Snapshot of the Profession 2019

ISSUE 926 · March 2019 Auckland Most lawyers – 5,889 Kawerau Fewest lawyers per capita – 1 lawyer per 3656 people Te Awamutu Highest proportion of female lawyers – 65.5% Snapshot of the Profession 2019

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Wellington Highest proportion of Greymouth in-house lawyers – 49.3% Highest proportion of male lawyers – 69.2%

Alexandra Largest annual increase in lawyers – 23.1%

Unsatisfactory AI and the Why co-operating Lawyers and conducts vs law: an update with the media is social media misconduct good advice

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6 · From The Law Society 19 · New Zealand Law Society 23 · Principles and practice – People In The Law publications, penalties and 8 · On the move prosecutions ▹ BY MATT FOGARTY 13 · Michael Robinson was not struck off 27 · Snapshot of the 14 · Battling cancer to become a Profession 2019 8268 lawyer ▹ BY ANGHARAD O’FLYNN 15 · Representing those who have Update escaped from the worst that life 42 · ACC and the Woodhouse can throw up ▹ BY NICK BUTCHER Principles: Real Compensation 16 · Revamped website heralds ▹ BY DON RENNIE new outlook at the Māori Law 46 · Competition law and the Society ▹ BY NICK BUTCHER removal of exceptions 17 · Technology helping to for intellectual property overcome barriers at work rights ▹ BY JOHN LAND ▹ BY CRAIG STEPHEN 50 · Regulating fake news and 18 · The Innovators: Renee video ▹ BY LYNDA HAGEN Knake ▹ BY ANDREW KING 51 · The search for body corporate maintenance ▹ BY THOMAS GIBBONS 10288

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4 Contents

52 · Bethell v Bethell: Third party 68 · Mindfulness for New Zealand 92 · Complaints decision ante-nuptial trust amounts lawyers ▹ BY ASHIKA BALI summaries to nuptial settlement 70 · Eating healthy ▹ BY RAEWYN NG ▹ BY RHONDA POWELL Classifieds Practice 95 · Will notices Alternative Dispute 74 · What does it take to be a 96 · Legal Jobs Resolution partner or a director… And is it 98 · CPD Calendar 56 · Dispute prevention: using right for you? ▹ BY EMILY MORROW mediation as a business 76 · Why co-operating with Lifestyle tool ▹ BY PAUL SILLS media is usually the best 101 · A New Zealand Legal 58 · Families at war (and not in the advice ▹ BY PETE BURDON Crossword ▹ SET BY MĀYĀ Family Court) ▹ BY CAROLE SMITH 79 · Lawyers and social media 102 · Berlin ▹ BY JOHN BISHOP ▹ BY JONATHAN SUTTON Future Of Law 82 · Focus on Oamaru 106 · Tail end 60 · Beyond the hype: AI and the ▹ BY JOCK ANDERSON law ▹ BY JOY LIDDICOAT, COLIN 87 · An innovative approach to GAVAGHAN AND ALISTAIR KNOTT school property investment ▹ BY REBECCA ROBERTSHAWE Practising Well 89 · He aha ngā mea nui o te ao 64 · Talking about mental health: nei? Ngā awa, ngā roto me te A utopia of lawyer mental kotahitanga ▹ BY DONNA LLEWELL health ▹ BY KATIE COWAN

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5 FROM THE LAW SOCIETY March 2019 · LAWTALK 926

From the Law Society

It’s been almost one year since the New Zealand Law Society introduced the Gender Equality Charter to the legal community. There’s been a good response with 112 signatories – including many of the largest firms in the country – committing to this important workplace initiative. We want to see 30% of the profession covered by the Charter by 12 April. If you haven’t committed your workplace, perhaps consider why you’d want to miss out on the many long-term benefits to being a signatory. 112 signatories is the equivalent of over 2900 lawyers. These are workplaces that are striving for balance, fairness and equality for all employees. Over the past year, you’ve told us that through these issues, including finding solutions to them, is the type of work environment that you can only have a positive influence on your workplace want. Many of you want to see change in environment. your current workplace culture; a conclu- Over 60% of our law school graduates are women, which sion evident from the compelling results might suggest to some that the Gender Equality Charter published in our Workplace Environment is there only to serve the needs of women who practise Survey. They were damning figures – one- law. But the Charter is about creating inclusive workplace third of female lawyers sexually harassed cultures for all genders. It’s about saying that this lawyer during their working life and more than will be afforded the same opportunities and professional half of all lawyers bullied at some stage development as their colleague. during their career. Perhaps it’s not surpris- For the Gender Equality Charter to become a benchmark, ing that one third of people want culture support from the entire profession is needed. While I know change in the legal community? that will not happen overnight, it is the ultimate goal that The Gender Equality Charter comple- we will continue to strive for. ments the work being done by the Culture Next month I step down as president and Tiana Epati Change Taskforce, which is addressing the takes the reins as the 31st elected president from 10 April. issues starkly identified by the survey. If Much of what we set in play last year will continue to you’re serious about being part of a culture develop under her leadership, along with many other change in the legal profession, the Charter new initiatives. My focus will shift to chairing the Culture is a tool that will help drive and achieve Change Taskforce. that. Another significant event this year is that we celebrate The commitments of the Charter are the 150th year of the Law Society. It’s a time to reflect on challenging because they’re asking you to how we practise law, to celebrate our professional suc- take a thorough look at every part of your cesses but also to look out for each other in the workplace. workplace and how it operates. This can be a year of much progress for the legal profession. Take for example the requirement to For that to happen we all must contribute. A good start is implement ‘unconscious bias’ training. committing to the Gender Equality Charter. No-one wants to be confronted with a real- isation that they may hold certain biases. Kathryn Beck But knowledge is power and working President, New Zealand Law Society.

6 LAWTALK 926 · March 2019 PEOPLE IN THE LAW · ON THE MOVE

PEOPLE IN THE LAW ON THE MOVE

New Court of Appeal New Zealand Bar Association from 1996 to complex, high-value commercial litigation. Judge appointed 1998, he was Vice President, Auckland of He has a particular expertise in acting for the New Zealand Law Society from 2003 the insurers of chartered accountants Justice Patricia Courtney has been to 2005. Justice Asher was appointed to and auditors defending civil claims and appointed a Judge of the Court of Appeal. the High Court bench on 17 August 2005. disciplinary complaints. She graduated LLB from the University of He was appointed to the Court of Appeal Auckland in 1982 and spent some time as an on 22 July 2016. Four promoted to investigation officer with the Department senior associate at of Trade and Industry before joining the Two new partners Simpson Grierson firm of Heaney Jones and Mason as a staff at Fee Langstone solicitor in 1983. Simpson Grierson has promoted four Justice Courtney joined McElroy Milne Fee Langstone has announced the appoint- lawyers to senior associate. in 1986, becoming a partner in 1989. She ment of two partners, from 1 February. Anastasiya Gutorova is a member of was one of the founding partners of the Virginia Wethey was the firm’s Auckland firm of McElroys in 1992, specialising in admitted in 1999 and corporate team. She insurance law with particular expertise in joined Fee Langstone’s was admitted in May professional negligence cases. She became predecessor firm, Jones 2012 and has BA, LLB the senior partner of McElroys in 1998. Fee, as a graduate. She and LLM degrees. A Justice Courtney was appointed a Judge moved to London in specialist corporate of the High Court in 2004. 2001 and worked for and commercial lawyer, The vacancy on the Court of Appeal was two insurance prac- Anastasiya has exten- created by the appointment of Justice tices. After returning to New Zealand, sive experience in M&A, equity capital Helen Winkelmann as chief justice and Virginia rejoined the firm in 2011. She has markets and corporate to the Supreme Court. extensive insurance and civil litigation governance. experience. Her specialities include liability Matthew Piper Justice Raynor claims (particularly profession indemnity), is a specialist in the Asher retires fire and general insurance (including earth- Auckland employment quake claims) and policy coverage. law group. He was A final sitting was held in the Court of After working for admitted in December Appeal on 7 March for Justice Raynor two years in a large 2010 after graduating Asher to mark his retirement. After grad- commercial firm in BA and LLB. Matthew’s focus areas include uating BA, LLB(Hons) from the University Auckland, Russell disciplinary and termi- of Auckland in 1972, Justice Asher obtained Stewart practised in nation issues, disputes an LLM from the University of California Sydney for over 10 years between unions and (Berkley). He returned to work at the firm in a leading Australian employers, and restruc- which is now Kensington Swan, where he commercial and insur- turing and acquisitions. was a partner from 1976 until 1986 when he ance firm. He returned to New Zealand Calina Tataru is became a barrister sole. He was appointed in 2010 and joined Jones Fee. Russell a family law expert. Queen’s Counsel in 1992. President of the has extensive experience in conducting Calina was admitted

7 ON THE MOVE · PEOPLE IN THE LAW March 2019 · LAWTALK 926

as a barrister and solicitor in September 2014 in New Zealand. He worked for two 2010. Based in the Auckland commercial Sydney law firms until 2014 and advises on Claire Mansell becomes litigation team, she also specialises in construction contracts, infrastructure pro- Martelli McKegg lease and trust litigation, and maintains jects and property development projects senior associate a general civil litigation practice. across a wide range of industry sectors. Nicole Taylor is a Natasha Garvan graduated BA, Martelli McKegg has promoted Claire member of the firm’s LLB(Hons) from the University of Otago Mansell to senior associate. Claire was Wellington commercial and was admitted as a barrister and solic- admitted as a barrister and solicitor in June litigation group. She has itor in 2009. She provides environmental, 2009 after graduating with BA and LLB BA and LLB degrees and policy and resource management advice degrees at Victoria University. She works in was admitted in October to infrastructure providers, commercial the firm’s litigation team and her practice 2009. Nicole acts for entities, property and land developers, includes civil litigation, employment and local authority and cor- and community interest groups. Natasha insolvency. Claire has appeared in court porate clients and has experience in “leaky regularly appears as counsel at mediations at all levels, including the Supreme Court building” litigation, securities enforcement, and hearings. and Court of Appeal. and commercial leasing disputes. Angela Harford was admitted in 2008 The firm has also promoted five team after graduating BCom and LLB(Hons) Solicitors join EIS Legal members to senior solicitor: Meghan from the University of Canterbury. She Bolwell (litigation) and Mike Mercer has a strong focus on infrastructure and EIS Legal, the in-house team within (employment) in Wellington, Miranda projects and her practice mainly consists of the Ministry of Gray (litigation) in Christchurch, and Mary acting for public sector and private sector Education’s Education Breckon (employment) and Henry Holmes clients on a broad range of corporate and Infrastructure Service, (litigation/family) in Auckland. commercial matters. Angela worked in has welcomed two new the corporate team of London law firm lawyers. Both are based Bell Gully announces Slaughter and May from 2013 to 2017. in Wellington. senior appointments The firm has also appointed Sooyun Hugo Chisholm was Lee as a new special counsel. Admitted admitted in October Bell Gully has announced the appointment in 2006 after graduating with BA, BSc and 2009 and has joined of four new partners. LLM(Hons) degrees from the University of the team as a senior Liz Coats was admitted in 2008 after Auckland, she runs the trade mark practice construction solicitor. graduating BA, LLB(Hons) from the of the wider Bell Gully IP team. Tracy Finlayson was University of Auckland. She specialises admitted as a barrister in employment law and regularly advises Morrison Kent and and solicitor in March employers on redundancy and restructur- East Brewster merge 2015 and is a property ing issues, managing poor performance, solicitor. disciplinary processes, investigations and Morrison Kent and Rotorua firm East restraints of trade. Brewster Lawyers have merged from 1 New senior associate Ian Becke graduated BA and LLB(Hons) January. East Brewster now operates under joins Morrison Kent from the University of Sydney and was the name Morrison Kent – Rotorua and is admitted in 2009 in New South Wales and still located in Pukuatua Street. Caroline Rieger has joined Morrison Kent’s Wellington office as a senior associate. Caroline was admitted as a barrister and solicitor in October 2010 and was previously a senior solicitor at DLA Piper. She specialises in employment law and acts for both employer and employee. Caroline acts in mediations and has appeared in the ERA, District Court, High Court and Court of Appeal.

8 LAWTALK 926 · March 2019 PEOPLE IN THE LAW · ON THE MOVE

LLB from the University International Criminal Court. Mr Hampton Samuel Hood appointed of Canterbury in 2013 was admitted as a barrister and solicitor in Norris Ward McKinnon and joined the firm February 1965. He was appointed Queen’s Managing Partner shortly after. He has Counsel in May 1989. His appointment to broad experience in the Disciplinary Board took effect on 8 Hamilton firm Norris Ward McKinnon has the property, com- December 2018. appointed its litigation partner Samuel mercial, rural, trusts Hood as Managing Partner. Sam was and dispute resolution Jared Ormsby establishes admitted to the bar in 2004 and joined the spaces. Before practising law Wayne gained Plymouth Chambers firm in 2007 after practising in the Cook extensive experience in both the public and Islands. He specialises in civil litigation and private sectors including the manufactur- After moving to the independent bar employment law. Sam has just completed ing industry and the New Zealand Police. in November 2018, a nine-year stint on a Lawyers Standards Carol Robertson Jared Ormsby Committee and is a trustee of The Decision joins the firm as a senior has established Reachout (Toro Mai) Trust. solicitor with over six Plymouth Chambers years’ experience in in Christchurch. Jared Promotions and all aspects of property acts on complex trust, appointment at and transactional law public law and civil liti- Dean & Associates together with private gation matters. He was client work including at Wynn Williams from 2003 to 2018 and Oamaru firm Dean & Associates has commercial acquisitions and dispositions, Executive Chair/National Managing Partner announced two promotions and a new residential, rural and business sales and from 2012 to 2018. Jared is convenor of the appointment. purchases, leasing, due diligence inves- Canterbury-Westland Trusts Committee Emma Middlemass tigations, easements and encumbrances, and a member of the New Zealand Law has been promoted subdivisions, trusts, wills and estates. Carol Society Culture Change Taskforce. He is a to associate. Emma graduated from Auckland University in contributing author to Equity and Trusts in joined the firm in 2011 2005 with a Master of Management and New Zealand, 2nd edition (Thomson Reuters as a law clerk before in 2012 with an LLB. Originally from Otago, New Zealand Ltd). being admitted to the Carol has returned from Waiheke Island bar and beginning her where she practised in a property focused MinterEllisonRuddWatts role as a solicitor in law firm. announces promotions 2012 following graduation from Otago University. An Oamaruvian educated at Nigel Hampton QC MinterEllisonRuddWatts has promoted Waitaki Girls’ High School, she practises elected to international six lawyers into senior positions and also predominantly in the areas of property law, disciplinary board promoted seven senior solicitors. All are dispute resolution and a range of private effective from 1 January 2019. client work whilst maintaining a criminal Christchurch Queen’s Counsel Nigel Sonya Forbes has been promoted to law clientele. Hampton QC has been elected to sit for a special counsel, Corporate, Auckland. Wayne Todd has been promoted to four-year term as a permanent member of Sonya joined the firm in 2017 as a senior senior solicitor. Wayne graduated with an the Disciplinary Board for counsel of the associate in the firm’s corporate technology

9 ON THE MOVE · PEOPLE IN THE LAW March 2019 · LAWTALK 926

team. She is a highly experienced prac- Auckland. With a background in private property investors, developers, commercial titioner, having worked in both private practice in Melbourne, Sarah joined the landlords, franchisors and high profile practice and in-house roles in New Zealand firm in late 2017. She advises clients on businesses. and London. all property and financial matters arising Tanya Wood has been promoted to from separation including claims under Julian Clarke moves special counsel, Construction, Auckland. the Property (Relationships) Act 1976, trust to Apex Insurance She joined the firm in 2016 and specialises claims and spousal maintenance. in construction litigation with particular The firm has also promoted seven Cavell Leitch’s long time (18 year) Managing expertise in property based insurance senior solicitors: Phillip Chrisp (cor- Partner Julian Clarke has left the firm claims and dispute resolution. Tanya has porate, Auckland), Jonathan Embling to become owner and director of Apex also worked in-house for Vero Insurance (dispute resolution, Auckland), Joshua Insurance Christchurch specialising in where she helped resolve complex losses Kimpton (employment, Auckland), David Commercial and Property Insurance. arising from the Christchurch earthquakes. Kraitzick (dispute resolution, Auckland), Olivia de Pont has been promoted Kate Muldrew (construction, Auckland), Lane Neave to senior associate, Dispute Resolution, Shukti Mokkapati Sharma (construction, appoints partner Auckland. Olivia joined the firm as a Auckland), and Rachael Watene (corporate, senior solicitor in 2017 from another large Auckland). Lane Neave has pro- law firm. Olivia has particular expertise moted Joelle Grace to in insurance law, and has represented a Two new partners partner in its national number of major insurers and insureds appointed by corporate practice. on disputes relating to house insurance Glaister Ennor Joelle has developed policies. particular expertise in Alastair Gatt has been promoted to Auckland firm Glaister Ennor has promoted mergers and acquisi- senior associate, Real Estate and Property, two senior associates to its partnership. tions, business advisory, Auckland. Alastair joined the team as a Anthea Coombes is an expert in sub- corporate governance and commercial con- senior solicitor in late 2015 having worked divisions and has significant experience tracting, and operates in a range of indus- in private practice and in-house legal roles in a wide range of land development and tries. After completing BA and LLB(Hons) for a number of years in Scotland before property matters. She has over 12 years’ degrees at the University of Otago, Joelle moving to New Zealand. experience in property law, and has worked was admitted as a barrister and solicitor in Suzy McMillan has been promoted to on major subdivisions, commercial prop- September 2005. Before joining the firm in senior associate, Corporate, Auckland. She erty transactions, complex title matters and 2015 she spent eight years in Sydney with a joined the firm in 2016 on her return to large property developments. top tier Australian firm and two years at a New Zealand. She has a mix of in-house Nicola Harrison has nearly 20 years’ large commercial firm in Auckland. and public sector experience in both New experience in New Zealand and the United Zealand and the UK. Along with Suzy’s Kingdom and specialises in commercial Changes at Copeland general commercial skills, she has made property law, residential land develop- Ashcroft Law an important contribution to the firm in ment and commercial contracts. Nicola the specialty area of privacy. has worked on some of New Zealand’s Adam de Hamel has been appointed as a Sarah Moore has been promoted to largest and most complex property senior associate with Copeland Ashcroft senior associate, Dispute Resolution, transactions and looks after commercial Law’s Dunedin office. Adam has returned

With 35 years experience as a commercial litigator, competition law specialist and, more recently, arbitrator, Matthew welcomes further appointments as arbitrator in any area.

