nomenclature – 45 · Running a major relationship ▹ BY TRACEY CORMACK from prolix to trendy property arbitration 57 · Windows 7 ▹ DAMIAN FUNNELL ▹ BY SIR IAN BARKER QC ▹ BY ROBERT FISHER QC 71 · A big story to tell – US 46 · Reactive devaluation 59 Letters to the editor lawyers, judges and civil ▹ BY PAUL SILLS rights ▹ BY JOHN BISHOP Lawyers Complaints Practising Well Service Classifieds 48 · Being a supporter: a daughter’s 60 · Disciplinary charges against 74 · Will notices story ▹ BY CAROLYN RISK lawyers ▹ BY JUSTIN KLEINBAUM 76 · Legal Jobs 62 · Complaints decision summaries 77 · CPD Calendar Practice 51 · Red flags! Is your law office Legal information Lifestyle as healthy as you think? 66 · The Ethical Lawyer: Legal Ethics 80 · A New Zealand Legal ▹ BY EMILY MORROW and Professional Responsibility Crossword ▹ SET BY MĀYĀ by Richard Scragg ▹ REVIEWED 81 · Garrow’s Law creating a just culture BY GARRY WILLIAMS ▹ BY CRAIG STEPHEN 54 · Are we doing enough? 68 · Recent legal books ▹ BY JAMIE DOBSON ▹ BY GEOFF ADLAM 82 · Tail end
which promotes responsible management of the world’s forests. FSC certification is internationally recognised as PEOPLE the most rigorous environmental and social standard for responsible forest management. The paper used to PRESIDENT Tiana Epati DIGITAL CONTENT EDITOR SENIOR DESIGNER produce LawTalk meets FSC requirements at all stages Craig Stephen Andrew Jacombs VICE PRESIDENTS along the production cycle. The shrink wrap used for [email protected] [email protected] Nerissa Barber (Wellington) delivery of LawTalk is 27 micron biodegradable film Herman Visagie (Central North Island) LEGAL WRITER DESIGNER manufactured in New Zealand. This degrades naturally. Tim Jones (Auckland) Tracey Cormack Sophie Melligan If you wish to discard LawTalk, please recycle it. The Andrew Logan (South Island) [email protected] [email protected] wrapping may be composted. EXECUTIVE DIRECTOR COMMUNICATIONS ADVISOR JUNIOR DESIGNER CONTACT DETAILS Helen Morgan-Banda (SOCIAL MEDIA) Nina Gillanders PO Box 5041, Wellington 6140, New Zealand Jamie Dobson [email protected] MANAGING EDITOR AND DX SP 20202 [email protected] COMMUNICATIONS MANAGER ADVERTISING Geoff Adlam · 04 463 2980 WEBMASTER Maria Pirela · 04 463 2905 ***** FPO ***** [email protected] Miranda Kaye [email protected] [email protected] Placeholder for SENIOR PRINTING AND DISTRIBUTION FSC Certificate COMMUNICATIONS ADVISOR DIGITAL CONTENT SPECIALIST Blue Star, Petone, Wellington PLEASE ***** FPO ***** Nick Butcher · 04 463 2910 Angela Ludlow ISSN 0114-989X (Print) RECYCLE [email protected] [email protected] ISSN 2382-0330 (Digital)
5 FROM THE LAW SOCIETY
FROM THE LAW SOCIETY
Law Society’s new project to improve access to justice
The phrase “access to justice” features frequently on these pages, and in wider public debate. As a criminal defence lawyer, who has worked largely on legal aid in a small region with a high Māori population, my view of the concept goes far wider than simple access to the courts. However you look at it, the erosion of access to justice jeopardises a person’s ability to be heard, exercise their rights, challenge discrimination and hold decision-makers to account. Barriers to access to justice have always existed, but it is clear that these have increased over time, both in New Zealand and globally. The Law Society has an important role to play in breaking down those barriers and has been to remuneration rates, and understanding the demographic working for a number of years to improve access to justice factors which underlie the steadily decreasing numbers in a range of ways. of legal aid practitioners. Some examples of the Law Society’s recent work in this In-house lawyers are currently unable to provide pro- area include: bono services to members of the public due to restrictions A detailed written submission in September 2018 on in the Lawyers and Conveyancers Act. There is an exception the Ministry of Justice’s Triennial Legal Aid Review. The if that work is provided through a community law centre or submission highlighted problems with eligibility for legal a Citizens’ Advice Bureau, but that may still be an obstacle. aid; clients’ difficulties with the application process; inade- A member’s bill to address this issue is proposed, and the quate remuneration; burdensome administration; provider Law Society’s in-house lawyers section, ILANZ, is working shortages and sustainability of the legal aid workforce. with our regulatory department to improve opportunities Intervention in a Court of Appeal case heard in July 2019 for in-house lawyers to undertake pro-bono work through about the extent to which the state is obliged to ensure other routes. that lawyers are available under the Police Detention Legal Representatives from our Legal Service Committee Assistance scheme to provide advice to detained suspects. are working with colleagues from the New Zealand Bar Our leading and junior counsel acted pro bono, with input Association, who have established a working group to from our criminal and legal services committees. improve access to justice for civil legal aid. Engagement with the Rules Committee’s access to justice While this work will continue across the organisation working group, looking at ways to reduce the complexity and through the day-to-day work of the Law Society’s and cost of civil litigation, including simplifying proce- committees, we want to identify further opportunities for dural rules. We have also been working with the Otago Law Society contribution. To facilitate this, a new project, Legal Issues Centre and the Rules Committee around the aimed at influencing public understanding and support provision of unbundled legal services. This is intended for improved access to justice, has recently started. These to enable lawyers to provide advice on discrete parts of first steps involve carrying out research and engaging with a case when an unrepresented litigant is unable to afford academics and other stakeholders working in this area to to pay for the whole case. more fully understand the access to justice landscape in Other projects currently being undertaken include New Zealand and overseas. improving the availability of legal advice. We want to identify how the Law Society’s role and We hold regular meetings with senior officials in the remit best place us to have the greatest impact, and to Public Defence Service, Legal Aid Services and the Ministry then develop and implement a programme of proactive of Justice aimed at identifying and addressing issues which and targeted initiatives to tackle the most significant access affect legal aid lawyers’ day-to-day practice, as well as the to justice issues in Aotearoa New Zealand. ▪ longer term viability of the legal aid system. We work on everything from reducing the complexity of legal aid forms, Tiana Epati and resourcing issues which affect delays in bail hearings, President, New Zealand Law Society
6 LAWTALK 933 · October 2019 NEW ZEALAND LAW SOCIETY
NEW ZEALAND LAW SOCIETY
Special court sitting in Christchurch
and reforms of its enabling legislation. the law, including the government. The 150th anniversary of the New “Each time reform has been in the air, the “Equality before the law in this sense Zealand Law Society was marked by the Law profession has fought hard for the standing requires a legal profession prepared to Society’s Canterbury Westland branch with and powers of its Law Society and for its provide legal services without regard to a special High Court sitting in Christchurch independence.” the identity of their client, or the popu- on 5 September. Chief Justice Dame Helen She described the Law Society as “no larity of their client’s cause – a profession Winkelmann presided at the sitting. ordinary institution”. that cannot be pressured or bought off The special sitting of the High Court “Through the work it does in supporting by the rich or the powerful. It is for this also included judges of the High Court, and regulating an independent legal pro- reason that the existence of an independ- Employment Court and District Court, fession, it has a critical role in our society. ent legal profession is one of the hallmarks along with Coroner Marcus Elliot and A role so critical that it is no overstatement of a society that lives under the rule of law. retired judge of the High Court, Peter to say that the Law Society is necessary to Were it left to the government to regulate Penlington. our constitutional order.” and discipline lawyers, an unscrupulous Chief Justice Winkelmann told the Chief Justice Winkelmann expanded on government might use that power to court that in the years since its creation this by saying a society can only exist under disempower or discipline lawyers who in 1869, the Law Society has survived as the rule of law if all have equal access to argue cases the government would rather an institution through various reviews the benefit of the law and all are subject to they not.” ▪
Law Society comments on Intellectual Property Laws Amendment Bill
The Law Society also disagrees with There is disagreement with a proposal The Law Society has commented on MBIE’s assessment of the potential for amendment of the Trade Marks Act proposals to amend the Patents Acts 2013, problems caused by “daisy-chaining” of to remove the ability to register series Trade Marks Act 2002, and the Designs divisional patent applications. It says the of trade marks. The Law Society says Act 1953. only alleged harm that could be caused registered series marks provide certainty The Law Society has raised several issues is a risk of uncertainty for third parties as to the ambit of a trade mark owner’s with proposed changes to the Patents Act. which might want to take advantage of rights and it favours their retention on There is some uncertainty around the anal- an invention without risk of infringement. this basis. ysis behind the proposed changes to the “Such uncertainties are inherent through- The Law Society commented on the transitional provisions in the Patents Act. out the patent system,” it says, noting that potential use of artificial intelligence by The Law Society had raised concerns about as divisional uncertainties are just one IPONZ, commenting that full public con- a similar proposal in a 2016 discussion paper, source of uncertainty within the patent sultation is required before government it says. The Law Society says that rather than system. it would be useful to understand departments are empowered by legislation reducing the number of 1953 Act applications why officials have identified these as a to delegate discretionary decision-making as intended, the proposal could increase it. source of uncertainty requiring amendment. to AI systems. ▪
7 NEW ZEALAND LAW SOCIETY October 2019 · LAWTALK 933
NEW ZEALAND LAW SOCIETY
Canterbury Women Lawyer Conference
New Zealand Law Society President Tiana Epati opened the Canterbury Women’s Legal Association Conference in Christchurch on 21 August. The conference theme was “Navigating the Future”.
Receipt of LawPoints and NZLS Weekly The Law Society’s weekly enewsletter LawPoints is automatically sent on Thursday evenings to all lawyers who currently hold a practising cer- tificate, unless they unsubscribe. Because of the anti-spam settings of some servers, LawPoints may be blocked in some organisations. The Law Society has also had some problems recently with changes implemented by our US-based LawPoints distributor MailChimp which have removed some previous recipients from the distribution list. If you do not receive LawPoints or have stopped receiving it without unsubscribing, contact angela. [email protected]. Nelson lawyers A public version of LawPoints, NZLS Weekly, is also available free of charge each week to commemorate non-lawyers. To sign up, visit www.lawsociety. org.nz/news-and-communications/email-updates/ 150 years nzls-weekly.
New Zealand Law Society Vice-President (South Island) Andrew Logan (left) and Nelson branch President Apology Andrew Shaw cut their way through a cake commemorat- ing 150 years since the creation of the New Zealand Law Society. A function at Nelson’s Boathouse on 24 August Unfortunately we misspelt the first name of Te was attended by over 100 guests. Wehi Wright on page 38 of the September 2019 issue of There were also dinners and special court sittings held LawTalk. The error is greatly regretted and we apologise around the country. to Mr Wright and his whānau.
8 LAWTALK 933 · October 2019 NEW ZEALAND LAW SOCIETY
NEW ZEALAND LAW SOCIETY
Wellington branch special sitting
▴ The Wellington branch had a special sitting to commemorate the 150 year anniversary at the High Court.
Receiving LawTalk only online An online version of LawTalk is available on the New Zealand Law Society’s website at www.lawsociety.org.nz/lawtalk. This is displayed as a flip-book, a PDF, and website versions of many of the articles in each. A link to the latest online LawTalk is emailed to all practising lawyers each month on the Friday after publication. The hardcopy LawTalk is automatically mailed to all New Zealand-based lawyers who hold a current practising certificate. Receipt of the hardcopy version may be cancelled by emailing [email protected] and stating “Please cancel LawTalk hardcopy” with details of name, workplace and lawyer ID. The lawyer ID is needed to instruct the mailing list extraction program to remove a name and address.
9 ON THE MOVE · PEOPLE IN THE LAW October 2019 · LAWTALK 933
PEOPLE IN THE LAW ON THE MOVE
Two District Court 2019, was Chief Judge from 1991 to 2005. specifically to help those impacted directly Judges appointed The memorial sitting will be held at 4pm or indirectly by cancer. The scholarship is on Thursday 7 November in Courtroom 5.01 intended to be offered to a minimum of Auckland barrister Clare Bennett and of the Employment Court on Level 5 of one UC student per annum at a value of Napier barrister Jonathan Krebs have been the District Court building, 49 Ballance $10,000 in perpetuity. appointed District Court Judges. Street, Wellington. It will be followed by The charity’s vision is to make a practical Clare Bennett was admitted as a refreshments. impact for someone living with a cancer barrister and solicitor in December 1986, “This special sitting will provide an diagnosis or their family members who practising in Hamilton from 1989, then in opportunity for practitioners to remember need support through the journey. chambers in Manukau and Auckland from former Chief Judge Tom Goddard and to Chalky Carr was awarded the New 1999. She was appointed Youth Advocate in reflect on his significant contribution to Zealand Bravery Medal by the Governer- 1989, and has chaired the last two triennial employment law and practise,” the Chief General for his actions saving lives from the National Youth Advocates Conferences. Judge of the Employment Court, Judge collapsed CTV building in the immediate Ms Bennett holds approval for all cate- Christina Inglis, says. aftermath of the February 2011 quake. Mr gories with the Legal Services Agency and Carr was the All Blacks Logistics Manager has been a member of the Litigation Skills Sir Anand Satyanand when diagnosed with pancreatic cancer Faculty since 2004. She will be sworn in inducted into Kiwi- in 2016. on 3 October 2019 at the Manukau District Indian Hall of Fame Court. She will have jury jurisdiction and Holland Beckett will be based on the North Shore. Former Governer-General, the Sir Anand promotes six to Jonathon Krebs was Satyanand, has been inducted into the Associate positions admitted as a barrister Kiwi-Indian Hall of Fame. The ceremony and solicitor in April was held on 9 August at the Cordis Hotel. Six staff of Bay of Plenty firm Holland 1988. He was a partner Prime Minister Jacinda Ardern presented Beckett Law have been promoted to of Hawke’s Bay Crown the award. Associate roles. Solicitors, Elvidge & The Kiwi-Indian Hall of Fame award was Joel Murphy specialises in property Partners between 2002 introduced in 2013 to recognise and honour and commercial law. He has experience and 2006, and was sec- the efforts of prominent personalities in in a broad range of onded to the Attorney-General’s Office in the New Zealand-Indian community. One property and commer- Apia, Samoa at the end of 2006. person is inducted annually, recognised cial matters including Mr Krebs’ principal focus in his career for their significant contribution to the commercial, rural and has been criminal and civil litigation. He development and progress of the both residential acquisitions was the convenor of the New Zealand Law Indian community and New Zealand. and disposals, leasing, Society’s Criminal Law Committee for 10 financing, property years and is a past President of the Hawke’s Criminal Justice developments and sub- Bay District Law Society. student inaugural divisions, due diligence and commercial In 2012 he was Director of the NZLS CLE recipient of new contracts. Ltd litigation skills programme. University scholarship Prior to joining Holland Beckett Law in Judge Krebs will be sworn in on 1 January 2019, Joel spent five years working October 2019 in Napier. He will have Mario Williams has in a large Auckland law firm and then most jury jurisdiction and will be based in been announced as recently two years working in-house in Palmerston North. the first recipient of London. the Chalky Carr Trust Dan Broadhurst joined the firm in Memorial sitting for Scholarship. 2014. Admitted as a Chief Judge Goddard Mr Williams, a barrister and solicitor on 7 November first-year Bachelor of in 2010, Dan special- Criminal Justice stu- ises in property and The Employment Court will hold a dent, was presented the scholarship by commercial law and memorial sitting on 7 November 2019 to Chalky Carr Trust Patron Gemma McCaw retains a general focus commemorate former Chief Judge Tom at an official ceremony. including relationship Goddard’s contribution to employment The Chalky Carr Trust Scholarship property, asset protec- law. Mr Goddard, who died on 14 March has been set up in conjunction with the tion and estate planning. Dan studied law University of Canterbury (UC) Foundation at Victoria University after beginning his
10 LAWTALK 933 · October 2019 PEOPLE IN THE LAW · ON THE MOVE
working career as a primary school teacher. Jess Warn started at financing, acquisition Pip Allan has been promoted to asso- Holland Beckett in 2013 and disposal of com- ciate after joining the as a graduate solicitor, mercial and residential firm in May 2018 as a and returned in October properties, all aspects senior solicitor. Pip has 2018, after travelling of commercial leasing a broad range of civil and working in-house including providing litigation experience, for a technology legal advice to a broad with particular exper- start-up in Vancouver, range of clients in tise in construction and Canada. Jess advises on a wide range of commercial and business transactions. insolvency law. She commercial and corporate law matters. also advises on property and insurance Rachael Dewar Law disputes. Morrison Kent announces announces three After completing new partner movements her studies in New Zealand, Rachel Rosser Joseph Kim has been Wellington-based family and property began her legal career appointed Partner firm Rachael Dewar Law has two recent in Melbourne where in Morrison Kent’s appointments and one promotion. she appeared regu- Auckland office. Amy Gulbransen has been promoted to larly in both State and Joseph began his Associate. Joining the Federal courts. Rachel career at Morrison firm in July 2018, Amy has experience in general litigation and Kent in Auckland in works in all areas of relationship disputes, and advises her 2010, joining one of the family law with a par- clients on all aspects of civil litigation, firm’s commercial/property teams and was ticular interest in rela- employment and family law matters. She promoted to associate in 2016. tionship property, care also holds an additional interest in animal Joseph is experienced in property law of children and domestic and equine law. with particular expertise in property violence matters. Tim Conder special- acquisitions, developments, financing Amy graduated from the University of ises in litigation, with and leasing matters. He is also expe- Canterbury in 2010, and was admitted at a particular focus on rienced in advising on commercial the High Court in May 2013 after working trust and estate dis- contracts, structuring and commercial and travelling overseas. putes and regulatory transactions. Sarah McGovern joined Rachael Dewar prosecutions. After Law in January 2019, being admitted in 2015, Loo & Koo appoints practising across all Tim has appeared reg- new partner family law areas with ularly in the District Court, High Court a special interest in and Court of Appeal on a variety of Bibiana Lee has joined Loo & Koo as a advocacy and Oranga criminal and civil matters. He has also partner in the firm’s commercial team. Tamariki proceedings. published a number of academic arti- Bibiana has extensive experience in Sarah graduated with cles, particularly in the area of criminal matters relating to property develop- an LLB from Kings Inns, sentencing. ment and subdivision, development Dublin, practising in Ireland before being admitted at the High Court in Nelson in June 2010. Sarah was recently appointed to the lawyer for child list and is available for agency court appearances. Ruby Hey has joined Rachael Dewar Law. She was admitted at the High Court in June 2019 after graduating with a LLB and BA in International Relations and Political Science from Victoria University.
11 ON THE MOVE · PEOPLE IN THE LAW October 2019 · LAWTALK 933
Ruby volunteers at the Wellington resources and property, then shifting Peter specialises in Community Law Centre and is undertaking focus to climate change. commercial and com- a wide range of family law work, including He eventually started his own firm mercial property law. relationship property, child law and family looking at greenhouse gas reduction He was admitted to violence. projects in China, which then shifted to the at the High Court sustainable operations of agribusiness in 2003 and the New DLA Piper’s Tracey in Indonesia. York Bar in 2010. He Cross appointed to AIA holds LLB, BCom and New Zealand Board James Warren LLM (first class honours) degrees from the promoted to Partner University of Auckland, and an LLM from Tracey Cross, a partner at DLA Piper New at Kensington Swan Cornell University (New York). Zealand, has been appointed to interna- tional insurance firm AIA New Zealand’s James Warren has Chapman Tripp promotes board. joined Kensington three senior solicitors Tracey’s senior involvement includes Swan’s partnership as being the leader of DLA Piper’s conduct an employment law Chapman Tripp’s Wellington office has and culture initiative, and the Chair of specialist. announced the pro- DLA Piper NZ’s Leadership Alliance for Formerly a partner at motion of three senior Women, an initiative that supports the UK firm Fieldfisher in lawyers. advancement of female lawyers into London, James joined Rosa McPhee spe- leadership. Kensington Swan as Special Counsel in cialises in property, Tracey’s expertise is in funds manage- October 2018. infrastructure and con- ment and superannuation. Admitted at the High Court in 1998, he struction law. Admitted has a particular interest in the technology, at the High Court in Joanna Hayward media and financial services sectors, as December 2015, she has appointed acting General well as multi-jurisdictional projects and a particular interest in Counsel at OPC business transformations. commercial construc- tion and leasing. Joanna Hayward has been appointed Wook Lee joins Jasmin Moran spe- acting General Counsel to the Privacy Kensington Swan cialises in litigation Commissioner as the Office prepares for and dispute resolution. the enactment of new privacy law later Wook Lee joins Admitted at the High this year. Kensington Swan’s Court in December Joanna has been an adviser at OPC corporate and com- 2015, she focuses on since 2014 and was formerly an adviser mercial team as Special energy, insurance and to the Law Commission on information Counsel. He is intended fishing industries. law reform projects including the law of to join the partnership Millie Singh spe- privacy, official information, search and once he has fulfilled NZ cialises in competition surveillance, harmful digital communica- Law Society regulatory and regulatory law with tions and news media. She is a graduate requirements. experience in interna- of Canterbury University and is an expe- Wook has 12 years’ experience in corpo- tional trade matters rienced practitioner in public, commercial rate advisory, governance and transactional focused in the Pacific. Admitted at the and banking law. matters, including M&A, divestments High Court in December 2014, she advises and equity capital raisings. He is fluent in industries on merger control, enforcement Mark Harding joins Korean and was recognised as a ‘Rising star and Commerce Act regulation. Cooney Lees Morgan lawyer’ for the corporate and M&A practice area 2018 and 2019 Asialaw Profiles. Glaister Ennor promotes Mark Harding has joined Bay of Plenty two new partners firm Cooney Lees Morgan as an Associate New Director at in the resource management and local Carson Fox Legal Two senior associates have become part- government team. ners in Auckland law firm Glaister Ennor’s Mark practised for 12 years in Asia from Peter Liao has been appointed Director litigation and disputes resolution team. 2006, beginning in Shanghai in energy, at Carson Fox Legal. Mitch Singh has been promoted to
12 LAWTALK 933 · October 2019 PEOPLE IN THE LAW · ON THE MOVE
Partner. He specialises Fiona Brown as Chief Principal. A trade mark specialist, Margot in commercial and Legal Officer. works on trade marks and related IP rights civil disputes, with Moving from General within and beyond New Zealand in areas particular expertise Counsel and Company such as food and beverage, fast-moving in contract, property, Secretary at Kiwibank, consumer goods, luxury goods and build- insolvency, privacy and Fiona is experienced ing industries. cross-border disputes. across legal, govern- Admitted at the High Court July 2008, Mitch graduated with ance, commercial and she also specialises in non-traditional trade a Bachelor of Laws from the University risk management roles. marks including shape, Otago in 2009, was admitted at the High She began her law career with Chapman colour and sound. Court in September 2010, and gradu- Tripp before taking on a number of roles Matt Hayes has been ated with a LLM from the University of spanning 11 years at ANZ, including Head promoted to Principal. Auckland in 2017. of Governance, Chief of Staff and Head of A member of the lit- Chen Jiang has been Securitisation. igation and disputes promoted to Partner. He resolution team, Matt is a litigation specialist AJ Park promotes specialises in resolv- across commercial, four, welcomes one ing disputes such as designs, misleading civil and family areas advertising and product claims, counterfiet and graduated with a Australasian intellectual property firm goods and regulatory issues. Bachelor of Laws and AJ Park has announced the promotion of Admitted at the High Court in December Bachelor of Arts in four lawyers to Principals and appointed 2001, Matt’s experienced at representing 2008. a new Senior Associate to their team as clients in negotiations and mediations Admitted at the High Court in March of July 1 2019. before the New Zealand and Australian 2010, Chen’s expertise includes contracts, Jonathan Aumonier- Courts, IPONZ and IP trusts and estates, companies, property and Ward has been pro- Australia. construction, insurance and relationship moted to Principal. He Natalie Harre has property. is an experienced trade joined AJ Park’s litiga- mark and copyright tion and dispute resolu- David Tyree joins specialist, being rec- tion team in Auckland. McWilliam Rennie ognised by the World Natalie has extensive Trademark Review as experience advising on David Tyree has joined a leading IP practitioner in New Zealand. a range of intellectual property matters, specialist family law Jonathan was admitted at the High such as trade marks, copyright, patents, practice McWilliam Court in May 2001, with vast experience border protection, parallel importing and Rennie as an Associate. across the food and beverage, cosmetics, consumer law including the FTA and CGA. David has practised for pharmaceuticals and ICT industries. She also advises on terms of engagement 15 years in Taranaki and Kieran O’Connell for social media influencers and other Wellington, specialising has been promoted social media issues. and leading teams in to Principal. Admitted family law. at the High Court in EIS legal welcomes David’s expertise includes separation, 2003, he joined AJ Park two new solicitors relationship property, contracting out in 2008 specialising in agreements, childcare, guardianship pro- trademark and copy- The Ministry of Education’s Education ceedings relating to decision making for right. Kieran’s clien- Infrastructure Service’s in-house legal vulnerable people under the Protection of tele ranges from local to international in team (EIS legal) welcomes two new solic- Personal and Property Rights Act, enduring areas such as craft beer, itors to its construction power of attorney and challenging estates. organic foods, cosmet- division. ics and pharmaceuti- Courtney Deed has Fiona Brown joins cals. He also provided joined as a Construction Southern Cross advice around the New Solicitor within the Health Society Zealand flag debate. Wellington Office. Margot Smith has Courtney joins EIS Southern Cross Health Society welcomes been promoted to Legal from private
13 ON THE MOVE · PEOPLE IN THE LAW October 2019 · LAWTALK 933
practice where she has specialised in Wellington Family Samantha Moore resolving construction disputes. Law partnership to has just qualified from Sarah Lester become Chambers AUT University and joins as the Senior having completed her Construction Solicitor The partners of Wellington Family Law, Professional Legal within the Christchurch Caroline Hannan, Sija Spaak and Chris Studies, she has joined office. Sarah brings Dellabarca, advise that their partner- the Auckland property unique construction ship will dissolve with effect from 30 team as a solicitor. experience with the September 2019. Olivia MacFarlane Christchurch rebuild With effect from 1 October 2019, the joins the Christchurch- from her time at EQC. partners will be practising as barristers based property team She will be focused on the Ministry’s $1 from Wellington Family Law Chambers. as a solicitor. Olivia billion plus Christchurch Schools Rebuild The partners state “we would like to works with the team programme. take this opportunity to thank everybody on a diverse range of who has been involved in any way with property matters. Air New Zealand Wellington Family Law since its inception welcomes Astrid in 1994, and look forward to continuing Harkness Henry Sandberg those relationships from our Chambers.” announces two new appointments Astrid Sandberg has Five new team joined Air New Zealand members at William Zhang has as Senior Workplace Anthony Harper been appointed to Relations Manager. the litigation team. Prior to this, Astrid Susan Lyall has William has recently was Senior Legal joined the trust and returned to Hamilton Counsel at Vodafone asset planning team from Gisborne where New Zealand, Head of in Christchurch as a he has spent three Employment Law (EMEA) for the Royal Senior Associate. She years practising pri- Bank of Scotland, and in private practise has expertise in trusts, marily in family and criminal litigation. in the UK and at Russell McVeagh in New asset protection, elder William speaks fluent Mandarin and Zealand. law, estate planning Shanghainese and will be developing his Astrid holds a BA/LLB (Hons) from the and wills. Susan is also an experienced civil litigation practice. University of Auckland and an LLM from family lawyer. Recent graduate, Jay Cambridge University. She is a member of Olivia Welsh has Rajendram has been the ADLS Employment Law Committee. joined the health and appointed as a law clerk safety team as a Senior in the resource manage- Franks Ogilvie appoints Associate in Auckland. ment and employment new Senior Consultant She has experience in team. Jay is currently providing health and completing his profes- Brigitte Morten has joined Wellington law safety legal compliance sionals’ studies and is firm Franks Ogilvie as a Senior Consultant. advice to businesses expected to be admitted in late 2019. The firm says she brings for clients strate- and regularly advises clients on ways gic communications and issue advocacy to address risks in their particular work Rainey Collins appoints insights. activities. Olivia also provides guidance new associate Brigitte graduated with a Bachelor and representation to clients following of Laws and Bachelor of Arts in 2006 workplace incidents. Emily Martinez has from Victoria University of Wellington, Tom Brodie joins been promoted to a Masters in Law from the Australian the property team in associate from 1 August. National University in 2009, and has Auckland as a solicitor. She graduated from the a post-graduate diploma in Counter Tom’s work includes University of Otago Terrorism from the Interdisciplinary advice on a wide range with an LLB with first Centre in Herzliya, Israel. of property matters class honours. She has previously been a Senior including commercial Emily is in the firm’s Ministerial Advisor in the New Zealand and unit title acqui- litigation team, focusing principally on Government and has experience across sitions, subdivisions, high rise develop- Māori legal matters. She works with Australian state and federal politics. ments, rural and residential properties. whānau, hapū and iwi in claims before
14 LAWTALK 933 · October 2019 PEOPLE IN THE LAW · ON THE MOVE
the Waitangi Tribunal, and has a particular specialises in com- interest in Māori education, health, and mercial property and socioeconomic claim issues. retail leasing, and also provides advice on Saunders Robinson commercial contracts, Brown appoints four company structuring, General Counsel, much of his focus in the to commercial team joint ventures and first year on the job will relate to the new trust law. Trusts Act 2019, which will come into effect Four new lawyers have joined SRB’s com- on 30 January 2021. mercial team, specialising in commercial Alexandra Allen-Franks property and projects. awarded Cambridge Jonathan Gillard Trust Scholarship Advertising in was admitted as a LawTalk and barrister and solicitor Alexandra Allen-Franks has been awarded LawPoints in December 1987. a Cambridge Trust Scholarship and a Trinity His experience is in Hall Research Studentship to study a PhD Advertising inquiries can be directed commercial property at the University of Cambridge beginning to [email protected]. acquisitions & dispos- in October 2019. Information on conditions, rates als and retail leasing, Her research will consider admissi- and deadlines is available on the investment in New Zealand, commercial bility of evidence obtained in breach of Law Society website under News contracts, rural property and trusts. human rights in both criminal and civil and Communications/LawTalk. Jeff Kenny led the proceedings. commercial property Alexandra was admitted as a barrister and projects team at and solicitor in October 2014. She is a grad- Wynn Williams until uate of the University of Otago, a former Contributing 2019. He specialises in Judges’ Clerk of the Auckland High Court information to retail property develop- and a former junior barrister to Andrew On the Move ment and leasing. Jeff Brown QC at Bankside Chambers. is also a recognised Brief summaries of information author of legal publications and frequent Henry Stokes joins about promotions, changes in law speaker at legal conferences. Perpetual Guardian firms, recruitment and retirement Josh Orton was are published without charge in On admitted as a barrister Perpetual Guardian the Move (which is also available on and solicitor in 2003. He has appointed Henry the Law Society website). Please specialises in large scale Stokes as General send information as an email or MS acquisitions, disposals, Counsel. Word document (no PDFs please) subdivisions, leasing Henry brings a to [email protected]. and development wealth of trustee ser- Submissions should be three or four projects. vices experience from sentences without superlatives. We Katrina Wood graduated with a in-house and private may edit them to conform to the Bachelor of Laws with first class hon- practice roles, most recently serving as format used. A jpeg photo may be ours in 2016, and has previously been General Counsel for state-owned company included but please ensure you a member of Wynn Williams’ commer- Public Trust. have permission for us to use it. cial property and projects team. She In addition to Henry’s core duties as
Announcement Ross Knight, a specialist in trust, estate and relationship property litigation, will be retiring as a partner of TGT Legal on 31 October 2019, to practice as a barrister sole, from 1 November 2019. Ross will be joining Old South British Chambers situated on level 3 South British Insurance Company Limited Building, 3-13 Shortland Street, Auckland CBD. www.rossknight.com
15 NEW IN THE LAW · PEOPLE IN THE LAW
PEOPLE IN THE LAW NEW IN THE LAW Wellington via golf, Gore and Glasgow Honor Kerry, judge’s clerk at the Court of Appeal, Wellington
BY ANGHARAD O’FLYNN
for both of us. I also remember a par- university. These gave me an idea of what Born in Glasgow, Scotland, Honor ent-teacher interview in year 10 where working in the law might be like. Kerry spent the first four years of her life my social science teacher said that she “While I didn’t know much about what living in the Shetland Islands, the northern- wanted to see me as a lawyer or a politician it looked like in a practical sense, I did most point of Scotland. changing the law and creating policies to come out of school with firm expecta- “My parents wanted to move back to the make Aotearoa a better place. I have been tions of how I want to be treated and Scottish mainland when it came time for fairly focused on the law ever since.” how to treat others – equally and with me to start school but they felt that, as a respect for their individual dignity and What do you enjoy most about teacher and a physio, they wouldn’t be able differences. being a judge’s clerk in the Court to give my brother and I the upbringing “I started working in the law in January of Appeal and the work you do? that they wanted for us in Scotland. They 2018, about the same time as the publica- decided instead to give New Zealand a “What I enjoy most about being a clerk tion of revelations about the profession two-year trial and we are all still here 20 is the exposure that I get to all manner of which were far from those, perhaps naive, years later. legal issues and factual situations. I have expectations. I am, however, pleased to see “My family initially moved to Gore as gained an insight into parts of society, the cultural change that is starting to take it was the first place where my dad could business and government that I had (in place and hope that my naïve, but none- get a job. Within a year both of my parents some circumstances the privilege of) not theless firm and continuing, expectations had found jobs in Christchurch and we having any experience in before. I am will be met.” moved north. Despite then moving to constantly learning. Are there any issues currently Auckland for university, and now living “I also really enjoy the people that I have facing young lawyers that in Wellington, I remain a very proud come across in this role. I have wonderful you’d like to highlight? Cantabrian.” colleagues, have worked with fantastic people in the wider community, and have “As noted, the legal profession in New When did you decide that you wanted the – unlikely to be repeated – privilege Zealand requires meaningful cultural to work in the legal profession? of Court of Appeal judges listening to my change to restore its mana. “I don’t have any lawyers in my family opinions on a daily basis.” “The profession has serious issues with but my extremely intelligent and assertive mental health, sexual harassment, bully- After finishing your studies, did great-grandmother wanted to be a lawyer. ing, discrimination and a lack of diversity. you find the job matched the This, however, wasn’t the done thing at the I think that all of these issues boil down to expectations you had in school? time and the powers that be prevented a lack of respect for one another and the her from doing so. She went on to become “While I wanted to work in the law from a privileged positions that we, as lawyers, the British women’s champion in golf. I relatively young age, I had very little idea of hold in society. like to think that she channelled all of her what that would look like. The law is not a “These are serious issues and we must energy and intellect into hitting golf balls particularly accessible profession for young do better if we want to retain the people further and more accurately than those people. I had the privilege of not having to that can make the most positive change who prevented her from doing the same deal with the law in any substantive sense to our legal system.” ▪ with legal arguments. until I got to law school. “Her story both inspired and frustrated “I had the opportunity to do some Angharad O’Flynn is a Wellington-based me and it spurred me to work in the law summer clerkships while I was at journalist.
16 LAWTALK 933 · October 2019
PEOPLE IN THE LAW PROFILE Top barrister not afraid of a fight Belinda Sellars QC
BY TEUILA FUATAI
in the 10-strong group of appointees There was a time when there didn’t For Belinda Sellars it has last November. seem to be room for much else – always been about the underdog. “I’ve had so much positive reac- particularly the end of the 80s and From her days as a junior in the tion, particularly from younger the 90s. All you did was think about District Court representing some of lawyers and women and people of how much [you were going to bill].” Auckland’s most determined drink different backgrounds,” she says. And while men still dominate drivers, to her current post as one of “I find that very pleasing – that the legal profession, progress since the country’s top criminal barristers, I can be somebody that can be her early days has been significant, Ms Sellars does not shy away from approached.” she says. a fight. “It’s interesting talking about “I’ve had a circuitous route,” she Law in a less diversity in the law now. When I says modestly from her Chancery dominating age first started, it really was lots of old Street chambers. Related comments on the topic white men, even though we were “I started pretty early. I was still of “diversity in the law”, and the equal amounts coming through law only 16 when I started university. increasing prominence it has school. There were women around, I had missed seventh form which received in recent years, show a but they seemed to fade away quite wasn’t that unheard of in my day.” maturing of both Belinda Sellars quickly. That still happens now, but Counting backwards, she figures and the profession. hopefully it’s changing a bit.” she was just 21 when she began It starts with her path into law. One of the things she has noticed, representing clients. Coming from a family of lawyers, which underlies the need for “That does sound very young. I it seemed like a natural fit and better representation in the legal can’t remember exactly, but it would “eminently doable”, she says workforce, is how her presence as have been around that.” light-heartedly. a person of mixed ethnicity often Now, at the age of 47, she is about With Vietnamese heritage, she puts some clients at ease. to mark a year since being appointed stands out from the stable of “old “I sort of look like I’m of no fixed Queen’s Counsel in November 2018. white men” which has dominated ethnicity. It’s actually an advantage While there may not have been the profession, though that was because clients feel comfortable. much time for reflection since the not something she paid much And I think it’s something that we announcement last year, her wide attention to. often underestimate – how seeing smile when asked about it tells its Rather, it was all about the work, someone who might share your own story. Ms Sellars says. background can impact that client/ “It’s extraordinary,” she says. “I’m “I suppose it was a familiar advocate relationship.” so thrilled by it. It had been some- environment to me because of my Ms Sellars has Vietnamese ances- thing that I had always thought family and always being around it. try and speaks French, which she would be a wonderful thing to But, I now see how it must be quite picked up to communicate with her achieve and I’m incredibly grateful.” unsettling for someone, particularly maternal side of the family. Unpicking reactions to her if you don’t have the background. “My mother was Vietnamese, appointment results in an inter- “Honestly, I’ve probably spent but most of her family lived in esting discussion about changes in my career just sort-of looking in France,” she says. “I couldn’t speak the legal industry during Ms Sellars’ one direction and charging ahead a Vietnamese so I basically learned career. She was one of five women bit, rather than reflecting that much. French so I could speak to them.”
17 PEOPLE IN THE LAW October 2019 · LAWTALK 933
Drink drivers, commercial “I’d like it if the public was re-educated about what law and the PDS prison actually does and just the fact that when a person When asked about her choice of criminal defence work, gets into that cycle, it’s so hard to ever get out.” Ms Sellars points to her time as part of the original The reaction of certain clients and their family mem- Public Defence Service pilot team in Auckland as a bers when they interact with the system for the first crucial career point. time provides a bit of reassurance, she says. Launched in 2004 under Michael Corry, the service “One thing about our system is there’s this perception was her re-entry into criminal work after six years at that everything is there for the defendant. That couldn’t Russell McVeagh. Her stint at the firm followed two solid be further from the truth. It’s very dehumanising ... right years wrangling drink driving cases under Auckland down from the way you stand, the way you’re talked barrister Michael Harte. about and the way you’re addressed. “It was great because I got into court and I got lots of “It always amazes me when you get clients who exposure,” she says of her junior barrister days. have never had anything to do with the criminal justice “The clientele was real estate agents and car dealers. system and would be the ‘sorts’ that would be attracted They were people desperate to keep their licences and to some of the messages from the Sensible Sentencing were definitely a certain sort of person. It wasn’t the Trust or something like that,” Ms Sellars says. most politically correct of times,” she says with a laugh. “It only takes for them to be charged or a member of “He [Harte] had quite a unique approach to things the family to be charged to take on an entirely different but he was a great teacher. Seeing how he worked as perspective.” an advocate was an education in itself.” When she wanted to “spread her wings”, Michael Stress, injustice and satisfaction Harte insisted she seek employment at Russell McVeagh. Overall, Ms Sellars credits a full and varied career, with “So, I did. It was general litigation and lots of interest- numerous support people and mentors. ing work. But I came to a point where I thought it wasn’t There have been so many memorable moments, she says. quite me and that even though I enjoyed it, something The successful appeal for mercy of Tyson Redman, was missing.” who went to prison for assault following a wrongful Being back in the thick of the District Court with the conviction in 2007, sticks out. PDS cemented things for her, she says. “It was when I was still at the PDS that I started an “I think what had been missing for me at Russell application for the prerogative of mercy. That took five McVeagh was possibly a sense of purpose. I was finding years to be granted. It ended up almost 10 years after the commercial litigation a bit unfulfilling. events that we were listening to these witnesses again, “With criminal law, there’s a lot of social interaction. but this time they were in the Court of Appeal,” she says. You do often feel like you’re giving back quite a lot.” There is also the case of a disabled man, who was rep- After five years with the PDS and promotion to a senior resenting himself during a retrial in the Court of Appeal lawyer position, Ms Sellars took the leap and joined the for sexual offences. “He felt so strongly and argued for independent bar in 2009. Since then, her career has gone himself even though he had a speech impediment. I from strength to strength. took him through the journey of a trial again, where he was acquitted.” Underdogs and unhelpful clickbait Smatterings of dry, twisted humour from various drugs When asked if she ever considered a move to prosecu- cases are also mentioned. tion, she grins and quickly asserts her position on the And then there is her first murder case. Auckland Crown Prosecutions Panel. “But I haven’t yet “It was about a mother charged with killing her baby. prosecuted.” That was pretty sad.” “I suppose I’ve always liked being on the side of the After explaining the woman’s progress in a prison underdog. That said, I think it’s always good to be able reintegration programme, Belinda Sellars pauses briefly. to look at things from both sides. And to be a good She then cuts directly to what it is all about. advocate and adviser, you need to do that,” she says. “It’s the cases where you have a real feeling there’s Her measured approach extends to other facets of been an injustice of some sort. Those are the ones that society which impact criminal law. When we discuss are the most stressful and most rewarding. I’ve had the impact of media coverage on cases, and criminal quite a few of those over the years in different forms. justice issues, she shakes her head. The headline-grab- They cause you incredible stress at the time, because bing slant often put on cases and criminal issues adds you have a feeling that ‘this is riding on me’. But, they’re to misinformation about the justice system, she says. so satisfying when you get the right result.” ▪ “When things in the media over popularise calls that say ‘prison is the answer’ and ‘longer prison is the Teuila Fuatai [email protected] is an Auckland answer’, it is really concerning,” she says. journalist.
18 LAWTALK 933 · October 2019 PEOPLE IN THE LAW
PEOPLE IN THE LAW Reflections on a ground- breaking Feminist Moot
BY REBEKAH HILL, ELLEN LELLMAN AND EMILY SCRIMGEOUR
Arguments made by competitors focused on balancing In July, what is likely to be the world’s first the welfare of women receiving maintenance payments Feminist Moot was held by the Victoria University of for undergoing a process giving up their body and Wellington Feminist Law Society (VUWFLS). The event autonomy, contrasting against the risk of commercial was inspired by our experiences as young women in the surrogacy and the potential for taking advantage of legal profession, as well as in anticipation of the chal- vulnerable women. lenges entering New Zealand’s legal system, prompted by We had a plethora of feminist legal role models recent events highlighting gender issues. Getting started supporting us throughout the planning process with was an exciting but daunting prospect as we struggled hot takes, speedy email responses and wise words of to find evidence of anything similar being done before, advice and encouragement. Incredibly, word spread with the exception of a panel at Durham University in within Wellington and we had people approaching us the UK discussing how a feminist moot may be run, but to tautoko (offer support) during the very early stages. no competition ever being held. We also took inspiration from the Feminist Judgments When we began writing the problem question, we Project, which asked how seminal Aotearoa judgments wanted to encourage competitors to incorporate both would have read if written by a fem- feminist legal theory and tikanga principles into their inist judge to challenge the myth of submissions. We also wanted to create a safe commu- judicial neutrality. It also contains a nity space at law school, which has historically been a set of cases interpreted with mana masculine arena. wāhine approaches, respecting the Our moot acknowledged that the traditional ways complex issues Māori women face moots and real life litigation play out perpetuate gender living under both colonisation and biases, whether that be through the imposing archi- legacies of patriarchy. tecture of courthouses, restrictions on what women When it came to the day of sign- can wear, or the adversarial nature of submissions at What we ups, the spots filled up quickly and trial. The need for major structural changes in the legal proposed our preliminary round included sector’s organisation can seem insurmountable and with the eight teams of mooters. Competitors overwhelming at times, so we hoped this moot could Feminist performed incredibly well, under- add to existing conversations already being had about Moot is a taking analyses of the child’s welfare how legal reform can encourage equity amongst those new form of and best interests on both sides of who come to our courts, or those who deal regularly mooting that the problem. Its success speaks to in legal settings. aims to teach students’ excitement to compete We tasked ourselves with finding an area of law different in something that challenged how with competing feminist views. Narrowing this down styles of a court looks and sounds to better proved challenging, especially because such areas tend argument represent them. to involve heavy subject matter requiring thoughtful and oral There were various differences engagement. We wanted to strike a balance between presentation between our Feminist Moot and the necessity of talking about relevant, yet fraught, skills, not regular moots or trials. Some of social issues with making sure students felt safe. We based on these included a reduced emphasis also wanted to remain conscious of discussing these assimilating on formalities by relaxing the dress topics from our own positions of privilege. with code and encouraging accessible Eventually we decided that the most appropriate topic patriarchal language to be used by all. We with balanced arguments for both sides was surrogacy. conventions also encouraged the expression of
19 PEOPLE IN THE LAW October 2019 · LAWTALK 933
▴ Back row from left: Dame Susan Glazebrook, Steph Dyhrberg, Islay May Aitchison, Alice Mander, Ashley Parker, Emily Scrimgeour, Ellen Lellman and Isabella Lenihan-Ikin. Front row from left: Rose Peoples, Kellee Candy, Rebekah Hill, Sarah Mackenzie and Mariah Hori Te Pa
the individual mana of competitors and facilitated an awareness of the real lives involved in the case, rather than the dehumanisation that is often a by-product of legal focus. The judges also broke down barriers by introducing themselves with their mihi after competitors’ introductions, to minimise the power imbalances that normally exist. We were fortunate enough to have Justice Glazebrook judge our finals, who exhibited her own feminist perspectives by declining to choose between the finalists and declaring a draw. However, our other judges, Steph Dyhrberg and Mariah Hori Te Pa, congratulated the talented Islay May Aitchison and Kellee Candy as winners. We also facilitated a mentoring pro- ▴ Top right: Competitor Kellee Candy. gramme where we linked up wāhine Bottom right: Competitor Alice Mander working in law in Wellington to our moot competitors for support. We hope that What we initiative will continue to build enduring proposed connections between different members with the not based on assimilating with patriar- of our community, and we would like to Feminist chal conventions. We aimed to eradicate thank all those who volunteered their time Moot is a gender and race-based biases and to as mentors. new form of recognise the relationship between the Finally, after the event, we received mooting that law and the language it uses. In relaxing feedback from participants which was aims to teach the rules around formal court processes invaluable in helping us to reflect on the different and stressing to judges that equal weight moot and in looking to make this an annual styles of should be placed on feminist and tikanga competition at Victoria University. We also argument Māori perspectives, we hope we have hope this will inspire other law schools and oral created a starting point to be built upon. around New Zealand to take up their own presentation Though the moot was not as diverse feminist moots, and eventually we hope skills, not and transformational as it could have to develop a national event. based on been, it was the first of its kind, so we Overall, what we proposed with the assimilating hope this event contributes to the work Feminist Moot is a new form of mooting with already being done by so many people that aims to teach different styles of patriarchal to deconstruct, decolonise and pave a argument and oral presentation skills, conventions better way forward. ▪
20 LAWTALK 933 · October 2019
PEOPLE IN THE LAW The value of friendship in law Three lawyers from the class of ’64 reminisce
BY NICK BUTCHER
Collegiality and friendship in the legal community is ▴ Class of 1964 at a reunion at Government House important in a profession that is becoming increasingly in Wellington digital. Perhaps the best people to ask about the value of usual sorts of activities such as the law faculty club,” human connection between old colleagues are ‘old says Mr Upton. colleagues’. “Are we going to talk about what we got up to at John Upton QC, Sir David Carruthers and Geoff university?” says Sir David. Thompson all graduated from the University of Victoria “War stories?” I say. in the class of 1964. They’ve all had very different careers. “We haven’t got enough time,” says Mr Thompson. Sir David was the Chief District Court Judge, Geoff Thompson was President of the National Party, and an Studying law in their day MP for Horowhenua, as well as a practising lawyer, and Back in the 1960s, the basic law degree took five years John Upton QC continues to practice as a barrister. to complete and Victoria University classes were held Those university days have led to a friendship that in the old brick Hunter Building, unlike nowadays has endured for over 50 years. They all travelled dif- where they are held at the restored Old Government ferent paths through the law, but as Nick Butcher Buildings. It included two years full-time study with discovered, they’re a tight unit and still great mates the rest part-time while working in an office as a law after all these years. clerk. Some classes were held during the day while others were after work. Often, their lecturers were practising lawyers too. I was somewhat nervous about having coffee with “It was just part of the deal. The firm you worked for a Queen’s Counsel, a Knight and a former Member of encouraged you to study. They regarded you as an asset. Parliament. However, what I did find was three very They’d give you time off to study for your end of year normal men, who enjoy ribbing each other, something exams, they were different times,” says Mr Thompson, you can get away with when you’ve been friends for who worked for the Public Trust in those days. five decades. One of the law school surprises at the time was the “Here’s Uppy in his flash suit. Look at you”, Sir David compulsory study of Roman law. Carruthers says pointing to John Upton QC who still “We wondered why on earth we had to learn this, practises law and was dropping into the swanky La however it was an introduction to a legal system. It Cloche café in central Wellington. did relate to the law of equity and property. But really Sir David and Geoff Thompson were dressed more it just felt like an exercise in mind training in that it got casual in sweaters. Their plans for the day were, perhaps, you familiar with ideas,” says Mr Upton. a bit more relaxed than appearing in court. The study of Roman law replaced a previous require- “We all met at university and were involved in the ment of compulsory Latin, as part of the degree.
21 PEOPLE IN THE LAW October 2019 · LAWTALK 933
The reunion at Government House actions with respect of the death penalty in the United These former university friends never expected to have States. He also represented Samoa before the United kept in contact for 50 years, and an even bigger reunion Nations in a major case at The Hague,” Sir David says. was something very special. Recently, the class of 1964, which also included Absent friends prominent lawyers and judges such as, Sir Ken Keith Not everyone was at the reunion because time has caught who was the first New Zealander to be elected to the up and some have died. And one member of the class International Court of Justice, Sir Douglas Kidd and Bill of ’64 was struck off the roll of barristers and solicitors. Falconer, held a reunion at Government House. One of “We don’t know where he’s gone. He shall remain name- the class of ’64, Sir David Gascoigne, is married to the less but he was struck off for defalcations and eventually Governor-General, Dame Patsy Reddy and lives there. went to jail. We’ve not seen him in years and don’t know Sir Anand Satyanand is also part of the group, although whether he is even still alive. He turned up to one reunion he was not from ’64 and actually attended Auckland a long time ago after he was released from jail. You’d have University. thought that nothing had happened to him as he was as John Upton QC says he was given honorary member- large as life, but then he vanished,” Mr Upton says. ship some years ago, but that’s another story. The lawyers all agree that access to justice is one of “He’s our honorary patron pursuant to our non-ex- the most challenging issues for the justice system in istent rule book.” New Zealand. They also say climate change is something “We had a special dinner in the state dining room, that needs to be taken very seriously by all generations. toasted to absent friends, a toast to the class of ‘64 John Upton plants a lot of trees in Hawke’s Bay, where and we had a few speeches by various members,” Mr he has a property. Upton says. “It’s not for me to benefit but for my children and “We all have a friendship that’s endured over that grandchildren. We’ve got about 220 different species of time and become richer and more precious. We’ve lost trees. That includes about 20 different species of gum a few classmates in recent years which is why we really tree or more commonly called eucalyptus. We’re very treasure these reunions,” he says. into wetland development too,” he says. Back in 1964, the class of 35 students had only one We returned to talking about law again and this time woman studying law. In contrast, today, 60% of grad- observations about past judges. uates from law school are women. They remembered “Looking back when we all started there were judges that there was one Samoan student, one Fijian, and of the Supreme Court – before it became the High Court some Colombo Plan students, who were students from – who we thought were incredibly old. But they were underdeveloped countries that had gained Government- probably only in their 40s or 50s,” says Mr Upton. assisted funding from a body made up of countries that He remembers some of the met in Colombo, Sri Lanka. names of judges he appeared before back in the old days such as Sir Who started these reunions? Harold Barrowclough, Sir Douglas “I think it was organic,” says Sir David laughing. Hutchison, and Sir Alec Haslam. It turns out it had its beginnings in 1994 at Sir David’s Sir David Carruthers and Geoff house. John Shaw, who was also part of the class of Thompson add that an ideal place ’64, worked for a liquor company at the time so they to sharpen up on legal skills was to figured there might be the possibility of a discount on attend court and watch other lawyers refreshments for the event. in action. Mr Thompson says many There were also reunions held at upmarket Bellamys, We all have lawyers have turned into successful an eating institution in the Beehive. a friendship commercial leaders, such as Barry “Sir Douglas Kidd, a lawyer, an MP and Speaker of the that’s endured Dineen and Lindsay Ferguson, who House of Representatives, pressed the right buttons to over that were both part of the class of ’64. make that happen,” says John Upton QC. time and “Barry Dineen worked for Shell These days, people are professionally connected become richer Oil in New Zealand, Nigeria, and the through online sites such as LinkedIn or socially through and more United Kingdom. He actually played Facebook. But these lawyers are a bit more traditional precious. cricket for Nigeria against Ghana and simply picked up the telephone. We’ve back in his day,” John Upton says. “One of the intriguing things to me was the fact that lost a few And ending on the subject of sport, we would all meet every five years and just pick up classmates in Sir David, Geoff and John, all predict things where we left off. You’d resume your conversa- recent years that the All Blacks will win the Rugby tions,” John Upton says. which is why World Cup for a third time in suc- Geoff Thompson says while they all moved in different we really cession. Whether their prediction is directions after law school, the common thread was ’64. treasure these correct is something we will all have “Roger Clark for example. He’s involved in leading class reunions. to wait a little longer to find out. ▪
22 LAWTALK 933 · October 2019 PEOPLE IN THE LAW
PEOPLE IN THE LAW The Innovators Charlotte Baker, Legal Design Engineer at Wavelength
BY ANDREW KING
pressure to deliver legal services more clearly, visually and LawFest organiser Andrew King continues a series enhanced seamlessly by technology. When you’re used of interviews with key legal professionals with their to the great design offered by Apple, Google, IKEA et al, innovation and technology stories. it’s natural to have the same expectation of legal services. Legal service providers are facing more pressure than What does legal innovation ever to deliver top quality legal services more efficiently mean to you? and under new cost structures. In-house clients are often Legal innovation is about improving the way the legal under-resourced and feeling the pressure to “do more system works. It means reimagining the future of law, for less”. Law firms can no longer be complacent – their questioning entrenched norms and establishing better clients expect them to be embracing efficiency, auto- ways to deliver law to people. mation, new fee structures and smarter (cheaper) ways As a legal designer, I innovate by applying design of working. Many businesses are driving efficiency in thinking to the law – combining legal expertise with a their legal divisions and exploring new business models design thinking approach by embracing visualisation, around the use of data, which pose tricky questions plain language, simplicity and smart use of technology. for counsel. All these challenges can be tackled with This allows us to improve any aspect of the law – from legal engineering and legal design – the sensible use of legal contracts, policies and legal advice, to workflows technology, data science and design within law. and organisational structures that lawyers operate in. What developments do you see in What role does technology how legal services are delivered? play in innovation? Lawyers are starting to see the value of putting their Technology can really enhance legal innovation, making clients at the centre of their service delivery. There has legal solutions more interactive and digitally accessible. been a realisation across the market that, in many cases, However, technology does not equal innovation. With the way we deliver legal services is not appropriate for all the hype around legal technology and the ‘race to the users or consumers of those services (eg, contracts innovate’, we’ve seen many legal teams hastily buy tech written by lawyers, for lawyers) and organisations are solutions. But technology tools are not a ‘quick fix’ to starting to embrace legal innovation and design. solving your problems. We need to start by understand- We are seeing lawyers collaborate more. Legal design ing the crux of the problem we’re trying to solve – our thinking advocates working collaboratively with a users’ needs and pain points – then design a solution diverse team (like data scientists, technologists, design- that solves that problem. If this requires technology, ers, HR professionals, psychologists, as well as lawyers) we select the most appropriate piece of tech to help. to generate the best and broadest range of ideas for What people often miss is that technology is just approaching legal problems. one piece of the puzzle – tech must be implemented in conjunction with good design, legal engineering (eg, What opportunities has legal training a machine learning tool) and project and change innovation brought to you? management. The rise of legal innovation has allowed me to move away from traditional legal practice and build my career as What pressures are organisations facing a legal designer. It’s given me the opportunity to work in the delivery of legal services? towards making the law more engaging, accessible and The modern-day legal client – just like consumers in most understandable – something I feel passionately about other sectors – expects robust design. There is mounting and suits my character and skillset.