Matthew Dunning QC BARRISTER MOBILE 027 294 7959 FCIArb FAMINZ EMAIL [email protected] WEBSITE www.dunningQC.co.nz

10 LAWTALK 926 · March 2019 PEOPLE IN THE LAW · ON THE MOVE

to New Zealand after Robert has appeared as counsel in a wide Canterbury. She specialises in commercial having worked in range of disputes, both in court and in property law. Melbourne with Willis arbitration before international tribunals. Hetish Lochan has been appointed Towers Watson. He has senior associate in the Queenstown experience in dispute Lauren Lindsay rejoins immigration team. Hetish was admitted resolution, insurance Bankside Chambers as a barrister and solicitor in November and insolvency and 2008 after obtaining an LLB from Victoria risk advisory as both a Lauren Lindsay has rejoined Auckland’s University of Wellington. He is an immigra- lawyer and in-house advisor. Adam acts Bankside Chambers as a generalist com- tion law specialist with expertise across a for employers across a range of industries. mercial litigator and international arbitra- wide range of immigration matters. Associate Carla tion practitioner. Lauren was previously Jackie Frampton has been apointed Pallant-Drake is relo- a senior associate in Allen & Overy LLP’s senior associate in the Christchurch cating from the firm’s international arbitration team in London, Building and Construction team. Jackie Dunedin branch to the acting on large-scale commercial and was admitted as a barrister and solicitor Tauranga office. She investment-treaty arbitrations. In addition in September 2008 and has an LLB from the will continue to assist to her general commercial practice, Lauren University of Canterbury. She specialises clients in all aspects has particular expertise in disputes arising in litigation and has expertise in both of employment and in the life sciences and energy sectors. commercial and construction litigation. health and safety law. Carla has specialised Michelle Needham has been appointed in employment law throughout her career, Professor Susy Frankel senior associate in the Queenstown prop- and has been involved in litigation through inducted as Royal erty team. Michelle was admitted as a to Court of Appeal level. Society Fellow barrister and solicitor in June 2008. She has LLB(Hons) and LLM(Hons) degrees Stace Hammond appoints Victoria University from the University of Auckland and spe- Arran Hunt to partnership of Wellington Law cialises in commercial property. She also Professor Susy Frankel has an interest in aviation law and holds Arran Hunt has joined Stace Hammond has been inducted as a Graduate Diploma in Aviation from the as a partner. He is a commercial lawyer a Fellow of the Royal University of Auckland. specialising in technology law, social media Society Te Apārangi. Rebecca Cook has been appointed and online harassment law, franchise law The induction recog- associate in the Auckland building and and business and company law. Arran’s nises her role as an construction team. Rebecca was admitted first career was as a technical business international research leader in interna- as a barrister and solicitor in August 2014 analyst in New Zealand and London. He tional intellectual property law and its links and has an LLM(Hons). She specialises in writes and presents frequently on the sub- with international trade. Her scholarship building and construction and has advised ject of technology and the law and acts for has influenced the development of New Crown departments, building and con- a number of technology-based companies Zealand’s intellectual property law and struction companies and commercial and and industry groups. the interpretation of international agree- residential property owners and investors. ments in the formation of domestic policy. Kristina Sutherland has been appointed Robert Kirkness joins Professor Frankel is one of 20 Fellows associate in the Christchurch Corporate Thorndon Chambers inducted as part of the Royal Society Te Apārangi’s Academy Centenary. Robert Kirkness has joined Wellington’s Lane Neave announces Advertising in LawTalk Thorndon Chambers promotions and LawPoints as a barrister, focusing Inquiries about advertising in on commercial, public Lane Neave has announced a number LawTalk or LawPoints can be made and international law of promotions, which were made from 1 to [email protected]. disputes. He recently January. A media kit with details of adver- returned to New Anna Walker has been appointed spe- tising requirements and charges is Zealand after several years practising in cial counsel in the Queenstown Property available on the Law Society website the international arbitration and public team. Anna was admitted as a barrister in the News and Communications/ international law teams at Freshfields and solicitor in September 2009 after grad- LawTalk section. Bruckhaus Deringer in Paris and Singapore. uating LLB(Hons) from the University of

11 ON THE MOVE · PEOPLE IN THE LAW March 2019 · LAWTALK 926

team. Kristina was admitted as a barrister commenced her legal career as a barrister and write a book. Deborah initially joined and solicitor in February 2005 and has and then became a solicitor with Baldwins Brookfields in 2012 after returning from the BCom and LLB(Hons) degrees from the Intellectual Property. She is now back in UK where she worked in local and regional University of Canterbury. She provides New Zealand and is embedded in-house authorities’ in-house legal teams. She is a advice on a range of corporate, commercial with an iconic New Zealand brand as member of the resource management and and business law matters. Acting General Counsel. local government team. Jaxon Grieve has been appointed asso- Rowan Ashton joins ciate in the Christchurch property team. Staff changes at the firm in March. He Jaxon was admitted as a barrister and Brookfields Lawyers specialises in environ- solicitor in October 2014 after graduating mental and public law LLB from the University of Canterbury. He Auckland firm Brookfields Lawyers has and was admitted as a advises on commercial property matters announced three promotions and two barrister and solicitor and also has experience in the primary and additions to its staff. in March 2013 and agribusiness sectors. Lisa Wansbrough worked in a barris- Ken Huang has been appointed senior has been promoted ters’ chambers. Rowan has appeared at solicitor in the Auckland immigration to senior associate. council hearings and in cases before the team. Ken was admitted as a barrister Admitted in November Environment Court and High Court. and solicitor in July 2013 and graduated 2007, Lisa is an experi- LLB from the University of Waikato. He enced litigator and acts Maude & Miller promotes specialises in immigration law and speaks on environmental, civil Damian Smith fluent Mandarin. and criminal litiga- Whitney Moore has been appointed tion. Her litigation practice has included Maude & Miller has pro- senior solicitor in the Christchurch litigation for councils and assisting on moted Damian Smith Corporate team. Whitney was admitted environmental appeals. Lisa spent time to senior associate. as a barrister and solicitor in July 2013. She working in the United Kingdom as a Damian joined Maude has BA and LLB degrees and assists with solicitor for the Secretary of State for the & Miller in 2015 and is a number of corporate matters, including Home Department. an experienced lawyer brand availability and protection, and Rachel Ward has in the commercial, drafting commercial documents. been promoted to property, tax and trust Danita Ferreira has been appointed senior solicitor. Since areas. Damian’s practice areas includes senior solicitor in the Christchurch cor- her admission in commercial, property, tax and trust advice porate team. Danita was admitted as a December 2015 Rachel including construction contracts and dis- barrister and solicitor in July 2016 after has worked on a vari- putes, commercial property transactions graduating with BA and LLB degrees from ety of resource man- and leases and corporate governance and the University of Canterbury. agement matters. She compliance. Holly Struckman has been appointed also acts on a variety of local government senior solicitor in the Auckland employ- matters. Before joining Brookfields Rachel ment team. Holly was admitted as a bar- worked in policy for the Ministry for the rister and solicitor in July 2016. She has Environment. BA and LLB degrees from the University of Edward Fox has been Contributing information Canterbury and assists in providing legal promoted to senior to On the Move advice on a wide range of employment-re- solicitor. Edward has Brief summaries of information about lated matters. over 5 years of commer- promotions, changes in law firms, cial dispute and civil recruitment and retirement are Amy Kingston-Turner litigation experience published without charge in On the joins Juno Legal in both Auckland and Move (which is also available online). London. His experience Please send information as an email Amy Kingston-Turner in civil litigation includes complex market or MS Word document (no PDFs has joined the Juno pricing disputes, please) to [email protected]. Legal team. She is an intellectual property nz. Submissions should be three or IP, commercial and cor- matters and insolvency four sentences without superlatives porate in-house lawyer proceedings. and may be edited to conform to the with international Deborah Riley has format used. A jpeg photo may be expertise in brand pro- returned to the firm as included – along with permission to tection and marketing a senior associate after use the photo. at Shell International in London. Amy taking time out to travel

12 LAWTALK 926 · March 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE Michael Robinson was not struck off

very well. We offer our sincere apologies for an incorrect At the time of his death my father had a large number assertion in the article “Characters in the Law” by David of criminal jury trials set down for hearing in the Supreme Sparks, which was published in LawTalk 925, February Court. Following his death I appeared as counsel in those 2019 at pages 102 to 103. This stated that Auckland lawyer trials. I recall the trial of Colleen Patterson because she Michael Robinson was struck off. This is wrong. Mr was acquitted at the trial when I appeared as her counsel. Robinson was never struck off and we would like to set Following his death I continued in partnership with Alf the record straight. We should have checked the assertion Morgan-Coakle. The partnership was known as Robinson about a hard-working criminal lawyer who had a very and Morgan-Coakle and following my appointment to the successful career. David Sparks also apologises for his District Court, Alf Morgan-Coakle continued the partner- wrong memory on this matter. ship which is now known as Morgan Coakle Lawyers. The mistake was discovered on receipt of an email I attach for your information an extract from page 224 of from Mr Robinson’s son David, who was a lawyer and Portrait of a Profession edited by Sir Robin Cooke QC (1969). then District Court Judge himself. Mr Robinson’s email, Although the article incorrectly names my father Michael which provides some very interesting information about Joseph Robinson (his correct name was Michael Robinson) his father, reads as follows: this article give a much more accurate description of the I was surprised to read in David Sparks’ article Michael Robinson I knew. “Characters in the Law” published in the February 2019 edition of LawTalk that my father had been “struck off ”. Kind Regards, I commenced working for him as a part-time law clerk David Robinson in the late 1950s and joined him in partnership with Alf Morgan-Coakle when I qualified in 1961. I can assure you The extract from Portrait of a Profession (written that throughout the time I worked for my father and was by CP Hutchinson QC) reads as follows: in partnership with him he had not been struck off. He “Michael Joseph Robinson was a partner of Richard Singer, appeared as counsel virtually every working day in the with whom Sir David Smith deals, and practised chiefly Magistrates’ Court and Supreme Court. On occasions he in the criminal and divorce divisions of the Court. He was also appeared in the Court of Appeal. an ebullient and irrepressible advocate; his clients got He died in August 1963 at the age of 51 after returning full value, as in every case he used every talent which he to court late at night for the verdict in the trial of Colleen possessed for the benefit of his cause. Throughout his life Patterson charged with drug dealing. He was counsel in he was a centre of controversy, but he was a man with a that trial and the late Sir Owen Woodhouse, who was the great heart and when the forensic battle was over always trial Judge, told me he invited my father into his chambers radiated warmth and friendliness towards his adversary. whilst they were awaiting the verdict. He recounted a Furthermore, whenever he gave his word to any barrister very pleasant discussion with my father about our family it was as good as a bond, although it was always difficult history and noticed that my father did not appear to be to get him to give an undertaking.” ▪

13 PROFILE · PEOPLE IN THE LAW March 2019 · LAWTALK 926

PEOPLE IN THE LAW PROFILE Battling cancer to become a lawyer Tyson Hullena

BY ANGHARAD O’FLYNN

“When I went to see the doctor, I Tyson shares that the most Kahui Legal solicitor Tyson Hullena (Ngāti nearly didn’t mention it but, being enjoyable aspects of his work are Raukawa and Ngāti Toa Rangatira) has travelled a long Movember at the time and making the diversity he sees as a part of the and somewhat bumpy road to becoming a lawyer. a valiant, albeit pitiful, attempt at Kahui Legal team and applying his Raised in Wairarapa, Tyson’s father works in edu- growing a moustache, I felt obliged tertiary education in professional cation, his mother works in management and his two to say something and to get tests settings. younger siblings are in banking and the New Zealand done – luckily I did. If I had left “It’s easy to feel a little removed Navy, with the latter “gallivanting over/under the ocean it much longer the metastasis from the people you’re going to somewhere in the world” as a diver. would’ve reached my brain.” be working with/for at university Never one to do things by halves, Tyson studied a wide After extensive treatment involv- because it’s all theory. Joining the variety of high school subjects while attending Chanel ing surgery and three week-long workforce has opened my eyes to College in Masterton, “I studied maths and science sessions of chemotherapy for 23 the practicalities of the work we mostly at school and I did history by correspondence, hours nearly every day, Tyson went do which makes it so much more and English. back to university a few weeks late important. “Calculus was definitely my favourite at the time. I in the first trimester. “Every day is different. Being able was pretty lucky to have some awesome teachers at “Since then I’ve had regular to problem solve across different high school and they all played a big role in helping me appointments with the oncologist, specialty areas of law is challenging enjoy those subjects whether it was through how they and sometimes scans and tests to but finding the right solution for our taught or just being decent humans.” confirm that everything is still in clients is really rewarding.” After high school, Tyson moved to Dunedin to study order. So far so good!” In his down time, Tyson finds physiotherapy at Otago University. physical activity and time with “I studied physiotherapy for four years and worked Inspirations whānau great ways to unwind. “I in a private practice in Palmerston North for two years,” After finishing with BCom and LLB enjoy spending time by, in, and on he says, jokingly adding, “it’s [Palmerston North] not degrees, Tyson was admitted in 2018 the water, be it just relaxing, going quite as bad as the reputation it’s given.” and he now works as a solicitor at for a dive for kaimoana, or a surf. Wellington law firm Kahui Legal. “Family time is high on my pri- A change then a shock Along with the active and pos- ority list. Whether it’s at home or After two years working in a successful private physio itive working experience, Kahui visiting my siblings/cousins, it’s practice, he felt it was time for a change. Legal has provided Tyson with always good to spend time with “I really enjoyed the people who I got to work with several highlights and valuable whānau. there, but I just wasn’t fulfilled by the work and knew experiences, and the opportunity to “I’ve been lucky enough this I needed a change. I talked with my inner circle and learn and grow on a regular basis. last year to be able to see more whānau and came to law.” “Learning from some amazing of New Zealand, so that’s some- Moving to Wellington to study both law and account- people, particularly at Te Hunga thing I want to be able to keep ing at Victoria University, the start to his first year in Roia o Aotearoa-Hui-a-Tau, and doing – exploring. Hopefully a Wellington was a positive one. However, things took a listening to speakers like Justice Joe bit further abroad in the not-too- turn for the worse towards the end of 2013. Williams, Moana Jackson and Chief distant-future, but for now I’m “I was diagnosed with testicular cancer on 19 Justice Dame Sian Elias lay down happy exploring my own backyard. November 2013. Right after my exams in my first year challenges and provide insight into Finding a good work/life balance at VUW. I knew something was up during exams but what can be achieved working in is important, so being active is didn’t think to check until I’d gone home for summer. and with the law.” always good.” ▪

14 LAWTALK 926 · March 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE Representing those who have escaped from the worst that life can throw up Kamil Lakshman

BY NICK BUTCHER

escapes and desperation, stories of “We achieved Immigration and refugee lawyer Kamil Lakshman survival that most of us could not legal status for was unaware that law was in her family bloodline until imagine, so when Kamil Lakshman’s a woman who she was a teenager. team gains a win, it is something to had been living Mrs Lakshman was born in Suva, Fiji, but never knew be savoured. here illegally for her father, a lawyer and a University of Canterbury “We achieved legal status for a approximately graduate, who died when she was just three months old. woman who had been living here 31 years. It’s “I was adopted by my grandparents. It wasn’t until illegally for approximately 31 years. hard work. We my final years at secondary school that I became aware It’s hard work. We interview people interview people of his background,” she says. to create the strongest and most to create the “My father was only about 28 years old when he died. powerful story we can, and then strongest and At the time I felt the only connection I could get to him present their case. They can’t do it most powerful that was tangible was to become a lawyer. I wore my by themselves. If they could they story we can, father’s gown when I was admitted as my grandmother wouldn’t be coming to us,” she says. and then present had kept it for me all that time and presented it to me There are no guarantees when their case.” when I graduated. It was a complete shock.” representing people who are living Mrs Lakshman is the Principal at Idesi Legal, a bou- in these uncertain situations. tique firm which has offices in Wellington, Auckland and “You have to listen carefully to Over the years, Mrs Lakshman has Dunedin. She has been a long-standing member and past comprehend what they are saying. organised several humanitarian convenor of the New Zealand Law Society’s Wellington In a sense you have to hear what is appeals to aid relief efforts after branch Immigration and Refugee Law Committee and not being said and see what is not these tropical storms. After the last is also a member of the national committee. being seen. That’s where we find the cyclone she managed to organise She completed her law degree at Victoria University clues to telling their full story.” five relief containers. later in life and was admitted in 2000 prior to being a The really sad cases are those that She has also been a radio pre- middle management public servant. She recently was had a good case to begin with but senter, with a show broadcast in admitted to the Fiji bar and holds a practising certificate because of a small error their entire Hindi, which is aimed at educating in Fiji, mirroring her father’s journey. immigration status in New Zealand Fiji Indians on immigration matters. As an immigration and refugee lawyer, her team deals has become compromised, which “This came about because I saw the with a wide range of cases. Clients include asylum seek- then results in a long costly battle. lax nature in which forms were being ers wanting a better life than the one they left behind, While Mrs Lakshman’s work has filled and ghost operators undertak- which in some cases is a war-torn country or politically a strong humanitarian flavour to it, ing this task at a fee,” she says. unsafe environment. so do many of her outside interests. In her spare time, Kamil enjoys The humanitarian aspect of many cases, she says, For example, Fiji has been lashed practising what she describes as makes it both challenging and rewarding work. by cyclones many times and it’s spiritual activities, including yoga The stories of immigrants are often tales of daring expected that it will happen again. and meditation. ▪

15 PEOPLE IN THE LAW March 2019 · LAWTALK 926

PEOPLE IN THE LAW Revamped website heralds new outlook at the Māori Law Society

BY NICK BUTCHER

Te Hunga Rōia Māori o Aotearoa, the Māori Law Society, will introduce a membership fee and a new website in March. The Society’s executive undertook two rounds of consultation last year about the fee proposal which will mean that practising lawyers and judges will be charged an annual $100 plus GST membership fee. Non- practising lawyers and Community Law practitioners will be charged $75 plus GST. Membership is free for Māori law students. Liam Stoneley is the Society’s young lawyers’ representative, and a solicitor in Chapman Tripp’s Auckland corporate team. “We were really pleased with the positive response we received to the two consultation processes run last • Subsidised regional and national networking year. The 2018 executive ratified the proposal and the functions; changes will be introduced for the upcoming financial • Access to the members-only portal on the new web- year,” he says. site, which includes exclusive content and materials; • Increased advocacy for members and the Society’s What lawyers get for their values, including on law reform; membership fee … • Access to the existing suite of services, such as the In the past, becoming a member was a simple affair, Ngā Wāhine Rōia Māori mentoring programme; and requiring a law degree and proof of Māori descent. • Voting and speaking rights at Māori Law Society hui But the Māori Law Society is now 30 years old and a and the AGM. membership fee is an essential next step. Mr Stoneley says the membership fee will provide a steady stream How to become a member of income for the Society, which will ensure longevity People will be able to pay their fees via the new website and fuel for the growth of the kaupapa and services in March (due by 31 March) and get a unique member- they provide to members. ship number and log-in to the members only section. Some of the new and enhanced benefits members Existing members should keep an eye out for regular can expect for their annual fee include: reminders over email and on social media to sign-up • Reduced registration costs for the annual conference; at māorilawsociety.co.nz. ▪

16 LAWTALK 926 · March 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE Technology helping to overcome barriers at work