23 PEOPLE IN THE LAW October 2019 · LAWTALK 933
UPDATE EMPLOYMENT LAW Barriers to participation CONTINUED FROM PAGE 23 in the What are some of your tips to start innovating or developing an employment innovative mindset? Start thinking about the user. institutions Who is the consumer of your legal advice? What do they really need to know, and what do they not care about? Would it be easier for them BY CHIEF JUDGE to understand your advice if you CHRISTINA INGLIS wrote it in more ‘human’ language (without jargon or unnecessary complexities) or reformatted your advice into a visualisation? If you be accessed and are now delivered. shift your mindset to put the user Community groups, academics, There was much support for at the heart of your legal service policy makers, senior legal prac- providing additional resources to delivery, you’ll be innovating before titioners, representatives from community organisations where you know it. unions, Business New Zealand, the people might first discuss workplace Canterbury Chamber of Commerce, problems, including church groups Why is it important for Employment Mediation Services, the and doctors. Some information legal professionals to Employment Relations Authority and suggested many people turned to continue to learn about the Employment Court gathered in their doctor as the first source of legal innovation and Wellington in May to discuss barriers how to deal with such problems, leveraging technology? to participation in the employment due to effects on their health, and It’s important that all legal profes- institutions and how those barriers medical practices might act as sionals are working toward making might be better navigated. a useful conduit for information the law more user-friendly – more It was the second in a series of and assistance. The New Zealand engaging, accessible and under- symposia organised by the Auckland Law Society and other legal rep- standable. This is likely to mean University of Technology’s Work resentative groups were identified adopting legal technology and Research Institute, the Authority as being well placed to undertake embracing legal design to do things and the Court. The symposium an important role in this regard. better. provided a valuable opportunity to There was also much support for The legal industry is experiencing hear directly from the communities ensuring that a diverse range of massive disruption (about time!) the employment institutions are tools was available, beyond those and those who refuse to embrace designed to serve, including those which are exclusively online. This legal innovation are going to be left in precarious employment. point was reinforced by University behind. There are so many opportu- Many contributors highlighted of Otago Legal Issues Centre director nities for us as lawyers to do better the perceived complexity of Bridgette Toy-Cronin, who talked by our clients – and we should all be employment law and practice, and about the research she has done welcoming this positive change. ▪ difficulties in understanding how into what does and does not impede to navigate the dispute resolution access to the justice system. Andrew King [email protected] is process. A number of cultural issues organiser of LawFest and Charlotte were also raised, ranging from a Focus on costs Baker will be one of the speakers reluctance to challenge or ques- The cost (including financial) of pur- at LawFest 2020 in Auckland on 18 tion those in authority, to the way suing and defending employment March 2020 www.lawfest.nz in which mediation services must disputes continued to receive a
24 great deal of focus, including for vulnerable workers presence of lay advocates), which and small to medium-sized employers. Numerous has occurred against a backdrop participants identified this as a significant barrier to of diminishing union presence in positive engagement with the employment institutions workplaces. The implications of this and, rather, as an incentive to look at settlement as the for those who could not afford to only viable option. Possible solutions were canvassed, engage professional assistance and including that the Employment Relations Authority give support were discussed. Speakers further consideration to adopting a different (possibly from the Auckland Community no-costs) regime. Law Centre and Citizens Advice The reputational costs of pursuing employment Bureau's national office outlined disputes, and the impact of the current general prac- initiatives they are undertaking, tice of naming parties in determinations and court including a pro bono scheme assist- judgments, were identified as key concerns. The Chief ing self-represented litigants which of the Employment Relations Authority spoke of his has been piloted by the Centre in the understanding (from feedback he had received over Employment Court and has recently the years) that the prospect of name publication was Many been expanded to the Authority in sufficient to steer many people away from pursuit of a noted the Auckland. Work is also underway, claim beyond the confidential mediation setting, and demonstrable with the assistance of the Michael that it was not uncommon for those who had been increase in the and Suzanne Borrin Foundation, to named in a determination (as a party or a witness) to demand for develop a WorkBot chatbot provid- have considerable difficulty finding alternative work. support and ing access, via a smartphone device, In this regard, reference was made to the practice of assistance in to information about employment online searching by some recruitment agencies and employment law and how to resolve disputes. employers. It was suggested that consideration be given matters over Papers from the first and second to reversing the general presumption and to discussion recent years symposia are available at as to whether legislative amendment might be required, ... against a https://workresearch.aut.ac.nz/ given the approach adopted by the Court of Appeal to backdrop of reports-and-projects/papers-and- non-publication, including in employment matters. diminishing presentations#barriers2 ▪ Many noted the demonstrable increase in the union demand for support and assistance in employment presence in Chief Judge Christina Inglis is Chief matters over recent years (including the developing workplaces Judge of the Employment Court.
25 INCORPORATED SOCIETIES · UPDATE October 2019 · LAWTALK 933
UPDATE INCORPORATED SOCIETIES New Incorporated Societies Act Progress Report 2
BY MARK VON DADELSZEN
In the second in a series of three articles, Mark von Dadelszen looks at the proposed reform of the law relating to incorporated societies. This involves a complete overhaul of the existing century-old legislation.
Society constitutions The new Incorporated Societies Act is proposed to require Cabinet Paper suggests that societies are “too diverse that society constitutions include, as a minimum, the for standard constitutional provisions or model consti- name and purposes of the society, how people become tutions”. However, some Government ministries may members and cease to be members, provisions to keep pick up on the Law Commission’s alternative sugges- an up-to-date register of members. There will need to tion (in paragraphs 7.58-7.59 of its report) of a society be provision for the composition, roles and functions of constitution-builder. committees, how the society enters into legal obligations, controls and manages its finances, and keeps financial Membership of societies records, arrangements and requirements for general meet- Under the Incorporated Societies Act the minimum ings – including the intervals between general meetings, membership of an incorporated society will reduce to when minutes are required to be kept, the manner of 10 (from the present 15), with corporate members still calling meetings, the time within which, and manner in being equivalent to three individuals. The minimum which, notices of general meetings and notice of motion of 10 will apply at the time of, and after, incorporation must be notified, the quorum and procedure for general (with annual reporting of membership numbers to meetings, and voting procedures for general meetings. the Registrar), and if the minimum A society will be empowered to include rules in its drops below 10 the Registrar may constitution (consistent with the constitution and the give notice to a society to increase statute), to make bylaws (no longer subject to the Bylaws membership to the minimum or be Act 1910), to express its tikanga or culture, and to provide deregistered. New members must for any other matter relevant to the society’s affairs. explicitly consent to becoming The new statute will require that all constitutional members of a society (possibly alterations be notified to the Registrar within 30 days, subject to some minor exceptions). taking effect from registration or a later specified date. The new statute will continue Courts will have new discretionary powers to amend The June to prohibit societies from operat- a society’s constitution if a constitutional amendment 2019 Cabinet ing for the financial gain of their was not made in accordance with the constitution or Paper members and from distributing the Act, if it is not practicable for a society to amend suggests that any gain, profit, dividend, or other its constitution itself as required by its constitution, if societies are financial benefit to their members. a society’s constitution is operating or would operate “too diverse However, a society that ceases to in an oppressive, unfairly discriminatory or unfairly for standard exist may distribute surplus assets prejudicial manner, and in any other circumstances constitutional to a member which is itself a not- considered just and equitable. provisions for-profit entity which does not While the Law Commission recommended that or model provide for distribution of surplus a model constitution be provided, the June 2019 constitutions." assets to its members, and as part
26 of an amalgamation, may distribute Societies with branches The minister’s proposals will lessen any gain, profit, dividend or other Branch/parent society relationships the burden for smaller societies not financial profit to a member which will be defined by those entities, not registered as charities (those with is a body corporate and is the entity by legislation (at present under the annual expenditure of less than into which the society and member 1920 Amendment Act). There will be $10,000, or assets less than $30,000 are amalgamating. However, a soci- no separate provision for incorpora- or which do not have “donee” status ety will be empowered to reimburse tion of branches, but a branch may under the Income Tax Act 2007). members for reasonable expenses be incorporated as a society in the The new “Accounting Standards related to the society, pay members normal way, and existing registered Framework” altered the form of for services on a normal “arm’s branches will be “grand-parented”. financial statements (Financial length” basis, and provide benefits However, further consideration will Reporting Act 2013 and External and incidental prizes and discounts be given to the implications relating Reporting Board) for accounting to the public including members to the inter-relationship between periods commencing from 1 April and their families. the proposed new Act and the 2015. Society members will have Employment Relations Act 2000 and statutory rights to access financial its application to societies whose Complaints and reports presented to the annual gen- members are other societies or who grievances eral meeting, to access minutes of have a multiple branch structure. Every society constitution will be previous AGMs, to access a register required to include procedures of committee interests, and those Society administration to deal with internal disputes. rights will be supplemented by the Every society will continue to be Societies must maintain procedures right to request other information, required to have a registered office for complaints concerning miscon- which a society may decline to in New Zealand, and will usually be duct of or discipline of members, provide in defined circumstances. able to change its registered office and grievances raised by members Members will still not be liable (and may nominate that this takes concerning their rights or interests for a society’s obligations, and the effect on a date after the Registrar as society members. However, socie- new provision will be generally is notified of the change). ties will be free to continue, develop aligned to that in section 97 of the Societies will be required to file or adopt complaint, disciplinary or Companies Act 1993. Societies will annual returns (online filing will grievance procedures to meet their also be empowered to indemnify be facilitated), with prescribed needs, as long as their procedures members and employees who act information. Larger societies will and practices satisfy relevant speci- in good faith in pursuing a society’s be required to file annual financial fied natural justice minima defined activities, and to take insurance for reports (the format to be determined in the Act (eg, the right to be heard the purposes of that indemnity. by the External Reporting Board). and to prepare a defence).
27 October 2019 · LAWTALK 933
to make it clear that an incorpo- rated society generally has wide powers (unless expressly negated in its constitution) to buy, sell, exchange, develop and mortgage property, borrow money and give security for it and to issue negotiable instruments, receive and make gifts, enter contracts and leases, employ people, and belong to other similar societies or associations. How societies may enter into legal obligations is likely to be spelt out (see clauses 91-92 of the 2015 Exposure Draft Bill). Ultra vires actions The new statute is expected to provide that no act of a society and no transfer of property to or by a society is invalid merely because the society did not have the capacity, the right, or the power to do the act or to transfer or take a transfer of the property. It will protect third parties who are unaware of any incapacity when they deal with a society. Costs in legal Decision-makers in all classes of with complaints or grievance proceedings dispute will be required to be impar- procedures by referring them to The new statute will not include tial and able to consider the issues an external arbitrator or arbitral a provision relating to security for without a predetermined view. tribunal, by appointing a visitor costs in legal proceedings (existing A society will be empowered to (or referee), or through binding court rules are considered ade- elect not to consider or continue arbitration. quate). ▪ considering a complaint or griev- ance if the issues are trivial, if no Legal capacity Mark von Dadelszen mark. material misconduct is disclosed by of societies [email protected] is a the complaint or grievance, if the Incorporated societies will be consultant with Bannister & von complaint or grievance appears deemed to have full capacity to Dadelszen. He was a member of the to be without foundation, if the carry on or undertake any busi- reference group advising the Law complainant has an insignificant ness or activity, do any act, or Commission in the preparation of interest in the matter, or if the issue enter into any transaction, and its report on the proposed reforms, has already been investigated and the new provision will be gener- and was engaged by MBIE to advise dealt with. ally aligned to section 16 of the on the proposed model constitu- Societies will also be empowered Companies Act 1993. For avoidance tion as originally recommended by to meet their obligations in dealing of doubt, the new statute is likely the Law Commission.
28 LAWTALK 933 · October 2019 UPDATE
UPDATE Supreme Court provides guidance to lawyers on testamentary capacity
BY SALLY MORRIS AND FREYA MCKECHNIE
in early 2010 to discuss changing her will. Sandman v McKay [2019] NZSC 41 concerns a son’s claim against Mrs Sandman was concerned her will was the law firm that drafted his mother’s will. The majority decision unfair to her daughter Victoria, as her son of the Supreme Court indicates that where lawyers are instructed Mark had received greater financial support to draft a will, they should do so even if they suspect a client from her during her life than Victoria had. may lack testamentary capacity or be subject to undue influence. Ms Paul met with Mrs Sandman again in However, lawyers should carefully document the advice given October 2010 to take instructions to prepare and steps taken. It would also be prudent for a lawyer to suggest her new will. Victoria was present during that a medical certificate be obtained. the meeting. While the Supreme Court did not need to determine the extent Later that month, Ms Paul sent a letter of a lawyer’s duty in these circumstances for the purpose of its to Mrs Sandman, care of Mr Giboney, sum- decision, the court’s comments provide helpful guidance for marising her instructions and setting out practitioners who are concerned about a client’s capacity but the further information required to prepare have instructions to draft a will. the new will. Ms Paul also suggested that it would be prudent to obtain a medical The facts certificate from Mrs Sandman’s doctor to Elizabeth Sandman died on 30 October 2013, leaving a will dated confirm she had testamentary capacity. 2 December 2010. Under this will, Mrs Sandman’s son, Mark Mrs Sandman’s doctor provided a medical Sandman, received less than he would have under her previous certificate confirming she had capacity will, which was executed in 2005. based on the last time she saw her, which The law firm that prepared Mrs Sandman’s 2010 will began was one month earlier, in September 2010. acting for her in 2007, when she granted enduring powers of Mrs Sandman then executed the will in attorney (EPAs) in favour of her daughter, Victoria Sandman. A December 2010. Under the 2010 will the family friend, Mr Giboney, was the successor attorney to Victoria residue of Mrs Sandman’s estate went in under the property EPA. equal shares to Victoria and Mark. Mrs Sandman met with Ms Paul, a solicitor from the law firm, Sadly, Victoria died of a terminal illness in March 2011. Mrs Sandman met with Ms Paul to discuss the 2010 will following Victoria’s death. However, Mrs Sandman advised that she did not want to change her will. Under the 2010 will, Victoria’s half share of the
Legal Accounting Bureau · Save time and money Kathy Kell residual estate went to relatives and family provides comprehensive, · Always know your trust account [email protected] friends, whereas under the 2005 will the accurate, efficient and timely is balanced and your month end certificates are filed on time Ph 09 444 1044 entire residue would have gone to Mark. management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure and confidential www.accountingbureau.co.nz In correspondence following their Outsource the management of · Trusted professionals with over meeting, Ms Paul stated that Mrs Sandman your firm’s trust account. Either 20 years’ experience come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. appeared to have a good understanding of you remotely. services Practice Management software you can trust. her 2010 will and how her estate would be distributed in light of Victoria’s death.
29 Mark’s claims Lower courts’ decisions Mark Sandman filed a claim in November 2016 seeking The High Court held that “a careful examination of indi- to recall probate of the 2010 will and obtain a grant of vidual facts” was required to establish whether dishonest probate of the 2005 will. He claimed that his mother assistance was made out. The evidence ought to be tested lacked testamentary capacity when she executed the at full trial, as Mark’s pleadings “endeavoured to identify 2010 will and, as a result, that will did not reflect her facts indicating the knowledge of the firm on which a wishes but instead those of Victoria and Mr Giboney. claim of knowing assistance could be founded”. Mark also brought a claim against the partners of the The Court of Appeal was satisfied that, assuming the law firm based on dishonest assistance. There are four firm’s actions somehow amounted to assistance in a components to a claim for dishonest assistance: breach of fiduciary duties owed to Mrs Sandman, Mark • the existence of a trust; could not establish at trial that the firm’s actions were • a breach of that trust by a trustee that results in a loss; undertaken dishonestly. The firm was entitled to an • participation by the defendant, a third party, assisting order for summary judgment and it was therefore not in the breach of trust; and necessary to consider the strikeout application. • dishonesty on the part of the defendant. In this case, Mark contended that a claim for dishonest Supreme Court majority decision assistance could be available where there is a breach The question for the Supreme Court was whether the of fiduciary duty, rather than a breach of trust. He Court of Appeal was correct to grant summary judgment argued that Ms Paul assisted Victoria and Mr Giboney on the basis that the material before the court showed in breaching EPAs, under which they owed fiduciary conclusively that there was no dishonesty on the part duties to Mrs Sandman. Mark pleaded that their breach of the firm. was obtaining control of Mrs Sandman’s affairs “and in Mark argued that the firm assisted with Victoria and particular the execution of the [2010 will]”. Mr Giboney’s breach of fiduciary duty by preparing a Mark sought damages based on the difference between will and having it executed, either knowing or wilfully what he received under the 2010 will – $440,000, being blind to the fact that Mrs Sandman lacked capacity. half of the residual estate – and what he would have The Supreme Court set out the steps that a prudent received under the 2005 will – the entirety of the residual solicitor would take if in doubt as to whether a client estate. lacked capacity. The court commented that after taking The law firm applied to strike out Mark’s dishonest these steps, it is arguably not up to the solicitor, who assistance claim and for summary judgment. These is not a medical expert, to decide whether a client has applications were the subject of the Supreme Court testamentary capacity and whether to follow his or her proceedings. instructions. The court held at [81]:
30 LAWTALK 933 · October 2019 UPDATE
“The position arguably is that a solicitor, even if he The position obliged to withdraw from acting or she does not think a client has capacity, would arguably and that it would be a breach of nevertheless be obliged to prepare and arrange for is that a the duties owed by the solicitor the execution of the will. The issue of actual capacity solicitor, to the client for the solicitor to would then be decided after the client’s death, on even if he or participate in the transaction.” the basis of the evidence including expert medical she does not On the issue of summary judgment, evidence.” think a client Elias CJ held that Mrs Sandman’s For the purpose of the appeal, the Supreme Court was has capacity, capacity and the extent to which prepared to assume that the firm could be liable for would any material impairment or influ- dishonest assistance if Ms Paul knew Mrs Sandman nevertheless ence was known to the firm could lacked capacity or was wilfully blind to this. However, be obliged to not be properly assessed without a the court held there was no argument that the firm sus- prepare and full trial. On this basis, the Court of pected Mrs Sandman was incompetent and deliberately arrange for Appeal erred in granting summary decided not to inquire in case that inquiry resulted in the execution judgment. actual knowledge. of the will However, Elias CJ held that Mark’s In fact, Ms Paul had suggested a medical certificate claim, as pleaded, was untenable in should be obtained prior to Mrs Sandman making the law and should be struck out. She 2010 will and one was provided by her doctor, certifying held that Mark could not bring a that Mrs Sandman had capacity. Although there were claim for dishonest assistance on no file notes before the court, correspondence made it the basis of his potential interest clear that Ms Paul was satisfied that Mrs Sandman had under the 2005 will. testamentary capacity. Elias CJ commented that it is not The Supreme Court held that for Mark to succeed at settled law whether participation in trial, he “would have to prove that the contemporary a breach of fiduciary duty is sufficient foundation for a documentation did not reflect what had happened and claim of dishonest assistance, or whether there must that the relevant documents were effectively constructed be a breach of trust. However, she proceeded on the by Ms Paul … to mask her knowledge of [Mrs Sandman’s] assumption that participation in a breach of fiduciary incapacity”. This included the firm’s correspondence, the duty was sufficient foundation for a claim of dishonest medical certificate and an independent solicitor’s certi- assistance. Elias CJ held that Mark would only have fication in relation to the EPA regarding Mrs Sandman’s standing to bring the claim if Victoria and Mr Giboney mental capability. were trustees of a trust he was a beneficiary of, or if they The Supreme Court commented that “[s]ummary owed Mrs Sandman fiduciary duties through which he judgment will be inappropriate where there are fac- benefitted. His potential expectation under the 2005 will, tual disputes and, in particular, credibility issues that a testamentary disposition Mrs Sandman could change, cannot be resolved on the basis of the affidavit evidence”. was insufficient for a claim of dishonest assistance. However, Ms Paul’s credibility was not at issue. The contemporaneous documentation made it “clear that Conclusion Ms Paul did not doubt Mrs Sandman’s capacity and was The majority decision of the Supreme Court provides not wilfully blind to that possibility”. some comfort to lawyers who frequently prepare The court also commented briefly on the strikeout wills, by recognising that it is not up to the lawyer to application. There was nothing to suggest that either determine capacity. If in doubt, the position is arguably Victoria or Mr Giboney’s actions amounted to a breach of that a lawyer should nevertheless draft and arrange for fiduciary duty. Even if the court accepted that a breach of execution of a will. fiduciary duty was sufficient for a dishonest assistance It will, of course, always be prudent for a lawyer to claim, and that it was not necessary for Mark to be the arrange for a medical certificate to be obtained if there party the duty was owed to, there was no such breach. is any concern around capacity. The reliance placed on Accordingly, there was no arguable cause of action and contemporaneous documentation in this case should the firm had a strong case for strikeout. also serve as a reminder to lawyers of the importance of taking comprehensive file notes and recording obser- Supreme Court minority decision vations or concerns about capacity in legal advice and In contrast to the majority, Elias CJ considered it argu- correspondence. able that a solicitor who is uncertain about a client’s The decision also demonstrates that it is not always capacity may be obliged to withdraw from acting. She clear-cut whether a claim is appropriate for summary stated at [132]: judgment. The majority of the Supreme Court agreed with “I doubt that a solicitor who knows a client to lack the Court of Appeal’s decision to grant summary judgment, testamentary capacity is nevertheless obliged to while Elias CJ held that a full trial was warranted. ▪ carry out the client’s instructions, leaving capacity to be assessed after death. ... [i]t is arguable that a Sally Morris [email protected] is a partner solicitor who formed the view that a client lacked and Freya McKechnie freya.mckechnie@morrislegal. capacity or was being unduly influenced would be co.nz a solicitor at Morris Legal in Auckland.
31 ACCESS TO JUSTICE
32 LAWTALK 933 · October 2019 ACCESS TO JUSTICE
ACCESS TO JUSTICE
Public Defence Service An important influence on criminal law practice
BY GEOFF ADLAM
From a pilot scheme in Manukau in 2004, the Public Defence Service (PDS) has grown to an organisation with 10 offices and around 250 staff, 181 of whom are lawyers. It is having an important impact on the practice of criminal law.
he Manukau pilot took off after Dame Margaret Bazley’s often scathing 2009 report, Transforming Tthe Legal Aid System, recommended the use of publicly provided services where case volumes were suf- ficient to make them an efficient option. The result was expansion of the PDS through the rest of Auckland, and down New Zealand, with the last office, in Christchurch, opening in 2012. A few months after the PDS arrived in Wellington in February 2011, senior criminal lawyers publicly contem- plated going on strike and working to rule to protest at what was described as “a takeover by a government-run legal-defence agency”. Some forecast the imminent demise of the private criminal bar. The bar is still very concerned at where the criminal lawyers of tomorrow will come from. However, the PDS is clearly here to stay and it has become an important influence and contributor to the health of criminal practice. “We’re a huge part of the future of the criminal bar, and I hate to think what might have happened if there wasn’t a PDS,” says Public Defender Northern Rob Stevens. Mr Stevens joined the PDS upon the opening of the Tauranga office in 2012 after 19 years as a partner at Wellington firm Fanselows. He has seen a major change in how criminal law is practised. “I started in 1986 and I remember in those days that a QC never appeared without a junior, even if it was just an ordinary list matter. Every little firm had a criminal practice. The Crown used to be the premier training ground for criminal lawyers and everyone aspired to be Crown prosecutors – or at least to be part of the Crown and to be trained by them.”