BY CRAIG STEPHEN

Auckland barrister sole Masumi Scherb has been “pretty much fully” blind since birth. And like other blind lawyers he has found technology a massive boost to his ability to do his work. “We’ve come a long way since I was admitted and I use a lot of Apple technology. I have an iPhone and an Apple Mac and they have voice output so whatever is on screen is spoken. And also there’s a lot of optical character recognition software, such as OCR software, so that I can convert text into pdf form and it can read it out to me. “I’m just starting to get into converting hand writing, which is kinda like the last frontier; for example, a lot of police disclosure forms are in hand-written form ▴ Simon Laurent and that’s the hardest for me to read. I still need help reading that and I rely on a colleague who is also a long-time friend to help me do that. know where doors are. More time could be “I do read documents in the normal “They’re providing a lot more electronic looked into investigating such technology, way, I don’t use braille, I never learned disclosure these days so there’s been a huge for all court users who could benefit from it. I just look closer. It probably takes me improvement in access.” improved technology.” a bit longer to read through a document Mr Scherb says while the technology is Auckland immigration lawyer Simon than most people. I find being able to use improving it isn’t always being taken up. Laurent, who is completely blind in one a PC where I can zoom in on things can “Some of the acommodations or access eye and has just 6% vision in the other, be useful but I have to admit that there to justice and the information we need is uses some new technology but largely is nothing quite like having the physical still on an ad hoc basis and that means overcomes his disability in simple ways. thing in front of you to read it properly.” ▪ people gaining the information off their own bat without assistance from the Ministry of Justice and central government. “The ministry is providing more legislation online which is really good, but it’s very slow in being posted and there’s still a long way Legal Accounting Bureau · Save time and money Kathy Kell to go to make the system fully accessible.” provides comprehensive, · Always know your trust account [email protected] is balanced and your month end In court Mr Scherb relies on both his accurate, efficient and timely certificates are filed on time Ph 09 444 1044 management of solicitors’ · Our service is completely secure Fax 09 929 3203 colleagues and court staff to get him trust accounts. and confidential www.accountingbureau.co.nz around the buildings. “But there is more · Trusted professionals with over Outsourcing the management 20 years’ experience that could be done in terms of access, for of your firm’s trust account · 62 law firms currently use our Powered by juniorPartner. example, some countries use an iPhone app has many advantages. services Practice Management software you can trust. that communicates with beacons so you

17 PROFILE · PEOPLE IN THE LAW March 2019 · LAWTALK 926

PEOPLE IN THE LAW PROFILE The Innovators Renee Knake

BY ANDREW KING

What developments do LawFest organiser Andrew King contin- the role of entrepreneurship and you see in how legal ues a series of interviews with key legal innovation in the delivery of legal services are delivered? services globally. professionals with their innovation and I believe we will increasingly see What are some of your tips to technology stories. more focus on the needs of clients, whether corporations, government start innovating or developing Renee Knake holds the Fulbright Distinguished Chair in bodies, or individuals, as well as an innovative mindset? Entrepreneurship and Innovation at the Royal Melbourne stronger efforts aimed at better Look beyond one’s own profes- Institute for Technology University and is Professor of understanding the lived-experience sion or discipline for inspiration. Law and Director of Outcomes and Assessments at the for those who need legal help. Even My essay “Cultivating Learners University of Houston Law Centre. as technology changes the tools Who Will Invent the Future of legal services providers use, one-on- Law Practice: Some Thoughts on What does legal innovation mean to you? one human interaction will remain Educating Entrepreneurial and Legal innovation means developing ways to make law centrally important. Innovative Lawyers”, which, while more accessible for those who need it, whether on the written for legal educators, offers street corner or in the corner office. It also means ethical What opportunities has legal insights for anyone who wants innovation. Lawyers have a special obligation to ensure innovation brought to you? to think differently about how that innovations in the delivery of legal services are My work in legal innovation has we approach the delivery of legal ethical, not only complying with professional obligations brought a number of opportu- services. but also protecting clients from harm. nities. It has expanded career opportunities for students of mine, Why is it important for legal What role does technology play in innovation? for example as legal solutions professionals to continue to Technology plays an important role in legal innovation, architects/designers or innovation learn about legal innovation both in the development of new tools to make law more counsel, jobs in the profession that and leveraging technology? accessible and affordable, but also in showing the way did not exist when I was a student In the United States this is an ethical toward innovation through investment, trial/error, at the University of Chicago Law obligation for lawyers; American user-centric design, etc. Technology alone, however, is School 20 years ago. From 2014-16, Bar Association Model Rule 1.1, not itself true innovation, unless it becomes adopted I had the privilege of serving as governing competence, requires and disseminated. a Reporter for the American Bar keeping abreast with changes in Association Commission on the relevant technology. But even more What pressures are organisations facing Future of Legal Services, which led significant, for legal professionals in the delivery of legal services? to the creation of the ABA’s Centre around the globe, learning about Better, faster, cheaper, more-for-less – the pressures on Innovation. And, currently I hold innovation and leveraging tech- facing all sectors certainly also pertain to legal services. the Fulbright Distinguished Chair in nology is essential to best serving But, a unique pressure for those delivering legal services Entrepreneurship and Innovation our clients. is adoption, whether it be convincing lawyers or their at Royal Melbourne Institute for clients to try new tools or methods. Lawyers, by nature, Technology University, a six-month Renee Knake is one of the speakers are often risk-adverse and clients may not understand fellowship through the Australian- at LawFest 2019, at the Cordis Hotel the value of legal services. So, this creates an extra American Fulbright Commission. In in Auckland on 21 March. Further hurdle or added layer of pressures for those who want this capacity, I am building upon my details can be found here – https:// to innovate in the legal services space. prior research to better understand www.lawfest.nz/ ▪

18 LAWTALK 926 · March 2019 NEW ZEALAND LAW SOCIETY

NEW ZEALAND LAW SOCIETY

Law Society not seeking review of unsatisfactory conduct finding

The New Zealand Law Society has the committee which considered behaviour which occurs at work social events, given confirmed that it is not seeking a this matter is independent of the the consumer focus of the current disciplinary regime. review of a finding by a lawyers Law Society in its deliberations and Both employees were satisfied with the process standards committee that a lawyer decisions. Standards committees are followed by the law firm. One employee signalled was guilty of unsatisfactory conduct made up of experienced lawyers and that they did not wish to participate further in the after he sexually harassed two of his non-lawyers who are dedicated disciplinary process. A majority of members of the law firm’s employees. The decision to the work they do on behalf of standards committee found, despite the lawyer’s sub- was published recently. consumers and the legal profession. missions to the contrary, that there was jurisdiction The Law Society has stated its While the Law Society was able to to make a finding that the conduct was essentially position in response to comments seek review of this decision by the connected to legal work. However, a minority did by some lawyers who disagreed Legal Complaints Review Officer, not agree there was jurisdiction under the current with the finding and the penalties after considering all of the factors legislation. Looking at the matter in its entirety, the imposed and asked why the Law and the current disciplinary legis- Law Society chose not to seek a review.” Society was not seeking a review lation, we did not believe it should Ms Beck says the Law Society has prepared a further of the decision. be referred to the LCRO,” she says. more comprehensive outline of the distinction between “This is the first finding made by “The reasons for so doing included unsatisfactory conduct and misconduct, and other a standards committee on matters evidence that the two employees considerations relating to bringing proceedings in the relating to sexual harassment at concerned were satisfied with the Disciplinary Tribunal. This article, by Law Society Senior law firm social events. The reason- way the firm dealt with the matter, Solicitor – Regulatory Matt Fogarty, is included in this ing process which the committee the fact that the lawyer had taken issue of LawTalk at page 23. had to follow is a good example of full responsibility for his actions, had Ms Beck says the report by Dame Silvia’s group iden- why we need legislative reform in shown significant contrition and tified a range of problems with the current regulatory this area,” Law Society President remorse, had no prior disciplinary mechanisms and processes for dealing with complaints Kathryn Beck says. history, and had taken rehabilitative about sexual harassment, discrimination and bullying. “Under the legislation a standards steps which included treatment “The Law Society is acting to secure change, but as committee can only make findings from a mental health specialist to our outline demonstrates, the current system is the one of unsatisfactory conduct. Only ensure there was no repeat of the which we must operate under until that change occurs.” the New Zealand Lawyers and behaviour. Conveyancers Disciplinary Tribunal “The standards committee deci- can make a finding of misconduct.” sion included a full discussion of Ms Beck says that when a com- its current jurisdiction to consider plaint is received it is put before and address conduct that occurs in a standards committee. If a com- a social setting within a law firm. mittee believes there are grounds The matters raised are very much Contributing articles to support a finding of misconduct part of the issues identified by Dame to LawTalk against a legal practitioner it may Silvia Cartwright’s regulatory work- We welcome articles related decide to refer the matter to the ing group. The Law Society will be to the New Zealand legal Disciplinary Tribunal to make that consulting with the legal profession profession, at work or lei- finding. on how the working group’s recom- sure. All contributions and While there is no threshold for mended changes may be achieved, inquiries about submission referral, standards committees often and we encourage people to engage of articles can be emailed to refer matters to the Tribunal when in that process. the Managing Editor, editor@ the conduct warrants strike off or lawsociety.org.nz. Contact suspension. While proceedings in Decision highlights before submission of an article the Tribunal are generally held in difficulties with is preferred. The New Zealand public, name suppression may be current regime Law Society reserves the right ordered where there is a likelihood “The decision highlights the dif- to edit all material submitted of complainants being identified. ficulties standards committees for publication. “Like all standards committees, currently face in addressing

19 NEW ZEALAND LAW SOCIETY March 2019 · LAWTALK 926

Guidance released on AML/CFT desk- based reviews Agreement with most of Law The Law Society has released Commission’s relationship guidance on desk-based audits of law practices under the Anti- property preferred approach Money Laundering and Countering Funding of Terrorism Act 2009. The Law Society says it agrees with property that would otherwise be The guide – which can be found at most of the Law Commission’s classified as relationship property www.lawsociety.org.nz/practice- preferred approach proposals has been disposed of to trusts during resources/practice-areas/aml-cft in its review of the Property the relationship,” the Law Society – has been written by Law Society (Relationships) Act 1976. In com- says. Inspectorate Manager Lisa Attrill ments on the proposals, the Law Children’s interests: The Law with inputs from the supervising Society has commended the Society does not support the Department of Internal Affairs. Commission for its thorough and Commission’s preferred approach As part of its supervisory role, the considered review. that children’s best interests should department may review a lawyer’s Key areas considered by the Law be a primary consideration under risk assessment and AML/CMT Society are as follows: the Act, including an “overarching compliance programme. Desk-based De facto relationships: The Law obligation” on the courts to have reviews can be carried out, with Society agrees that the Act should regard to the best interests of any the objective of completion within apply in the same way to all mar- minor or dependent children. It says one month. The reviews will assess riages, civil unions and qualifying de the Act concerns the property enti- compliance with sections 56-58 of facto relationships. However, it does tlements of adult partners at the end the Act, and focus on a number of not support retaining the current of a relationship and its purpose is to matters. definition of a qualifying de facto recognise the equality contributions relationship. It believes this is too of the partners to the relationship wide and creates uncertainty which and to provide for a just division prevents issues being resolved of property when the relationship efficiently. ends. The “overarching obligation” Classifications: Classification reaches right across the Act and is CPD declarations of the family home as relationship the overriding consideration. The due soon property is supported, whether Law Society suggests that children The Continuing Professional owned by either or both parties should be a primary focus when it Development (CPD) year ends if it was acquired before the rela- comes to determining occupation on 31 March 2019. Declarations tionship for the partners’ common of the former family home, and not of completion are due no use or benefit or if it was acquired the division of relationship property. later than five working days during the relationship, other than Family Court Rules committee: after this – by 5 April. The as a third-party gift or inheritance. The Law Society agrees that a Family Law Society suggests that The Law Society also agrees with Court Rules committee should be all practitioners should introduction of a new, limited established to develop specific proce- check completion of their entitlement to share future family dural rules and guidance for Property CPD requirements and also income through a family Income (Relationships) Act matters. It says whether their CPD learning Sharing Agreement. it is essential that rules are brought plan and record are up to Trusts: The Commission’s pro- into force at the same time as the date. Further information is posals for trusts are supported. “It new Act as it would be counterpro- available on the Law Society’s is important that on separation, the ductive for the legislative changes website at www.lawsociety. court has appropriate powers to to be brought into force before the org.nz/cpd deal with the issues arising where supporting rules are in place.

20 LAWTALK 926 · March 2019 NEW ZEALAND LAW SOCIETY

In-house lawyers surveyed

The Law Society’s in-house lawyer section ILANZ and accounting firm Deloittes are carrying out a survey of New Zealand’s in-house lawyers. It is intended that the survey will be an annual event. Its objectives are to build an understanding of the current profile of the in-house legal profession, provide an insight into the current and aspirational Culture Change Taskforce priorities for in-house legal counsel, and provide information that may work well underway be useful for comparison purposes. An online survey has been sent to The members of the Law Society’s The taskforce is required to deliver a all in-house lawyers and this is Culture Change Taskforce are now draft strategy and action plan to the being followed up with a series of meeting regularly. The taskforce, Law Society by 30 November 2019. in-person interviews. The survey which is shown at a meeting in A key initiative for the taskforce results will be released at the ILANZ Wellington in February, is a key will be a one-day symposium on 14 conference in May. player in developing a strategic May. This will be held in Wellington framework and action plan for the at the Pipitea Marae, Thorndon legal community that will support Quay, and will bring together 150 the creation and maintenance of members of the wider legal pro- work environments that are healthy, fession and experts in systems and safe, respectful and inclusive. culture change. Taskforce chair Kathryn Beck Kerrin Humphrey, Culture says the practice of law is tough, Manager, NZLS Taskforce, says HAYS LEGAL but rewarding. the taskforce is not only excited PARTNER WITH “The Law Society’s 2018 Workplace about what can be learned at the THE EXPERTS Environment Survey told us that as symposium, but the conversations At Hays Legal we understand that the a profession we get enormous sat- and work that it will spark. Ms effectiveness of a legal department depends upon its people. We help isfaction from the work we do, but Humphrey is a full-time co-ordi- jobseekers achieve their full potential many lawyers – 29% – think their nator for the taskforce. by bringing them together with the workplace culture needs to change. “The intention of the symposium right job. We are passionate about the legal profession and the careers of the To be sustainable as a profession, will be to discuss and workshop a people within it. it is essential that our work envi- number of topics,” she says. ronments are places where each “These include what it takes to With offices across New Zealand, we combine local knowledge with individual can be themselves and change the systems and culture of a national perspective. This means thrive.” a community, the particular issues you receive an expert local service The 19-member taskforce rep- in the legal community, causative and have access to a nationwide pool of talent and resents a wide range of people factors and possible interventions.” opportunities. and communities within the “The taskforce will lead the way, legal services industry and brings but success will come when the To find your local office, visit together lawyers and non-lawyers leaders and each person in our hays.net.nz of differing ages and experiences legal community understands and from around the country. Members embraces the need for change and hays.net.nz were appointed in September 2018 starts doing things effectively,” for an initial term of three years. Kathryn Beck says.

21 NEW ZEALAND LAW SOCIETY March 2019 · LAWTALK 926

Charities Act Lack of consultation on review concerns rustling law of concern expressed to Law Society President and was focused on amending three provi- Kathryn Beck has written sions in the Crimes Act 1961 on accessories minister to the Minister of Justice after the fact, blasphemous libel, and a to express concern that requirement relating to the time in which a Law Society President Kathryn Beck has legislation creating signif- death must occur to be subject to criminal written to the Minister for the Community icant new criminal offices sanctions. and Voluntary Sector, Peeni Henare, to raise related to livestock rus- “We appreciate the government’s desire a number of concerns about the current tling has been progressed to address the harms arising from theft of review of the Charities Act 2005. She says without the opportunity livestock but consider there is insufficient the current review is a welcome step, for public consultation justification for amendment to the [bill] via but the Law Society considers its scope and select committee supplementary order paper at a late stage should be widened and more time given activity. in the bill’s passage through the House,” to ensure the resulting legislative reforms “In the Law Society’s Ms Beck says. are effective and fit for purpose. view, this is an undesirable Her letter notes that the Law Society Ms Beck says the terms of reference and unjustified departure was consulted on a limited basis on the are too narrow and will not enable key from the usual consulta- proposed new offences. This was a confi- concerns to be addressed. tion process for legislative dential consultation at short notice, and “To date no first principles post-im- reform,” she says. the specific wording of the offences was plementation review has been carried Justice Minister not provided. out. Instead, the last 13 years have been Andrew Little introduced “The Law Society submitted that the new characterised by a series of amendments a Supplementary Order offences should be introduced via a new that have … been rushed through under Paper on 12 December bill, rather than via SOP. In our view the urgency, without proper consultation 2018 to amend the Crimes proposed offences are a significant exten- and often resulting in unintended conse- Amendment Bill. This was sion of the current law, and the appropriate quences,” she says. a day after the bill had avenue for making the legislative changes “A broader review would provide an received a second reading is through the introduction of a bill to allow opportunity to align the legislation with and well after the select for public consultation with relevant stake- current and future needs and priorities, and committee had reported on holders including the legal profession and also to take account of international best the bill in late September. select committee consideration.” practice including the reforms undertaking Until the supplemen- Ms Beck says the new offences are a in the UK and Australia.” tary order paper, the bill significant extension of the current law and Ms Beck says the proposed timeframe is contained no provisions should be the subject of public submission not sufficient for meaningful consultation. related to livestock rustling and debate. Many of the issues involved are complex, with far-reaching impact. “In the Law Society’s view, it would likely be more cost-effective (and prudent) in the long run to take the time needed to MORRIS LEGAL carry out a comprehensive ANNOUNCES PROMOTIONS reivew of the legislative framework.” Experts in resolving trust, A reply from the office of relationship property and estate disputes the minister has acknowledged the Law Society’s GEORGIA ANGUS www.morrislegal.co.nz ARIA NEWFIELD Senior Associate Senior Solicitor views.