◂ Wellington PDS lawyer Grace Kahukore-Fitzgibbon at the Porirua District Court
33 ACCESS TO JUSTICE October 2019 · LAWTALK 933
Changes That’s changed immeasurably, he says, particularly over the last decade. “The changes in Crown funding has meant a lot fewer opportunities from the Crown. I think there are fewer opportunities at the private bar for young lawyers. QCs don’t appear with juniors now as a matter of course. And I think it’s falling to us to a certain extent to fill the gap. I think we’re doing a good job.” The PDS was principally established to provide effective, cost-efficient legal services. “We still obvi- ously strive to do this. But I think we’ve become much more important to the profession generally in terms of providing for the future of the criminal bar. I think one of the biggest issues facing us as a profession is, where are the future criminal lawyers?” Mr Stevens says. The PDS sees itself as a leader in securing that future by providing training and a supportive practice envi- ronment. Its structured Law Graduate programme gives new lawyers the chance to immerse themselves in a criminal defence environment. Since 2016, a total of 36 law graduates have joined the PDS. Three are still at graduate level, eight are now supervised providers (with the next step qualification ▸ Grace as PAL1 [Criminal Provider Approval Level 1] lead law- Kahukore- yers), 20 are PAL1 lawyers and five have moved on to Fitzgibbon, a other opportunities. Another seven graduates joined Wellington- the PDS for a six-month fixed term on 5 September. based PDS Recruitment is also underway for five summer interns lawyer for three-month fixed terms starting on 25 November. Training ground “It’s a great training ground,” says Grace Kahukore- Fitzgibbon, a member of the Wellington PDS who became PAL1 qualified this March after a year as a supervised provider. “Practitioners at our level are exposed to a lot of court time and an interesting variety of cases through being at the PDS.” Wellington PDS lawyer Julia Spiers was hired for the PDS summer intern programme over 2016/17 after her fourth year of studying law. “I thoroughly enjoyed it, with the sense of collegiality in the office and being able to see real cases in action rather than just doing photocopying and scanning and admin tasks. It was really beneficial being able to work on submissions and meet real clients and do as much as I could without actually being a lawyer – and then to see the case play out in a real courtroom with the judge referencing the submissions I’d been working on. I found that a really rewarding and valuable experience.” “Just itching to go back” to the PDS, Ms Spiers finished her law degree and the profs course and started back in the Graduate Programme in March 2018, becoming a supervised provider three months later when she was admitted. She moved to PAL1 in July this year. “I felt very prepared. In the office we’re able to ask ▸ Julia Spiers, anyone for help and everyone’s very approachable if a Wellington- you’ve got any questions – but no-one’s looking over based PDS your shoulder the whole time. You have independence lawyer
34 LAWTALK 933 · October 2019 ACCESS TO JUSTICE
and you’re trusted to do your own work, which is a good mix because it because we’re part of the ministry.” increases your confidence in dealing with the client.” He says he has never once felt a The sense of collegiality, a well-developed training programme and the disadvantage at the connection with on-tap resource of experience appeal to both young women. the ministry – “apart from perhaps “You hit the ground running. From day one I was writing submissions the profession’s perception of our and helping to deal with clients, doing real work that I was able to take independence”. He also points to ownership of as well,” says Ms Kahukore-Fitzgibbon. the Lawyers Conduct and Client “People don’t have the capacity to micromanage, so there’s a lot of trust. The Care Rules: “It’s our responsibilities senior staff are open to answering questions, but ultimately we’re trusted.” as lawyers that take precedence”. “In fact we derive a lot of benefits Stress and pressure from being a part of the ministry, Both acknowledge that working in a busy criminal practice can be stressful. the support and access to resources “There’s always stress and pressure because in the courtroom you get the ministry provides makes a real things thrown at you from judges and clients,” says Julia Spiers. difference for us as an organisation.” “It’s emotionally charged, it’s interesting, you’re really Len Andersen says that with making a difference. Often you’re representing someone half the legal aid work going to the who can’t speak up for themselves. I love it; I’ll be here PDS in the centres it works in, it is for a while. It’s access to justice for people who wouldn’t difficult for criminal practitioners in be able to pay for it.” You’re really many areas to get enough work to “It can be stressful because the case loads are high, making a earn a good income because of the but you just learn so much so quickly,” Ms Kahukore- difference. low legal aid rates and the econo- Fitzgibbon says. “The high case loads can mean there’s Often you’re mies of scale. extra pressure. But that’s balanced by the support and representing “The shortage of work means that knowledge in the office.” someone senior lawyers often compete with Information released by Justice Minister Andrew Little who can’t junior lawyers for PAL2 work which in response to parliamentary questions shows that at speak up for makes it difficult for junior lawyers 1 May 2019 the average case load for a PDS lawyer was themselves to survive. It has also resulted in 43.8 cases. This was slightly up on May 2018 (43.2 cases). ... It’s access senior lawyers leaving the bar to At 1 May 2019, the average active legal aid cases that an to justice for work for PDS – which has benefitted individual legal aid provider (including PDS lawyers) had people who PDS but also further reduced the was 38.4 cases, down on 39.2 at 1 May 2018. Big case wouldn’t senior bar.” loads, but the statistics do not indicate any significant be able to Mr Stevens says he is not aware disparity. pay for it. of any future plans to expand the Both Julia Spiers and Grace Kahukore-Fitzgibbon say PDS. He believes it provides a good there is a real sense of collegiality between members of balance with the private bar for the private bar and the PDS in the Wellington region. available work. “I’ve always found members of the private bar to “I would not like to see the PDS ever take more than be helpful and approachable, and they are shown the 50% of the legal aid assignments – and that’s not a target; same courtesy by PDS lawyers. The ‘us and them’ divide it’s the maximum that we take in any centre – because seems to be slipping away, which I think bodes well it’s vitally important that the private bar is a strong for the future of the criminal bar in New Zealand,” Ms well-organised part of the profession.” Kahukore-Fitzgibbon says. He notes that the PDS has been able to assist the private bar by sharing training materials and its involve- Ministry of Justice connection ment in working for change in the development of AVL Areas where the private bar and the PDS differ are in in Auckland. its connection with the Ministry of Justice and, still, its “I would hope that now the profession sees us not as impact on legal aid work. a threat but as an asset.” Criminal Bar Association President Len Andersen sees the fact that the PDS is administered by the ministry as Less than 10% of approved creating problems. He would like to see it administered legal aid providers by a different ministry so it is separate from the court Written parliamentary questions to Justice Minister system itself. Andrew Little show that at 1 June 2019 there were 183 Public Defender Northern Rob Stevens disagrees. PDS approved legal aid providers out of a total of 2,226 “We are fiercely independent and that’s something the approved providers – 8.2%. A year earlier at 1 June 2018 Ministry of Justice has recognised. I can honestly say that there were 178 PDS approved providers out of 2,096 – in the seven years I’ve been with the PDS I have never 8.5% of the total approved. once felt compromised by being part of the ministry. Information from Mr Little also shows that at 1 July And I’ve never felt that there has been an expectation 2019, 126 PDS lawyers and 747 private lawyers held duty that I will approach a particular issue in a particular way lawyer approval, making PDS lawyers 14.4% of approved
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duty lawyers. On a justice service regional basis, there were PDS duty lawyers in seven of 15 regions. Comments from lawyers at the private bar have sometimes painted a picture of a sweatshop-type practice where poorly trained and supervised young lawyers manage enormous caseloads and flounder. “I’ve certainly never worked the hours at the PDS that I used to work at the private bar,” says Rob Stevens. “We’ve put a real emphasis on wellbeing and managing caseloads. We have time recording in PDS offices and my perception is that most of the lawyers are working around about 40 hours a week most of the time. That obviously changes if you’re in the middle of a jury trial, but we keep a very close eye on the hours that our lawyers are working and we manage them if there appears to be some concerns.” He points to the Law Society’s Legal Community Counselling Service trial and says the PDS introduced this about four years ago. Every PDS lawyer is entitled to three hours of professional supervision every six months with a counsellor or psychologists. “I think the PDS now presents a career path for young criminal lawyers. There are a number of senior criminal lawyers who started with us as supervised providers. The Deputy Public Defender in Manukau started with us 14 or 15 years ago as a very junior lawyer and is now PAL4 qualified and helps to manage a 55-lawyer office.” A training focus Rob Stevens says he feels quite proud that the rest of the profession views the PDS as a training ground. training committee, and specialist training materials now cover “We’ve got a lot of young lawyers who around 50 different topics. are with us for a year or perhaps two and “With the legal aid reviews and auditing of files, inevitably the then they’re grabbed by the Crown, by PDS files come out very well because we have very high quality barristers, by small firms – although there assurance standards and strong file management policies. There aren’t many small firms that do a lot of are lots of precedents and templates for lawyers to use,” Mr Stevens criminal work anymore. says. “It makes it a little bit harder for us per- An ethics committee of 12 of the most senior PDS lawyers has haps in terms of retention, but I see one of a focus on delivering an opinion on matters such as conflicts our real responsibilities as providing well- of interest within 24 hours. The organisation also has a culture trained, qualified lawyers to the criminal and diversity committee and has signed up to the Law Society’s bar. And if we can keep doing that, I really Gender Equality Charter. The PDS is also working on developing think we’re doing a good job.” greater flexibility of employment. It has a number of part-time The training starts on day one with a lawyers and also lawyers who have returned to the workforce. focus on client interviews and manage- “I’ve got over 100 lawyers in my patch in the northern region,” ment, ethics, and how to open a file, but Rob Stevens says. “Every single one of them is passionate and all PDS lawyers are expected to complete committed, and just so client-oriented. The managers of our support at least 60 hours of CPD a year. Special services talk to me frequently about having come from outside workshops are overseen by a national organisations in to the PDS and they can’t believe the commitment
36 ACCESS TO JUSTICE
This has resulted in the criminal bar get- ting older, Mr Andersen says. He believes there will be a crisis in some districts when those criminal lawyers who are currently over 60 retire. The standard and competence of lawyers who work for the PDS is generally good, he says. “The junior lawyers are well trained and those at the top are excellent. Like the bar generally, there is a shortage of PAL3 level lawyers.” He feels the PDS is a good start for lawyers wanting to practise criminal law. “But lawyers who start in the PDS can find it difficult to survive if they want to leave the PDS.” “There is no doubt that the PDS contrib- utes to the overall delivery of access to jus- tice,” New Zealand Law Society President and criminal lawyer Tiana Epati says. “When I was a young lawyer if you wanted to break into criminal law you either got a graduate position with the Crown – which were, and still are, rare – or had to find a criminal barrister willing to hire and train you. I was fortunate enough to get a job with the Crown but I often wonder what would have become of me if I had not been so fortunate. These days the PDS offers that crucial career pathway for young lawyers looking to become criminal lawyers.” Ms Epati says this is particularly impor- tant given that the reduction to legal aid rates has made if difficult for many criminal barristers to take on graduates. Criminal law pressures Ms Epati says the PDS is also important of the lawyers. They come to work because they want to make given the unique pressures of practising a difference and they’re incredibly passionate, and I think that’s criminal law. pretty rare.” “The Legal Workplace Environment Survey in April 2018 indicated that, by An important player in criminal defence practice area, criminal lawyers experi- Mr Stevens has no doubt that the PDS has become an important enced the highest rate of unacceptable player in New Zealand’s criminal defence practice. behaviour. Mental health is a huge concern “I love being part of the PDS and I’m pretty proud of being able for criminal lawyers. I have personally to have made a small contribution to it. They’re all trying to make a experienced some very low moments as difference and that’s a pretty good reason to go to work every day.” a criminal lawyer. You are dealing with Criminal Bar Association President Len Andersen believes the difficult and vulnerable people at the most PDS has had both a positive and negative impact on the criminal stressful time in their lives. Being able justice system. to talk it through with colleagues who “It has provided good training for lawyers and raised the stand- understand this is critical. The PDS offers ard of representation in some courts,” he says. a team environment and the opportunity However, “it has had a negative impact on the private bar as for professional supervision.” the amount of work available to the private bar has decreased, Ms Epati says the PDS also has to take which has reduced opportunities for lawyers to obtain work as a special responsibility as kaitiaki for the employees doing criminal work apart from the PDS.” new generation of criminal lawyers. Access
37 ACCESS TO JUSTICE October 2019 · LAWTALK 933
to employment assistance pro- profession – needs better diversity,” Tiana Epati says. “It grammes and resources necessary is particularly important given the over-representation to health and wellbeing are good, of both ethnic groups in the criminal courts. But this but also must be encouraged. also comes with special responsibility. The PDS also must Lawyers from Māori (10% of be culturally competent and responsive to the needs PDS staff and 6% of New Zealand of its lawyers.” lawyers) and Samoan (9% of PDS Ms Epati feels the PDS has made a significant contri- and 2% of New Zealand lawyers) bution to the way in which criminal legal services are backgrounds also make up a bigger being delivered and in providing an avenue for young proportion of PDS employees than lawyers. nationally. “To reach its full potential the PDS needs the support “This is important because crim- of the entire profession, given the unique features and inal justice – like all parts of the challenges of the junior criminal bar.”
THE PUBLIC DEFENCE SERVICE — FTE LAWYERS BY LEGAL AID APPROVAL LEVEL (PAL) AS AT 31 JULY 2019
AUCKLAND SP 5 PAL1 7.8 PAL2 6.6 Office SP PAL1 PAL2 PAL3 PAL4 Total NORTH SHORE PAL3 3 MANUKAU Manukau 11.6 15 11 4 2 43.6 SP 1 PAL4 6.8 SP 11.6 Auckland 5 7.8 6.6 3 6.8 29.2 PAL1 3 PAL1 15 PAL2 1 WAITAKERE Christchurch 5 5 2.8 2 4 18.8 PAL2 11 PAL3 1 SP 2.6 PAL3 4 Wellington 1 6 6.4 1 2 16.4 PAL4 1 PAL1 4.7 PAL4 2 Waitakere 2.6 4.7 3.2 1 2 13.5 PAL2 3.2 PAL3 1 TAURANGA Hamilton 1 6 1.6 1 3 12.6 PAL4 2 SP 0 Tauranga 0 2.8 2 1 2 7.8 PAL1 2.8 HAMILTON North Shore 1 3 1 1 1 7 PAL2 2 SP 1 PAL3 1 Hawke’s Bay 3 0 2 0 1 6 PAL1 6 PAL4 2 Dunedin 1 2 0 0.8 1 4.8 PAL2 1.6 PAL3 Total 31.2 52.3 36.6 14.8 24.8 159.7 1 HAWKE'S BAY PAL4 3 SP 3 PAL1 0 This information has been provided by the Ministry PAL2 2 of Justice. It does not include the Director, Senior PAL3 0 Lawyer Appeals specialists, the 2 Regional Public PAL4 1 Defenders (both PAL4 and take cases) or the Duty WELLINGTON Lawyer Supervisors who do not take cases but SP 1 oversee duty lawyer services. There are five DLS PAL1 6 in the southern region, led by a Senior Duty PAL2 6.4 Lawyer Supervisor Southern and 10 DLS PAL3 1 in the northern region, led be a PAL4 2 Senior Duty Lawyer Supervisor Northern. These roles add a CHRISTCHURCH further 21 lawyers, bringing SP 5 the total PDS FTE lawyer PAL1 5 count to 180.7. PAL2 2.8 PAL3 2 PAL4 4 DUNEDIN SP 3 PAL1 0 PAL2 2 PAL3 0 PAL4 1
38 LAWTALK 933 · October 2019
ACCESS TO JUSTICE New technology aids access to justice
BY LYNDA HAGEN
Better access to justice for all New Zealanders – especially people from vul- nerable or disadvantaged groups – has been a common theme behind many of the Law Foundation’s grants throughout its existence. Over the years, Foundation funding has improved access to justice in some way for groups as diverse as children, people with disabilities, ethnic minorities, sexual abuse victims, medical misadventure victims, ACC claimants and people with impaired decision-making capability, among others. In recent years, the Foundation has also filled a rapidly-growing law and policy gap by backing research into the legal and public policy impacts of emerging new technologies through its Information Law and Policy Project (ILAPP) fund. Automated Open Access Analytics It’s therefore fitting that the last two Under the Automated Open Access Analytics project, lead researcher Tom projects to be supported under ILAPP Barraclough and his co-researchers, Curtis Barnes and Warren Forster, before the Foundation goes into recess will work with OpenLaw NZ (www.openlaw.nz) to use its platform to combine important new technology develop software that can be used by anyone to analyse large volumes research and the prospect of improved of judicial decisions. access to justice. Over recent years, the Law Foundation has been the main funder for One study potentially allows anyone – the New Zealand Legal Information Institute (NZLII), an open access with or without a legal background – to website that makes New Zealand’s legislation, much of its case law and understand judicial decisions that are rele- many decisions of specialist legal bodies freely available. vant to their cases, through using analytic Mr Barraclough says this project takes access to legal information, technology previously available only to such as that available through NZLII, a step further. It aims to help any academics and practitioners. The second, researcher, trained or untrained, to understand the law, learn the true related research, on “Legislation as Code,” meaning of words in a statute, follow precedent and discover relationships will look at how drafting law while simul- between pieces of legal information, without requiring a high level of taneously preparing it in machine-readable specialist knowledge. computer language can improve resulting “The core goal is to develop automated tools that greatly reduce the legislation and how it is operationalised time and expertise necessary to conduct legal research, both academic across government. and practical,” he says. “Insights that would once have required a team
39 ACCESS TO JUSTICE October 2019 · LAWTALK 933
of legal researchers working many hours will be attainable by lay inscrutable, or lead to revolutionary people in a fraction of the time.” transparency.” OpenLaw NZ uses open source, freely available software that can Mr Barraclough says the end of the Law analyse case law and judicial decisions and convert those into useful Foundation’s ILAPP fund leaves a gap in data. The platform was developed by Andrew Easterbrook and William advancing research around law and new Parry, two participants in this research. technologies in New Zealand. The project will run a test case using ACC case law as an example “There’s a very real need for research dataset to show the benefits that an open access automated data at the interface of law and technology, processor like OpenLaw NZ can bring. because there is a real risk that technol- ogy creates barriers to access to justice, Legislation as Code as well as being able to remove them,” The second “law as code” project explores a change that could be he says. as transformative as the ancient shift from writing law on paper The Law Foundation’s research teams instead of stone. But it also raises questions to be explored by the for this work are seeking to connect with research, such as the potential for unintended impacts of drafting people who have an interest in these law while simultaneously coding it. projects or have insights to share. Contact Tom Barraclough and Curtis Barnes are working with law as with the research team can be made via code practitioner Hamish Fraser on this research. Mr Barraclough the Law Foundation, and information on says the change offers huge promise, but won’t deliver unless these and other ILAPP projects are detailed there is public confidence in it. in our website. ▪ “The ambiguity of logic within language is hard for computers. What are the impacts for people and justice if that ambiguity is Lynda Hagen lynda@lawfoundation. reduced?” he asks. “Better understanding is needed to ensure org.nz is Executive Director of the New the technology does not render the legal system opaque and Zealand Law Foundation.
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40 LAWTALK 933 · October 2019 ACCESS TO JUSTICE
ACCESS TO JUSTICE Lawyers battling for justice around the world
BY GEOFF ADLAM
Human rights awards member of the Basic Law Article 23 Concern Group. Dr The International Rescue Committee Ng continues to fight against restrictions of civil liberties and its President and CEO, David in Hong Kong as a member of the renamed Basic Law Miliband, have been announced Article 45 Concern Group. as the 2019 recipient of the 11th The 2019 IBA Pro Bono Award has been won by Stockholm Human Rights Award. Malaysian lawyer Cecil Rajendra. In 1980 Mr Rajendra The award is jointly made by the and his associates set up the first rural legal aid clinic Swedish Bar Association, the in Malaysia and he launched the country’s first mobile International Bar Association legal aid clinic in 2000. He has been a leading campaigner (IBA) and the International Legal for human rights and is also a prominent poet, with his Assistance Consortium to an poems published in over 50 countries. individual and/or organisation for outstanding contributions to Pakistan focus of 2020 Day human rights and the rule of law. of Endangered Lawyer David Miliband oversees relief oper- The tenth annual Day of the Endangered Lawyer will ations in more than 40 war-affected focus on Pakistan, on 24 January 2020. The Day of countries and refugee resettlement the Endangered Lawyer foundation is based in the programmes in 28 cities in the Netherlands. It has developed a wide range of activities United States. around the world on 24 January to raise awareness of The 2019 IBA Award for lawyers who are being harassed, silenced, pressured, Outstanding Contribution by a threatened, persecuted, tortured and murdered for their Legal Practitioner to Human Rights work as lawyers. has been won jointly by Martin Information released by the organisers says that over Lee SC and Margaret Ng. Both are the past several years lawyers in Pakistan have been Hong Kong-based lawyers and the subjected to acts of mass terrorism, murder, attempted IBA says both have demonstrated murder, assaults, death threats, contempt proceedings, tireless dedication to the protection harassment and intimidation in the execution of their of human rights and the pursuit of professional duties. justice. Mr Lee was called to the Hong Philippine Government urged Kong Bar in 1966 and became the At least 45 to act on lawyer deaths Founding Chairman of the United lawyers, The Netherlands-based Lawyers for Lawyers organisation Democrats of Hong Kong party. He prosecutors has urged Philippines President Rodrigo Duterte to act to served on the Drafting Committee and retired stop attacks against and extra-judicial killings of lawyers. for Hong Kong’s Basic Law. He judges have Lawyers for Lawyers says at least 45 lawyers, prosecutors openly criticised the Chinese gov- been killed in and retired judges have been killed in the Philippines ernment’s role in the Tiananmen the Philippines since President Duterte took office in July 2016. Square massacre in 1989, and more since In a letter to the President, the organisation says it is recently has spoken out against the President deeply concerned about the increasing attacks against Hong Kong extradition law. Duterte took lawyers, the labelling of lawyers as an “enemy of the Dr Ng was called to the Hong office in July State”, and the oppressive working environment they Kong Bar in 1988 and was a founding 2016 face since the start of his administration. ▪
41 ACCESS TO JUSTICE October 2019 · LAWTALK 933
ACCESS TO JUSTICE Pro bono legal services support Canterbury Muslim community
BY NICK BUTCHER
languages and were more than willing to put these skills Six months after the Christchurch mosque to use to assist families. attacks, pro bono legal services continue to make a “It’s difficult to think anything good could come from difference to families of the victims. such a senseless act of hatred but we now enjoy very Lawyers in Canterbury have been involved in hun- positive links with a part of our community we were dreds of pro bono cases involving families of the 51 perhaps less engaged with,” she says. people who died in the 15 March terrorist attacks. She says staff were present in the Welfare Centre The free legal work would be valued at thousands of which was set up the day after the attacks and until it dollars but that’s a drop in the ocean compared to the closed three weeks later. The centre was created as a difference it has made to the people who come from place for families of victims to meet, pray, grieve and a range of countries, including Afghanistan, Somalia listen to police briefings on the investigation. and Pakistan. “To gain trust with people we opted to have only four of our senior lawyers front this service so that they could The lawyer response build relationships with the families and organisations The Canterbury Westland branch of the New Zealand affected. This worked well and we now have very strong Law Society and Community Law Canterbury joined links with various community groups. These groups con- forces to generate a list of individual firms and lawyers tact us regularly and we’ve been humbled by the gifts of that were able to offer pro bono food, invitations to events and other acknowledgements services. from individuals, families and organisations we have Community Law Canterbury worked with.” says it was a privilege to assist the Muslim community following Changing legal needs the terrorist attacks. Ms Taylor says Community Law Canterbury lawyers Community Law senior solici- spoke with hundreds of people in the welfare centre tor Louise Taylor, who is also an It’s difficult and in clients’ homes. Adjunct Fellow at the University to think “Over the course of time the community’s needs of Canterbury’s School of Law, anything good changed as matters moved on from practical issues says the community law centre could come concerning identification and healthcare to matters is a large organisation with 20 from such a such as immigration for victims and their families, ACC, staff solicitors. senseless act employment, welfare, housing, family and other matters “Many of us were working at of hatred but which stemmed from the events. Community Law Canterbury we now enjoy “Malcolm Ellis, manager of the Canterbury Westland during the earthquakes and very positive branch of the New Zealand Law Society, put together a list the feeling in the office was a links with a of lawyers offering pro bono legal services and we referred bit similar – disbelief, fear and part of our many clients to those lawyers who have, no doubt, pro- sadness. So we had something of community vided valuable services for both their immediate clients a template to work from. Many we were and the wider community. Perhaps not surprisingly, one members of our staff and student perhaps less of the particular areas where this support was required volunteer cohort speak multiple engaged with. was estate law and practice,” she says.
42 After the Welfare Centre closed, Large immigration with our immigration team at the CLC opened around 50 individual specialist firm responds time. He got student volunteers representation case files, mainly in One of the firms to offer help to staff the hub and collect the the area of immigration. immediately was Lane Neave which information and documentation “We have, to date, resolved specialises in, among other matters, required for the families in shifts,” around 20 of these and one of our immigration. Mr Williams says. staff members continues to work Partner Mark Williams says by About 20 mostly law students full-time with clients and the the time the work is completed, the ended up volunteering their time. community to settle the remaining firm will have provided in excess of “As you will be aware, the Student matters. We have actively engaged $100,000 in pro bono services. Volunteer Army came about in with Minister of Housing Megan The day after the attacks, response to the earthquake, so Wood’s office and various other Lane Neave was in touch with again, they have mobilised and allied support services to meet Immigration New Zealand. An volunteered valuable assistance to our clients’ needs. At this stage agency hub had been set up at those in need in their community,” we cannot anticipate when these Hagley Oval (along with the Welfare he says. matters will resolve as we are Centre) where a range of services dealing with governments in coun- had converged to meet and advise Volunteer army tries with very different legal and families of victims. The location was haste pays administrative systems to our own. ideal as it was close to Christchurch Sati Ravichandiren is in his final year We are also dealing with a number Hospital, where many people were of studying law at the University of of clients who are now relying on being treated for gunshot wounds. Canterbury. ministerial discretion and this can The hub included government “People with immigration issues be an unpredictable process to go organisations such as Immigration would come to the hub and our through.” New Zealand and the Ministry of team would interview them. We Ms Taylor says the nature of the Social Development. There were also would find out all of the essential work has been emotionally hard local services such as Community information such as whether a on staff as it involves very personal Law Canterbury and Victim Support person wanted to bring a family situations where human loss has at the hub. It operated daily for member into New Zealand, and how occurred. about three weeks. they were connected to the attacks “We’ve offered staff assistance It became apparent that legal at the mosques,” he says. through our Employee Assistance advice was desperately needed His team would explain to people Programme. We’re very clear in so Lane Neave also set up shop at using the service what the basic understanding that if we do not the hub. legal requirements were in New look after ourselves and each “Initially we staffed it ourselves Zealand for emergency applications. other we cannot hope to look but given the opening hours and the The group was trained by Mark after anyone else effectively. We length of time the hub was going Williams in how to conduct the were lifted during the busier times, to be running, it happened that the interviews and what information by gifts of food from the Muslim Student Volunteer Army President was required – such as a pass- community.” – Sati Ravichandiren – was clerking port, birth certificate and formal
43 ACCESS TO JUSTICE October 2019 · LAWTALK 933
identification for the person want- While a “We’re now focusing our efforts on providing assis- ing to enter the country. subsidy of tance to the more complex issues, such as special “We created a roster with two about $1,250 direction applications to the Minister of Immigration people on at a time for two hours was available for the granting of residency to family members as an and then two others would take ... in reality exception to the immigration policy. over. By five o’clock someone from the value “While a subsidy of about $1,250 was available from the law firm would stop by and pick of the work Immigration New Zealand to some people for assistance, up the forms which the lawyers undertaken in reality the value of the work undertaken to prepare could then continue to work on.” to prepare a thorough special direction application ranged from For the students, this was an ‘at a thorough $5,000 to $10,000,” he says. the coal face’ experience in what special it could be like to practise law. Mr direction The complexity of some cases Ravichandiren says it was worth its application A lack of bona fide documentation to say who a person weight in gold. ranged from is – such as birth certificates – can be problematic. For “It provided students with an $5,000 to example, Mr Williams says, there were challenges with opportunity to use their skills to $10,000 people who had Somalian passports as they are not help people. It was such a valuable considered an international travel document. experience because we got to use “We’re working with the Red Cross and Immigra- the skills that we’ve been trained tion New Zealand to try and find alternative travel in, which we’ve learned about for documents.” several years for a really positive There are also cases where someone has been left a cause. We got to take this out of the widow(er) without any other family in New Zealand university and put it into practice. to support them and cases where surviving victims We were interviewing people who need long-term assistance to recover from both psy- had been at the mosques, other chological and physical trauma. They have had family people who had family members come to this country under emergency visitor visas, severely hurt or had lost family but they needed a longer period of time – in some members. It was very emotional,” instances permanently – to stay and help family he says. recover fully. They all had to grow thick skin and he says the nature “A lot of these people left alone in New Zealand come of what they were dealing with did hit them all hard. from refugee backgrounds and just don’t have established “But talking about it and sharing our experiences family networks here. We’ve drafted quite substantial helped significantly in dealing with this.” submissions for government assistance for people in these exceptional circumstances,” Mr Williams says. More firms get involved While lawyers soldiered on and did their work for Mark Williams says it wasn’t long before other law people going through immense loss, the effect of the firms started offering pro bono assistance because of work on some of these lawyers was also a challenge. the list created through the Law Society’s Canterbury “You’re dealing with people who are going through Westland branch. trauma. It’s difficult, particularly for some of our younger “We provided pro bono work to over 30 families with and less experienced lawyers. They’re listening to some emergency visitor visa applications and in some cases terrible stories, including accounts from those who there were multiple visa applications – up to four from survived,” he says. an individual family. We had two solicitors working more Mr Williams says their firm had lawyers working all or less full-time for about eight weeks on this work, in sorts of hours, particularly during the first two months addition to two immigration partners managing work- after the mosque attacks. flow and dealing with more complex issues,” he says. “The colleagues of people doing this work assisted He says the help from the Student Volunteer Army with their case load while this was going on. There were was invaluable and often they worked with lawyers and a lot of late nights. There was a lot of great team work Immigration New Zealand over weekends. involved.” Mr Williams says the current tranche of pro bono He says they’re still receiving new pro bono work work around the Christchurch Response (2019) is in the related to the terrorist attacks and it will be some time Permanent Resident Visa category. before their contribution is completed. ▪
44 LAWTALK 933 · October 2019 ALTERNATIVE DISPUTE RESOLUTION
ALTERNATIVE DISPUTE RESOLUTION Running a major relationship property arbitration
BY ROBERT FISHER QC
5. (If required) requests by one party for further documents In a previous article (LawTalk 932, September 2019), I and information held by the other followed by either suggested ways in which modest to middle level disputes voluntary compliance or conference with arbitrator to could be dealt with by expedited arbitration. In this article resolve. I consider major relationship property disputes. Major 6. Each side provides to the arbitrator and other party a relationship property disputes are assumed to be those non-binding spreadsheet analysis of assets, liabilities, in which trusts or companies are involved or in which values and suggested division. more than $750,000 is at stake. 7. Issues conference with arbitrator. Usually results in Every arbitration aspires to speed and economy. Major settlement. Otherwise directions given for remaining relationship property arbitrations are no exception. steps required to resolve outstanding issues. However, relatively elaborate procedures may be justified 8. Each party provides final affidavits, final spreadsheet where they would not be disproportionate to the magnitude analysis and synopsis of submissions. of the dispute. In such cases the arbitration is likely to pass 9. A defended hearing with parties and lawyers present. through a series of steps if it does not settle 10. Award from the arbitrator. If required the award can at some point along the way: be filed in the High Court and enforced. 1. Parties agree on who they want as In practice at least four out of five relationship property arbitrator, ask AMINZ to appoint one, arbitrations settle at some point along that continuum. The or approach a dispute resolution insti- trigger for settlement is likely to be one of the following: tution to manage the appointment and • effective disclosure by both sides due to timetabled the process. discovery on a voluntary basis or, where necessary, 2. Arbitrator organises a preliminary con- mandatory directions from the arbitrator; or ference with lawyers and parties. Can • crystallising of issues due to the parties’ exchange of be done by phone (especially where spreadsheet analyses of assets, liabilities, values and lawyers or clients are at a distance) but Every suggested division; or ideally in person. arbitration • appreciation of strengths and weaknesses due to an 3. Arbitrator provides precedent arbitration aspires to issues conference with the arbitrator. agreement under s 21A of the Property speed and If the dispute does not settle, there will need to be a (Relationships) Act 1976. Signed by cli- economy. defended hearing followed by an arbitration award. This ents (and sometimes trustees) following Major part of the process will have much in common with a full lawyer certification requirements relationship conventional civil trial followed by a reserved judgment. A under s 21F. property major difference, however, is that the issue of an award will 4. Factual statements and disclosure by arbitrations normally signal the end of the dispute. The opportunities each party in accordance with timeta- are no to challenge an arbitration award are very narrow. There ble set at the preliminary conference, exception. is no general right of appeal. ▪ usually taking the form of (i) affidavits However, setting out factual background and a list relatively Robert Fisher QC www.robertfisher.co.nz is a member of of current assets, liabilities, and values elaborate Bankside Chambers, a former High Court Judge and the plus (ii) voluntary disclosure of any procedures author of Fisher on Matrimonial Property. Since leaving the additional documents that the other may be bench he has been in full-time practice as an arbitrator party may wish to see. justified. and mediator.