22 LAWTALK 926 · March 2019 NEW ZEALAND LAW SOCIETY

Principles and practice Publication, penalties and prosecutions

BY MATT emphasis on addressing lawyers’ con- can also be applied to sexual harassment FOGARTY duct that occurs at a time when a lawyer in the workplace) is conduct that would is carrying out legal work for clients; reasonably be regarded by lawyers of good c the respective jurisdiction, and proce- standing as disgraceful or dishonourable. A Background dures, of standards committees vs the finding of misconduct can also be made if In January the Law Society published a New Zealand Lawyers and Conveyancers a lawyer wilfully or recklessly contravenes decision by a standards committee which Disciplinary Tribunal (“Disciplinary the Rules. Over the past decade, misconduct made an adverse disciplinary finding Tribunal”); and findings have been imposed in relation to against a lawyer, following two separate d the underlying rationale in relation to conduct such as: gross overcharging; serial instances of sexual harassment towards imposing a disciplinary sanction on a incompetence; and willful or reckless breach two employees. lawyer, including the legal principles of a lawyer’s undertaking. Standards committees are independent governing name publication. bodies and are comprised of up to seven “At a time when” the lawyer is lawyer members and up to two non-lawyer Unsatisfactory conduct providing regulated services members. vs misconduct There is only limited scope for a standards The decision has been the subject of Both concepts are comprehensively defined committee or the Disciplinary Tribunal public comment and criticism, including: in the Lawyers and Conveyancers Act 2006 to make adverse disciplinary findings in whether the lawyer’s actions ought to (“LCA”) – see sections 12 (unsatisfactory relation to a lawyer’s conduct in their have been assessed as amounting to misconduct) and 7 (misconduct). personal/non-professional life. Subject to conduct rather than unsatisfactory con- The essence of the threshold of unsat- the exceptions noted below, in order for duct; whether the lawyer ought to have isfactory conduct (as it applies to sexual the Disciplinary Tribunal to make a finding been suspended from practice (the lawyer harassment in the workplace, under the of misconduct it first has to be satisfied was instead censured and ordered to pay current legislation) is that the conduct the lawyer’s conduct occurred “at a time a fine, and costs, to the Law Society); and/ would be regarded by lawyers of good when” the lawyer was providing “regulated or whether the lawyer’s identity ought standing as being unacceptable (including services” (s 7(1)(a) of the LCA). Regulated to have been disclosed in the published conduct unbecoming a lawyer, or unpro- services essentially means legal work. standards committee decision. The Law fessional conduct). This is also the case for two of the four Society welcomes such public debate. A finding of unsatisfactory conduct can limbs of unsatisfactory conduct (namely: It is not appropriate for the Lawyers also be made if a lawyer contravenes the conduct that falls short of the standard of Complaints Service to publicly comment Lawyers and Conveyancers Act (Lawyers: competence and diligence that a member of on an independent standards committee Conduct and Client Care) Rules 2008 the public is entitled to expect of a reasonably decision and so it is not the intention of (“Rules”). Over the past decade, unsat- competent lawyer; and conduct that would this article to seek to justify or defend the isfactory conduct findings have been be regarded by lawyers of good standing as decision. imposed in relation to conduct such as: being unacceptable). This is reflective of the The parties to the matter have (or had) overcharging; breach of duty to take rea- consumer-protection focus of the current rights of review to the Legal Complaints sonable care; and negligent breach of a legislation (s 3(1)(b) of the LCA). Review Officer if they are dissatisfied with lawyer’s undertaking. A finding of misconduct can also be the standards committee decision. The Law As is self-evident, misconduct is more made if a lawyer engages in conduct that Society also has (or had) the right to seek serious than unsatisfactory conduct. The would justify a finding they are not a fit and a review. threshold for a finding of misconduct is proper person or are otherwise unsuited Rather, this article is intended to high- high. Only the Disciplinary Tribunal can to engage in practice as a lawyer (s 7(1) light and discuss the following aspects make findings of misconduct. Matters (b)(ii) of the LCA). Because the ‘not a fit of the current regulatory regime, and the come before the Disciplinary Tribunal and proper person’ element of misconduct limitations it imposes, in a general (non- following referral, and the laying of a generally applies to a lawyer’s conduct in case-specific) manner: disciplinary charge against a lawyer, by a their personal/non-professional life, it has a the distinction between unsatisfactory standards committee. an especially high threshold. It has previ- conduct and misconduct; The most common threshold test for mis- ously been engaged in relation to conduct b the governing legislation’s particular conduct under the current legislation (which such as dishonesty offences.

23 NEW ZEALAND LAW SOCIETY March 2019 · LAWTALK 926

The Disciplinary Tribunal and High Court have sought to can impose a variety of orders against the lawyer, includ- extend the reach of the statutory disciplinary provisions ing: censure or reprimand; direction to apologise; direction that only apply “at a time when” the lawyer is providing to reduce legal fees; direction to pay compensation (up regulated services (see Orlov v New Zealand Lawyers and to $25,000) to the complainant or affected party; and to Conveyancers Disciplinary Tribunal [2014] NZHC 1987). pay a fine (up to $15,000) and/or costs to the Law Society. They have done this by adopting a statutory interpreta- The Disciplinary Tribunal can make findings of unsatis- tive approach that extends the provisions’ application to factory conduct and misconduct. The Disciplinary Tribunal conduct that is “connected to or with” the lawyer’s supply has jurisdiction to impose all orders which are available of regulated services. to standards committees. In addition, the Disciplinary An example might be a lawyer’s improper issue of a stat- Tribunal has the ability to remove a lawyer from practice utory demand to recover unpaid legal fees from a company (either temporarily, by way of suspension for up to three client (A v Canterbury Westland Standards Committee 2 [2015] years; or permanently, by way of strike-off from the roll NZHC 1896). While the lawyer may have issued the statutory of barristers and solicitors). It can also order that a lawyer demand at a time when the lawyer was no longer providing is not able to practise on their own account (ie, as a sole regulated services for the client, the issuing of the statutory practitioner, partner or director of a law firm). demand is sufficiently connected to the lawyer’s provision Standards committee hearings are almost exclusively of regulated services (because it arose out of the lawyer/ conducted “on the papers”, and are held in private. This client relationship) to be potentially captured by sections is the default position established by s 153 of the LCA. By 7(1)(a) and/or 12(b) of the LCA. contrast, the default position is that Disciplinary Tribunal This begs the question: how far can a standards com- hearings are held in public, with the parties appearing mittee lawfully go when assessing a lawyer’s conduct in-person (or through counsel) before the Disciplinary (which is arguably connected to the lawyer’s provision Tribunal. This reflects the policy decision that standards of regulated services) before the standards committee’s committees deal with matters of unsatisfactory conduct interpretation is vulnerable to judicial review for offending only, whereas the Disciplinary Tribunal also deals with the natural and ordinary meaning of the words “at a time more serious matters (ie, misconduct) where evidence is when” the lawyer is providing regulated services? This is examined and tested in a quasi-court setting and consid- the subject of discussion by the standards committee in erations of open justice prevail. the Mr X decision (published in January), and resulted This distinction also has implications in terms of publica- in a split decision. tion of decisions. The statutory presumption is that standards It is one thing to say it captures a lawyer’s improper issue committee decisions remain confidential to the parties, unless of a statutory demand following the lawyer’s provision a standards committee directs publication as it considers of regulated services for the debtor client, but it is argu- necessary or desirable in the public interest (s 142(2) of the ably another thing to say it captures a lawyer’s conduct LCA). As the Court of Appeal noted in New Zealand Law Society towards a professional colleague which occurs outside of v B [2013] NZCA 156 at [47] (footnotes omitted): the workplace or outside of office hours. “The different legislative approach on the issue On the facts of the particular case a majority of the of publication between the Disciplinary Tribunal standards committee in the Mr X decision reached the and Standards Committees and the LCRO [Legal view that Mr X’s conduct did occur at a time when Mr Complaints Review Officer] no doubt reflects the X was providing regulated services, even though Mr policy decision that it is the Disciplinary Committee X’s conduct towards two of the firm’s employees either [sic] that deals with the more serious matters, which occurred outside of office hours (at Friday night drinks in the public interest should be dealt with openly, held on the firm’s premises) or outside of the office (at whereas the lesser matters dealt with by Standards the firm’s end-of-year party held at an external venue). Committees and the LCRO may or may not justify The statutory phrase “at a time when” publication after having been dealt with privately ...” the lawyer is providing regulated services, By contrast Disciplinary Tribunal decisions are, in the can limit the jurisdiction of standards com- Over the absence of any order to the contrary, publicly available. mittees and the Disciplinary Tribunal. In past decade, This is indicative of the importance of more serious discipli- order for standards committees and the misconduct nary matters being in the public domain, and is consistent Disciplinary Tribunal to have greater juris- findings have with two of the purposes of the LCA – to maintain public diction to address lawyers’ conduct that been imposed confidence in the provision of legal services, and to protect does not occur at such a time, legislative in relation the consumers of legal services (s 3(1) of the LCA). reform is required (and is being sought by to conduct As noted above, standards committees can only make the Law Society). such as: gross findings of unsatisfactory conduct; it is the Disciplinary overcharging; Tribunal that has sole jurisdiction to make a misconduct Standards committees vs serial finding against a lawyer (following referral and prosecution Disciplinary Tribunal incompetence; by a standards committee). There is no threshold for a Standards committees can make findings and willful standards committee to refer a matter to the Disciplinary of unsatisfactory conduct only; they do or reckless Tribunal and the Disciplinary Tribunal can make findings not have jurisdiction to make findings of breach of against a lawyer of unsatisfactory conduct (as well as mis- misconduct. Following a finding of unsat- a lawyer’s conduct). The High Court has, however, observed (Hart v isfactory conduct, a standards committee undertaking. Auckland Standards Committee 1 of the New Zealand Law

24 LAWTALK 926 · March 2019 NEW ZEALAND LAW SOCIETY

Society [2013] 3 NZLR 103 at 128): Court of Appeal (Orlov v New Zealand Law “In practice, Standards Committees The public [...] are entitled Society [2013] 3 NZLR 562 (CA) at 576): will in most cases only refer a com- to scrutinise the manner “Having regard to the legislative pur- plaint to the Tribunal if the alleged in which lawyers are poses of consumer protection and the conduct forming the basis of the disciplined, because it is maintenance of public confidence in complaint is sufficiently serious to the profession in which the provision of legal services, it is in warrant consideration of suspension the public must have our view important that the Tribunal or striking off …” confidence be able to determine some complaints While there is no threshold to refer a matter even though the likely sanction will to the Disciplinary Tribunal, a degree of before the Disciplinary Tribunal will find not involve striking off or suspension. pragmatism is sometimes viewed as appro- the charge established on the balance of The complaints may for example priate. A standards committee may decide probabilities (Z v Dental Council of New involve complex issues of law or fact to refrain from referring a matter to the Zealand CIV-2010-485-2249 (2 December or be likely to result in a significant Disciplinary Tribunal if (were the matter 2011) at [41]). precedent …” to be referred) the prosecuting standards Litigation risk can also arise due to oper- committee would not be seeking a sanction ation of the law. As an example, in order for Penalties – rationale, of suspension from practice or strike-off the Disciplinary Tribunal to make a finding and name publication from the roll of barristers and solicitors. of misconduct pursuant to s 7(1)(a) of the That might be because of a variety of dif- Act (for disgraceful or dishonourable con- Rationale ferent factors, including mitigating and/or duct, or willful or reckless contravention of In contrast to criminal proceedings (which medical circumstances, and an assessment the Rules), the prosecuting standards com- reflect adversely upon the individual there is a low risk of the lawyer reoffending. mittee first has to satisfy the Disciplinary offender), breaches of professional stand- As noted in Webb, Dalziel and Cook, Tribunal that the lawyer’s conduct occurred ards may reflect upon the whole profession. Ethics, Professional Responsibility and the “at a time when” the lawyer was providing The public (as well as members of the legal Lawyer (LexisNexis NZ Ltd, 3rd edition),at regulated services. This legislative qualifier profession) are entitled to scrutinise the 4.3.7 (footnotes omitted): can create difficulties for a standards com- manner in which lawyers are disciplined, “A final matter to consider is the mittee, and the Disciplinary Tribunal, when because it is the profession in which the conundrum faced by a Standards assessing a lawyer’s conduct which arises public must have confidence if lawyers are Committee which reaches the view outside of the course of the working day. to properly provide the necessary legal that the conduct complained of is Given the quasi-court procedures of services to the public (Daniels v Complaints properly considered to be misconduct the Disciplinary Tribunal (including Committee 2 of the Wellington District Law but the matter (while not trivial) is cross-examination), proceedings can also Society CIV-2011-485-000227 (High Court not deserving of the onerous step of be emotionally challenging for the person Wellington, 8 August 2011) at [34]). prosecution before the New Zealand harmed by the lawyer’s conduct, as well as As established by case law (Daniels at Tribunal. There has always been a witnesses, and sometimes such persons are [22] and Roberts v A Professional Conduct discretion as to whether or not to (understandably) not inclined or not willing Committee of the Nursing Council of New charge a practitioner with misconduct. to give evidence before the Disciplinary Zealand [2012] NZHC 3354 at [44] to [51]), “Under the 1982 Act, a charge would Tribunal. The availability or otherwise of the main purposes of the penalty function be laid only where it was considered the person harmed by the lawyer’s conduct, of both standards committees and the that “the case is of sufficient gravity to as well as witnesses, to give evidence is Disciplinary Tribunal are to: protect the warrant the making of a charge”. That another factor a standards committee may public (including ordering penalties that provision did not find its way into the take into account when deciding whether will deter the respondent lawyer, and other 2006 Act. However, ss 152 (in respect or not to refer and prosecute a matter lawyers, from offending in a similar way); of Standards Committees) and 211 use before the Disciplinary Tribunal. set and maintain professional standards; discretionary language in stating that After taking all such factors into account impose sanctions on a lawyer for breach the Committee “may” make certain a standards committee may consider it of his/her duties; and to provide scope for determinations, including a determi- appropriate to make a finding of ‘high-end’ rehabilitation in appropriate cases. nation to lay charges. This is consistent unsatisfactory conduct rather than laying When setting a penalty, the starting with a long-standing convention of a charge in the Disciplinary Tribunal for point is fixed according to the gravity of the prosecutorial discretion. misconduct. unsatisfactory conduct or misconduct, as “It may be that in some cases it A contrary view of course might be that well as the culpability of the lawyer for the will be appropriate for a Standards all instances of prima facie misconduct particular breach of professional standards. Committee to decline to prosecute ought to be referred to, and prosecuted Thereafter, a balancing exercise is required a matter as misconduct, preferring by a standards committee before, the to factor in mitigating circumstances and to make orders based on a “lesser” Disciplinary Tribunal (with all mitigating other considerations (Daniels at [28]). As the finding of unsatisfactory conduct.” circumstances and the like to be assessed High Court said in Daniels at [28] and [29]: Proceedings before the Disciplinary by the Disciplinary Tribunal rather than “... Obviously, matters of good char- Tribunal can be costly and time-consum- the standards committee). acter, reputation and absence of prior ing, and may involve litigation risk given Any such pragmatism by a standards transgressions count in favour of the the more serious the allegation/disciplinary committee does need to be tempered in practitioner. So, too would acknowl- charge, the stronger the evidence has to be light of the following observations of the edgement of error, wrongdoing

25 NEW ZEALAND LAW SOCIETY March 2019 · LAWTALK 926

and expressions of remorse and Society) is required by regulation to take Reporting unacceptable contrition. For example, immediate into account the public interest and the conduct acknowledgement of wrongdoing, impact of publication on the interests and Lawyers are required to submit a confiden- apology to a complainant, genuine privacy of: the complainant; clients of the tial report to the Law Society if they have remorse, contrition, and acceptance censured lawyer; relatives of the censured reasonable grounds to suspect another of responsibility as a proper response lawyer; partners, employers, and associ- lawyer has been guilty of misconduct. to the Law Society inquiry, can be seen ates of the censured lawyer; as well as the Lawyers can also provide a report if to be substantial mitigating matters censured lawyer him/herself. they have reasonable grounds to suspect and justify lenient penalties . . . The position is different for the another lawyer has been guilty of unsat- “On the other side of the coin, Disciplinary Tribunal. Given the public isfactory conduct. absence of remorse, failure to accept nature of (the generally more serious) pro- These obligations flow from Rules 2.8 responsibility, showing no insight ceedings before the Disciplinary Tribunal, and 2.9. The reporting lawyer does not into misbehaviour, are matters which, the starting position is publication of the have a responsibility to make a definitive whilst not aggravating, nevertheless whole of the Disciplinary Tribunal’s deci- decision on whether the conduct in ques- may touch upon issues such as a sion, including the name of the lawyer tion amounts to unsatisfactory conduct person’s fitness to practise and good charged before the Disciplinary Tribunal. or misconduct; those are matters for a character or otherwise.” So, in the absence of orders to the contrary, standards committee and Disciplinary Punishment is not the primary purpose, the name of the lawyer will be able to be Tribunal to determine. Guidance on report- although penalty orders inevitably will published in the media. ing unacceptable conduct can be found on have some such effect Daniels( at [22]). A The public interest may be protected by the Law Society’s webpages. penalty ought to be fair, reasonable and means other than name publication. This proportionate in the circumstances. The may arise, for example, where the lawyer is Looking ahead High Court has also said a penalty ought to no longer practising. Such a circumstance 2019 is going to be a year of regulatory be the least restrictive that can reasonably might be a factor weighing against a deci- change for the legal profession. As read- be imposed in the circumstances (which sion to publish the lawyer’s name. ers will know, in December last year the is akin to the ‘least restrictive outcome’ Embarrassment, distress and emotional Board of the Law Society accepted the principle applicable in criminal sentencing harm are generally not sufficient to justify recommendations made in a report on – Roberts at [50]). name suppression (Complaints Assessment the regulatory processes for lawyers where Whilst made in the context of discipli- Committee 403 v Licensee B [2017] NZREADT unacceptable workplace behaviour occurs nary proceedings against a health profes- 21 at [48]). (Report of the New Zealand Law Society sional, the following observations of the Non-publication of a lawyer’s name Working Group, December 2018, available High Court (in relation to rehabilitation) (whether by a standards committee or the on the Law Society’s webpages). The report may also be applicable to legal profession- Disciplinary Tribunal) may be appropriate identifies a range of problems with the cur- als (Roberts at [47]): in circumstances where the lawyer will be rent reporting regime and concludes that “A reason why rehabilitation may be able to continue in practice. As the High the regulatory mechanisms and processes an important consideration is that Court has said (B v B High Court, Auckland, are not designed effectively for dealing health professionals and society as a HC 4/92, 6 April 1993 at page 99): with complaints about sexual violence, whole make considerable investments “In normal course where a profes- harassment, discrimination and bullying. in the training and development of sional person appears before a disci- This article has been written based on health practitioners. Where appropri- plinary tribunal and is found guilty of current legislative provisions, regulations, ate, the Tribunal should endeavour an offence, that person should expect and case law authority. Amongst other to ensure these investments are not that an order preventing publication things there may well be changes to: permanently lost, provided of course of his or her name will not be made. a the complaints and discipline regime the practitioner is truly capable of That will especially be so where under the LCA and its current particu- being rehabilitated and reintegrated the offence found to be proved, or lar emphasis on capturing conduct that into the profession.” admitted, is sufficiently serious to occurs “at a time when” the lawyer is justify striking off or suspension from providing regulated services/carrying Name publication practice. But where the orders made out legal work; For a lawyer, name publication will gen- by a disciplinary tribunal in relation b the procedures of giving evidence before erally be the most significant element of a to future practice of the defendant the Disciplinary Tribunal (to protect penalty imposed by a standards committee are directed towards that person’s witnesses); and or the Disciplinary Tribunal. Short of being rehabilitation and there is no striking c changes to the law governing name pub- struck-off the roll, a lawyer’s reputation off or suspension but rather, as here, a lication or suppression in the context of is everything and, once lost, is difficult to decision that practice may continue, established instances of sexual violence, regain. there is much to be said for the view harassment, discrimination and bullying When considering whether to publish that publication of the defendant’s within the legal profession. the identity of a lawyer who has been the name is contrary to the spirit of the Watch this space. ▪ subject of a censure order (a censure order decision and counter-productive. being a prerequisite to name publication It may simply cause damage which Matt Fogarty is Senior Solicitor – by a standards committee), the standards makes rehabilitation impossible or Regulatory with the New Zealand Law committee (and the Board of the Law very much harder to achieve.” Society.