45 ALTERNATIVE DISPUTE RESOLUTION October 2019 · LAWTALK 933
ALTERNATIVE DISPUTE RESOLUTION Reactive devaluation
BY PAUL SILLS
Conflict is inevitable and is often necessary to bring Ross identified a number of cognitive and motiva- about change. Our reaction to conflict is typically a tional processes which lead to reactive devaluation: problem in itself as we lack robust and fair conflict perception, preferences, loss aversion, and heightened resolution strategies, all too often falling back on our scrutiny. Understanding these factors may enable us biases and prejudices even when we think we are to better address the challenges that reactive deval- being rational. uation brings when attempting to reach agreement Reactive devaluation is one of the five psycholog- over disputes. ical traits that most often come into play during the mediation process. Previous articles have examined Perception/Interpretation cognitive bias and cognitive dissonance. This article When party A’s offer is inconsistent with party B’s expec- discusses the importance of reactive devaluation and tations and understanding of their interests, party B strategies to avoid its affects. may sceptically assess the offer and begin searching for “evidence” that the offer is more advantageous for party A. Parties who receive offers may conclude that it must Reactive devaluation is the idea that our percep- be a bad deal for them merely because party A made the tion of a particular proposal or offer is influenced by our offer. Simply being in an adversarial relationship can be opinion of the party who made it. In conflict resolution, a factor in reactive devaluation. That is, if party A makes the value of an offer may be diminished in the eyes the offer, then it must be good only of the recipient due to their negative opinion of the for party A, due to the competitive opposing party, rather than reflecting the offer to hand. nature of the relationship and the This reaction makes it more difficult for parties to reach existence of a dispute. an agreement even when proposals are made in good A 2002 study on the Israeli/ faith and would be considered objectively fair by a Palestine conflict highlights the non-judgmental observer. barriers that arise from reactive In the context of negotiation, reactive devaluation devaluation. The researchers in the leads parties to devalue and reject offers that would study asked Israelis and Palestinians otherwise be considered reasonable. Instead of focusing if they would support a specific on the immediate discussion, parties tend to focus too Human peace plan, which was an Israeli much on who they are in conflict with. When in conflict beings, at peace plan. However, the Israeli parties often become fixated on “beating” the other party least in some subjects were told that it was a rather than exploring fair solutions, which demonstrates circumstan- Palestinian proposal. The study the prominent part that our emotions play in conflict. ces, may found that both sides devalued It is often difficult for us as human beings to put our be inclined the proposal purely because it was feelings aside and focus on the mechanics and resolution to reject presented as the ‘other side’s’. of the problem. or devalue The Israel/Palestine conflict also Lee Ross, Professor of Psychology at Stanford whatever provides an example of how a per- University, has conducted a significant amount of is available son’s sense of identity and culture research into the psychological barriers that prevent to them, and contributes to our perception of conflict resolution. In his work chapter “Reactive to vet and others and plays a role in our ten- Devaluation in Negotiation and Conflict Resolution” strive for dency for reactive devaluation. It (Kenneth J. Arrow, et al., Eds., Barriers to Conflict whatever is is the “them and us” mentality that Resolution, W.W. Norton & Company, 1995, p.27-42), denied drives our perception of others.
46 Both Palestinians and Israelis Allowing ample opportunities for have proud cultural identities Loss Aversion parties to discuss their standpoints that involve feelings of animos- Loss aversion may have a significant during negotiations is vital in order ity toward the other. Therefore, relationship with reactive devalua- to achieve a collective understand- agreeing to a peace plan from the tion. Human beings recall the pain ing of the issues within the dispute. other side arguably means “losing” associated with loss much more While doing this, it is also impor- to what is perceived to be an vividly than the feelings associated tant to encourage parties to revert inferior group. Similar dynamics with experiencing a win – “losses back to the key factors driving the may apply in mediation, where the loom larger than gains” (Ross, p.42). conflict, without the emotional personal pride and dignity of both This means that parties in media- influence. This enables the parties parties may interfere with their tion are motivated to avoid loss. to assess potential proposals at face ability to come to a reasonable In relation to reactive devaluation, value, without focusing on who is arrangement. party B will reject or devalue party making the offer. A’s offer as they assess their losses Timing is also key. Negotiation Preferences as outweighing their gains. expert Randolph Lowry said, “The Ross summarises the preferences right offer at the wrong time is the process as follows: “Human beings, Heightened Scrutiny wrong offer” (interview on Mediate. at least in some circumstances, may This occurs when a party ana- com, 9 December 2018). Rushing be inclined to reject or devalue lysing an offer begins to judge it the agreement will not achieve whatever is available to them, and less favourably. Psychologically, the desired result and will invite to vet and strive for whatever is something judged unfavorable is devaluation. It is important that denied” (page 38). In other words, perceived in a more negative light the negotiation process is con- the grass is always greener on the longer it is considered. ducted methodically to ensure the other side. Here, negotiator B settlements can be reached that rejects A’s proposal, not because Strategies to combat reflect the interests of both sides. of an adversarial view, but purely reactive devaluation It takes time to achieve fairness because the proposal is available. Conflict resolution professionals can and a level of mutual respect Conflicting parties will often strive use a range of strategies and tools between parties. ▪ for a better or different arrangement to address reactive devaluation in than what is offered, adopting the mediation. This includes using a Paul Sills paul.sills@paulsills. mentality that engaging in tense and collaborative negotiation style to co.nz is an Auckland barrister rigorous arguments will result in a identify the underlying interests and mediator, specialising in better deal for them. Parties in con- of both parties. Through this, settle- commercial and civil litigation. flict will often reject what is readily ment arrangements can be reached He is an AMINZ Mediation Panel available and on offer. efficiently and equitably. member.
47 TALKING ABOUT MENTAL HEALTH · PRACTISING WELL
PRACTISING WELL TALKING ABOUT MENTAL HEALTH Being a supporter: a daughter’s story
BY CAROLYN RISK
my father, and my mother, to cope with My father died in July of last year, Dad’s depression and the way in which it the day following his 89th birthday. He impacted on all our lives. died of natural causes and in his own bed. There were many times in Dad’s life that I Understand the implications was not certain that those two would be of the illness for your role possible as Dad died after living a lifetime I learned that I needed to understand with severe depression. enough about the illness to appreciate Depression was a constant in Dad’s life. what that meant for the role I could play At times it defined and confined his life and and the implications for what I could do his choices. At other times it was more of a and what I could not do. quiet background note – like a steady bass I learned that I could not bargain with sound that could not be ignored but which depression or negotiate with it. When did not prevent you enjoying or engaging depression meant that Dad believed that with the music of your choice. the best option for him and his family was Over the course of my adult life there was for him to die, I could not rationally explain a sea change in the way in which depres- to him that this was not true. I could not sion was diagnosed and treated. I watched expect him to understand, or accept, that as the treatment options expanded and my view of his world was that he had much improved. I experienced a new generation to live for and still much to offer me and of doctors more inclined to engage with others. I had to accept his current reality family members and recognise our role and work to support him to get to a time in the life of their patient. I experienced when that reality changed for him. the growing openness about discussing I am, by nature, an empiricist and find depression. With relief and gratitude, I rational analysis irresistible. However, I had saw the courage of people such as John to learn to accept that depression was not Kirwan help us to develop a collective a problem I could solve by rational analysis vocabulary to talk about depression, about and it could, and would, assert itself in what it means, and about how to respond ways that I could not change. to it and support those who live with it. I also learned enough about depression I know that there is no one way in which to accept that I could not “fix” Dad or cure people experience depression. Equally, the the disease. Depression is an illness and experience of each person caring about and needs to be treated like any other disease supporting someone with depression is by those who are trained to do so. specific to their circumstances and the My role was to support Dad – to connect nature of the relationship – whether parent, him with the treatment that he needed, to child, sibling, friend or partner. I know that support him through the process of treat- my mother’s experience of supporting Dad ment and at times to act as an advocate was different to my own and the impact of to ensure he and my mother had access Dad’s illness on her life greatly exceeded to the professional support and assistance the impact it had on mine. they needed to cope with the reality of his I can only share what I learned from my illness. experience as an adult child supporting I couldn’t cure Dad, but I could continue
48 PRACTISING WELL · TALKING ABOUT MENTAL HEALTH
to believe that treatment would be suc- cessful and he could regain a life that was not robbed of all joy and feeling by depression. I learned that part of my role was to be what I called “an ambassador for the future” – to maintain the possibility of a future that was not defined by the symptoms of the disease and to ensure that when the doctors had done their job there was a future available to Dad that he could embrace and enjoy. I came to think of Dad as like a Russian doll toy. When the depression was at its worst all that there was of him was the very small doll that is at the centre of the toy – the one that is most fragile and vul- nerable but which still looks like the other layers of the doll. I needed to maintain the possibility that at some future point the outer layers would be restored and the doll would once again be stable and able to stand upright unaided. It is not about you – it is about the illness Experience taught me that depression can act as a powerful filter of facts and can dis- tort the reality of the person experiencing depression. That meant I had to learn to not take personally things that were directed at me personally. This was one aspect in which recourse to rational analysis was useful. Depression meant that Dad did not always recognise or acknowledge acts of kindness or support – or even my presence. I had to learn not to take that personally but to recognise it as a symptom of the disease. I came to realise that rejection of me was part of a generic rejection of the external world – not a targeted, specific rejection of me. It was not about me – it was about the disease. Rational understanding told me
49 October 2019 · LAWTALK 933
what is happening. I made an early decision that one of the ways I would cope with Dad’s illness was not to dissemble about what it was. If people asked me what was wrong with Dad I would tell them that he was suffering from depression. It was one way by which I normalised his illness. It was also one way by which I was able to identify those with whom it was possible for me to talk about how I was feeling and what was happening for me and Dad and those with whom such conversations were not possible. Finally, while it is true that although you can’t cure or fix the depression, it is also true that you can make a difference in the life of the person living with depression. You can stay connected and engaged with them, and with those whose lives are impacted by the episodes of depression, and continue to care about and for them. Vitally, you can keep alive the ver- sion of themselves that depression takes from them and importantly you can be present in their life to welcome back the person they are when the depression retreats. ▪
I could not make my support for Be kind to yourself Carolyn Risk has worked in private Dad conditional on the quality of Supporting someone with depres- practice and as a senior public serv- his response to my support. sion is unlikely to be the only ant. She lives in Wellington and is Depression drives people into responsibility you have. As with self employed as a barrister and themselves and it sucks energy from everything, you are no good to public policy consultant. them. It does not leave them with anyone if you do not take care of the energy to manage their own yourself first. It may also be that Sarah Taylor is the co-ordinator lives – let alone to accommodate supporting someone with depres- of this series, a senior lawyer, and you and your life. I needed to decide sion is the work of years – not weeks the Director of Client Solutions when and how I stayed connected or months – so you need to pace at LOD NZ, a law firm focused to Dad’s life when depression did yourself for the long haul. on the success and wellbeing of not allow him to recognise my role You can set limits to what you can lawyers. If you’d like to contribute in his life or his role in my life. and can’t do and for how long. It is to this series, please contact Sarah: I also gradually learned to accept okay to give yourself a break. It is [email protected] that when Dad was well I couldn’t not always possible to do everything confront him with how he behaved you might want to. Be honest about when he wasn’t well. I could not what you can do and for how long Some useful resources: hold him hostage for behaviour that and don’t beat yourself up about • www.mentalhealth.org.nz was dictated by the illness. I found what you decide. What you can do • www.depression.org.nz other places to take the hurt and will change over time consistent • www.toughtalk.nz anger that his behaviour sometimes with other demands in your life – • www.wellbeingatthebar.org.uk caused me. Other people supported only you can determine what the • www.wellplace.nz me to deal with that, which allowed best balance is. • www.ruok.org.au me to continue to engage with Dad Make sure you have support and • www.lawsociety.org.nz/ as he needed. find people you can talk to about practice-resources/practising-well
50 LAWTALK 933 · October 2019 PRACTICE
PRACTICE Red flags! Is your law office as healthy as you think?
BY EMILY MORROW
variability between production by partners (or others), low About three years ago, I had a well- net profit centre numbers for practice groups, diminishing woman check-up and assumed I would returns for certain practice areas and so forth. The list goes pass with flying colours as an active, fit on. Frequently there is something that is worth noticing person. However, when my GP listened to and discussing. my heart, she said “Do you know you have What presents as a “financial” problem often reflects a very audible heart murmur?”, to which non-financial problems. It is the tip of the iceberg, quan- I replied “No. I thought I had a healthy titatively verifiable and a good clue as to underlying and heart”. What ensued was three years of potentially more significant issues. Like my heart murmur, monitoring after which my condition financial red flags often indicate appropriate diagnostic worsened. Last May I had very successful and interventional steps. open heart surgery to repair a prolapsed For example, if a particular lawyer is a chronic under-pro- mitral valve. I am now better than ever. ducer, this could be a symptom of changing market con- That said, the interesting (and con- ditions, underlying personal problems, such as burnout, cerning) bit is that I never felt unwell and lack of confidence, insufficient resources from the firm, was completely asymptomatic up to and poor team management, business devel- including the day of my surgery. In other opment challenges and so on. Similarly, words, I had a serious problem of which I if a practice group is under functioning, was blissfully ignorant. Fortunately, once this could indicate poor leadership, inap- I became aware of the red flag symptom propriate staffing, inadequate work flow, (a heart murmur that I could not have and so forth. The symptom indicates the diagnosed myself), I was able to get the underlying problem(s) and failure to pursue underlying problem corrected. it further likely ensures that the condition In my work with lawyers and law offices, If a firm will worsen over time. my role is somewhat like that of the general has great practitioner who comes in and checks the leadership, Management and vital signs, looks for and identifies red is well leadership red flags flags, diagnoses problems and suggests managed, has I often begin my work by interviewing indi- “treatment”. Below are the “red flags” I a compelling viduals in management and/or leadership look for in relation to the overall health and timely positions within a firm. Even with very small and wellbeing of a law office. vision for its firms, somebody is in charge (if only in a de future and facto manner), and it’s worth getting their Financial red flags runs relatively view on things. I also interview people in less A firm’s financials always tell a story and, friction free senior positions because their perspective unless there is a compelling reason not to internally, it is often very informative. Frequently, my review them, I review these in advance will attract questions focus on the following: of working with a firm. Obvious red flags the brightest • What do you see as the most important include lower than normal earnings, and the best issues the firm should address in the higher than normal expenses, significant talent next two to five years?
51 • What are the potential risks if the firm were to fail to identify and implement appropriate changes. address such issues? • Outdated management and leadership structures • What would success look like if the firm were to and habits that are stunting a firm’s growth and address these issues successfully? development. • What might need to change to achieve success? • What resources does the firm have to address these Personnel and succession issues, including leadership and management planning red flags capabilities? The retirement of baby boomers, the increased focus As a newcomer to a firm, my neu- on achieving a more sustainable work/life balance and trality often allows me to hear what the chronic shortage of highly experienced lawyers are people are telling me in a relatively common red flags for law firms. The problems present unfiltered way. Getting different in terms of poor workflow management, inadequate perspectives allows me to have a and/or ineffective business development (and stagnant composite view of what is going on With the practice growth), inadequate or nonexistent succession in a firm that more likely approaches increased plans, poor people management, chronic staff turnover “reality”. interest in law and low morale. Typical leadership/management firm culture, If a firm has great leadership, is well managed, has a red flags include: the ability to compelling and timely vision for its future and runs rel- • Long-standing, unaddressed quickly and atively friction free internally, it will attract the brightest friction amongst professionals accurately and the best talent both now and in the future. Sadly, and/or management. identify the the reverse is also true. • Poor internal and external core elements communication. of a firm’s Strategic red flags • Denial about what is happening culture There are many sins that fall under this particular and resistance to change. becomes heading and they are often subtle and interdependent. • Chronic anxiety and inability to critical Such “clues” become obvious by connecting the dots
52 PRACTICE
I notice what the office looks like, how people are talking to each other, the speed with which people walk around, the extent to which they make eye contact with each other, whether they smile at each other and listen attentively, how things are organised, interactions between staff and lawyers and so forth. I have learned to be a bit of a “culture sponge” and it serves me well. With the increased interest in law firm culture, the ability to quickly and accurately identify the core elements of a firm’s culture becomes critical. The old adage that “culture eats strategy for breakfast” is really true. It’s a waste of everyone’s time to suggest interventions or changes that run across the grain of a firm’s culture. It may be necessary to encourage fundamental cultural changes, but the existing culture must be understood first before that can occur. Culture “red flags” manifest in many ways including unhappy, stressed, resentful, anxious, cyni- cal and under-productive human between the financial, leadership, taking into account current real- beings and a general lack of ini- management, personnel and ities and accurately predicting tiative and innovation. This often external marketplace dots. A firm how those will play out in the reflects a misalignment between may have robust current earnings, future. It’s a kind of prescience what a firm says it believes in and well-managed expenses, capable and creativity that they don’t what is really happening day to professionals, and nevertheless have teach in law schools. day, creating chronic malaise and dark clouds on the horizon which, • An inability to articulate, concisely perceived hypocrisy. if left unaddressed, will become and with conviction, what the stra- I hope you never need to have increasingly problematic. tegic vision is for the firm and how open heart surgery, but if you do, Typical red flags I see in this it will be achieved. Frequently, if try to pick up the problem early by regard are: I interview five people in a firm identifying and responding to the • Outdated “strategic plans” that and ask them to state the firm’s appropriate red flags. Similarly, I do not take into account current strategic vision in one sentence, hope your firm doesn’t have any market conditions, demographic I get five quite different answers. symptoms reflective of the above changes, increased competition This is a real red flag. red flags. However, if you notice and potential new opportunities. such symptoms (or someone brings • An “off-the-shelf ” strategic plan Culture red flags them to your attention), I suggest that was developed without much As in the wonderful Australian you get onto them quickly and thought and which is not tailored movie, The Castle, this particular resolutely. Denial won’t help, but to a firm’s real needs. red flag is about “the vibe” within a appropriate action will. ▪ • Partners, directors and manage- firm. When I walk into a law firm, I ment who lack strategic planning start paying attention to its visible Emily Morrow www.emilymorrow. expertise. Although lawyers are “cultural artifacts”. That is, empirical com was a lawyer and senior part- smart people with strong analyt- clues about the core elements of the ner in the United States. She now ical capabilities, many struggle firm’s culture that drive what really resides in Auckland and provides to think strategically over time, happens in the firm. For example, tailored consulting services.
53 CREATING A JUST CULTURE October 2019 · LAWTALK 933
CREATING A JUST CULTURE Are we doing enough? The global scale of bullying and sexual harassment in legal workplaces
BY JAMIE DOBSON
“It’s too simplistic to say ‘beef up the regulatory structure There’s no magic bullet when it comes and it will go away’. At an individual level we need to do to achieving cultural change in the global a better job, consider our own conduct, speak up when legal profession. A step inciting a change, we see it happening, and support those who are targets is precisely that – just one step, says of this conduct,” he says. International Bar Association (IBA) Senior However, with a survey of almost 7,000 lawyers from 135 Legal Advisor Kieran Pender. countries, broad macro-impact solutions have only been The IBA launched its “Us Too? Bullying able to be included in discussion of recommendations and sexual harassment in the legal pro- so far. When discussion turns to changes at a smaller fession” report in May 2019. Mr Pender, scale, Mr Pender says he is often asked “what about other who is the report’s author, is on a global professions?” engagement campaign to raise awareness To answer this, he discusses the obligations under the of the study. By the end of the year, he will conduct, ethical and moral standards imposed on lawyers, have travelled through all six continents. and the economic cost of people leaving the profession As part of this tour Mr Pender spoke because of their experiences. Perhaps most pointedly in Auckland, and Wellington, and at the though, he says: “There’s a rule of law argument that this New Zealand Bar Association’s annual kind of conduct is illegal. Lawyers aren’t above the law, so conference in Queenstown, during August. if we’re acting in this way, what message does that send Raising awareness of the issue is the to the rest of the community? Not a good one.” first of 10 recommendations the IBA’s report makes to the global profession. Concerning results from Oceania The aim of these recommendations is to New Zealand shares some of the worst results in the report have ideas that encourage jurisdictions alongside Australia. It’s worth noting that New Zealand to begin the conversation on bullying and Australia are combined in the results. and sexual harassment. And where the Due to those high numbers, Mr Pender was specifi- conversation is already happening, such It’s too cally interested in the Australasian leg of his campaign. as in New Zealand, to facilitate momentum simplistic to He wanted to see what he calls the perception paradox and discussion for addressing the problem. say ‘beef up reflected. The paradox’s explanation is that a heightened Mr Pender says he hopes the engage- the regulatory awareness of issues means it is reported higher. It’s more ment and feedback he hears from his structure normal for people to speak up and discuss the issues. continuing journey across the world, will and it will The IBA’s research found that one in two female respond- begin to inform some concrete material go away’. At ents and one in three male respondents have experienced the IBA can produce for the future. an individual bullying in legal workplaces worldwide. While one in three Asked what he thinks regulators should level we female and 1 in 14 male respondents had been sexually do to bring about change, he says building need to do harassed at work, survey responses from Oceania show up regulatory action and a robust system a better job, the highest rates of bullying. with regulators of workplace labour would consider our The New Zealand Law Society’s 2018 workplace envi- help culture change, only if workplace own conduct, ronment survey indicated that 18% have been sexually policies on bullying and sexual harassment speak up harassed during their working life, and that 52% of lawyers catch up, the right legislation is in process, when we see have experienced bullying to some degree. and individuals look at their own behaviour. it happening For Mr Pender the work will not stop at the end of
54 CREATING A JUST CULTURE
There’s a rule of law argument that this kind of conduct is illegal. Lawyers aren’t above the law, so if we’re acting in this way, what message does that send to the rest of the community?
the engagement campaign. The IBA has committed to following up the survey in five years’ time, although he says a fresh pair of eyes may be useful to have by then. He began work on ‘Us Too’ in February 2018. Prior to him joining, the IBA had been preparing to release a report on barriers women face globally in the legal profession, when the Harvey Weinstein scandal hit the news and #MeToo began to spread. They thought they should look further into the issue and this became Mr Pender’s primary focus. An employment lawyer from Australia, Mr Pender has previous experience work- ing against bullying and harassment. Asked how he got into this work, he says: “It’s not hard to be passionate about wanting to achieve a profession where we treat people better and there are less dickheads, so I consider myself immensely fortunate.” He remains positive this isn’t a moment where discontent bubbles away like dec- ades gone by. Mr Pender feels there is an appetite for cultural change globally and wants to encourage everyone to play their role. “The hope is that if one less person is bullied or sexually harassed as a result of this research, or they are and feel empow- ered to speak up, they receive support, and action is taken against the perpetrator, then it’s all worthwhile.” ▪
55 TECHNOLOGY
TECHNOLOGY New death notification service
BY TRACEY CORMACK
MyTrove is a free web service now available to solve some of the challenges to lawyers and individuals around estate management. The platform myTrove Notify (www.mytrove.co.nz) allows users to notify multiple organisations when someone has died, after registering online and completing the details. Currently, notifica- tions can be sent to IRD, Westpac and the Department of Internal Affairs (Passports). In July 2016 the Public Trust commissioned Executor Research which found that on average it takes an exec- utor 52.1 hours to fulfil duties such as closing down the accounts of a person who has died. Executors typically take between two months to a year to wind up an estate from start to finish. The people behind MyTrove say it can reduce the administrative burden encountered by grieving families, or lawyers, by reducing paperwork, removing the need to visit multiple organisations who require essentially the same information, and allowing personal and official death data to work together. Ross Hughson is the Managing Director of Personal March 2018 and myTrove Notify currently processes Information Management Ltd (PIM) and worked in 10-15% of deaths in New Zealand. Mr Hughson is aiming conjunction with the Department to have that figure increase to 40-50% within the next of Internal Affairs (DIA) to launch year, with a target of 100% over time. Because a death the project. The project began in is confirmed against the Death Register at DIA before 2017 when the Registrar General of organisations are notified, it replaces the need for a Births, Deaths and Marriages, Jeff Death Certificate. Montgomery, saw issues around Stella Purcell, Principal at Ruby Law, was recently the closing down of estates. DIA Because prompted to register the notification of a deceased sponsored a team to take part in a a death is person online using the myTrove web service. three-month Government technol- confirmed “A central registration is an efficient way of dealing ogy accelerator run by MBIE, with against with notifications of this nature, certainly saves individ- Ross and PIM part of the team. The the Death ual letters being sent. I’m all for finding a more efficient team also worked with the Law Register at way of doing anything administrative,” she says. Society and other stakeholder groups DIA before The web service has recently added a tab where you selected to assist the DIA in the, organisations can elect to give feedback and suggestions, and PIM will “Simplifying the Final Affair” project. are notifed, soon be starting a focus group to get further ideas from The area selected to simplify first was it replaces lawyers to further develop the service. These may include to streamline the death notification the need ‘find my will’ and ‘find my insurance’ tabs, real-time process. for a Death confirmation of probate, or identity verification of the The service was launched in Certificate. person notifying of the death. ▪
56 LAWTALK 933 · October 2019
TECHNOLOGY Windows 7 Leaving so soon?
BY DAMIAN FUNNELL
Microsoft will withdraw support for Windows 7, its fast- est-ever selling version of Windows, on 14 January 2020. No more security patches or other updates from this date, meaning it’s time to upgrade. The history of Microsoft Windows sure has been a strange old roller- coaster ride. It officially started with version 1.0 back in 1985, but Windows didn’t gain mainstream adoption until version 3.0 in 1990. Its popularity exploded with the disappointment that was Windows The logic behind release of Windows 95, which began 8, many customers, particularly the move a 15-year period of total dominance businesses, chose to keep buying Why should I care? One word: and ubiquity for the operating PCs with Windows 7 pre-installed security. system. A dominance that only for years after Windows 8 was Yes, your Windows 7 PCs might came to an end with the resurgence released. A significant percentage be running just fine and they may of Apple and the smartphone revo- of new PCs were still being sold indeed have a couple of years’ of life lution over the last decade. with Windows 7 when Windows left in them yet. But they are also Windows 7 (2009) became the 10 finally came along in 2015 to put running an operating system that biggest selling version of Windows Windows 8.1 (as it was called by is over 10 years old and that, as of both because it was released during then) out of its misery. It was only a 14 January, won’t receive updates a period of peak market dominance couple of years ago that manufactur- or security patches from Microsoft for the PC and because it was sand- ers stopped selling Windows 7 PCs anymore. wiched between two of the worst and only last year that Windows 10 Microsoft, left with the unen- and least popular versions that overtook Windows 7 for worldwide viable choice between extending Microsoft has yet inflicted upon us. installs. This means that more than Windows 7 support (and hurting Windows Vista (2006) and Windows a fifth of PC devices (which includes Windows 10 sales) or ending 8 (2012) were both critical and com- Macs) in New Zealand are still run- support for an OS that still runs mercial failures, having likely only ning Windows 7 today. on tens of millions of computers contributed a measly few billion to Microsoft offered a free upgrade to worldwide, chose the latter and Bill Gates’ net worth. Windows 10 upon its release to try will effectively yank the rug out Windows 7, on the other hand, and wean customers off Windows 7. from under a huge customer base. was fast, secure and basically Corporate customers were a lot less Yes, extending Windows 7 support sucked a lot less than the versions keen on the free upgrade than con- would have been expensive and yes that came before and after. It went sumers, meaning the percentage of they have been telling customers on to sell an incredible 450 million Windows 7-based PCs in the office is for years that this would happen, copies in less than two years. a lot higher than the overall country but I think it’s poor form for them It didn’t just sell quickly in its average. There are no reliable stats to withdraw support for an OS that early days, however. It also had available, but some estimates put so many of us still use. amazing longevity. Because of the this figure above 40%. This article is being written on a
57 October 2019 · LAWTALK 933
The days of being blasé about computer security are over. We can no longer tell ourselves that we’re too small or too unimportant to be of interest to hackers.
after hackers compromised Kathmandu’s website and this caused me considerable cost and disruption. All of the fraudulent purchases were refunded, but my card was cancelled and it took two weeks to get a new one. Payments were missed, subscriptions suspended and it took me ages to resolve everything once my new card arrived. At Choice Technology we see a steady stream of business customers who need help to recover from security breaches. These are almost always preventable and the effects can be catastrophic. In many cases if the customer had updated their software they would have been protected from whatever exploit they succumbed to. This is why all of the computers that we manage on behalf of our customers receive regular automated updates and are moni- tored for security-related events 24 hours per day. This is also why we’re asking our customers to upgrade their Windows 7 PCs laptop running Windows 7. I do almost all of my work prior to support being withdrawn. in a browser these days (I’ve just counted and I have 55 So don’t wait until January to think about Google Chrome tabs open), so the version of Windows upgrading from Windows 7. It’s a good idea that I’m running is largely irrelevant to me in 2019. Yes, I to do a stocktake now and to have a plan will upgrade my laptop prior to Windows 7 support being in place for upgrading or replacing them withdrawn, but I’m annoyed that I have to given that before Microsoft finally withdraws support this machine is only three years old. It feels like I’ve just for what became one of the most popular broken it in and now I have to replace it. versions of Windows ever. I’ll upgrade because the days of being blasé about Bye Windows 7. It’s a shame you have computer security (and outdated software) are over. We to leave so soon, but it was great while can no longer tell ourselves that we’re too small or too it lasted. ▪ unimportant to be of interest to hackers, because almost all of us have been the target of at least one hacking attempt Damian Funnell damian.funnell@hoodoo. during the last 12 months. The majority of us have been software is a technologist. He is the the victim of a successful hacking attempt over the past founder of Choice Technology, an IT five years. services company, and Hoodoo, an app I for one had my debit card details stolen this year development studio.