26 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION

Over 14,000 lawyers now hold in New Zealand for every 365 Snapshot practising certifi cates issued by citizens. Back in 1999 it was one the New Zealand Law Society. lawyer for every 470 citizens. They range in age from 22 to Another marked trend which of the over 90. While there is obviously has been covered in some detail a lot more than the numbers, because it is probably the biggest the information which the Law change occurring in the legal pro- Profession Society collects in its regulatory fession, is the continued change role can provide some useful in the gender composition of details on the makeup of the legal lawyers. At 1 February 2018 the 2019 profession. Care has been taken number of New Zealand-based not to disclose information which women lawyers was one ahead could identify individuals or fi rms of the number of men practising. COMPILED BY and organisations providing legal A year later, there were 393 more GEOFF ADLAM services. women. However, women made Lawyer numbers continue to up just 30.9% of partners and DESIGNED BY grow. Since our fi rst Snapshot in directors in multi-lawyer firms SOPHIE MELLIGAN 2011, there has been an increase in 2018. This had risen to 32.7% AND ANDREW JACOMBS of 24% in all practising certifi cate in 2019, but was still far from holders, and 20% in New Zealand- equal. Perhaps encouragingly, the based lawyers. At the same time 6% rise in total women lawyers the population of New Zealand over the year lagged behind the has increased by around 12%. At 16% rise in women partners and the moment there is one lawyer directors.

Another year, another 500 more lawyers…

The number of lawyers practising in New Zealand continues to rise. At 1 February 2019 there were 13,530 based in New Zealand – up 3.4% from 13,087 at 1 February 2018. Another 803 lawyers held New Zealand practising certifi cates but were based overseas (up from 756 a year earlier). The Jurist tells us that in 1876 there were 225 lawyers in New Zealand. Since the 1960s the number of practising lawyers has increased out of proportion to the total population increase.

15000 Lawyers 13,530

12500 10,552

10000 8,151

7500 5,704

5000 3,871 2,671 1,779 1,754 1,784 2,113 2500 1,070 225 0 1876 1919 1929 1939 1949 1959 1969 1979 1989 1999 2009 2019 2000

1500 1,782

1000 People per lawyer 1,102 1,039 1,096 1,038 923 500 (Population of NZ) 825 818 536 470 408 365 0

27 SNAPSHOT OF THE PROFESSION March 2019 · LAWTALK 926 New Zealand practising certifi cate holders

Sole centre Law fi rm In-house Barrister Practice Unknown Total Female Male

Auckland 3,443 1,249 827 316 54 5,889 2,921 2,968

Wellington 958 1,226 208 84 14 2,488 1,351 1,137

Christchurch 867 202 140 62 10 1,278 692 586

Hamilton 330 92 70 32 9 531 299 232

Tauranga 216 43 43 17 5 323 162 161

Dunedin 185 42 46 24 3 299 152 147

Lower Hutt 114 79 3 19 3 217 110 107

Nelson 128 13 11 20 1 173 87 86

Whangarei 91 17 20 15 0 143 78 65

Rotorua 93 19 15 12 0 138 71 67

New Plymouth 97 15 10 5 1 127 71 56

Invercargill 100 8 7 7 0 122 55 67

Palmerston North 76 19 7 19 1 122 50 72

Napier 80 16 13 7 2 118 46 72

Queenstown 82 4 3 5 0 94 55 39

Hastings 71 11 7 3 0 92 53 39

Gisborne 44 5 4 9 0 62 30 32

Blenheim 45 6 9 1 0 61 31 30

Timaru 50 2 4 5 0 61 31 30

Whanganui 44 5 7 5 0 61 27 34

Porirua 28 13 6 6 0 53 30 23

Taupo 32 3 3 10 0 48 23 25

Whakatane 37 3 1 2 0 43 27 16

Ashburton 34 4 1 2 0 41 24 17

Rangiora 32 1 5 1 0 39 19 20

Masterton 25 1 4 6 1 37 20 17

Paraparaumu 18 6 7 6 1 37 20 17

Other Centres 555 78 84 83 20 833 404 429

New Zealand-based 7,875 3,182 1,565 783 125 13,530 6,939 6,591

Overseas 511 241 21 30 0 803 413 390

Total 8,386 3,423 1,586 813 125 14,333 7,352 6,981

28 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION New Zealand practising certifi cate holders

Whangarei 143 Tauranga 323 9th F 54.5% M 45.5% 5th F 50.2% M 49.8% Sole centre Law fi rm In-house Barrister Practice Unknown Total Female Male Auckland 5,889 Rotorua 138 1st F 49.6% M 50.4% 10th F 51.4% M 48.6% Auckland 3,443 1,249 827 316 54 5,889 2,921 2,968 Whakatane 43 Wellington 958 1,226 208 84 14 2,488 1,351 1,137 Hamilton 531 23rd F 62.8% M 37.2% 4th F 56.3% M 43.7% Taupo 48 Christchurch 867 202 140 62 10 1,278 692 586 22nd F 47.9% M 52.1% Hamilton 330 92 70 32 9 531 299 232 New Plymouth 127 11th F 55.9% M 44.1% Tauranga 216 43 43 17 5 323 162 161 Whanganui 61 Dunedin 185 42 46 24 3 299 152 147 20th F 44.3% M 55.7%

Lower Hutt 114 79 3 19 3 217 110 107 Palmerston North 122 13th F 41.0% M 59.0% Nelson 128 13 11 20 1 173 87 86 Masterton 37 Whangarei 91 17 20 15 0 143 78 65 26th F 54.1% M 45.9%

Rotorua 93 19 15 12 0 138 71 67 Paraparaumu 37 New Plymouth 97 15 10 5 1 127 71 56 27th F 54.1% M 45.9%

Invercargill 100 8 7 7 0 122 55 67 Porirua 53 21st F 56.6% M 43.4% Gisborne 62 Palmerston North 76 19 7 19 1 122 50 72 17th F 48.4% M 51.6% Lower Hutt 217 Napier 80 16 13 7 2 118 46 72 7th F 50.7% M 49.2% Napier 118 14th F 39.0% M 61.0% Queenstown 82 4 3 5 0 94 55 39 Wellington 2,488 Hastings 92 2nd F 54.3% M 45.7% Hastings 71 11 7 3 0 92 53 39 16th F 57.6% M 42.4%

Gisborne 44 5 4 9 0 62 30 32 Blenheim 61 Blenheim 45 6 9 1 0 61 31 30 18th F 50.8% M 49.2%

Timaru 50 2 4 5 0 61 31 30 Nelson 173 8th F 50.3% M 49.7% Whanganui 44 5 7 5 0 61 27 34

Porirua 28 13 6 6 0 53 30 23 Rangiora 39 25th F 48.7% M 51.3% Taupo 32 3 3 10 0 48 23 25

Whakatane 37 3 1 2 0 43 27 16 Christchurch 1,278 3rd F 54.1% M 45.9%

Ashburton 34 4 1 2 0 41 24 17 Ashburton 41 24th F 58.5% M 49.2% Rangiora 32 1 5 1 0 39 19 20 Timaru 61 Masterton 25 1 4 6 1 37 20 17 19th F 50.8% M 49.2%

Paraparaumu 18 6 7 6 1 37 20 17 Queenstown 94 Other Centres 555 78 84 83 20 833 404 429 15th F 58.5% M 41.5% New Zealand-based 7,875 3,182 1,565 783 125 13,530 6,939 6,591 Dunedin 299 Overseas 511 241 21 30 0 803 413 390 6th F 50.8% M 49.2%

Total 8,386 3,423 1,586 813 125 14,333 7,352 6,981 Invercargill 122 12th F 45.1% M 54.9%

29 SNAPSHOT OF THE PROFESSION March 2019 · LAWTALK 926

Joining the legal profession

To become a lawyer you need a law DOMESTIC STUDENTS STUDYING FOR AN LLB IN 2017 degree. The latest available statistics from the Ministry of Education show Other 4.8% 9,260 domestic students enrolled for Pacifi c Peoples 9.2% 440 law bachelor degrees in 2017, along 855 with another 655 international students. Another 710 domestic and 60 international students were studying for Māori 12% “honours and postgraduate certifi cates” 1130 in law – presumbly mainly for LLB(Hons). Of the domestic LLB students, 5,780 (62.4%) were women and 5,320 (57.5%) Total were aged 20 to 24 years. There were 9,260 1,250 students aged 25 to 39 (13.5%) and 460 (5.0%) aged 40 and over. The Asian 21% European 68% rest were aged under 20. The 9,260 domestic students enrolled 1,945 6,310 for LLB in 2017 made up 7.3% of the 126,095 students who were enrolled for bachelors degrees in any subject.

Law Schools

The University of New Zealand established an LLB degree in 1877 and by the end of the 19th century, all four of its then constituent colleges taught law. New Zealand now has six law schools and all appeared in the 2018 QS World University Rankings. These have been published annually since 2004 and use a three-component system to rank performance in specifi c academic disciplines, including law. Individual rankings are given for the top 50 with the rest ranked in bands. The 2018 rankings published in June 2018 were as follows:

University of Auckland University of Canterbury FOUNDED 1883 FOUNDED 1873 2018 2017 2018 2017 29 ▲ 7 36 101–150 ■ NC 101–150

Victoria University of Wellington University of Waikato FOUNDED 1899 FOUNDED 1991 2018 2017 2018 2017 38 ▲ 6 46 201–250 ■ NC 201–250

University of Otago AUT University FOUNDED 1873 FOUNDED 2009 2018 2017 2018 2017 51–100 ■ NC 51–100 251–300 ■ NC 251–300

30 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION

Completion of Professional Legal Studies

After a law degree is secured, completion of the professional legal studies (“profs”) course is required for admission as a barrister and solicitor of the High Court. Legal education is overseen by the New Zealand Council of Legal Education which runs one of the two accepted profs course through its Institute of Professional Legal Studies (IPLS). The other course is provided by The Completion of law degrees College of Law which is owned by the Australian-based The College of Law Ltd. It is a competitive market and During 2017, 1520 students completed an LLB. Of these, with one of the two players owned by the Council, 1390 were domestic and 130 were international. These information on student numbers does not appear to students made up 5.5% of the 27,775 students who be available. completed any bachelors degree in 2017. Most of the The latest report of the Council (for the 2017 calen- domestic students who completed an LLB were aged dar year) shows that in 2017, 63% of IPLS trainees who 20 to 24 (75.5% of completions in 2017) and 58.6% were completed a course were female and 85% of those women. Of domestic students who completed any completing a course were aged in their 20s, with 9% bachelors degree during 2017, 63.3% were women – in their 30s. The majority of trainees (72%) identifi ed indicating a higher proportion of women than men themselves as NZ European/European/Pākehā, with graduated in other subjects than law. 12% identifying as Asian, 9% identifying as Māori, 4% as A further 260 domestic students (55.7% of whom were Pacifi c Peoples and3% as Other ethnicities. The Council women) completed honours degrees and postgraduate does not provide numbers of those completing the IPLS certifi cates in law. Most of these will have completed course, but said the number of course completions in 2017 an LLB(Hons) degree – meaning around 1,650 domestic “mirrored the number of course completions in 2016”. students emerged from 2017 having completed the The Council is also responsible for assessing overseas fi rst big step to becoming a lawyer. law qualifi cations and deciding applications by foreign A lower proportion of students of Māori and Pacifi c graduates and practitioners to practise here. During ethnicity completed LLBs than bachelors degrees in 2017 there were 149 such applications, up from 126 in other disciplines (although a high proportion of students 2016 and the highest annual number since at least 1998. complete more than one degree overall).

ETHNICITY OF DOMESTIC STUDENTS COMPLETING DEGREES IN 2017

ALL BACHELORS LAW HONS AND DEGREES LLB DEGREES POST-GRAD CERTIFICATES

Other Other Other 1,105 60 5 5.4% LLB 4.3% 1.9%

Pacifi c Pacifi c Pacifi c Peoples Peoples Peoples 1,850 90 5 4.9% LLB 6.5% 1.9%

Māori Māori Māori 3,190 140 15 4.4% LLB 10% 5.8%

Asian Asian Asian 4,405 305 45 6.9% LLB 22% 17%

European European European 16,520 985 215 6% LLB 71% 83%

31 SNAPSHOT OF THE PROFESSION March 2019 · LAWTALK 926

Admission as barristers number of men in January 2018, meaning by gender was in 1980. At that time the and solicitors it took around 25 years for the catch-up. 279 women practising comprised 6.9% In 1993, women comprised 24% of the of lawyers. The 102 women admitted Admission of those who qualify to legal profession. The proportion of that year equalled one-third of women become barristers and solicitors occurs lawyers admitted each year who are practitioners, whereas the 286 men throughout the year. The ratio of admis- women has “stabilised” at around 61% admitted equalled just 8% of men in sions to the number of lawyers in prac- since the beginning of the 21st century. practice (3,737). tice has grown steadily from around 5% The number of new lawyers admitted As around 1,650 domestic students in the 1950s to 7% now. to the profession each year now hovers completed an LLB or LLB(Hons) degree Since 1993 more women have been just under the thousand mark with evi- in 2017, it appears that about 57% of New admitted than men. The number of dence of a slight downward trend. The Zealand law graduates are admitted as women practising law passed the fi rst information available on admissions barristers and solicitors.

ADMISSIONS AS BARRISTERS AND SOLICITORS 1980 TO 2018

987 985 940 Female 883 905 F 610 F 615 F 586 Male 845 F 576 F 583 M 377 M 370 M 354 F 485 M 343 M 338 710 M 360 F 361 491 M 349 F 225 404 M 266 388 F 170 F 102 M 234 M 286

1980 1985 1990 1995 2000 2005 2010 2015 2017 2018

Retention the total number of lawyers who were admitted don’t enter practice (at least admitted over a particular period and promptly); and (2) male lawyers tend to The available data means only indicative matching it against the number of law- stay in practice for a long time and the information on retention of lawyers in the yers admitted in that period who were proportion of women in practice from profession can be calculated. Details for practising at 1 February 2019 appears those admitted declines more rapidly lawyers who were admitted more than to show two rather high level observa- than for men after 20 years. 40 years ago are not available. Taking tions: (1) about 40% of lawyers who are

LAWYERS IN PRACTICE AT 1 FEBRUARY 2019 COMPARED TO TOTAL ADMISSIONS

58% F 59% Female Male M 58% 60% 38% 47% 47% F 25% F 46% F 47% M 48% 41% M 50% 50% M 47% F 39% M 43%

40%

30%

20% 0–5 years 6–10 years 11–20 years 21–30 years 31–40 years

32 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION

Time in practice from admission A reasonably rapid drop-off in lawyer median time in practice since admission numbers after the age of 68 seems to was 15 years and 4 months. There were The four-year law degree and admission indicate that this is the age when many noticeable variations based on gender requirements mean that most lawyers decide to leave active practice – point- and location. The data also does not take start work aged 23 at the earliest. At ing to 40 to 45 years in practice being account of time when a lawyer was not 1 February 2019, there appeared to be what can be expected from most New practising (for example, away on paren- just two 22-year-old lawyers practising. Zealand lawyers. At 1 February 2019 the tal leave, overseas or other reasons).

MEDIAN YEARS IN PRACTICE, NEW ZEALAND BASED LAWYERS

0 years 10 years 20 years 30 years 40 years 50 years 60 years 70 years

Women 12y 3m All lawyers Total 15y 4m Men 20y 1m

Women 5y 8m Law fi rm employees Total 6y 3m Men 6y 7m Women 20y 8m Law fi rm partners Total 25y 4m Men 28y 4m Women 16y 7m Law fi rm directors Total 20y 1m Men 23y 4m Women 24y 3m Sole practitioners Total 32y 0m Men 36y 2m Women 21y 2m

Barristers sole Total 25y 3m

Men 29y 5m Women 4y 4m Employed barristers Total 3y 10m Men 3y 3m Women 13y 8m In-house lawyers Total 14y 1m Men 15y 0m

33 SNAPSHOT OF THE PROFESSION March 2019 · LAWTALK 926

Gender At 1 February 2019, 51.3% of New Zealand-based lawyers were women. There was a reasonably wide variation in the gender bal- The number of women practising law around 60% of the profession by 2030. ance across the country – of the is now well ahead of the number of The Law Society recorded the gender centres with 10 or more lawyers, men, and the proportion of women in of practitioners for the fi rst time in 1977, there was a majority of women the profession is increasing by over one when the 168 practising women lawyers in 26, there were equal numbers percent each year. Given that over 60% made up 4.6% of the profession. This had in 4, and there was a majority of of new lawyers admitted each year are increased to 6.9% by 1980, when the fi rst men in 21. women, it is likely that if all the current information is available on admissions factors continue, women will make up by gender. HIGHEST PROPORTION PROPORTION OF WOMEN PRACTISING IN NEW ZEALAND Centres with highest proportion of women lawyers (more than 10 lawyers) 1977 1995 1985 1990 1980 2019 2015 2010 2005 2000 Te Awamutu 65.5%

51.3% Wanaka 65.4% 46.9% 43.9%

39.0% Whakatane 62.8% 34.0% 27.0%

20.8% Thames 62.5% 12.3%

6.9% Ashburton 58.5% 4.6% 

LOWEST PROPORTION PROPORTION OF WOMEN ADMISSIONS IN NEW ZEALAND Centres with lowest proportion of women lawyers 1995 1985 1990 1980 2019 2015 2010 2005 2000 Greymouth 30.8%

Matamata 31.6%

Havelock North 36.4% 62.7% 61.2% 61.0% 62.3%* 57.4% Whangaparaoa 36.8% 50.8% 45.8% 42.1% Warkworth 37.5% 26.3% 

*Admissions for 2018 calendar year Ethnicity

New Zealand 10242 European 78.2% Māori 823 6.3% Other 765 European 5.8% Chinese 431 3.3% All lawyers now provide information on their ethnicity (with the option Indian 294 of refusing to state this). Over 96% of lawyers have given details of 2.2% their ethnicity, using the 17 options offered along with “Other” (9 Other Asian 230 lawyers). The number and proportion of New Zealand-based lawyers 1.8% who identify with an ethnicity is shown for the most-selected options. Samoan 183 1.4% Lawyers may identify with more than one ethnicity, so the proportion South-east 126 is for the number of lawyers as a ratio of all who provided ethnicity Asian 1.0% information.

34 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION

Generational Groupings

All Female lawyers Male There were some grumblings about 51% 44% 35% including this in the 2018 Snapshot, Millennial Millennial Millennial but these generalised labels are still often used to categorise people in employment and other contexts. Our analysis uses the rough boundaries of pre-1946 birth for the Silent Generation 35% (aka Traditionalists), birth between 1946 Generation X and 1964 for Baby Boomers, 1965 to 1980 36% for Generation X, and 1981 to 1995 for Generation X 36% Millennials. The new Gen Z (or iGen or Generation X Centennials) people were born from 1996 onwards and are just showing up in the legal profession. They comprise just 0.1% 27% of lawyers so far so they have been omit- Baby Boomer ted. They’re coming though, whoever 19% 13% Baby Boomer they are. Millennials now dominate the Baby Boomer legal profession, making up nearly half 0.1% 1% 3% of all lawyers. Silent Generation Silent Generation Silent Generation

Language Age

Lawyers are invited to state which lan- Lawyers have the option of providing the Law Society with their guages they speak. This is self-selected, age. The older the lawyer, the less inclined they appear to be to do so there is no criteria for fl uency – some this, so the following information may be a little more youthful than of the French speakers may not be able reality. Of the 82% of lawyers who have provided their birth date: to give good directions on the Avenue des Champs-Élysées. Apart from English Average age of all lawyers: 42 years 4 months (in which just 4,251 lawyers claim profi - Average age of female lawyers: 39 years 4 months ciency) the most-selected languages are: Average age of male lawyers: 46 years 0 months 208 Average age of barristers sole: 53 years 3 months Average age of employed barristers: 35 years 5 months 172 Average age of partners: 50 years 1 months 140 Average age of directors: 49 years 6 months 126 Average age of sole practitioners: 57 years 11 months Average age of Māori lawyers: 39 years 7 months 89 83 Average age of Chinese lawyers: 39 years 5 months Average age of Indian lawyers: 41 years 1 months Average age of Samoan lawyers: 41 years 8 months Average age of NZ European lawyers: 43 years 2 months Average age of North Island lawyers: 42 years 9 months Average age of South Island lawyers: 40 years 0 months Hindi Māori French Korean Spanish

Mandarin Average age of lawyers based overseas: 35 years 8 months

35 SNAPSHOT OF THE PROFESSION March 2019 · LAWTALK 926

Types of Practice

New Zealand’s lawyers practise in three different ways: as barristers and solicitors, as barristers, and as in-house lawyers. Around 64% of New Zealand-based lawyers practise as barristers and solicitors in law fi rms ranging in size from a single lawyer to over 200. Our analysis divides barristers and solicitors in private practice into two groups: those who are the only lawyer practising in a fi rm (sole practitioners) and those who practise in a law fi rm with two or more other lawyers (multi-lawyer fi rms). The information excludes lawyers who are not practising in New Zealand.