58 LAWTALK 933 · October 2019 LETTERS TO THE EDITOR
LETTERS TO THE EDITOR
Enduring powers Ultimately, practitioners know their Further, why do we get asked to tell their clients and what degree of prompting clients what their rules and charges are of attorney forms through use of the default form is required (disclosure) when they have the client’s in a given situation. Although the EPA form personal contact information on their file I wrote some months ago (LawTalk 907, provided by MSD is guaranteed to be com- already and could (should?) complete that June 2017) about the forms of enduring pliant with the Act, there is fortunately task themselves. powers of attorney, related certificates, and some flexibility to adapt the form, provided However, and being a realist, no doubt plethora of other material in the Protection it complies with the requirements of s 95(2) the Latin maxim, Adversus tonitruum of Personal and Property Rights (Enduring of the Act. Many sections of the new form magnitudinis peditum Libonis, will apply. Powers of Attorney Forms and Prescribed are optional, although when contemplating Grant Aislabie Information) Regulations 2008. changes to the form it is important to show Director, CG Law Ltd, Mt Maunganui. I considered, and still do, that the that the donor has turned their mind to prescribed enduring powers of attorney the option before rejecting it. forms are poorly set out and are far too The conflict rule, although sometimes Berry & Co among long – partly caused by the inclusion of onerous to apply in practice, could more superfluous material such as the provision positively be seen as providing protection New Zealand’s of celebratory gifts. for the practitioner involved in executing Anecdotally, the forms and their imple- the EPA. The Property Law Section does oldest law firms mentation raise thoughts of civil disobedi- however sympathise with many of the ence in the most law abiding of solicitors. writer’s concerns and will raise these with We read with interest the article entitled More importantly, sections 94 and 94A MSD when the opportunity presents itself. “New Zealand’s Oldest Law Firms” appear- of the Protection of Personal and Property ing at pages 98 and 99 of LawTalk Issue 932. Rights Act 1988 should be replaced. Our firm, Berry & Co was omitted from There are many situations other than Printing for the list of the 50 oldest law firms, however where people have appointed each other it traces its roots back to 1886 when HB that there is less than a negligible risk the retirement Crawford first set up practice in Naseby of conflict of interest arising. A frequent and shortly thereafter moved to Oamaru situation is where an elderly spouse cannot village industry to practice law. The firm has gone through appoint the other who is indisposed. The a number of name changes over the sub- appointee, usually a middle-aged son or Is it just me? sequent 133 years, and became Berry & Co daughter, does not want to appoint their I am affronted when reading of the in 1988. elderly parent. All parties are longstanding obscene profits made by the banks and The firm held very successful 110th clients and well known to the practitioner. the more modest, but no less obscene, anniversary celebrations in 1996 that was A correction of the Act and simplifica- profits made by the retirement village attended by many former staff members tion of the forms would gain the enduring industry that each of these institutions and partners dating back to the 1950s. gratitude of the legal profession and the insist on the legal profession undertaking In recent years the firm has expanded paying public. the role of their de facto unpaid printing with branch offices in Queenstown and Errol Macdonald, Levin. provider. In some cases, this amounts to lnvercargill. over one hundred pages that are required We suspect there may be other firms Geoff Adlam replies to be printed. who likewise have a similar lineage that The Property Law Section acknowledges the “Charge your clients” they say, but there have been missed off the list, but no doubt frustration being experienced by this and is already push back to our profession over they will make contact if they feel the need other practitioners who advise clients on costs so often we, at our own cost, just to correct the record! EPAs and agree the default MSD forms are absorb the cost of it. The irony is that some Michael de Buyzer unduly lengthy and often overly complex banks require not only a scanned copy of Partner, Berry & Co. for the needs of many clients. However, the documents but also the hard copy. the additional information accords with the One wonders where the building is that Geoff Adlam replies stated MSD goal that the new form “was to stores all those pages – or perhaps that Yes, Mr de Buyzer is correct, Berry & Co protect donors against attorney abuse and hard copy, too, is scanned. What waste of Oamaru should have been included in make both donors and attorneys more aware of time and paper – and we worry about the list of the 50 oldest law firms in New of their rights and obligations under an EPA”. plastic bags! Zealand. Our apologies for the omission.
59 LAWYERS COMPLAINTS SERVICE October 2019 · LAWTALK 933
LAWYERS COMPLAINTS SERVICE Disciplinary charges against lawyers How is conduct treated that took place before the Lawyers and Conveyancers Act 2006 came into force?
BY JUSTIN KLEINBAUM
conduct in respect of which Mr Morahan had been found In the recent Court of Appeal proceedings of a discipli- liable by the New Zealand Lawyers decision of Peter James Morahan v nary nature could have been and Conveyancers Disciplinary Wellington Standards Committee 2 commenced under the Law Tribunal in relation to two disci- [2019] NZCA 221, the Court of Appeal Practitioners Act 1982, a com- plinary charges brought by the considered the status of conduct plaint about that conduct may Wellington Standards Committee 2. that occurred before the Lawyers be made, after the commence- Mr Morahan appealed to the High and Conveyancers Act 2006 came ment of this section, to the Court which dismissed the appeal in into force. The Court of Appeal con- complaints service established its entirety. Mr Morahan then sought firmed the role such conduct can under section 121(1) by the New and was granted leave to appeal to play when establishing context and Zealand Law Society. the Court of Appeal. confirming the penalty. ( 2 ) Despite subsection (1), no The first charge related to Mr For a variety of reasons, com- person is entitled to make Morahan’s conduct between 1 August plaints against lawyers are often under this Act— 2002 and 1 August 2008, when he made some time after the relevant ( a ) a complaint that has been was acting for Ms B, Mr J and a conduct took place. The rules gov- disposed of under the Law trust in relation to several property erning complaints made in respect Practitioners Act 1982; or transactions. The charge alleged of conduct that took place before ( b ) a complaint in respect of— that Mr Morahan had breached the the Act came into force are set out ( i ) conduct that occurred professional duties he owed Ms B by in section 351 of the Act. more than 6 years acting for Mr J and the trust in a way While s 351 allows for a complaint before the commence- that disadvantaged Ms B. to be made in respect of conduct ment of this section; or The second charge alleged that Mr that took place before the Act came ( ii ) regulated services that Morahan breached his professional into force, it does create a limitation were delivered more duties to Ms B by taking steps that period for complaints and conse- than 6 years before the were contrary to her interests fol- quently for disciplinary proceedings. commencement of this lowing the breakup of the marriage Relevantly, section 351 states: section; or between Ms B and Mr J and in rela- ( iii ) a bill of costs that tion to proceedings between them 351 Complaints about conduct was rendered more in the Family Court. This offending before commencement of than 6 years before the was alleged to have occurred after section commencement of this 1 August 2008, and so section 351 of ( 1 ) If a lawyer or former lawyer or section. the Act was not relevant. employee or former employee In relation to the first charge, the of a lawyer is alleged to have In effect, a complaint cannot relate particulars referred to steps taken been guilty, before the com- to conduct that took place before 1 by Mr Morahan before 1 August mencement of this section, of August 2002. 2002. The Tribunal, in finding the
60 LAWTALK 933 · October 2019 LAWYERS COMPLAINTS SERVICE
first charge proved, stated “that the charge [could] be followed then that the High Court had erred in upholding proved only on findings made in respect of conduct the Tribunal decision. alleged to have occurred after 1 August 2002” and that The Standards Committee acknowledged that there it was making “no finding against [Mr Morahan] in had been an error in the way the particulars of the charge respect to any of his conduct prior to 1 August 2002”. had been drafted. However, it was submitted that the However, even though the Tribunal expressly confined evidence concerning Mr Morahan’s conduct prior to 1 its findings as to liability to matters that took place August 2002 was relevant and admissible as propensity between 1 August 2002 and 1 August 2008, it did, in fact, evidence. make findings in relation to matters which took place In respect of the issue of liability, the Court of Appeal before 1 August 2002. The Tribunal stated that those accepted that propensity evidence could be adduced findings were “relevant in establishing context” and that at disciplinary proceedings but stated that it had no Mr Morahan’s conduct which took place before 1 August need to explore that point further. It considered that 2002 “had ongoing implications for what was to follow”. the Tribunal had not treated Mr Morahan’s conduct as The Tribunal also found that Mr Morahan’s conduct propensity evidence. It stated that “the Tribunal made prior to 1 August 2002 was relevant when determining it abundantly clear that it confined its findings as to penalty. It referred to Daniels v Complaints Committee 2 liability in relation to Charge 1 to Mr Morahan’s conduct of the Wellington District Law Society [2011] 3 NZLR 850 between 1 August 2002 and 1 August 2008. The findings (HC), a decision of a full court of the High Court which made in relation to the events that occurred before 1 held “in considering sanctions to be imposed upon an August 2002 were merely contextual.” errant practitioner, a disciplinary tribunal is required Accordingly, the Court of Appeal saw no basis for to view in total the fitness of a practitioner to practice, interfering with the Tribunal’s and High Court’s findings whether in the short or long term”. on liability. It stated that it was “satisfied the Tribunal On appeal in the High Court, Churchman J did not and the High Court complied with s 351 of the [Act] consider that the allegations relating to conduct prior to 1 when finding and confirming Mr Morahan was guilty August 2002 should have been included in the particulars of Charge 1”. of the charge. However, he rejected the submission that In respect of penalty, the Court of Appeal examined that inclusion invalidated the charge itself. Further, he the purpose that underpins penalties imposed by pro- held that the Tribunal was entitled to take into account fessional disciplinary bodies. It summarised them as Mr Morahan’s conduct prior to 1 August 2002 when follows: determining penalty. Churchman J stated that there a. The responsibility to protect the public; were many relevant factors in determining whether a b. The maintenance of public confidence in the profes- practitioner was fit to practice. These included: sion through the setting of standards; a. Whether the conduct was a one-off event in an oth- c. Any rehabilitative function to assist the practitioner erwise blameless career; to be reintegrated into the professions; and b. Whether the practitioner had insight into the conse- d. Any punitive function. quence of his or her actions; The Court of Appeal stated that the multifaceted role of c. Whether the practitioner had expressed remorse or the Tribunal when determining a penalty supported the apologised for their actions; submission that the Tribunal must be entitled to take d. Whether the conduct in question was part of a con- into account a wide range of matters when determining sistent pattern of behaviour extending over a long what penalty was appropriate for each, fact specific, case. period of time (including in this case, prior to 1 August Ultimately, it determined the issue by examining 2002); and the text and purpose of s 351. It found that while e. Any prior disciplinary sanctions that may have been that section created a limitation period for complaints imposed on the practitioner. and disciplinary charges against a lawyer, the text of Mr Morahan appealed to the Court of Appeal. There s 351 did not attempt to limit in any way the matters were two limbs to the issue on appeal relating to s 351. which the Tribunal could consider when determining a Firstly, counsel for Mr Morahan argued that the Tribunal penalty. Accordingly, it found that the Tribunal had not had erred in law in making adverse findings against breached s 351 by taking into account Mr Morahan’s him in relation to his conduct prior to 1 August 2002. conduct prior to 1 August 2002 when determining He argued that those findings “fatally impugned the penalty. Further, it found that the High Court also Tribunal’s findings in relation to Mr Morahan’s conduct complied with s 351 when upholding the Tribunal’s between 1 August 2002 and 1 August 2008”. decision. Secondly, he argued that by expressly taking into This case provides some clarity about how to deal account Mr Morahan’s conduct prior to 1 August 2002 with conduct that took place before 1 August 2002 when determining penalties, the Tribunal breached s 351. when considering complaints against practitioners. It He argued that effectively, the limitation provisions also reinforces the established view that the Tribunal in s 351 were invalidated when the Tribunal took Mr is entitled to consider a wide range of matters when Morahan’s conduct prior to 1 August 2002 into account. It determining whether a practitioner is fit to practice.▪
61 LAWYERS COMPLAINTS SERVICE October 2019 · LAWTALK 933
LAWYERS COMPLAINTS SERVICE
Complaints decision summaries
Censured for the amount which would have belonged The committee said it considered that Ms to Mrs W. One of the aims of the suggested K “would have suffered significant stress incompetent division was so that Mrs W could receive and anxiety because of the way in which a residential care subsidy. Ms McDonnell handled the matter” and it advice and estate The executors initially agreed to an equal ordered Ms McDonnell to pay Ms K $1,500 division of the assets. However, when Ms compensation. The committee also ordered administration K, who had been appointed by Mrs W as Ms McDonnell to pay $1,200 costs. her attorney, sought to maximise Mrs W’s On review, the Legal Complaints Review position, this created friction in the family. Officer confirmed all the orders made by Former lawyer Jennifer McDonnell has Ms K then sought independent legal advice the committee (in LCRO 3/2017 and LCRO been censured and fined $8,000 by a in relation to her and Mrs W’s position. 148/2017). The LCRO also ordered Ms lawyers standards committee. A revised schedule of assets was then McDonnell to pay an additional $1,200 costs. The committee found Ms McDonnell had provided by Ms McDonnell. This reflected provided negligent and/or incompetent Mr W’s will and took into account that any advice to the beneficiaries of an estate jointly owned assets would pass to Mrs Unduly delayed which contributed to delay. This consti- W by survivorship, with any other assets tuted unsatisfactory conduct. remaining part of Mr W’s estate for distri- file release In late 2014, Ms McDonnell took instruc- bution to his beneficiaries. tions to prepare wills for Mr W and his “In the committee’s view, Ms McDonnell All names used in this article are fictitious wife Mrs W. Mr W appointed three of his incorrectly applied the law of survivor- children, including Ms K, as executors and ship and the provisions of the [Property A lawyer who unduly delayed releasing trustees. (Relationships) Act 1976], which set this files to a client’s new lawyer has been fined Mr W died a short time later. His will matter off on the wrong track right at the $1,000 by a lawyers standards committee. provided for his estate to be distributed outset,” the committee said. The lawyer, Cleveland, had acted for Mr to his five children after payment of debts “There is nothing to indicate that Ms Hampshire’s family trust and in the prepa- and/or expenses. McDonnell had ever advised the executors ration of a new will for Mr Hampshire. At the time of his death Mr W’s estate of the correct legal position or of how the However, on 5 November 2015 Mr consisted of assets worth approximately estate should have been distributed in Hampshire engaged a law firm (the firm) $250,000 and household chattels. He also accordance with that position. to represent both him and the trust. The owned assets jointly with his wife, includ- “Even if all the executors and benefi- firm sent Cleveland a signed request to ing a licence to occupy a property, bank ciaries had agreed that the estate was to uplift Mr Hampshire’s and the trust’s files accounts and a number of investments. In be distributed in a different manner, that and documents. accordance with the principle of survivor- should have been dealt with by a Deed Some five days later Cleveland sent ship, any jointly owned property, would of Family Arrangement, with all relevant Mr Hampshire an invoice for taking will pass automatically to Mrs W. parties receiving independent legal advice. instructions and a statement of costs said However, although not set out in Mr W’s “The committee considered that the inad- to be outstanding from the trust. That was will, Ms McDonnell submitted Mr W had equate advice provided at the outset has accompanied by advice that no files or doc- instructed her that he wanted one half of contributed to the disharmony between uments would be released until all costs the property he and Mrs W owned jointly the executors and had been a cause of delay had been paid. Mr Hampshire settled his to pass to his children on his death. Ms in the matter,” the committee said. outstanding costs on 18 December 2015. McDonnell provided the executors with The committee also noted that Ms However, it was not until 5 February 2016 a schedule of assets claiming the estate McDonnell had failed to identify a “clear (by which time Mr Hampshire had com- was entitled to half the assets that were conflict between her duties to Mrs [W] and plained of delay to the Lawyers Complaints jointly held by Mr and Mrs W. her duties to the estate”. That breached rule Service) that Cleveland advised that the Dividing the assets in accordance with 6.1 of the Lawyers and Conveyancers Act files had been available to uplift since the Ms McDonnell’s schedule increased the (Lawyers: Conduct and Client Care) Rules beginning of the working week. amount available to the estate but reduced 2008. As part of his complaint, Mr Hampshire
62 LAWTALK 933 · October 2019 LAWYERS COMPLAINTS SERVICE
also said he had received an invoice for of its determination. the firm again asked Cleveland to provide work of which he had no knowledge and On review, the Legal Complaints Review the will file. Following these exchanges, that a request for clarification of the invoice Officer (LCRO) confirmed the finding that Cleveland confirmed she was not holding had not been responded to by Cleveland. Cleveland had breached rule 4.4.1. a physical file. In her response to the committee, “What is clear is that [Cleveland]’s “[Cleveland] should have been able to Cleveland said the request for the file obligation to release the files was not in provide evidence of a file being opened and had coincided with the Christmas “rush”. dispute by 18 December 2015, when Mr compiled which comprehensively recorded Cleveland submitted that her availability [Hampshire] settled all his outstanding the instructions received. In response to to provide the file therefore had to be accounts,” the LCRO said in LCRO 228/2016. repeated and persistent requests to provide prioritised, taking into account the busy “Whilst I have taken into consideration a copy of the will file, she was unable to period prior to the Christmas break and [Cleveland]’s argument that her ability to do so, and simply provides explanation the pressure of work involved in clearing provide the files promptly was signifi- that she prepared the will on instructions,” the post-Christmas work backlog. cantly impeded by the intervention of the LCRO said. The committee found Cleveland had the Christmas break, I am not persuaded “That is inadequate. Instructions breached rule 4.4.1 of the Lawyers and that the interruption of the holiday period received in respect to the preparation of Conveyancers Act (Lawyers: Conduct provides reasonable explanation for the a will should be carefully recorded. and Client Care) Rules 2008 and that was delay that occurred.” “A written record of the instructions unsatisfactory conduct. The LCRO noted that the committee’s received on occasions assume considerable Rule 4.4.1 imposes a duty on lawyers finding that Cleveland had breached rule significance particularly in circumstances to “act upon any written request to uplift 9.6 was based on a misunderstanding that where the will is subjected to challenge. documents without undue delay subject the invoice for will preparation had been A failure on the part of a practitioner to only to any lien that the former lawyer for a will made eight years earlier. have faithfully recorded the instructions may claim,” the committee said. In fact, the complaint related to provided in a form which is open to exam- The committee also found Cleveland Cleveland charging fees for the preparation ination constitutes a significant lapse.” This had breached rule 9.6 by rendering an of a will in 2014 (which Mr Hampshire said amounted to a breach of rule 3 and that invoice in relation to the preparation of a he did not recall having discussed with was unsatisfactory conduct, the LCRO will, which had not been rendered within a Cleveland). As such, the LCRO reversed determined. reasonable time of completing the matter, the committee’s finding that Cleveland The LCRO also said that the order and that was unsatisfactory conduct. had breached rule 9.6. directing refund of a fee for will prepa- As well as fining Cleveland $1,000, the However, it was noted that on receiving ration should be varied to accurately committee ordered Cleveland to cancel and Mr Hampshire’s files, the law firm made record the total fee charged. It varied the refund a fee of $294 plus GST, incurred for repeated requests to uplift the will file. committee’s $294 refund order to a $355 preparing the will and to pay $750 costs. It Cleveland finally forwarded what she refund. The LCRO also ordered Cleveland also ordered the anonymised publication described as an “updated draft will” and to pay $900 costs.
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63 LAWYERS COMPLAINTS SERVICE October 2019 · LAWTALK 933
Consider The committee noted Warwickshire’s the legal profession is preserved.” intention was to copy and retain the doc- However, the committee observed that confidentiality uments for use as precedents. there were a number of circumstances that In addition, Warwickshire’s response eased its concerns about the breach of con- when storing to the committee included an acknowl- fidentiality in this matter. These included: edgement of her wrongdoing in copying • there was no information to suggest documents as and retaining documents in the manner Warwickshire had copied, retained and/ she did. or used any confidential and/or personal precedents “Retention of documents for use as prec- client information for personal gain, edents was common practice amongst the against the interests of any client or for All names used in this article are fictitious profession, however the committee held the benefit of a third party; concerns about the potential volume of • Warwickshire had stored the informa- Some lawyers may not be giving “adequate documents and [Warwickshire]’s disregard tion securely on servers at the three consideration to their obligations of con- for the confidentiality issues raised,” the firms, albeit in breach of the original fidentiality in the retention and storage committee said. obligations to clients of the firms; of documents for use as precedents,” a “At times [Warwickshire] neglected • Warwickshire’s acceptance of the issue lawyers standards committee has said. to remove client information when she when it was raised with her; “Best practice would be that client infor- retained/stored the documents, and this • Warwickshire deleted the material mation is accessed only by those who are meant that documents (including client promptly and advised she had changed involved in a matter and best practice was information) were transferred to other law her practice to ensure the issue does not to remove all identifying information from firms where [Warwickshire] was subse- arise again. any documents before they were stored quently employed. The committee also gave some considera- for use as precedents and/or circulated for “By transferring the documents to a tion to the wider context of Warwickshire’s this purpose.” firm outside of the firm where the client(s) conduct, including: The committee made these observations sought representation, [Warwickshire] • Warwickshire had made no secret of the when considering an own motion investi- failed to protect and hold client informa- precedents she stored; gation of a lawyer, Warwickshire. tion in strict confidence.” • she was not advised at an earlier time of Warwickshire had previously been The committee considered that the issues arising from the copying and employed at several different firms. The Warwickshire’s conduct was in breach retention of precedents in the manner own motion investigation arose when of both rules 8 and 11 of the Lawyers and that she did; Warwickshire’s former employers notified Conveyancers Act (Lawyers: Conduct and • the committee’s view that Warwick- the New Zealand Law Society that they had Client Care) Rules 2008 and would there- shire’s conduct may not be uncommon, discovered “a significant number” of docu- fore meet the threshold for unsatisfactory and its view that similar issues in rela- ments containing private and confidential conduct. tion to the storage and use of precedents information about identifiable current and Rule 8 provides: “A lawyer has a duty may arise in other practices and for other former clients of two of Warwickshire’s to protect and to hold in strict confidence practitioners. former employers on the server of her most all information concerning a client, the Warwickshire had made an “error of recent former employer. retainer, and the client’s business and judgement and breached her professional The two former employers also advised affairs acquired in the course of the pro- obligations by copying and storing docu- that Warwickshire had apologised to fessional relationship.” ments containing client information”, the them and clarified that she held no other Rule 11 provides: “A lawyer’s practice committee said. information than that found on the most must be administered in a manner that “However, after considering these recent former employer’s server and had ensures that the duties to the court and matters, and all the circumstances, the not disseminated confidential information existing, prospective, and former clients committee decided that the matter did to any third parties in any way. are adhered to, and that the reputation of not warrant a disciplinary finding.”
64 LAWTALK 933 · October 2019 LAWYERS COMPLAINTS SERVICE
Order not to to the hearing, despite being given the truthful, but her only experience in the role opportunity to do so. She is understood had been 20 years earlier, and she never employ Sarah to be now living in Australia. intended to provide her services without The Tribunal says it is satisfied the charge remuneration. Buschman has been proved. Until Mrs KB’s death two and a half As well as its order to not employ, the years later, Ms Dangen rendered invoices The New Zealand Lawyers and Tribunal has ordered that Ms Buschman for a total of $62,292 and also prepared Conveyancers Disciplinary Tribunal has refund $2,947 to her previous employer, and authorised an interest-free $20,000 made an order that no legal practitioner or and that she pay total costs of $3,966 to loan to Mrs KB’s niece. Ms Dangen sub- incorporated firm employ Sarah Buschman the New Zealand Law Society. sequently agreed to repay the loan and in connection with the practitioner’s or fees in full herself. incorporated firm’s practice. The Tribunal found that Ms Dangen had The order is made pursuant to sec- Nola Kay Dangen sworn three affidavits which were inaccu- tion 242(1)(h)(ii) of the Lawyers and rate, had charged significant fees without Conveyancers Act 2006, for so long as the suspended for authorisation by the court and some of order remains in force. which could not have been authorised The Tribunal says Ms Buschman was two months by the court, and had advanced the loan employed by a law firm, initially as a sec- without any authority to do so. retary. When the firm accountant retired, The New Zealand Lawyers and It said her actions were not simple and she took that role over from 29 April 2016 Conveyancers Disciplinary Tribunal has understandable errors, and they had con- to 11 August 2017. suspended Auckland lawyer Nola Kay tinued for a protracted period. “Between 26 May 2017 and 26 July 2017, Dangen from practice for two months from “In summary we consider the level of [Ms Buschman] authorised the payment 23 September 2019. culpability to be at the very high end of the of eight creditor invoices by electronic This follows admission by Ms Dangen negligence spectrum,” the Tribunal said. transfer from the firm’s bank account. Five of a charge of negligence in relation to Mitigating factors were that Ms Dangen of the invoices had previously been paid her conduct as a property manager and had been prepared to put right her fail- by the firm. None of the payments were welfare guardian for an elderly woman. ures, her guilty plea – albeit at a very late made into the creditors’ bank accounts. Mrs KB suffered from dementia and was stage – had indicated some understanding [Ms Buschman] dishonestly arranged for in a residential care facility. and acceptance of her failures, and she all eight payments to be paid into her own Ms Dangen had been approached by previously had an exemplary record as a bank account. The total sum taken ... was a lawyer colleague to act as welfare practitioner. $2,947,” the Tribunal says. guardian and property manager after In considering an appropriate penalty, It says at a meeting with her employer, Ms another lawyer had declined to accept the the Tribunal said having regard to the Buschman said the payments were either a appointments due to a history of family seriousness of the failures, the lengthy mistake or an accident. She indicated she difficulties between Mrs KB’s husband period for which they continued, and the would repay the money but has not done so. and a son. multiple number of failures involved, no The New Zealand Law Society’s Waikato Because a court filing timetable made penalty short of suspension would properly Bay of Plenty Standards Committee No 1 the matter urgent, after agreeing to take on mark its denunciation of the conduct, nor charged Ms Buschman with conduct that the roles Ms Dangen hurriedly swore three provide general deterrence as required. would, if it were conduct of a practitioner, affidavits prepared by the lawyer acting for Ms Dangen’s two-month suspension was render the practitioner liable to have his Mrs KB’s husband. These included state- deferred until 23 September because of her or her name struck off the roll. ments that Ms Dangen had many years’ obligations to undertake locum duties for In its decision the Tribunal said Ms experience in the area and that she did not sole practitioners. Buschman did not file a response to the seek remuneration for her services. The Tribunal also ordered that she pay charge or any teleconferences relating Ms Dangen swore that the affidavits were total costs of $28,242.
65 LEGAL INFORMATION October 2019 · LAWTALK 933
LEGAL INFORMATION The Ethical Lawyer: Legal Ethics and Professional Responsibility by Richard Scragg
REVIEWED BY GARRY WILLIAMS
In my view, The Ethical Lawyer fulfils these in litigation. Here Scragg considers the case Back when I first started, the Law goals admirably. It provides both thoughtful of National Standards Committee v Orlov Society would periodically send out to analysis and guidance in respect of what are [2013] NZ LCDT 45 and whether or not the practitioners the Rules of Professional often challenging ethical dilemmas. High Court was correct when it quashed an Conduct for Barristers & Solicitors (the Red So, what does The Ethical Lawyer cover? order striking off the practitioner involved. Book). There are 16 detailed chapters but the The Orlov case dealt with rule 13.2 which The purpose of this publication was to best are those which focus on the topics provides that a lawyer must not act in a clearly set out the ethical and professional of Misconduct (Chapter 5), Conflicts of way that undermines the processes of the duties and responsibilities of lawyers in Interest (Chapters 11 and 12) and Advocacy court or the dignity of the judiciary. The New Zealand. Ethics (Chapter 13). Disciplinary Tribunal had found that Mr The Red Book was invaluable, largely Orlov “had made statements that were due to the fact that it not only set out the Chapter 5 – Misconduct false or made without sufficient founda- relevant rules of professional conduct but In this chapter, Scragg explains just what tion, and that the nature of the statements provided helpful commentary on each of will amount to misconduct under the Rules meant he was not a fit and proper person to the rules. of conduct and client care for lawyers. be a lawyer”. On appeal to the High Court Unfortunately, in 2008, when the Rules Obvious examples of misconduct such his appeal was dismissed except in relation of conduct and client care for lawyers were as dishonesty, breach of fiduciary duty to penalty. On that issue the High Court promulgated, the practice of providing and charging excessive fees are canvassed quashed the order for striking off and said: detailed commentary in the Red Book was and examples of such conduct explained. “We place weight on the fact that the discontinued. The Red Book simply became So too is misconduct based upon inade- practitioner’s offending conduct con- a copy of the Rules. This was a great pity quate supervision of a practice and/or its sists only of speech, and [was] directed and left a considerable vacuum. employees. against a member of the judiciary. It But just as nature abhors a vacuum, so It is also misconduct to obstruct a New [did] not involve mistreatment of too does legal publishing. Zealand Law Society investigation and clients or their money.” In this case the void has been filled by Scragg’s in-depth coverage of this topic Scragg describes the first sentence as Richard Scragg’s The Ethical Lawyer. is nicely illustrated by the High Court’s “startling” and clearly considers that Scragg’s work is intended to be a com- decision in Hart v Auckland Standards misconduct stemming from speech alone prehensive account of the principles of Committee of the New Zealand Law Society should not be considered as somehow a legal ethics and professional responsibility [2013] 3 NZLR 103 where it was said: lesser form of misconduct. in New Zealand and a guide to the practical “Any deliberate refusal by a prac- application of those principles. titioner to comply with a lawful Chapters 11 and 12 – Scragg’s purpose was to “focus on the requirement made by a Standards Conflicts of interests key ethical issues that lawyers encounter Committee tasked with investigating In these two chapters, the author explains on a day-to-day basis in their practices” a complaint must be regarded as seri- and illustrates with multiple examples and “give lawyers an easy-to-follow guide ous. It indicates a lack of candour that typical conflicts of interest problems and, to complying with the requirements of may be significant when considering importantly, how to deal with them once New Zealand’s Lawyers and Conveyancers the fitness of a practitioner to remain they have been identified. Act 2006 and the Rules of Conduct and Client in the legal profession.” As Scragg says conflicts of interest for Care for Lawyers”. This chapter also touches upon misconduct lawyers can arise in a great deal of situations
66 LAWTALK 933 · October 2019 LEGAL INFORMATION
On this last topic, the author refers to the words of McKay J – writing before his elevation to the bench: “Witnesses are under an obligation to tell the truth. Respect their integrity and do not persuade them to adopt a particular view. Ascertain exactly what the witness can honestly say as to the relevant matters. If neces- sary, jog the witness’s memory, and ensure that particular matters are not forgotten or overlooked. You may have to assist the witness to express themselves in a way that accords with their real meaning and not in a way which might be misunderstood. At the end of the day the evidence must be the honest evidence of that witness.” Scragg describes these words as encapsu- lating perfectly the function of a lawyer in preparing a witness to give evidence. Final remarks Richard Scragg was one of my ‘Profs’ instructors many years ago and, in fact, taught me the ethics module of that course. Back then, the ethics module consisted of about a day and a half of lectures. It is therefore particularly pleasing to see that students and practitioners can get a substantially greater insight into legal ethics these days by reading a copy of The Ethical Lawyer. Richard Scragg has been a partner in a but can generally be grouped into categories: standards of the profession, and to the medium-sized firm, a Profs instructor and • Conflicts of interest between clients: public, which may and often does lead to also an academic. He started his academic over their interests in the same matter; a conflict with a client’s wishes or with career at the University of Canterbury over their interests in separate matters; what a client thinks are his or her personal where he became Dean and Head of Law. and conflicts between a current client’s interests. In chapter 13, Scragg discusses He then joined the University of Auckland interests and those of a former client. this tension and the obligations of advo- where he teaches the Legal Ethics course. • Conflicts of interest between a client and cates before the courts. A broad range of The Ethical Lawyer has benefited from his their lawyer. topics are discussed, including: wide-ranging experience and, given how In dealing with these categories the author • The protection of court processes; valuable this work will be to both students outlines the obligations on lawyers to fully • The duty to remain independent – illus- and practitioners, it can confidently be disclose conflicts to clients (where that is trated by a discussion of the circum- expected that there will be future editions. possible) and the circumstances where it is stances in which a lawyer can remain The Ethical Lawyer: Legal ethics and profes- just impossible to act fairly and adequately counsel when he or she is able to give sional responsibility, Thomson Reuters New for both parties. The coverage of these mat- evidence; Zealand Ltd, 978-1-988553-36-8, September ters is in depth and given their importance • The obligations on counsel when pre- 2018, 438 pages, $90 (excludes GST and from a risk management perspective com- senting evidence and witnesses – in par- postage). ▪ pulsory reading for practitioners. ticular the obligations that arise when a witness gives evidence in support Garry Williams williams@richmond Chapter 13 – Advocacy ethics of counsel’s client’s case that counsel chambers.co.nz is a barrister in Auckland’s As an officer of the court concerned in knows to be false; and Richmond Chambers and a member of the the administration of justice, counsel has • The extent to which counsel can help pre- New Zealand Bar Association’s Training an overriding duty to the court, to the pare a witness to give evidence in court. and Diversity and Inclusion Committees.
67 LEGAL INFORMATION October 2019 · LAWTALK 933
LEGAL INFORMATION Recent legal books Forensic Science and the Law BY GEOFF BY ANNA SANDIFORD ADLAM Subtitled “A Guide For Police, Lawyers and Expert Witnesses”, this has been written by independent Christchurch-based forensic science consultant Dr Anna Mental Capacity Law in New Zealand Sandiford and updates her IRIS REUVECAMP AND JOHN DAWSON, GENERAL 2013 first edition. Divided EDITORS into 19 chapters, it examines the main areas of forensic The book contains contribu- evidence which are encoun- tions from 15 authors who tered in criminal and traffic include legal practitioners, cases. The first four chapters academics, bioethicists and focus on expert witnesses and expert evidence. Areas psychiatrists. Its focus is covered include scene examinations, drugs, trace material, on the law governing the images and audio, fingerprints, document examination, position of people who lack bloodstains and DNA. Two concluding chapters look at capacity to make decisions the requirements for medical expertise and working with about their personal care or psychologists and psychiatrists. property, and the position Thomson Reuters NZ Ltd, 978-1-988591-07-0, August of people appointed to 2019, paperback and e-book, 436 pages, $120 (excludes make decisions on their postage and GST). behalf. It is organised into five parts, covering core concepts and processes, authority and justification for Legal books making decisions for others, decisions about personal care This information is compiled from books which and welfare, and property-related decisions. The fifth part, publishers have sent to LawTalk. It does not imply by the general editors, presents conclusions and looks at endorsement by the New Zealand Law Society and the future of mental capacity law. The book addresses civil its objective is to provide information on books law capacity issues and does not address the criminal law. which might be of interest to the legal profes- Thomson Reuters NZ Ltd, 978-1-988591-09-4, August sion. Purchase inquiries must be directed to the 2019, paperback and e-book, 425 pages, $190 (excludes appropriate publisher. postage and GST).
68 LAWTALK 933 · October 2019 LEGAL HISTORY
LEGAL HISTORY Legal nomenclature — from prolix to trendy
BY SIR IAN BARKER QC
The only firm name I can recall – other the late Sir Bruce Slane (as he then wasn’t), The lawyers of the time when I than those of the few women sole prac- the firm’s name was Dufaur, Fawcett, started in the law would have been titioners in those days – which paid any Cairns & Slane. Bruce had just become a rather disconcerted by current trends in regard to women lawyers was Alexander, partner at a young age, as one did in the the nomenclature of legal firms today. J.H. & Julia Dunn, Wellington – a firm late 1950s, and went on to become New Not as much as they would have been which specialised in defamation law and Zealand Law Society President and to by the insistence of marketing, PR and which had New Zealand Truth as a client. demystify the profession with his many other consultants in referring to lawyers excellent PR initiatives. Not too long after- as “the legal industry”. I hope that I am not Retaining names wards, the name became Dufaur, Cairns, in a minority in thinking that, despite the If you were acquiring a sole practice from a Slane & Fitzgerald when my boarding accoutrements and different practice styles retiring solicitor or from a deceased estate, school friend, John Fitzgerald, joined the of the 21st century, lawyers still proudly it was not uncommon to retain the name practice – then a little later, Cairns, Slane belong to a profession – not an industry. of the former practitioner and add your Fitzgerald & Phillips when John Phillips In the 1950s and 60s, it seemed to be own name to theirs in the hope that the came along. I hope I have got the various important that one’s name should appear clients of the retired or deceased lawyer permutations right! The firm’s successors as or as part of the firm name – particularly may still patronise what appeared to be today are called now, simply, Cairns Slane. when commencing practice. After all, ave- a “firm”. Sometimes, firm names on this Country practitioners were more prone to nues for advertising were then extremely model had three names – reflecting more this form of firm name change than their circumscribed by the Law Society. Failing than one change of ownership. city counterparts, presumably because that, the names of the founding fathers A proclamation from the Law Society country lawyers, then as now, tend to be of the firm might be immortalised in the of the day forbade a firm name which well-known in their communities. firm name – particularly if they had been included that of a person, no longer a prominent leaders of the profession or even member of the firm, who had gone to Mergers prominent politicians. Hence such polysyl- the bar (very few did) or who had been Mergers often begat long names since labics as Brookfield, Prendergast, Schnauer appointed to the bench. Thus, Buddle neither party to the merger wanted to be & Smytheman; or Billing, Little, Fookes & Richmond & Co became Buddle Weir & Co forgotten. Thus, when Russell McVeagh Strombom; or Earl, Kent, Massey, Palmer when Kip Richmond was appointed a judge & Co (which before the elevation of and Hamer; or Baxter, Shrewsbury, Milliken in 1960 and Leary, Giesen & Hillyer lost Barrowclough CJ had been Russell, & Murdoch – to mention a few firm names two of its names at different times when McVeagh, Macky & Barrowclough) merged which paid obeisance to the past whilst Leonard Leary and Peter Hillyer went to with McKenzie & Bartleet, the name of naming the then current senior partners. the bar. That particular convention seems the new firm became Russell, McVeagh, If you were a sole practitioner, you to have been forgotten today. McKenzie, Bartleet & Co. The merged firm practised under your own name, although Some of the bigger and/or old-estab- was still referred to by most of the pro- adding an “& Co” was permissible even if lished firms decided, early on, to stick with fession as Russell McVeagh – as the firm there was no “Co”. Sometimes the “& Co” the names by which they had been known is now called. was a rather more junior person and since for a while and which had been associated Add-ons such as “& Co “or “& Partners” public manifestation of the junior’s name with a good reputation. For example, Bell or “& Son(s)” tended to fall out of favour might diminish the impact of the more Gully, Chapman Tripp – although at some slowly over the years. Perhaps the mar- important personage on the clientele, the stages of their journey, such firms might keters thought them too old-fashioned? name of the junior person did not feature have enjoyed a longer formal name. Mergers – particularly mergers of more in the firm name. Another indication of Firms that were growing their practices than two firms – often saw the demise of one-upmanship was putting your first name often changed names when a new partner firm names which had been a presence into the firm name – even although the firm came along or an older partner died or in a town for many years. For example, name included two or more surnames. retired. When I first met my good friend, I was once a partner in a well-regarded
69 LEGAL HISTORY October 2019 · LAWTALK 933
middle-sized firm in Auckland called Morpeth Gould & and efficiently as firms which have not incorporated, apart Co. It had been founded by Hector Morpeth in 1910. In from the additional burden of having to comply with the the latter years of the last century, a flurry of mergers of requirements of the Companies Act. similarly-sized firms in both Auckland and Wellington saw The permitting of incorporation (even in the less-than-opti- the creation of a new firm with offices in both cities under mal company guise) shows some forward-thinking by those a title which included only two names, chosen from quite responsible for regulating the profession. A good friend of a large pool provided by the names of the contributing mine – sadly now deceased – tried once to have his medi- firms. While acknowledging that the choice of a two-name um-sized firm become an unlimited company under the firm brand was always going to be difficult and would Companies Act 1955. His efforts were not favoured by the Law necessarily wipe away many symbols of legal history, I Society of the day, even although, as an unlimited company, was, however, mildly disappointed that the Morpeth name there would be no restriction on any damages payable to a did not feature in the name of the new entity. disgruntled client. (As an aside, for reasons that escape me, The new Act governing the legal profession, which came some useful things like as unlimited companies, common into force in 2008, created a brave new world for the pro- seals and company secretaries were abolished unceremo- fession with things like engagement letters and information niously and without credible explanation in the 1993 Act). on what to do if you became unhappy with your lawyer. The new Act saw greater use of the generic descriptive Inventive nomenclature term “lawyers”, instead of the traditional description of Some former rather precious restrictions on advertising “barristers and solicitors”. Fifty years ago when there have been relaxed for the profession in more recent times. were few barristers sole, every lawyer – even those in This has led to some solicitors becoming inventive when small towns who had hardly ever darkened the door of naming their practices. Trendy marketers have taken over. a Supreme Courthouse since the day when they were While larger and/or more conservative firms stick with the admitted – proclaimed themselves as members of both names by which they have been known for years (often branches of the profession. founders or legal luminaries of a bygone age in two-name Nowadays, the generic term prevails. The thinking format or just one brand name in the possessive form), might be that clients want “a lawyer” and prefer this newer firms or sole practices have resorted to what is Americanisation. thought to be pithy or trendy. Some refer to location or geographical names; others to an easily-remembered Incorporation expression of excellence. Others, rather clunkily, use initial One effect of the 2006 legislation which affected nomencla- letters only (eg, ABCD), taken usually from the initial letters ture was that members of the legal profession were entitled of merging practices. Examples abound of all species and to practise as incorporated companies. This meant, inter alia, I don’t refer to any New Zealand practice in this or any that the firm name had “Limited” tacked on the end and other category by name, lest I be considered out-of-touch partners became directors who could take the tax advantages or critical of anybody who wants to be a bit different. of incorporation. I must confess a sense of regret that, before Overseas, one can see several differing examples with the new Act was passed, a limited liability statutory creature large firms. Ampersands and commas are out. Baker called a “professional corporation” or words to that effect & McKenzie has become Baker McKenzie. (Despite the was not enabled. necessary cost in changing stationery, signage, websites Many overseas jurisdictions (including etc, they must have thought the demise of the humble small ones) have succeeded in creating ampersand was worth it!) One name with a possessive such a statutory vehicle – for example, the “s” added (but without an apostrophe) seems common. Cook Island lawyers thus put P.C. after the Dentons and Linklaters come to mind. Mergers usually firm name. Most of the big UK firms are the require some reference to the merging entities. Hence same. Their letterheads often explain that Freshfields Bruckhaus Deringer. Others keep to shortish they are “limited liability partnerships” and brand names derived from founding fathers or prominent that principals in the firm are still called In the 1950s former partners. Hence, Allen & Overy and Slaughter & “partners”. Such legislation usually extends and 60s, it May. Yet others go for a set of initials appearing in the firm to other professions as well. seemed to name – DLA for example. I have the old-fashioned feeling that the be important With all the changes in nomenclature over the years, word “company” does not sit well with a that one’s one hopes that, whatever the name under which today’s firm consisting of those who are members name should lawyers practise, the traditions of service to the community of a profession. Perhaps the insidious term appear as or based on professional ethics and personal integrity will “legal industry” is a rogue manifestation of as part of the still prevail. Nothing that I have seen in the interesting the thinking which permitted incorpora- firm name – namings makes me fear otherwise. ▪ tion for law firms but under the standard particularly company format. I certainly do not wish to when Sir Ian Barker was admitted as a solicitor in 1957. He has criticise those who have incorporated their commencing had a long career in the law, as a solicitor, barrister, High practices which seem to operate as ethically practice Court Judge, law academic, arbitrator and mediator.
70 LAWTALK 933 · October 2019
LEGAL HISTORY A big story to tell US lawyers, judges and civil rights
BY JOHN BISHOP
A lawyer is either a social engineer or a parasite; that’s what Thurgood Marshall, the first black person to serve on the Supreme Court of the United States, was told as a student. He got the message from another leading black jurist, Charles Hamilton Houston, who was dean of the Howard University Law School in Washington DC when Marshall was a graduate student there in the 1930s. The school was dedicated to producing “social engi- neers.” It had been chartered by Congress in 1869 to educate black students, and Houston defined a social ▴ The wreckage of a burnt out bus, the aftermath of engineer as “ a highly skilled, perceptive, sensitive lawyer an attack on Freedom Riders. who [understands] the Constitution of the United States and [knows] how to explore its uses in the solving of blacks in the state. This violated the Equal Protection problems of local communities and in bettering condi- Clause of the 14th Amendment by giving whites, but not tions of the underprivileged citizens.” blacks, the ability to attend law school within the state. Before becoming a teacher and academic, Houston initiated many civil rights cases, and when he died in Marshall and the civil rights cause 1950, aged 54, Marshall took over what was to become Thurgood Marshall was one of the students who did field one of the most famous, Brown v Board of Education of work for Houston on the Brown case in the southern Topeka 347 US 483 (1954). states. Originally from Baltimore Maryland, the son of In that case the US Supreme Court ruled that separate a railway porter and a teacher, his parents instilled in educational facilities for white and coloured children him an appreciation for the Constitution and the rule were inherently unequal and therefore unconstitutional. of law. He devoted most of his career as a lawyer to the Another judge, Juanita Kidd Stout, who became a civil rights cause. Justice of the Supreme Court of Pennsylvania, said in a As he grew up, the Marshall family debated current documentary about the Brown case that “when Houston events after dinner. Marshall said that although his father attacked the ‘separate but equal’ theory his real thought never told him to become a lawyer, he “turned me into behind it was that ‘All right, if you want it separate but one. He did it by teaching me to argue, by challenging equal, I will make it so expensive for it to be separate my logic on every point, by making me prove every that you will have to abandon your separateness.’ And so statement I made.” (Howard Ball, A Defiant Life: Thurgood that was the reason he started demanding equalisation Marshall and the Persistence of Racism in America (1998)). of salaries for teachers, equal facilities in the schools Appearing on behalf of the National Association and all of that.” for the Advancement of Colored People (NAACP) in For example, in Missouri ex rel. Gaines v Canada 305 US Murray v Pearson 169 Md 478 (1936) he pioneered an 337 (1938), Houston argued that it was unconstitutional argument he and other black lawyers repeated many for Missouri to exclude blacks from the state’s university times. Donald Murray was an outstanding black student law school because there was no comparable facility for denied entry to the University of Maryland Law School
71 LEGAL HISTORY
because of its segregationist policy. African-Americans “think of Marshall argued this violated the Thurgood Marshall as being an “separate but equal” doctrine of even more important figure than Plessy v Ferguson 163 US 537 (1896) the Rev. Martin Luther King Jr”, says because the state did not provide David Bositis, an expert on African- a comparable educational opportu- American voters and politicians at nity at a state-run black institution. the Joint Centre for Political and The Maryland Court of Appeals Economic Studies in Washington. agreed, saying ”compliance with the Constitution cannot be deferred Judge Frank M Johnson at the will of the state. Whatever Another judge with an uncommonly system is adopted for legal education large and direct influence on the must furnish equality of treatment.” course of events during the civil Marshall joined the national office rights era is Frank M Johnson Jnr of the NAACP in 1940. He founded who was a US District Court Judge and headed the NAACP Legal from the Middle District of Alabama Defense and Education Fund and and the US Courts of Appeals for the won 29 of the 32 cases he argued Fifth Circuit and later for the Eleventh before the Supreme Court. Circuit between 1955 and 1999. Later, President Kennedy In 1956 Johnson ruled in favour of appointed him Solicitor General of Rosa Parkes, striking down the seg- the United States and he won 14 of regated seating on the city buses in the 19 cases he took on behalf of the Montgomery, Alabama. In 1961 and government. 1962, he ordered the de-segregation of bus depots and the airport. US Supreme Court And in 1961, he was the judge who appointment ordered the KKK and Montgomery In June 1967 President Lyndon police to stop beating the Freedom Johnson nominated him for the Riders who were trying to integrate Supreme Court saying it was “the interstate bus travel but had been right thing to do, the right time to attacked and the buses bombed. do it, the right man and the right In March 1965, Judge Johnson ▴ Marching protesters, Dexter place.” He was the 96th person overturned a ban on the Selma to avenue, Montgomery, Alabama, to hold the position, and the first Montgomery marchers put in place 1965. On this day, a petition African American. by segregationist Governor George was presented at the Capitol Marshall once bluntly described Wallace who said the march was building, in support of black his legal philosophy as: “You do contrary to public safety. voting rights. what you think is right and let the The marchers marched and were law catch up”, a statement which his savagely attacked by police and A few days later, after discus- conservative detractors argued was state troopers on what became sions with President Johnson’s a sign he embraced judicial activism. known as “Bloody Sunday”. representatives, Judge Johnson Marshall’s statement was cited Johnson imposed a ban but in a lifted his ban and a third march when Elena Kagan, a current secret deal with Martin Luther King took place, under the protection of Associate Justice was before the allowed the marchers to come to, Federal Marshalls and the National Senate during her confirmation but not to cross, the Edmund Petus Guard. This went peacefully to hearing in 2010. She had clerked for Bridge leading into Montgomery. the steps of the Capitol building Marshall at the Supreme Court, and King led his people to the bridge, in Montgomery where the now GOP Senators queried her record of said a prayer for the injured of the 25,000 marchers presented their political involvement, labelling her previous Sunday and then turned petition supporting voting rights a liberal activist. Her response was around and returned to Selma. for black citizens. that: “If you confirm me, you’ll get This was known as “Turnaround Johnson died in 1999 and the Justice Kagan, you won’t get Justice Tuesday” and caused much contro- Frank M Johnson Building which Marshall.” versy within the civil rights move- houses the Federal Courts in Marshall occupies a rarefied ment with King widely denounced Birmingham, Alabama commem- place in American history. Many for his covert deal making. orates him.
72 Fred David Gray which ordered an end to segregation after a boycott Fred David Gray, now 88, was a black lawyer, activist lasting 380 days. and preacher in Alabama over six decades. Another Supreme Court case (Gomillion v Lightfoot His historical marker on the main street of 364 US 339 (1960)) ended gerrymandering in electoral Montgomery, Alabama down the street from the Capitol boundaries and established “one man, one vote” in Building and close to Martin Luther King’s church says, the state. “forced by segregation to leave Alabama to attend law Gray also represented the 623 victims of the Tuskegee school he vowed to return and ‘destroy everything syphilis study. From 1932 to 1972, the US Public Health segregated I could’. He won cases that desegregated Service conducted a study on uninformed black subjects transport, education, housing, law enforcement, public from Macon County in Alabama of the effects of not accommodation and government.” treating syphilis even though penicillin was available In his early days Fred David Gray defended first and known to be effective. Claudette Colvin and then Rosa Parkes who (separately) It was seen at the time as a major breach of medical faced charges of disorderly conduct for refusing to sit in ethics. The subjects were not informed that they were the black section of the segregated buses in Montgomery, part of a study and many of them (and their families) Alabama. suffered and died from the disease. He also successfully defended Martin Luther King who Gray didn’t expose the scandal but he did win the was facing charges of tax evasion in 1960, winning the compensation for the survivors and their families and case before an all-white jury. an eventually an apology from President Clinton. He In total, lawsuits filed by Gray helped desegregate still lives in Montgomery. ▪ more than 100 local school systems, as well as all public colleges and universities in his home state. John Bishop [email protected] recently visited In 1956 he won the Montgomery Bus Boycott case in cities in the southern United States at his own expense the US Supreme Court (Browder v Gayle 352 U.S. 903 (1956) as part of a lifelong interest in the civil rights movement.