Lawyers in multi-lawyer fi rms directors (and also lawyers who are sole 22 years 9 months for directors. practitioners) must be qualfi ed to prac- The number of women working in Law fi rms with more than one lawyer are tise on their own account. Employees multi-lawyer fi rms 3,970( ) was just ahead the workplaces for 58% of New Zealand- comprise 60.3% of lawyers working in of the number of men (3,905). However, based lawyers. multi-lawyer fi rms. They have been in when role is considered, this equality Lawyers working in a multi-lawyer fi rm practice for an average of 9 years and of numbers disappears. Women made are broadly defi ned as either “employed” 11 months, compared with an average up 62.1% of employed lawyers, but just or as partners or directors. Partners and of 26 years 5 months for partners and 32.7% of partners and directors.

WOMEN AS PARTNERS AND DIRECTORS BY LAW FIRM SIZE (BY NUMBER OF PARTNERS AND DIRECTORS IN FIRM)

20-plus 10 to 19 4 to 9 1 to 3 Total

63.4% 64.4% 61.2% 61.2% 62.1% 54.5% 51.7% 48.1% 49.2% 50.4%

35.8% 32.7% 29.3% 30.5% 29.6% Total Women Total Women Total Women Total Women Total Women Partners/ Directors Partners/ Directors Partners/ Directors Partners/ Directors Partners/ Directors Employees Employees Employees Employees Employees

Most of New Zealand’s multi-lawyer fi rms NEW ZEALAND LAW FIRMS AT 1 FEBRUARY 2019 are small enterprises, with an average of 6.4 lawyers per fi rm. Firm sizes vary Total dramatically, with 15 fi rms employing one Partners/ Partners & Practising % Lawyers quarter of all lawyers who work in fi rms. Directors Firms Directors Employees Lawyers in fi rms There were 1,236 multi-lawyer fi rms in New 20-plus 15 515 1460 1975 25.1% Zealand at 1 February 2019. Information on law fi rm size in past Snapshots has 10 to 19 18 226 379 605 7.7% over-stated the number of sole practices, 4 to 9 162 850 1193 2043 25.9% with the data used defi ning fi rms with just one lawyer qualifi ed to practise on 1 to 3 1041 1534 1718 3252 40.5% own account as a sole practice (even if other lawyers worked at the fi rm). The Total 1236 3125 4750 7875 revised data gives the following picture:

36 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION

Structure of law fi rms Barristers

Lawyers have been able to incorporate their fi rms since New Zealand’s 1,586 barristers make up 11.6% of New the Lawyers and Conveyancers Act 2006 came into Zealand-based lawyers. Barristers are concentrated in a force 10 years ago. The steady rise in the proportion few centres, with just under three-quarters in Auckland, of incorporated fi rms continues, although this still Christchurch and Wellington. happens among smaller rather than larger fi rms. The As well as 1,417 barristers sole (who are able to prac- four largest incorporated fi rms each have8 directors. tise on their own account as barristers), New Zealand Just under 32% of New Zealand’s law fi rms are now has 148 employed barristers who work for barristers incorporated (including sole practices. This is up from sole. Just over 68% of them are based in Auckland. 23% at 1 February 2016. Incorporated Partnerships LOCATION OF BARRISTERS

20-plus 15 100%

10 to 19 18 100% AKL AKL AKL 51.2% 68.2% 52.1% 34 128 4 to 9 WGTN WGTN WGTN 21.0% 79.0% 14.1% 5.4% 13.1% chch chch chch 8.8% 1 to 3 403 638 10.1% 8.8% 38.7% 61.3% hAM hAM hAM 4.4% 5.4% 4.4% Sole 203 580 DUN DUN DUN practice 25.9% 74.1% 3.1% 1.4% 2.9% Other Other Other 18.4% 9.5% 18.7% Total 640 1379 31.7% 68.3% Barristers Employed All sole barristers barristers

Sole Practice Barristers sole have spent an average of 26 years and Following the adjustments to our data, 39% of New 7 months in practice, while employed barristers aver- Zealand’s law fi rms have just one practising lawyer. Of age 6 years and 8 months in practice. A high 60.2% of the 783 sole practitioners, 505 are male (64.5%). Sole barristers sole are men. They have spent an average practioners have spent an average of 30 years and 11 of 29 years and 9 months in practice, compared to 22 months in practice. The most-practised areas of law years 1 month for women barristers sole. However, for sole practitioners are: just 42.6% of employed barristers are men, indicating that the fl ow of women into legal practice is across Over 50% of time Practise some all types of practice. Property Barristers sole who provide information on the areas 18.9% 61.0% in which they practise are most likely to specialise in Company/Commercial criminal law and civil litigation. Compared with other 13.0% 59.8% types of practice, a relatively high proportion of barristers carry out some mediation. Trusts and estates 3.1% 54.9% Over 50% of time Practise some Family 13.9% 50.7% Civil litigation 22.1% 57.0% Civil litigation 5.2% 39.5% Criminal 29.0% 49.6%

A slightly higher proportion (18.3%) of sole practitioners Family are based in the South Island than for all lawyers (17.2%), 17.1% 36.7% while 39% of sole practitioners practise in Auckland Administrative/Public (43.5% of all New Zealand-based lawyers). Thames 3.2% 25.4% (25%), Greymouth (23%), Levin (22%), Taupo (21%) and Te Puke (18%) are centres where the proportion of sole Mediation practitioners are well above their national 6% share. 3.6% 25.1%

37 SNAPSHOT OF THE PROFESSION March 2019 · LAWTALK 926

In-house lawyers Zealand-based lawyers. In-house law- Wellington is the in-house Mecca of yers now make up 23.5% of the New New Zealand as 49.3% of all lawyers prac- The number of lawyers involved in Zealand legal profession. They have been tising there are in-house (compared with in-house practice continues to increase. in practice for an average of 16 years, 23.5% for the whole country). Auckland In the fi ve years since 2014, there has with female in-house lawyers averaging is the other major centre and for the fi rst been a 30% increase in New Zealand- 14 years 5 months and male 16 years 1 time in 2019 has more in-house lawyers based in-house lawyers, compared month. A high 62% of in-house lawyers than Wellington. with an increase of 15% in all New are women.

IN-HOUSE LAWYERS BY LOCATION, 1 FEBRUARY 2019

% Local lawyers working in-house % NZ In-house lawyers

Auckland 21.5% Other Auckland 15.0% 39.5% Wellington 49.3%

Christchurch 16.0% Tauranga 1.4% Hamilton 17.7%

Lower Hutt 36.9% Lower Hutt 2.5% Tauranga 13.6% Hamilton Other 6.6% 3.0%

Christchurch Wellington 6.4% 38.6% The employers of in-house lawyers can be categorised in several differing functions. Central government employs just over half (with district health boards included in this), followed by the cor- There are a few exceptions, but generally New Zealand’s in-house porate sector. Since February 2018, the lawyers work in small teams. At 1 February 2019, in-house lawyers proportion of lawyers working in the could be found in 961 separate locations around the country, giving an corporate and local government sectors average of 3.3 in-house lawyers per location. Those locations belonged has increased, with a slight fall in the to 695 separate employing entities, and of these, 51% employ just government sector. one in-house lawyer.

BUSINESS OF EMPLOYERS OF IN-HOUSE LAWYERS, IN-HOUSE LAWYER EMPLOYERS BY NUMBER 1 FEBRUARY 2019 OF LAWYERS, 1 FEBRUARY 2019 Academic 1.6% Sector 1 2–5 6–10 11–20 21-99 100+ Community Law Academic 4 10 3 0 0 0 3.3% Community Law 2 15 5 1 0 0 Commercial enterprise Commercial 316 145 18 12 7 0 37.4% Government 13 33 19 14 13 4 Government Local Government 15 18 2 1 1 0 50.3% Other 7 14 2 1 0 0 Local Government Total 357 235 49 29 21 4 4.9% Other 2.5%

38 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION

Areas of Practice

Information is collected from lawyers on years. The information in this section civil litigation. There are some noticea- the areas in which they practise. Input is expressed as a percentage of the ble differences by gender (a very high is voluntary and around 74% provide lawyers who have indicated the areas proportion of lawyers specialising in details. A very high proportion of the in which they practise. family law are women) ethnicity, type lawyers who do not give information The most-practised areas are company of practice and also location. have been in practice for less than 10 and commercial law, property law and

Practise some of the time 61.7%

Practise over half the time 57.3% 56.0% 50.0% 48.9% 48.3% 47.9% 47.7% 47.1% 46.0% 44.7% 41.5% 41.5% 41.4% 41.1% 40.8% 39.8% 38.9% 38.2% 36.5% 35.6% 35.6% 35.5% 35.5% 35.5% 34.2% 33.0% 32.2% 31.8% 31.9% 31.9% 30.9% 30.2% 29.5% 29.2% 28.9% 27.1% 26.8% 24.6% 23.9% 22.4% 16.7% 14.4% 14.2% 3.1% 3.3% 5.0% 5.2% 9.5% 9.7% 10.8% 14.6% 14.9% FEMALE MALE ETHNICITY CHINESE ETHNICITY INDIAN ETHNICITY MĀORI ETHNICITY EUROPEAN NZ FEMALE MALE ETHNICITY INDIAN ETHNICITY MĀORI ETHNICITY EUROPEAN NZ FEMALE ETHNICITY CHINESE ETHNICITY INDIAN ETHNICITY EUROPEAN NZ ETHNICITY SAMOAN FEMALE MALE ETHNICITY CHINESE ETHNICITY INDIAN ETHNICITY MĀORI ETHNICITY EUROPEAN NZ ETHNICITY SAMOAN FEMALE MALE ETHNICITY CHINESE ETHNICITY INDIAN ETHNICITY MĀORI ETHNICITY EUROPEAN NZ ETHNICITY SAMOAN MALE ETHNICITY SAMOAN ETHNICITY MĀORI ETHNICITY SAMOAN Company/Commercial Property Trusts/Estates Civil Litigation Family Employment Criminal Administrative/Public Banking/Finance Property Intellectual

39 SNAPSHOT OF THE PROFESSION March 2019 · LAWTALK 926

Locations Lawyers per head of population You can fi nd a lawyer in over150 centres around New Zealand. However the number of people per lawyer The population is calculated on that of the urban area. varies dramatically. Wellington’s large in-house lawyer It’s worth noting that the legal needs of some centres contingent means it has the most lawyers per head of may be adequately serviced from other centres close by. population, with one lawyer for every 84 inhabitants (nationally it is one for every 365 people). As could be expected, Auckland is the lawyer powerbase. The number of New Zealand-based lawyers has grown by 2,286 lawyers since 1 February 2011, with Auckland- based lawyers growing by over half that – 1,337. Over the last year a number of centres which had Highest proportion Lowest proportion seen a decline in lawyer numbers in the past fi ve years of lawyers of lawyers showed an increase in numbers. Alexandra, Orewa, Wellington 84 : 1 Kawerau 3565 : 1 Feilding and Cambridge were among those showing the biggest decrease in numbers between 2011 and Queenstown 169 : 1 Turangi 3500 : 1 2018 in our last Snapshot. They’re now on the Top Ten Kaikohe 253 : 1 Opotiki 2833 : 1 table for the biggest annual percentage increase in Auckland 269 : 1 Inglewood 2690 : 1 lawyer numbers. Auckland, of course had the biggest numerical increase, up by 101 (1.8%). Nationally lawyer Kerikeri 271 : 1 Helensville 2643 : 1 numbers increased by 3.4% from 2018 to 2019 Nelson 289 : 1 Motueka 2375 : 1 BIGGEST INCREASE Christchurch 299 : 1 Huntly 2038 : 1 Alexandra 306 : 1 Dannevirke 2000 : 1 Biggest increases in lawyer numbers, 2018 to 2019 (10 lawyer minimum) Hamilton 319 : 1 Tokoroa 1700 : 1 Warkworth 338 : 1 Paeroa 1470 : 1 centre 2018 2019 change Alexandra 13 16 + 23.1% Hastings 76 92 + 21.1% Experience by location Orewa 15 18 + 20.0% Another way of looking at the lawyers in a centre is Feilding 11 13 + 18.2% by the proportion who have been in practice for a Waikanae 17 20 + 17.6% certain time. The information below excludes centres Kaitaia 12 14 + 16.7% with fewer than 10 lawyers. Cambridge 22 25 + 13.6% Kerikeri 25 28 + 12.0% Whakatane 39 43 + 10.3% Gore 11 12 + 9.1% SMALLEST INCREASE Highest proportion Highest proportion of lawyers who have of lawyers who have Smallest increases in lawyer numbers, 2018 to 2019 been in practice for been in practice for (10 lawyer minimum) 31 years or more 10 years or less centre 2018 2019 change Hawera 46.2% Whangaparaoa 57.9% Levin 20 18 - 10.0% Mount Maunganui 44.8% Queenstown 48.9% Havelock North 12 11 - 8.3% Levin 44.4% Whakatane 46.5% Greymouth 14 13 - 7.1% Warkworth 43.8% Morrinsville 42.9% Te Awamutu 29 31 - 6.5% Taupo 43.8% Ashburton 41.5% Napier 125 118 - 5.6% Kerikeri 42.9% Orewa 41.5% Invercargill 128 122 - 4.7% Upper Hutt 39.1% Feilding 38.5% Upper Hutt 24 23 - 4.2% Feilding 38.5% Te Awamutu 37.5% Taupo 50 48 - 4.0% Thames 37.5% Auckland 37.7% Whanganui 63 61 - 3.2% Oamaru 36.8% Rotorua 138 138 —

40 LAWTALK 926 · March 2019 SNAPSHOT OF THE PROFESSION

The legal services industry generated total income of $3.464 billion in the year to 30 Locations The legal September 2017, according to the latest available data from Statistics New Zealand. Lawyers per head of population Statistics New Zealand’s Annual Enterprise Survey generates data on the fi nancial You can fi nd a lawyer in over150 centres around New services performance of enterprises in New Zealand. It is the most comprehensive source Zealand. However the number of people per lawyer The population is calculated on that of the urban area. of information on the fi nancial performance of industry groups and sectors and is varies dramatically. Wellington’s large in-house lawyer It’s worth noting that the legal needs of some centres industry prepared by sampling. It is an important input into calculation of GDP. contingent means it has the most lawyers per head of may be adequately serviced from other centres close by. The 2017 income was up a healthy 4.6% from 2016. Estimated expenditure by population, with one lawyer for every 84 inhabitants legal services providers in 2017 was $2.259 billion, producing a before-tax surplus (nationally it is one for every 365 people). As could of $1.211 billion. Expenditure on salary and wages was the biggest component, be expected, Auckland is the lawyer powerbase. The making up 55.8% of total expenditure in 2017. number of New Zealand-based lawyers has grown by 2,286 lawyers since 1 February 2011, with Auckland- ANNUAL ENTERPRISE SURVEY, LEGAL SERVICES, based lawyers growing by over half that – 1,337. YEAR TO 30 SEPTEMBER ($ MILLION) * Provisional Over the last year a number of centres which had Highest proportion Lowest proportion seen a decline in lawyer numbers in the past fi ve years of lawyers of lawyers Measure 2017* 2016* 2015 2010 showed an increase in numbers. Alexandra, Orewa, Wellington 84 : 1 Kawerau 3565 : 1 Feilding and Cambridge were among those showing Total income $3,464 $3,311 $3,059 $2,747 the biggest decrease in numbers between 2011 and Queenstown 169 : 1 Turangi 3500 : 1 2018 in our last Snapshot. They’re now on the Top Ten Kaikohe 253 : 1 Opotiki 2833 : 1 Salaries and wages paid $1,261 $1,184 $1,042 $805 table for the biggest annual percentage increase in Auckland 269 : 1 Inglewood 2690 : 1 Purchases & other operating expenses $884 $896 $827 $805 lawyer numbers. Auckland, of course had the biggest Other expenditure $114 $113 $133 $62 numerical increase, up by 101 (1.8%). Nationally lawyer Kerikeri 271 : 1 Helensville 2643 : 1 numbers increased by 3.4% from 2018 to 2019 Nelson 289 : 1 Motueka 2375 : 1 Total expenditure $2,259 $2,193 $2,002 $1,672 Christchurch 299 : 1 Huntly 2038 : 1 BIGGEST INCREASE Lawyers Opening stocks $38 $47 $53 $26 Alexandra 306 : 1 Dannevirke 2000 : 1 Biggest increases in lawyer numbers, 2018 to 2019 based Closing stocks $44 $48 $39 $22 (10 lawyer minimum) Hamilton 319 : 1 Tokoroa 1700 : 1 Warkworth 338 : 1 Paeroa 1470 : 1 Surplus before income tax $1,211 $1,120 $1,044 $1,071 centre 2018 2019 change overseas Alexandra 13 16 + 23.1% Hastings 76 92 + 21.1% Experience by location The Lawyers and Conveyancers Act 2006 allowed the New Zealand Law Society to issue practising certifi cates to lawyers based outside New Zealand for the fi rst time. The number of lawyers who hold New Zealand practising certifi cates but who Orewa 15 18 + 20.0% Another way of looking at the lawyers in a centre is are based overseas has increased at a higher rate than the number of lawyers who are based in New Zealand – by 135% from Feilding 11 13 + 18.2% by the proportion who have been in practice for a 341 in 2011 to 803 in 2019. Over half can be found in England. The countries with the most New Zealand lawyers: Waikanae 17 20 + 17.6% certain time. The information below excludes centres Kaitaia 12 14 + 16.7% with fewer than 10 lawyers. PRACTISING CERTIFICATE HOLDERS WORKING OVERSEAS, 1 FEBRUARY 2019 Cambridge 22 25 + 13.6% England 423 Dubai 22 Singapore 43 Hong Kong 38 Australia 83 Kerikeri 25 28 + 12.0% Whakatane 39 43 + 10.3% Gore 11 12 + 9.1% SMALLEST INCREASE Highest proportion Highest proportion of lawyers who have of lawyers who have Smallest increases in lawyer numbers, 2018 to 2019 been in practice for been in practice for (10 lawyer minimum) 31 years or more 10 years or less centre 2018 2019 change Hawera 46.2% Whangaparaoa 57.9% Levin 20 18 - 10.0% Mount Maunganui 44.8% Queenstown 48.9% Havelock North 12 11 - 8.3% Levin 44.4% Whakatane 46.5% Greymouth 14 13 - 7.1% Warkworth 43.8% Morrinsville 42.9% Te Awamutu 29 31 - 6.5% Taupo 43.8% Ashburton 41.5% Napier 125 118 - 5.6% Kerikeri 42.9% Orewa 41.5% Invercargill 128 122 - 4.7% Upper Hutt 39.1% Feilding 38.5% Upper Hutt 24 23 - 4.2% Feilding 38.5% Te Awamutu 37.5% Taupo 50 48 - 4.0% Thames 37.5% Auckland 37.7% Whanganui 63 61 - 3.2% Oamaru 36.8% Rotorua 138 138 —

41 ACCIDENT COMPENSATION · UPDATE

UPDATE ACCIDENT COMPENSATION ACC and the Woodhouse Principles: Real Compensation

BY DON RENNIE

The foundation for our current ACC legislation is found in the 1973. It extended cover to include recommendations of the 1967 Woodhouse Royal Commission every accident victim whose report Compensation for Personal Injury in New Zealand. injury occurred in New Zealand This proposed the abolition of the common law right to and abolished the common law sue for damages for personal injury caused by negligence right to sue to recover damages for or breach of statutory duty, and its replacement with a personal injury. It came into oper- statutory system based on five fundamental principles: ation on 1 April 1974. However, the community responsibility, comprehensive entitlement, 1973 amendment was not drafted complete rehabilitation, real compensation, and admin- in a way that clearly adopted the istrative efficiency. five basic Woodhouse principles. In the fourth in a series of articles looking at each of the Subsequent amendments have principles and the extent to which they are embodied in merely changed preceding legislation without any legislation and its administration by the ACC, Don Rennie attempt to completely re-write the Act. There now only considers real compensation. remains in rare cases the common law right to sue for exemplary or punitive damages arising out of personal injury in New Zealand. The fourth principle in the Woodhouse Report relates to real compensation. The common law approach to It states at Clause 59: “Clearly if compensation is to compensation for personal injury meet real losses it must provide adequate recompense, As observed by Woodhouse at para 74 of the report, unrestricted by earlier philosophies which put forward damages are an indemnity designed to put the injured tests related merely to need.” It also observes that “… person in the same relative position as that person average modern households, geared to the regular was in when the injury occurred. At common law an injection of incomes … have corresponding commit- attempt was made to quantify in ments which do not disappear conveniently if one of money terms, the harm caused to the hazards of modern life suddenly produced physical the injured person. The recognised misfortune.” The common heads of damage included actual Those observations apply today just as much as they law action for economic loss including future did in 1967. damages was loss by reason of diminished earn- rightly referred ing capacity, pain and suffering First Accident Compensation Act to as the (including mental suffering) and It is important to remember that the original Accident “forensic lottery”. loss of capacity to enjoy life. Compensation Act 1972 was drafted to implement a It produced Claims at common law required scheme that covered only earners and the victims of unpredictable proof of special damages, that is, motor vehicle accidents. The format and principles results relating proof of the actual losses sustained used to draft the Act followed the form of the previous to both liability in terms of loss of income, capital or workers’ compensation legislation and, while limited to and quantum of property. The claim also included an only covering employees and the self-employed as well damages, often assessment of possible future losses as the victims of motor vehicle accidents, left the rest relying on matters which was a purely conjectural of the community with the common law right to sue. which were not exercise where proof was impos- The 1972 Act as originally drafted, was amended in capable of proof sible. There was a saying amongst

42 UPDATE · ACCIDENT COMPENSATION

for permanent impairment is an entitlement under s 6. The amount of the lump sum payable was originally set by clause 56 of Schedule 1 of the Act which fixed the minimum at $2,500 and the maximum at $100,000. The Injury Prevention, Rehabilitation and Compensation (Lump Sum and Independence Allowance) Regulations 2002 provided in the schedule to reg 4, a scale of lump sum compensation for whole person impairment, ranging from the lowest recognised impairment of 10% that attracted $2,500, increasing by 1% increments up to 80% and over, that attracted the maximum of $100,000. The scale of payments has since been inflation adjusted under s 116 of the Act so the adjusted maximum is currently $133,000. plaintiff lawyers that “Every soldier of care, the duty of employers, The meaning of carries a Field Marshal’s Baton in his contributory negligence, breach of impairment knapsack” meaning that even the industrial statutes, the nature of Under s 6, impairment means “a lowest ranking members of society damages and the disadvantages of loss, loss of use, or derangement had the potential to improve them- the common law system. of any body part, organ or system, selves to the highest level and that or organ function”. The definition was a lost opportunity for which the Compensation for is taken from the American Medical plaintiff should be compensated. In permanent impairment Association Guides to the Evaluation the case of future pain and loss of Permanent physical disability can of Permanent Impairment which capacity to enjoy life, the difficulty have damaging effects on the ordi- are said to clarify the differences was greatly increased by the need nary activities of both young and between the often-confusing terms to put money values on physical old, regardless of their influence on a disability, handicap, functional lim- disabilities. Of course any award of capacity to work. Woodhouse wrote itations and impairment. Whether damages was subject to adjustment at para 61: “there must therefore or not they do clarify the differences if the claimant was found to have be a realistic assessment of actual is questionable. “Handicap” is a been negligent and that negligence loss, both physical and economic, term historically used to describe contributed to the loss sustained. followed by shifting that loss on a disability. The common law action for suitably generous basis”. damages was rightly referred to as The report went on to say “If Assessing compensation the “forensic lottery”. It produced there might seem to be an issue as payable unpredictable results relating to to whether compensation … should The amount of the lump sum pay- both liability and quantum of dam- be restricted to meet their current able for permanent impairment ages, often relying on matters which needs or be assessed on a uniform under reg 4 of the Injury Prevention, were not capable of proof or based flat rate basis, then these are prop- Rehabilitation and Compensation on other factors which swayed the ositions which we reject as entirely (Lump Sum and Independence judge or jury’s thinking. unacceptable.” Allowance) Regulations 2002, can Part 3 of the Woodhouse Report only be paid after an assessment is discusses the issues involved in the Current legislation carried out by an assessor appointed common law action including, the Section 69(1)(d) of the 2001 Act by the ACC under clause 58 of history of negligence, the standard states that lump sum compensation Schedule 1 of the Act. Clause 58(2)

43 ACCIDENT COMPENSATION · UPDATE March 2019 · LAWTALK 926

requires that in appointing an assessor, the ACC must have regard to the skills, qualifications and training it considers are necessary. To do the assessment the assessor must use the assessment tool provided in regulation 4(2). The assessment tool The assessment tool provided in regulation 4(2) comprises (a) The AMA Guides to the Evaluation of Permanent Impairment (Fourth Edition) and (b) the ACC User Handbook to AMA 4. Regulation 4(3) states that the ACC User Handbook prevails if there is a conflict between it and the AMA Guides (Fourth Edition). There are now a Fifth and Sixth Editions of the AMA Guides available but they cannot be used because they do not comply with the regulation. Impairment under AMA Guides Fourth Edition As noted above the AMA Guides are said to clarify the differences between the terms disability, handicap, functional limitations and impairment but it is questionable whether they in fact do so. Assume, for example, a person containers which are lifted onto the 5% but, in relation to work capacity, in good health suffers a back injury truck by crane then, according to the effect on the pianist was major from lifting something heavy and the AMA Guides, he can still drive and on the gardener none. In rela- suffers a disc herniation causing the truck and he is not involved tion to disability the effect on the a decreased range of movement in heavy lifting, therefore there is concert pianist was very significant which is defined as an impairment no disability because he can still but to the gardener minor. How under the Act. That impairment may perform his role as a driver. then is the scale applied in these result in functional limitation and Disability is defined in the AMA two cases where the percentage the person may not be able to per- Guides as “an alteration of an indi- impairment is the same according form all the activities of daily living vidual’s capacity to meet personal, to the scale but the consequences or lift heavy weights. According social, or occupational demands or are widely different? to the AMA Guides that may not statutory or regulatory requirements necessarily lead to a disability. It because of impairment”. The Guides Restriction on ACC depends on the demands of the job note that “handicap” is a term his- making an assessment and what the injured person was torically used to describe disability. Clause 57 of Schedule 1 of the Act required to perform. For example, The ACC User Handbook to AMA provides that the ACC must not if he works as a truck driver and is 4 clarifies the difference between, make a lump sum assessment until required to load goods on the tray disability, work capacity and impair- it receives a medical certificate as of the truck by hand and unaided ment by comparing the amputation to the stability of the claimant’s which he cannot manage, then there of a little finger on a concert pianist condition. The certificate must is a disability. However, if he drives and a gardener. According to the indicate that the condition arises a truck designed to carry pre-packed scale both suffered an impairment of from personal injury and that

44 LAWTALK 926 · March 2019 UPDATE · ACCIDENT COMPENSATION

common law damages action, the ACC scheme cannot provide compensation for all the real consequences of accidental injury. Whereas the common law allowed in-depth investigation of all the consequences of an accident suffered by an individual claimant, the ACC scheme deals with many, but not all, of the issues which would have made up a common law claim. The ACC scheme covers not only loss of earnings, hospital, medical and rehabilitation costs, but it does not recognise compensation for pain and suffering, loss of enjoyment of life, loss or disruption of present, future or potential opportunities and many other issues which would have been part of a common law claim. This particularly applies to self-employed earners who often purchase private insurance to cover losses not recognised by ACC. While an individual rehabilitation programme is prescribed in the Act, under ACC legislation, accident victims have been provided with a scheme of treatment, compensation and rehabilitation on a “one size fits all” basis. Lump sum payments must be made under the fixed requirements of the Act and according to the schedule in the regulations. This seems to be contrary to what Woodhouse said at para 61 of the report, on compensation for actual loss “If there might seem to be an issue as to whether compensation … should be restricted to meet their current needs or be assessed on a uniform flat rate basis, then these are propositions which we reject as entirely unacceptable.” The prescribed scale fixes the percentage of impairment and the amount of compensation payable there is permanent impairment. which appears to be a system incompatible with the An assessment can be made if two Woodhouse principle of real compensation. years have passed since the injury and the medical certificate states Real compensation that the condition has not stabilised Accident victims have been deprived of the ability to but there is likely to be permanent seek damages not only for actual provable losses not impairment. Disability covered by the scheme, but also for pain and suffering Applying these provisions to is defined both present and future and loss or interruption of busi- the two cases mentioned above, in the AMA ness opportunities. While the scheme provides cover the medical certificates will be the Guides as “an for a large number of the consequences of personal same. Neither claimant is going alteration of injury, some important issues which used to be part to grow a new little finger so the an individual’s of a common law claim, are no longer recognised by condition is permanent and the capacity to the law. The current provisions are particularly hard on “impairment” is the same according meet personal, self-employed tradesmen and small business people to the schedule. It would obviously social, or who may not be able to carry on their trade or business be unjust to determine that both occupational because of impairment. The lump sums payable are far were only entitled to $2,500 when demands or short of what is necessary to put them in the position the losses were so vastly different. statutory or they would have been in if the injury had not occurred. ▪ regulatory The Woodhouse requirements Don Rennie  [email protected] is convenor of Principles because of the New Zealand Law Society’s ACC Committee. This In relation to some aspects of the impairment”. article contains his personal views.

45 COMMERCIAL LAW · UPDATE March 2019 · LAWTALK 926

UPDATE COMMERCIAL LAW Competition law and the removal of exceptions for intellectual property rights

BY JOHN LAND

removal of the intellectual property exceptions could have quite significant implications when combined In January the Government with recent changes to the Commerce Act (namely the released an important discussion increased scope of cartel conduct under s 30) and the paper, Review of Section 36 of the proposed changes to misuse of market power law in s 36. Commerce Act and other matters, on To give one important example, the refusal to license which submissions are due by 1 April. patents will under the proposed reforms have a high risk The rather bland title is prone to of breaching competition law where the patent holder mislead. It diverts attention from has a substantial degree of power in a market. the very significant proposed reform to remove from the Commerce Act The misuse of market power reform all current exceptions relating to The proposed reform of s 36 would prohibit conduct intellectual property rights. by a firm with substantial market power which has The reform ofs 36 of the Com- the purpose, effect or likely effect of substantially less- merce Act dealing with misuse of ening power in a market. That is essentially the same market power has been well sig- test as was recently adopted by Australia in s 46 of the nalled. It was the subject of an issues Competition and Consumer Act 2010. paper released by the Government in Such a test will mean that dominant firms would November 2015 (See Land, “Reform have to be much more careful in engaging in conduct of misuse of market power law. Is it which might have an effect on competitors. time for an ‘effects’ test’?” LawTalk Unlike a number of other jurisdictions, New Zealand 880, 29 January 2016, 38-39). In competition law currently does not prohibit dominant Australia, misuse of market power firms from engaging in conduct with an anti-competitive law has already been reformed to effect. Instead, whats 36 of the Commerce Act prohibits provide for an effects test. A similar is conduct with certain anti-competitive purposes. change in New Zealand is overdue The current prohibition in s 36 has three limbs or given the difficulties in enforcing the elements. current form of s 36. First, a firm must have a substantial degree of power However, the proposal to remove The proposed in a market. the intellectual property exceptions reform of s 36 Secondly, the firm must “take advantage” of that was not the subject of prior reform would prohibit market power. The courts have interpreted the take papers in New Zealand. The Minister conduct by advantage element as requiring the firm to be engaging of Commerce and Consumer Affairs a firm with in conduct that it would not engage in if the firm was in in his cabinet paper made available substantial a competitive market (Commerce Commission v Telecom with the release of the discussion market power (2008) 12 TCLR 168 at [55]). This test has also been called paper, surprisingly says “I am not which has the the “counterfactual” test. expecting the issues of the IP pro- purpose, effect Thirdly, the firm must engage in the conduct for one visions … to be particularly contro- or likely effect of three proscribed anti-competitive purposes. The versial.” In my view, they should be. of substantially proscribed purposes are: Given the potential impact on lessening • to deter the entry of a person into a market; intellectual property rights the power in a • to prevent or deter a person from engaging in com- proposal needs real scrutiny. The market. petitive conduct; or

46 LAWTALK 926 · March 2019 UPDATE · COMMERCIAL LAW

• to eliminate a person from a particularly helpful in assessing whether there is a real market. harm to competition in the market as a result of conduct. It has been the application of the Conduct that is quite benign when engaged in a com- counterfactual test in the second petitive market can have quite serious anti-competitive limb that has been the subject of effects when engaged in by a firm with substantial most criticism. The counterfactual market power. test requires a firm’s conduct to be The Government proposal for misuse of market power assessed against a hypothetical sce- law has two key aspects designed to address the flaws nario which has no basis in reality, in the current law. ie, a hypothetical market in which First, the current requirement to prove that a firm has the firm’s existing market power is “taken advantage” of its market power will be removed. assumed not to exist. In deciding That in turn means the end of the counterfactual test. whether a firm has “taken advan- Conduct Secondly, the current focus on whether a firm has a tage” of market power it is necessary that is quite purpose of restricting, deterring or eliminating a particu- to consider what the firm would benign when lar competitor will be replaced with a test that considers have done in that hypothetical engaged in a whether there is a purpose or effect of substantially market. For example, in the Telecom competitive lessening competition in the market as a whole. case it was necessary to consider market can That substantial lessening of competition test is what Telecom would have done have quite already used (in s 27) to assess whether contracts in a hypothetical market in which serious anti- arrangements and understandings are anti-competitive. there was another provider of a competitive A test based on whether there is an effect or likely effect public switched telephone network effects when of substantially lessening competition is also used (in (PTSN) competing with Telecom’s engaged in s 47) for assessment of whether business acquisitions own PTSN network. by a firm with are anti-competitive. Such counterfactual analysis can substantial The new effects based test fors 36 will be accompanied be quite complex. Further, it is not market power. by a new ability for firms with market power to seek

47 COMMERCIAL LAW · UPDATE March 2019 · LAWTALK 926

Section 45 is an exception that is relevant to the prohibition in s 27 on arrangements that substantially lessen competition and the prohibition in s 30 on cartel provisions (provisions between competitors that fix prices, allocate markets or restrict supply). Section 45 exempts arrangements in so far as they contain a provision authorising any act that would otherwise be prohibited by reason of the existence of a statutory intellectual property right. The scope of s 45 is probably quite limited. However, granting a licence to use and exploit intellectual property will not, by itself, amount to a breach of s 27 or 30. So, for example, providing a competitor with a licence to use intellectual property in just one geographic section of the market should not amount to market allocation in breach of the recently expanded definition of cartel conduct in s 30. Section 36(3) is an exception that is relevant to the current prohibition on misuse of market power. It states that a person does not take advantage of a substantial degree of power in a market (within the prohibition in s 36) by reason only that the person seeks to enforce a statutory intellectual property right. I will discuss the implications of authorisation for their conduct where they can satisfy removing this provision below. the Commerce Commission that the conduct would Finally, s 7(2) provides that the result in public benefits that outweigh the potential Commerce Act does not limit or harm to competition. At the moment, it is only possi- affect any rule of law relating to ble to seek authorisation on public benefit grounds for breaches of confidence. anti-competitive agreements or arrangements, not for The discussion paper proposes unilateral conduct that might breach s 36. the repeal of all of these provisions. I agree that s 36 needs reform and that adopting a There is very little case law inter- similar effects-based test fors 36 to that used in Australia preting the provisions and their is appropriate. scope is not entirely clear. That does not mean, however, that the Removal of the IP exceptions repeal of the provisions would not However, the proposal in the discussion paper to remove be important. the intellectual property exceptions in the Commerce Act needs careful consideration. The discussion paper Enforcing patent rights as refers to three current provisions affecting intellectual a misuse of market power property rights (ss 45, 36(3) and 7(2)) and recommends One important example of a situa- the repeal of each of them. tion affected by the removal of the

48 LAWTALK 926 · March 2019 UPDATE · COMMERCIAL LAW

IP exceptions concerns the enforce- ALR 497). However, it could be a potential breach of the ment of intellectual property rights proposed new form of s 36. The new form of s 36 does currently protected by s 36(3). This not include a counterfactual test and can be contravened example takes on more importance by an effect on competition rather than just purpose. given the proposed reform of s 36 Accordingly, a firm with market power that refuses to to include an effects test and to license its patents could potentially achieve an outcome remove the current counterfactual that has the effect of substantially lessening competition test. in the market and thereby breach s 36. (Lai, “Competition Let us say that a firm with market Law and/ versus Patent Law in New Zealand” (2017) 23 power seeks to enforce its intellec- NZBLQ 112 at 124) tual property rights by bringing There are conflicting views as to whether refusing to patent proceedings against its only license a patent amounts to enforcement of intellectual competitor. Under the current law property rights within the current s 36(3) exception. I there would be no breach of s 36 due agree with the view of Douglas Calhoun and Brendan to a combination of the application Brown (now Brown J) that the exception currently does of the counterfactual test and the apply to a refusal to license patents (Calhoun and Brown, exception in s 36(3). “New Zealand: Interface between Misuse of Dominant For a firm to be taking advantage Position and the Exercise of IP Rights” (1990) 12(2) EIPR of market power it must (under the 437 at 442). If the exception is removed the risk that a counterfactual test) be engaging in refusal to license patents could breach s 36 increases conduct that it would not engage significantly. in if it was in a competitive market. It is fair to acknowledge that in Europe the refusal That then means that an enforce- to license intellectual property has been held to be ment of IP rights is unlikely to be an abuse of dominance in exceptional circumstances considered a taking advantage of (see O’Donoghue and Padilla, The Law and Economics market power under the current of Article 102 TFEU, 2nd ed, 2013 at pp 530-537 and law because a firm with IP rights particularly the Magill and IMS Health cases referred will normally want to enforce those to there). However, the combination of the proposed rights regardless of whether it has repeal of s 36(3) and the introduction of an effects test market power. The exception in for s 36, runs the risk that a refusal to license IP can s 36(3) puts the point beyond all amount to a breach of s 36 in more than just exceptional doubt. circumstances. In the context of the proposed new effects test fors 36, however, Further review needed the absence of an exception that In my view, the repeal of the three IP provisions in protects the enforcement of IP rights the Commerce Act deserves further careful consider- is much more important. The action ation. For example, does removal of the exceptions in of enforcing the patent might be ss 36(3) and 45 undesirably decrease the incentive to argued to have the likely effect of For a firm invent by placing restrictions on patent holders’ ability substantially lessening competition to be taking to grant licences for particular geographic areas and/ in the market under the new effects advantage or restrictions on patent holders’ ability to refuse to test proposed for s 36. (Enforcing of market license patents? Further, does removal of the savings common law rights in relation to power it must provision in s 7(2), combined with the proposed changes breaches of confidence might poten- (under the to s 36, unfairly restrict firms from being able to protect tially give rise to similar concerns in counterfactual confidential information? the absence of the savings provision test) be Practitioners with an interest should consider making in s 7(2).) engaging in submissions by the deadline date of 1 April 2019. ▪ The position is similar in relation conduct that to a refusal by a firm with market it would not John Land is a senior competition law specialist power to license a patent. Such engage in if and commercial litigator at Bankside Chambers in conduct is unlikely to be a breach it was in a Auckland. Formerly a partner of Kensington Swan of the current form of s 36 (see for competitive for 20 years, he can be contacted on  09 379 1513 example APRA v Ceridale (1990) 97 market. or at  [email protected].