73 WILL NOTICES · CLASSIFIEDS October 2019 · LAWTALK 933
Will Tamaki, Stewart Tamahau Would any lawyer holding a will for the above- named, late of 33 Nikau Road, Otahuhu, who died at Auckland City Hospital on 15 July 2019, Notices aged 65 years, please contact Maurice Burney: [email protected] (09) 5271311 PO Box 14 663, Panmure, Auckland 1741
Taylor, Garth Would any lawyer holding a will for the above- named, late of Tokoroa, Achievement Centre Taylor, Ian Henry Kramer (nee Budd), Amanda Worker, born 10 May 1968 who died on 28 July Bell, Robert Francis Dorothy 2019, please contact LMC Law: Kramer (nee Budd), Amanda Dorothy Would any lawyer holding a will for the above- [email protected] Pearce, Alan Ralph named, late of Auckland, Retired, born on 28 (07) 8860553 Edwards, Hurae Phillip April 1957, who died on 20 June 2018, please PO Box 250, Tokoroa 3444 Stewart, Nicola Jane contact Andrew Kennedy: [email protected] Chant, David John Tareha-Tahere, Horitina Georgina (09) 912 1985 Would any lawyer holding a will for the Tamaki, Stewart Tamahau PO Box 340 Shortland Street, Auckland 1140 above-named, late of Cambridge, born on 15 Taylor, Garth September 1950 who died on 1 August 2019, Chant, David John Pearce, Alan Ralph please contact Rebecca Whittall at Cooney Katene, Marumihi Pii (aka Marumihi) Would any lawyer holding a will for the above- Law, Solicitors: LAL, Bijendra named, late of Otahuhu, Auckland, who died [email protected] Rule, Reitoa Enua O Atiu on or about 15th July 2019, please contact Mark (07) 823 1555, Fax (07) 823 2442 Rautangata (nee Kelly), Sandra Rose Henley-Smith of Henley-Smith Law: PO Box 369, Cambridge 3450 Maui, Robyn [email protected] (09) 818 6153 Murray, Scott Hamilton Katene, Marumihi Pii (aka PO Box 20067, Glen Eden, Auckland 0641 Marumihi) Dinnen, Avro Hudson Whyte, Brian William Would any lawyer holding a will for the above- Edwards, Hurae Phillip named, late of 45 Thomas Place, Foxton Beach, Mu, Faataualofa Tuiuli Mu (aka Faataualofa Tuiletoa Tuiuli & Would any lawyer holding a will for the above- born 10 March 1930 and who died on 10 August Taataualofa Mu Tagaloa) named, late of 67A Dunkirk Road, Panmure, 2018, please contact Allison Te Maro, Wakefields Truck Diver who died on the 16th of August Lawyers: Reed, Beau Ross 2019, please contact Bruce Dell, Bruce Dell Law: [email protected] Riri, Tamure Tom (aka Tamure Keepa) [email protected] (04) 296 1177 Yu, Kun-Chou (09) 570 5036, fax (09) 527 1669 PO Box 352, Paraparaumu; DX RP 60014 PO Box 14224, Panmure, DX EP80508 LAL, Bijendra Taylor, Ian Henry Stewart, Nicola Jane Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, late of Sandringham, Auckland, who named, late of Auckland, Retired, born on 4 named, late of 36 Glenbervie Crescent, Massey, died on the 5th day of August 2019, please October 1947 who died on 27 July 2019, please Auckland, please contact Karen Connelly, Cook contact Manu Rogers of Rogers Barristers contact Sarah Wells Gaze Burt: Morris Quinn: and Solicitors: [email protected] [email protected] [email protected] 09 4149800 (09) 831 0033, fax (09) 833 1880 021 131 5533 PO Box 301 251, Albany, Auckland 0752 PO Box 84 203, Westgate, Auckland 0657 PO Box 380 Kaikohe 0440
Bell, Robert Francis Tareha-Tahere, Horitina Georgina Rule, Reitoa Enua O Atiu Would any lawyer holding a will for the above- Would any lawyer holding a will for the Would any lawyer holding a will for the above- named, late of Ohingaiti, Retired born on 10 above-named, late of Dargaville who died on named, late of 28A Waitangi Road, Onehunga, December 1931 in Otaki who died on 30 July 4 February 2019, please contact Dave Dennis, Auckland, Youth Tutor, born on 10 February 1969 2019, please contact Michael J Toner, Solicitor: Hammonds Solicitors: who died on 02 September 2015, please contact [email protected] [email protected] Alan Williams of Kidd Legal: 07 577 9966, Fax: 07 577 6015 (09) 8439 7099 Fax (09) 439 6464 [email protected] PO Box 13394, Tauranga 3141 PO Box 16 Dargaville 0340 or DX AA23502 (021) 0245 7033
74 LAWTALK 933 · October 2019 CLASSIFIEDS · WILL NOTICES
Rautangata (nee Kelly), Sandra Dinnen, Avro Hudson Reed, Beau Ross Rose Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, late of 54 Cobham Avenue, Dargaville, named, Farm Technician, late of 275 Parker named, late of 173 Clarkin Road, Fairfield, who died on 16 March 2019, please contact Lane, Buckland, born on 28 May 1994, who Hamilton, born on 31 May 1954, who died on Dave Dennis, Hammonds Solicitors: died on 25 August 2019, age 25 years, please 30 September 2018, please contact Natalie [email protected] contact Charnelle Pluim, Complete Legal Whitelock, McCaw Lewis: (09) 439 7099, Fax (09) 439 6464 Limited Solicitors: [email protected] DX AA23502 or PO Box 16 Dargaville [email protected] 07 958 7435 or fax 07 839 4652 (09) 238 7004 Whyte, Brian William PO Box 264 Pukekohe 2340 DX EP77026 Maui, Robyn Would any lawyer holding a will for the above- Riri, Tamure Tom (aka Tamure Would any lawyer holding a will for the above- named, Dispatcher, late of 81D Maybury Street, named, late of Tokoroa, Home Executive, born Point England, Auckland, born on 22 October Keepa) 28 March 1951 who died on 25 July 2019, please 1954 who died at Ellerslie, Auckland on 18 Would any lawyer holding a will for the above- contact LMC Law: August 2018, please contact Adrienne French, named, late of Taupo, Driver Operator, born on 7 Public Trust: [email protected] October 1947 who died on 2 August 2019, please (07) 8860553 [email protected] contact Dineen Grantham of Grantham Law Ltd: PO Box 250, Tokoroa 3444 0800 371 471 [email protected] (07) 376 0014 Murray, Scott Hamilton Mu, Faataualofa Tuiuli Mu (aka PO Box 1346, Taupo 3351 Would any lawyer holding a will for the above- Faataualofa Tuiletoa Tuiuli & named, late of Te Puke, New Zealand, Aluminum Taataualofa Mu Tagaloa) Yu, Kun-Chou Joiner, born 15 February 1963 in Australia, who Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- died on 22 April 2019, aged 56 years, please named, late of Glenfield, NSW, Australia, born named, late of Kaohsiung City, Taiwan and 28 contact Karen Sunnex , Fenton McFadden: on 23 June 1955, who died on 3 May 2019, age The Parade, Bucklands Beach, Auckland, born [email protected] 63 years, please contact Lena Wong, Complete on 10 March 1936, who died on 22 April 2019, (07) 573 8681, Fax (07) 573 6745 Legal Limited Solicitors: please contact Jeanna Wu of Daniel Overton PO Box 36 Te Puke 3153 [email protected] & Goulding Lawyers: (09) 238 7004 [email protected] PO Box 264 Pukekohe 2340 DX EP77026 (09) 6222 222 PO Box 13017, Onehunga, Auckland 1643
CHAMBERS/SHARED QUAY CHAMBERS PREMISES OPPORTUNITY ROOM AVAILABLE Wellington The partnership of Wellington Family Law is dissolving on 30 An opportunity has arisen for a barrister to take up a good sized September 2019. With effect from 1 October 2019, the partners of office space with unimpeded sea views, in Quay Chambers (www. Wellington Family Law, Caroline Hannan, Sija Spaak and Chris quaychambers.co.nz). Dellabarca will practice as Barristers from Wellington Family Law Chambers. We have space in our premises for a barrister to join Located on the Auckland waterfront and adjacent the Britomart our chambers, or alternatively for a sole practitioner who wishes Transport Centre, Quay Chambers was established in 2007 and has to consider sharing premises. a positive, down to earth culture. There are currently 11 members with various litigation and dispute resolution specialist areas. Please apply to any of us at our email addresses: [email protected], [email protected], For more information please contact Harry Waalkens QC by [email protected] email at [email protected]. We look forward to hearing from you. Quay Chambers, Level 7, 2 Commerce Street, Auckland
75 LEGAL JOBS · CLASSIFIEDS October 2019 · LAWTALK 933
Your Recruitment Partners CORPORATE/COMMERCIAL SOLICITOR 4+ YEARS Outstanding Working with a team at the top of their game you will be involved in a variety of quality work including securities, lawyers required acquisitions, divestments, restructurings, joint ventures and general commercial work. The list of clients is impressive and includes multinationals, private held companies entrepreneurs, start ups and business individuals. Due to growth and increased workload we have 3 exciting opportunities available in our Feedback from a current team member on how the firm leading Christchurch firm. stands out from other workplaces: Harmans has an enviable reputation both as an employer and for excellence in the law having served the Canterbury Approachable partners from diverse legal backgrounds - region for over 131 years. We are proud to be a signatory exposure to different methods of operation. to the NZLS Gender Equality Charter and we have a High morale and support amongst peers strong presence in a variety of professional committees. Individual offices Work life balance Property and Commercial/Private Client Ability to build relationships with clients is actively Lawyers encouraged We are looking for two lawyers with 1-3 years PQE who are passionate about property. This role is ideal if you have a strong commercial background and can produce high quality work with an eye One position will have a commercial property focus and be for detail. If you are looking for a firm that provides a real involved in other commercial transactional work such as variety of work and to be mentored by some of the best in business sales and franchising. Ideally candidates for this the business, this is the role that will make your career. role should have attained a commerce degree as well as law. Apply now by getting in touch with Elizabeth Butler on The other will practice predominantly in the private client/ 021 144 7200 conveyancing field but will be expected to cater for a variety of other legal needs of our valued clients including asset protection and trust work. Both will have excellent inter-personal qualities and LawTalk - Quarter page Ad.indd 1 22/08/2019 11:38:07 AM communication skills and will possess a desire to build a practice in their respective areas. Each will operate in a team environment with appropriate degrees of autonomy and partner supervision.
Litigation Lawyer We are looking for a senior litigation lawyer with approx- imately 5 years post admission experience primarily in CORONER POSITIONS AT the civil and commercial litigation area.The successful PALMERSTON NORTH AND ROTORUA candidate will have excellent academic ability in the law, proven advocacy, negotiation and drafting skills and be innovative in resolving disputes in the best interests of The Attorney-General is seeking expressions of our clients. Handling all types of disputes, our team is particularly renowned in the insolvency area, estate and interest from persons wishing to be considered for trust litigation, lease disputes, insurance and construction appointment to coroner positions at Palmerston matters and employment issues. North and Rotorua. The positions will be full-time. The work will include immediate client contact, Coroners are appointed under section 103 of the autonomous file handling – with partner supervision and assistance where appropriate and court appearances. Coroners Act 2006. Opportunities exist for future advancement within the firm for the right individual. To be appointed as a coroner, the Act requires that the appointee must have held a practising certificate as a barrister or solicitor for at least five We offer a great work atmosphere in a modern office years. environment, a competitive remuneration package and a commitment to developing the skills and knowledge A position description and application forms are base of our lawyers, including both internal and external available from the Ministry of Justice website professional development. http://www.justice.govt.nz/about/statutory- vacancies/. If this sounds like you please respond with a Expressions of interest are sought by Friday 18 curriculum vitae to: October 2019. Julie Knowles Practice Manager, [email protected]
76 CPD Calendar
PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT
CIVIL ELECTRONIC Hon Justice Miller Electronic casebooks are becoming the desired medium Auckland 29 Oct CASEBOOKS – SENIOR Hon Justice Jagose in document-intensive trials and on all civil appeals in the Wellington 30 Oct COURTS Senior Courts. Used well, consistently with the updated Bronwyn McKinlay Protocol, they are tools for persuasive advocacy. The Christchurch 31 Oct Laura O’Gorman Live Web Stream 30 Oct 2 CPD hours updated Senior Courts Civil Electronic Document Protocol came into effect in March this year and is intended to encourage and facilitate the use of electronic casebooks for 2 CPD hours civil cases in the High Court, Court of Appeal and Supreme Court. This seminar will help you to use and construct electronic casebooks effectively, and will provide the perspectives of the Judiciary and senior lawyers.
INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Wellington 21-22 Oct LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 4-5 Nov litigation in an intense small-group workshop. You will learn Nikki Pender 9 CPD hours how to handle a single file from beginning to end, be able Paul Radich QC to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation files, competently and confidently. Note: Douglas Wilson Scholarship applications close 23 Sept. COMPANY, COMMERCIAL AND TAX
COMMERCIAL CASE LAW Chair: Jenny Cooper QC Despite the steady increase in commercial regulation over Auckland 26 Nov INTENSIVE recent years, case law remains a vibrant and powerful source Live Web Stream 26 Nov of legal evolution in this area. This outstanding programme 6 CPD hours highlights key developments that all commercial law practitioners need to be aware of, whether their practice is transaction or litigation focused. With dynamic speakers and topical subjects including contract law, directors’ duties, negligence, confidentiality issues and litigation funding, this promises to be a day of stimulating presentations and challenging discussion. CRIMINAL
DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Oct 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 FAMILY
TESTAMENTARY Vicki Ammundsen & The stated aim of the Law Reform (Testamentary Promises) Auckland 22 Oct PROMISES ACT – CLAIMS Andrew Steele Act 1949 is to “... make better provision for the enforcement Live Web Stream 22 Oct of promises to make testamentary provision in return 2 CPD hours for services rendered”. This seminar will be delivered in two parts; the first part will cover the key elements of a Testamentary Promise claim, the breadth of eligible claims and reflect on recent developments from the courts. The second part will consider a new cause of action in the family law and estate planning context.
THE IMPACT OF Jo Leech “High-conflict” divorce cases – especially those involving Wellington 6 Nov ENTRENCHED Professor Bruce Smyth entrenched interparental hatred – have been consistently INTERPARAEMTAL identified as difficult, complex, time consuming, and costly. HATRED ON CHILDREN They place great strain on individuals (including children), practitioners and courts, as well as on the family law system 3.5 CPD hours more generally. In this session the presenters will: explore “interparental hatred” as a key relationship dynamic driving some high-conflict cases; discuss strategies for lawyers working with parents in the grips of entrenched hatred; and offer strategies for working with cases where children may be resisting or refusing contact as a consequence of a parent spreading the culture of hatred on to children. This is a Pre-Conference Workshop to the Family Law Conference – additional charge applies
For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz OTHER PRACTICE AREAS Online registration and payment can be made at: www.lawyerseducation.co.nz
PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY
FAMILY LAW Chair: Rachael Dewar We extend to you the warmest of invitations to register Wellington 7-8 Nov CONFERENCE for the Family Law Conference which has the theme: The Winds of Change: Mā te hau tōrua. This biennial event has 13 CPD hours become a sell-out, “must-go” occasion, noted as much for its enthusiastic collegiality as for the high quality of the business sessions. Both practical and provocative, the programme will provide practitioners at all levels of experience with two days of stimulating engagement on topics of essential importance and interest. See you in Wellington! PROPERTY AND TRUSTS
CONSTRUCTION Chair: Andrew Skelton It is a challenging time for the construction industry. This Christchurch 23 Oct LAW – ISSUES AND intensive has practical guidance and insights to help Auckland 24 Oct OPPORTUNITIES you provide the best advice for your constuctions and infracture clients. Topics covered include: procurement Live Web Stream 24 Oct 6 CPD hours models; effective use of dispute resolution, and case law developments. OTHER PRACTICE AREAS
ENVIROMENTAL LAW Chair: An update on key cases and developments in the Christchurch 18 Nov INTENSIVE Bronwyn Carruthers environmental law field including: resource management Auckland 19 Nov system overview and update; the RMA and interface with Live Web Stream 19 Nov 7 CPD hours other legislation; environmental law and our constitution; Marine and Coastal Area (Takutai Moana) Act proceedings; scientific uncertainty and environmental decision making; and, moving towards a transformative recognition of tikanga Māori in environmental jurisprudence. PRACTICE AND PROFESSIONAL SKILLS
WHAT HAPPENS BEHIND Julian Long This seminar will give you a better understanding of Auckland 15 Oct CLOSED DOORS: THE Susan Loveys how Standards Committees work from the inside. All the Live Web Stream 15 Oct WORKINGS OF THE presenters are past or present lay, legal, and administrator David Lucas STANDARDS COMMITTEE members of Standards Committees. They will show you what Barry O’Connor they deal with each month. They will share candid reflections 2 CPD hours and insights into the complaint process, how it evolves from incident complained about, to the first consideration of it, the investigation that may follow, and ultimately to a Committee decision. The session will highlight the different ways many lawyers deal with being complained about: both the good, and the bad.
MEDIATION SKILLS AND Virginia Goldblatt Building on the prior workshop Mediation Principles and Auckland 18-19 Oct STRATEGIES – CIVIL/ David Patten Process (previously Mediation for Lawyers Part A) you COMMERCIAL, FAMILY, will learn and practise essential mediation skills in order Denise Evans EDUCATION DISPUTES to prepare to become a mediator. Will offer area-specific coverage as well as generic skills. 13 CPD hours
LAWYER AS NEGOTIATOR Jane Chart Negotiation is a vital skill for every lawyer. Few aspects of Auckland 30-31 Oct representation can have a greater impact on whether the Welington 13-14 Nov best results are achieved for your client. The District Court 11.5 CPD hours Christchurch 25-26 Nov Rules have underscored the significance of negotiation for effective practice. Improved negotiation skills can help avoid unnecessary litigation, and produce better settlements more efficiently. Skill in negotiation also increases effectiveness in client interviewing, as well as in representing clients in mediation and judicial settlement conferences.
STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland (full) 21-23 Nov FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a PRACTISING ON OWN barrister, will be required to complete this course. ACCOUNT
18.5 CPD hours
To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 Online registration and payment can be made at: Online registration and payment can be made at: www.lawyerseducation.co.nz www.lawyerseducation.co.nz
PROGRAMME PRESENTERS CONTENT WHERE WHEN PRACTICE AND PROFESSIONAL SKILLS
FAMILY READING ACCOUNTS Lloyd Austin It may not be necessary for you as a lawyer to have the Auckland 4-5 Nov AND BALANCE SHEETS financial insight expected of an accountant, but you should Hamilton 6-7 Nov FAMILY LAW Chair: Rachael Dewar We extend to you the warmest of invitations to register Wellington 7-8 Nov know how financial statements are put together and how to: CONFERENCE for the Family Law Conference which has the theme: The interpret the figures; use the figures in financial statements Christchurch 11-12 Nov Winds of Change: Mā te hau tōrua. This biennial event has 7.5 CPD hours to assess the “health” of a business; ask the right questions Wellington 13-14 Nov 13 CPD hours become a sell-out, “must-go” occasion, noted as much and identify warning signs; discuss financial statements for its enthusiastic collegiality as for the high quality of intelligently with a client; and know when to call in specialist the business sessions. Both practical and provocative, assistance and be able to communicate effectively with the programme will provide practitioners at all levels of them. This workshop will make you more effective and experience with two days of stimulating engagement on confident when providing guidance to your clients on topics of essential importance and interest. See you in financial matters. Wellington! TRUST ACCOUNT Philip Strang Under the Financial Assurance Scheme all practices operating Auckland 5 Nov PROPERTY AND TRUSTS SUPERVISOR TRAINING a trust account must appoint a qualified trust account Christchurch 12 Nov supervisor. A candidate must be a lawyer and must pass CONSTRUCTION Chair: Andrew Skelton It is a challenging time for the construction industry. This Christchurch 23 Oct PROGRAMME the NZLS trust account supervisor assessments, which take LAW – ISSUES AND intensive has practical guidance and insights to help Auckland 24 Oct place during a full day programme. The training consists of OPPORTUNITIES you provide the best advice for your constuctions and 7.5 CPD hours infracture clients. Topics covered include: procurement Live Web Stream 24 Oct self-study learning material (approx. 40-50 hours) to help you prepare for the assessments. 6 CPD hours models; effective use of dispute resolution, and case law developments. OTHER PRACTICE AREAS
ENVIROMENTAL LAW Chair: An update on key cases and developments in the Christchurch 18 Nov INTENSIVE Bronwyn Carruthers environmental law field including: resource management Auckland 19 Nov system overview and update; the RMA and interface with Live Web Stream 19 Nov 7 CPD hours other legislation; environmental law and our constitution; Marine and Coastal Area (Takutai Moana) Act proceedings; scientific uncertainty and environmental decision making; and, moving towards a transformative recognition of tikanga Māori in environmental jurisprudence. PRACTICE AND PROFESSIONAL SKILLS
WHAT HAPPENS BEHIND Julian Long This seminar will give you a better understanding of Auckland 15 Oct CLOSED DOORS: THE Susan Loveys how Standards Committees work from the inside. All the Live Web Stream 15 Oct WORKINGS OF THE presenters are past or present lay, legal, and administrator David Lucas STANDARDS COMMITTEE members of Standards Committees. They will show you what Barry O’Connor they deal with each month. They will share candid reflections 2 CPD hours and insights into the complaint process, how it evolves from incident complained about, to the first consideration of it, the investigation that may follow, and ultimately to a Committee decision. The session will highlight the different ways many lawyers deal with being complained about: both the good, and the bad.
MEDIATION SKILLS AND Virginia Goldblatt Building on the prior workshop Mediation Principles and Auckland 18-19 Oct STRATEGIES – CIVIL/ David Patten Process (previously Mediation for Lawyers Part A) you COMMERCIAL, FAMILY, will learn and practise essential mediation skills in order Denise Evans EDUCATION DISPUTES to prepare to become a mediator. Will offer area-specific coverage as well as generic skills. 13 CPD hours
LAWYER AS NEGOTIATOR Jane Chart Negotiation is a vital skill for every lawyer. Few aspects of Auckland 30-31 Oct representation can have a greater impact on whether the Welington 13-14 Nov best results are achieved for your client. The District Court 11.5 CPD hours Christchurch 25-26 Nov Rules have underscored the significance of negotiation for effective practice. Improved negotiation skills can help avoid unnecessary litigation, and produce better settlements more efficiently. Skill in negotiation also increases effectiveness in client interviewing, as well as in representing clients in mediation and judicial settlement conferences.
STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland (full) 21-23 Nov FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a PRACTISING ON OWN barrister, will be required to complete this course. ACCOUNT
18.5 CPD hours
To contact us | Visit: www.lawyerseducation.co.nz To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 Email: [email protected] | Phone: CLE information on 0800 333 111 LIFESTYLE October 2019 · LAWTALK 933
A New Zealand Legal Crossword
SET BY MĀYĀ
A perimetric jigsaw! The edge letters, from top left clockwise, form the answer to: Mediation may be a clue to denier's oil outputs? (11, 7, 10). The other answers should be fitted in, jigsaw fashion, where they will go.
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80 LAWTALK 933 · October 2019 LIFESTYLE
LIFESTYLE Garrow’s Law The Old Bailey in the 18th century
BY CRAIG STEPHEN
A time of massive change offering his cross-examining services for free as amicus This BBC production is a Story editor and legal and historical curiae. The episode is based on two actual cases that relatively new series, being consultant on the programme, Mark took place in the 1790s. broadcast from late 2009 to Pallis, says he was drawn to the late The case of Phebe Harris in episode two focuses on a December 2011 over three series. 1700s as it was a time of massive woman sentenced to be burnt at the stake for counter- It is an historical drama, set change around the world. There feiting money. At her execution, an estimated 20,000 around trials at the Old Bailey in were revolutions in America and people turned up to watch. London (although mostly filmed France, the beginnings of the end In an episode in the second series, Garrow defends a in far-off Edinburgh) in the late of the slave trade, and the emer- British sailor imprisoned at Newgate for exposing the 18th century, against a backdrop gence of the women’s and reform ill treatment of his fellow sailors. of corruption and social injustice. movements. In the final episode, Garrow successfully defends a The Garrow in the title is a barrister And he saw in the legal profession man falsely accused of murder at a polling day riot. William Garrow, who was involved a push for change from the likes of The series also includes other non-fictional characters, in some of the most famous, and William Garrow. such as Sir Francis Buller, a controversial judge of the infamous, cases of the period. “When you read the Old Bailey age, and John Silvester, barrister and senior Circuit Judge The series is based on real legal cases from this period, Garrow is at the Old Bailey. cases from the time, as recorded in everywhere, almost always for But while it is based on real cases and with doc- the Old Bailey Proceedings often with the defence,” Pallis wrote in The umented court records used, it is not a biographical the court dialogue repeated almost Guardian. documentary, and Garrow was not involved in all of verbatim. “His personal life is intriguing the cases depicted. Long before it was established too – particularly his ‘irregular According to Mark Pallis, the show “is a drama that as the central criminal court for relationship’, as contemporary aims to give viewers a real sense of what life was like in England and Wales, the Old Bailey commentators put it, with Sarah, legal London towards the end of the 18th century; to give of the late 18th century was a mis- who’d had a child with politician people a chance to experience the big legal landmarks erable place. The court was attached and landowner Sir Arthur Hill.” and the cases that caused a stir at the time”. to Newgate Prison from which the The Sarah referred to is Lady Sarah He says a case in the series that Garrow was not defendants emerged, often reeking, Hill, an aristocratic figure with an involved in, but which would have suited him, was that and infected with fever. In 1750 the interest in justice and the law. of a slave ship, from which 132 African people were Lord Mayor, two judges and many The relationship is a major subplot thrown into the sea. others died of typhus. throughout and almost costs Garrow “While this case did not involve Garrow, he would In an age when few accused his life. In one episode he challenges doubtless have been aware of it – and we felt we simply people could afford defence coun- John Silvester, his main courtroom wouldn’t be doing justice to the period if we left it sel, the youthful Garrow – played rival, to a duel when Silvester insin- out, and so in our drama it is Garrow who tackles it,” by Andrew Buchan – and his asso- uates that Garrow and Lady Sarah’s Pallis notes. He points to Garrow’s policy of refusing ciate John Southouse – played by relationship has become intimate to defend slavers. Later in his life, he oversaw the first veteran TV actor Alun Armstrong and then refuses to withdraw the prosecution under the Abolition of the Slave Trade Act – work to uncover the truth and allegation. of 1807. fight for justice. They were among Sir William Garrow would become Solicitor General the first practitioners to pioneer A stand against inequality for England and Wales, then Attorney-General, and an the rigorous cross-examination In the first episode, Garrow takes MP for the reformist Whig Party. of prosecution witnesses that a stand against the inequality of Garrow’s Law: the Complete Collection is available on paved the way for the modern the courtroom, where the accused DVD, and all 12 episodes are available to see on the BBC legal system. often had no access to a barrister, by iPlayer and YouTube. ▪
81 TAIL END October 2019 · LAWTALK 933
TAIL END Some cases where The battle of the Rhinos matchboxes and Elephants Kenyan matchbox maker Match Masters Ltd developed an attractive design for its played a part “RHINO” brand. It obtained a trademark in 1998 for the word RHINO and sold its matches in a box with “RHINO” and a rhino logo on a yellow background on Cocaine in the matchbox the front. The brand sold well and people Police were called to Willie Gatlin’s Florida residence after an argument started asking for a box of Rhinos when between him and his girlfriend. He was charged with battery and they bought matches. In 2006 a company arrested. Gatlin was only partially dressed and put on a pair of trousers called Rhino Matches Ltd started importing which had been lying next to his bed before being led to the police matches from Tanzania under the brand car. On arrival at the car he was searched and several pieces of crack name “NDOVU” (elephant in Swahili), cocaine were found in a matchbox in his trouser pocket. At his trial for shown on the front with an elephant design possession of a controlled substance, Gatlin attempted a number of on a yellow background. The problem was explanations as to how the matchbox got in his pocket. These conflicted that the back of the box had a yellow back- with evidence given by the police and his girlfriend. “If a person has ground “and very prominently and in bold exclusive possession of a thing, knowledge of its presence may be is the word ‘RHINO’ and in smaller letters inferred or assumed,” the jury was told, and Gatlin was found guilty. is ‘matches Ltd’,” the High Court of Kenya On appeal to the Florida District Court of Appeal (556 So. 2d 772), he stated. The court was considering Match argued that the instruction was violative of due process as it created Masters Ltd’s application for an interim a mandatory presumption. The Court of Appeal disagreed. The jury injunction ([2006] eKLR). It did not accept was free to accept or reject the inference regardless of any defence Rhino Matches Ltd’s argument that “rhino” which may have been put forth, and there was no suggestion made was an ordinary English word that could to the jury that their factual determinations should hinge upon the never be the subject of a trade mark, and presentation of evidence by the defence, it held. granted the application.
❝ An extraordinarily sad life when you look at it, and I regret that he didn’t make it to November and hear what the Supreme Court hears of his case ... and the hopeful vindication that would’ve come with that.❞ Notable — Nigel Hampton QC reflects on the life of Peter Ellis after his death on 4 September. On 31 July the Supreme Court granted him leave to appeal his convictions Quotes on 13 counts of sexual offending at the Christchurch Civic Childcare Centre in 1993. The approved ground is whether a miscarriage of justice occurred. ❝ I’ve been doing this for over 20 years now, and never once did it cross my mind, not even an iota of concern ❝ It is our collective duty to work to ensure a fair and there ... that something like this could happen to just process for those who come to the courts. It is me.❞ how we behave, as critical players in criminal justice, — Public defence attorney Vladimir Gagic who was that does the most to shape whether those goals of punched in the face by his client Lamont Payne a fair and just process are achieved.❞ while representing him in an Arizona court on assault — Chief Justice Helen Winkelmann addresses the charges. Criminal Bar Association’s conference.
82 LAWTALK 933 · October 2019
The infamous “matchbox trick” William Symms, alias George Murphy, alias William Sell, alias Charles Sweeney, alias James John Gardner, appeared in the Dunedin Resident Magistrate’s Court in April 1883. He was charged with conspiring to defraud William Agnew by what was (relatively) well-known in the 1880s in New Zealand and Australia as the “matchbox trick”. This involved showing the target an unusually-shaped matchbox and offering to bet that it could not be opened. The matchbox owner would suddenly leave the room on “urgent business” and a confederate would show the target how to open the box. The owner returns, the target eagerly takes the bet but doesn’t see another box being substituted, tries to open it and loses. Mr Agnew lost £8 to Symms and his colleague, a “red-whiskered man”, in trying unsuccessfully to open a wooden heart-shaped matchbox. The red-whiskered man remained elusive and was not brought to justice. Symms’ lawyer Alfred Catomore conducted a vigorous cross-examination of the complainant, was a bit too keen to dip into his clients’ funds in some asking questions such as “Have you ever been in the lunatic personal injury actions, but the clincher came from his asylum?” and counselling his client to “take my advice and representation of several clients in driver’s licence sus- keep your mouth closed”. Symms himself was most con- pension proceedings before Department of Motor Vehicles cerned about the number of aliases under which he had hearing officer Michael Tarrish. Sands took Tarrish out to been charged. However, he was convicted and sentenced lunch four times, paid for the meals and discussed matters to 12 months’ imprisonment with hard labour. Just over a related to his clients. He also passed Tarrish a matchbox year later he was back in court, charged with gambling in a each time. Inside was a $100 note. Tarrish later pleaded railway carriage by performing the “three card manouevre”. guilty to bribery, and also expressly testified that the money Cases involving the matchbox trick appeared regularly into influenced his decisions. Sands argued strenuously that the the 20th century. money was “putative loans” and that Tarrish’s testimony was not worthy of credit. However, the court found that The lawyer, the bribe and the matchbox whether the money was a loan or a gift, it was a bribe Californian lawyer Barry Sands’ disbarment for profes- in substance and effect, and while Tarrish was “not an sional misconduct was upheld by the Supreme Court of admirable character”, he was a convincing and credible California (Sands v State Bar (1989) 49 Cal.3d 919). Sands witness. Sands is no longer an attorney. ▪
❝ I did not steer them in that direction. I am surprised they took up ❝ … every three months I will get a report on you telling law. There was no pressure from me.❞ me how you are performing on these sentences. If — Gisborne lawyer Neil Weatherhead after the third of three daughters, I consider that you are wallowing in despair, that Izis, was admitted to the bar. Izis works as a marketing coordinator you are not attending the courses, that you are not at Burger King Corporation, while Raine works for Origin Energy in moving on with your life, I will have you back before Queensland and Zaria is branch manager of the Gisborne branch of me and we will have to reshape the sentence. So, the New Zealand Law Society. you will not get any second chances. You are to do exactly what you are told.❞ ❝ True, women have not reached Nirvana. But the progress I have seen — Judge Spear delivers a strong message in the Hamilton in my lifetime makes me optimistic for the future. Our communities, District Court when sentencing Shari De Wys to six nation, and world, will be increasingly improved as women achieve months’ community detention, 12 months’ intensive their rightful place in all fields of human endeavour.❞ supervision and 300 hours’ community work on a — US Supreme Court Justice Ruth Bader Ginsburg after receiving an charge of arson after she threw a firework into a honorary law degree from the University at Buffalo. school classroom ([2019] NZDC 2767).
83 POSTGRADUATE LAW
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