49 MEDIA LAW · UPDATE March 2019 · LAWTALK 926

UPDATE MEDIA LAW Regulating fake news and video

BY LYNDA HAGEN

looking at fake video regulation, opportunities, risks and threats New technologies offer exciting new channels and there have been attempts to posed to New Zealand’s democracy for effective communication – but their misuse can pose legislate in New York and the US by digital technology, in particular by threats to individual rights, and to wider society. Senate – but, as Mr Barraclough social media and the digital platform The Law Foundation, through its Information Law and says, these efforts have foundered monopolies. Policy Project, is backing two projects that are looking around defining the problem. She says there is a long history of at how to regulate harmful use of two fast-moving “Not all fake videos are harmful. regulating media to promote accu- technology areas: video and social media. The US legislation is about direct racy and fairness, and of constrain- intervention – according to the ing free speech to protect human Fake video Motion Picture Association of rights. Digital media should meet Fake video is everywhere – New Zealand’s highly suc- America, it would risk banning the same standards as traditional cessful digital effects industry is built on it. The poten- future biopics of historical figures. forms, but it is much more difficult tial creative uses can be jaw-dropping: for example, it A spectrum of responses is needed.” to regulate. Facebook has claimed enabled actor Peter Cushing to reprise his 1977 role as Mr Barraclough and Mr Barnes to the Privacy Commissioner that it Grand Moff Tarkin inStar Wars: Rogue One, more than are keen to involve New Zealand’s is not subject to New Zealand law. 20 years after his death. visual effects industry in their There are three major challenges: But fake audio-visual information can also cause harm research: “We are world leaders in the speed of digital publishing, the by manipulating people’s words and images without this industry built on fake videos,” absence of self-regulation as prac- permission. Leaders like Theresa May, Vladimir Putin and Tom Barraclough says. “It’s a new, tised by traditional media, and the Donald Trump are depicted giving speeches they never exciting area, and we have an oppor- global nature of the problem. made. Countless videos show celebrities performing in tunity to lead this internationally.” “Any functional regulatory frame- pornographic films they were not part of. The first research draft will be cir- work has to be a global one,” she Researchers Tom Barraclough and Curtis Barnes are culated for comment in April before says. “It won’t work as a whole studying the ethical, legal and social questions arising the report is finalised in May, though series of national frameworks. from image and sound synthesis Mr Barraclough expects it to lead Reaching a consensus on a global and manipulation. Their project, into other specialised projects. He framework might mean some com- Perception Inception, will define encourages anyone with an interest promise – what we can all agree on this rapidly-emerging area of tech- to make contact via their website, might be less than what we in New nology law and produce a report to www.perc-inc.nz Zealand would see as ideal.” guide image creators, consumers While opinions differ, many of the and policy-makers. Fake news experts interviewed by Ms Elliott say Mr Barraclough says many of the In terms of democratic values, that, as a digitally-advanced nation, issues raised by fake video are likely social media is a two-edged sword. New Zealand is well-placed to help to be covered already in legislation Because it gives people direct access shape a global consensus on digital around privacy, censorship, and to each other, it can give disempow- regulation. Her research findings, the harmful digital communications. ered people a voice, as seen for result of a year’s work, are expected “We already have harassment laws, example in the ‘Arab Spring’ upris- to be published in late March. ▪ which may cover things like the use of ing. But the impact of fake news, fake video of people in compromising hosted by virtually unregulated Lynda Hagen  lynda@ positions. I think there will be gaps in platforms like Facebook, shows lawfoundation.org.nz is Executive the law. There will be a mix of human, how social media has been used to Director of the New Zealand Law legal and technical responses – there disrupt democracy. Foundation. Further information won’t be a silver bullet,” he says. A team led by researcher Marianne about the Foundation is available Policy makers worldwide are Elliott has been exploring the at  www.lawfoundation.org.nz

50 LAWTALK 926 · March 2019 UPDATE · PROPERTY LAW

UPDATE PROPERTY LAW The search for body corporate maintenance

BY THOMAS GIBBONS

in Otway, at [66] we see the Court of Investments Ltd v Body Corporate Sometimes the needs of the Appeal saying: “we see the weath- 164025 [2012] NZCA 256. However, many outweigh the needs of the few. ertightness of the entire building … there are probably many remedial Or the one. By this time, some will as being interlinked and indivisible”, projects where bodies corporate be thinking of Spock and Kirk. Some and in Gu at [71], we see that in or their advisers have in good faith of JS Mill, more or less. And some relation to the need for a new code sought to allocate costs to particular will be thinking of body corporate compliance certificate, the Court of units; or sought to assess benefit in maintenance. Appeal noting: a particular way; or sought to use For that is the key message of “We can see no good reason formulas based on an analysis of recent court decisions on body why the costs of the addi- common property vs unit prop- corporate maintenance and remedi- tional works – incurred for the erty – and will now find that their ation. A few years ago, the Wheeldon benefit of all owners – should earlier assessments run against the decision (Wheeldon v Body Corporate not be apportioned between broad tide of case law. Remediation 342525 [2016] NZCA 247) showed the owners by reference to projects, levying, and cost allocation that body corporate maintenance their ownership interests. The are all generally more sophisticated obligations could arise under sec- additional works were not for than they used to be. But old ways tion 138 of the Unit Titles Act 2010 the benefit of individual unit can die hard, and there is often a because building elements related owners. Apportioning the cost temptation to deal with issues and to or served each other in economic between the owners by refer- problems discretely rather than terms, as well as in physical terms. ence to the ownership interest holistically. Last year, the Cook decision (Body of each is consistent with both Every body corporate decision Corporate 199380 v Cook [2018] NZHC the 1972 and 2010 Acts. It is also on maintenance, remediation, cost 1244) showed that a body corporate fair. The works benefit all, and allocation, and recovery needs to be will need to trace through a pains- all should contribute to them.” re-run through the lens of recent taking series of steps before deciding Factual circumstances are important, case law. If one of the fundamen- whether to seek recovery under and in some circumstances bodies tals of our Torrens system is “title section 126 or 138 of the UTA 2010. corporate will consist of structurally by registration”, then it could be Also last year, the Gu decision (Gu separate units or elements, but the said that one of the fundamentals v Body Corporate 211747 [2018] NZCA importance of economic relation- of our unit titles regime is “title by 396) highlighted the importance ships between units or building registration via governance”. of understanding how works may elements must, as per Wheeldon, also And within this governance benefit all owners, and not just some. be kept in mind. In wording I have regime, the needs and interests of And finally, also last year, the Court of used elsewhere, unit owners need to the many are, in recent case law, Appeal declined an appeal in Otway be aware that rather than “my house, clearly held to outweigh the needs (Body Corporate S73368 v Otway my castle”, the law of unit titles is of the few or the one. ▪ [2018] NZCA 612), holding that the better understood as “my house, part substantial benefit test under s 126 of of somebody else’s castle”. Thomas Gibbons  Thomas. the UTA 2010 applies more narrowly This line of case law has emerged [email protected] is a than many people thought. very quickly, though the emphasis director of Hamilton firm McCaw What these decisions empha- on the whole over the one – the Lewis. He writes and presents sise is that weathertightness, fire many over the few – was foreshad- extensively on property law and protection, and other matters will owed some years ago in various is author of Unit Titles Law and generally be an interlinked and indi- commentary on the UTA 2010, as Practice (2nd edition) published visible part of an entire building. So well as in cases such as Berachan by LexisNexis.

51 TRUSTS · UPDATE March 2019 · LAWTALK 926

UPDATE TRUSTS Bethell v Bethell [2018] NZHC 3171 Third party ante-nuptial trust amounts to nuptial settlement

BY RHONDA POWELL

remedy and does not apply to de facto relationships. The most recent High Court It is independent of any remedies available under the decision on s 182 of the Family Property (Relationships) Act 1976 (PRA), although the Proceedings Act 1980 provides an division of property under the PRA is relevant to the interesting example of trust-busting exercise of discretion under s 182. in the post-Clayton era. Section 182 allows a court to make The scope of s 182 an order to vary an ante-nuptial or To establish jurisdiction under s 182 it is necessary to postnuptial settlement at the same show that there was an ante-nuptial or postnuptial time as or subsequent to divorce settlement made on the parties. In the case of written proceedings. trusts, this is to be determined by the terms of the trust This provision has its origins in deed. 19th century English law and has The Supreme Court has twice affirmed the reasoning been part of New Zealand law since of the Court of Appeal in Ward v Ward [2009] NZCA 139, the Divorce and Matrimonial Causes [2009] 3 NZLR 336. In essence, the trust must make some Act 1867. At that time there was no form of continued provision for one or both spouses. A equal sharing regime. This provision family trust set up during the marriage with one or both enabled courts to vary settlements spouses as beneficiaries will almost inevitably amount to made on a couple at the start of a nuptial settlement. Property acquired by a trust during their marriage when there was the the marriage will also amount to a nuptial settlement. expectation that the marriage would In Clayton v Clayton, the Supreme Court accepted continue, to adjust for changed that the Claymark Trust was a nuptial settlement not- circumstances. withstanding the factual finding that it had been set The purpose of s 182 was set out up for business purposes and the fact that Mrs Clayton by the Supreme Court in Clayton had signed a contracting out agreement specifically v Clayton (Claymark Trust) [2016] disclaiming any share in Mr Clayton’s business interests. NZSC 30, [2016] NZFLR 189 at [60] This provision The Supreme Court clearly signified the potential as follows: enabled breadth of s 182 as a tool for ‘trust-busting’ in relationship “Nuptial settlements are courts to vary property proceedings. The decision inBethell v Bethell premised on the continuation settlements is an example of the expansive application of s 182 of the marriage or civil union. made on a post-Clayton. The purpose of s 182 is to couple at the empower the courts to review start of their The facts in Bethell v Bethell a settlement and make orders marriage when Mr and Mrs Bethell lived together on a farm for a period to remedy the consequences there was the of 15 years. They were married and raised two children of the failure of the premise expectation that together. The land had been farmed by three generations on which the settlement was the marriage of the Bethell family. The Stumpy Trust was established made. Each case will require would continue, prior to the marriage at a time shortly after a hiatus in individual consideration” to adjust the parties’ relationship (the timing of the hiatus was [footnotes omitted]. for changed in dispute). Section 182 is a discretionary circumstances. The settlor was Mr Bethell’s mother and the trust

52 LAWTALK 926 · March 2019 UPDATE · TRUSTS

was named after his grandfather, who was nicknamed ‘Stumpy’. The beneficiaries included Mr Bethell, his children and grandchildren and their spouses. A parallel trust in identical forms had been settled on Mr Bethell’s brother. The family solicitor gave evidence that the trust was part of an intergenerational succession planning exercise, through which the Bethell land was passed down a line of male heirs. Six years after the trust was established, in a complex series of transactions, the trust purchased the farm from another Bethell family entity in return for a debt-back for its full value. The debt was then assigned to Mr Bethell. A third-party settlement The facts in Bethell differed from those in Clayton in that the trust was settled by a third party. Although the characterisation of trusts set up by third parties was left unresolved by the Supreme Court in Clayton, it noted two possibilities (at [35]): 1 that there is an exception to the general rule that a family trust set up during a marriage amounts to a nuptial settlement in the case of a trust set up by a third party with substantial other beneficiaries apart from the parties to the Bethell and Clayton were typical of because it is consistent with the marriage and their children; or the standard New Zealand family purpose of s 182 to enable the court 2 that as long as the trust has the trust. Further, the New Zealand to intervene and prevent unfairness relevant connection to the mar- courts have found nuptial settle- between the parties arising from riage and one or other spouse is ments to exist in circumstances changed circumstances. The rights a beneficiary, then it is a nuptial where there were a wide range and interests of other beneficiaries settlement. of beneficiaries. For example, in may be a factor relevant to the In support of the first possibil- Fielding v Burrell [2005] NZFLR exercise of the court’s discretion but ity, the Supreme Court cited the 558 (HC) a trust which included should not be a factor preventing Family Court of Australia case In the sons of a previous marriage as jurisdiction. the Marriage of Knight [1987] 90 FLR beneficiaries was held to be a nup- 313. In that case, the inclusion of the tial settlement and in X v X (Family An ante-nuptial husband’s parents as beneficiaries of Trust) [2009] NZFLR 956 (CA), the settlement with no equal ranking to the wife and chil- Court of Appeal accepted a trust that spouse in contemplation dren caused Nygh J to rule that the included the couple, their parents, Another issue left unresolved by trust was not a nuptial settlement. their children and various charities the Supreme Court in Clayton (as it The rationale was that the wider as beneficiaries to be a nuptial didn’t arise on the facts) was raised beneficiaries of the trust would be settlement. in argument on behalf of Mr Bethell. disadvantaged by its characterisa- In my view, the second possibil- This was that the trust was formed tion as a nuptial settlement. ity raised by the Supreme Court in prior to the marriage with no par- The range of beneficiaries in both Clayton is the better interpretation ticular spouse in contemplation. In

53 TRUSTS · UPDATE

this situation, the Supreme Court in Clayton posited (at [36]) that: “One view may be that once a marriage has taken place and the spouse identified, then there will be the necessary connection with the marriage. Even if that is not the case, however, it may be that each disposition of property to such a trust after marriage could constitute a post nuptial settlement” [footnotes omitted]. This point was critical in Bethell because of the factual dispute between the parties as to whether marriage was in contemplation at the time the trust was established. Resolution of the issues in Bethell v Bethell In the Family Court, on behalf of Mrs Bethell, Stephanie Marsden successfully argued that both the settlement of the Stumpy Trust and the later acquisition of the farm by the Stumpy Trust constituted nuptial settlements in terms of s 182. This followed from Judge Murfitt’s finding that the trust was established at a time when the relationship was afoot and marriage was seriously in contemplation. Even if Mr Bethell was actively trying to protect family assets against a future claim by Mrs Bethell, the Stumpy Trust had sufficient connection to the marriage “[The Bethell family’s solicitor] said it was not to amount to a nuptial settlement. intended [Mr Bethell’s] wife would benefit from In the High Court, Nation J rec- Even if Mr succession planning or [the] farm. I cannot accept ognised that it is insufficient for Bethell was that as the reality given the way, as a spouse and a a trust deed to anticipate that a actively trying discretionary beneficiary, [Mrs Bethell] could benefit marriage may take place at some to protect from the subsequent trust. Consistent with that, stage. Rather, the connection must family assets [Mrs Bethell] subsequently benefited from the trust be between the settlement and the against a future through the ways she, along with [Mr Bethell] and marriage. He held that there was an claim by Mrs their children, was able to use and enjoy the farm adequate connection between the Bethell, the and the family home owned by the Stumpy Trust settlement of the Stumpy Trust and Stumpy Trust and have the Stumpy Trust pay for expensive alter- the marriage for it to be a nuptial had sufficient ations to the home and the installation of a tennis settlement. As well as considering connection to court and swimming pool.” the intentions at the time the trust the marriage In terms of the purchase of the farm by the Stumpy was established, Nation J also to amount Trust, Nation J accepted Ms Marsden’s argument that looked to the practical reality. He to a nuptial there can be a ‘settlement’ in terms of s 182 if the trust stated that (at [128]): settlement. acquires property by way of sale and debt-back. This is

54 UPDATE · TRUSTS

the benefit of the children; • The parties’ respective contributions to the farm; • The fact that the new trust would partially reflect the original purpose, being protection Mr Bethell’s immediate family; and • Mrs Bethell’s inability to make a claim against the homestead or against the increase in value of the farm under the PRA due to its ownership by the trust. This case exemplifies the flexibility and breadth with which s 182 is to be applied. Proximity of a trust to a marriage cannot be reduced to a question of timing but needs to be considered more broadly. A trust may be a nuptial settlement even if it was set up by a third party, provided that it has a connection to the marriage. A trust may be a nuptial settlement even if it is established prior to the marriage and the spouse is not named, provided that the particular marriage was in contemplation. If the trust owns the family home, it will be extremely difficult to argue that it is not a nuptial settlement. The role that the trust plays in the family’s affairs may be an important factor in establishing a connection to the marriage. Practitioners engaged in succession planning and asset protection should therefore advise an interesting point to note because in Mrs Bethell and the children. In clients that the way trust assets are it might have been assumed that a doing so, he took account of a long used may impact upon the risk of a ‘settlement’ required some form of list of factors including: successful s 182 challenge. ▪ gratuitous transfer. • The outcome of the relationship In finding that the acquisition of property division without a s 182 Rhonda Powell  rhonda@ the farm by the trust amounted to order being made; athene.co.nz has established a a postnuptial settlement, Nation J • The parties’ respective financial barrister’s practice, Athene Trust relied on the same practical realities positions; Law. She has worked for law of the trust and also noted that but • Mrs Bethell’s loss of enjoyment of firms in London, Melbourne and for the settlement of the farm on the the farm and the lifestyle she had New Zealand providing advice trust, Mr Bethell would have owned enjoyed during the relationship; on trusts, succession planning it personally, in which case it would • Mrs Bethell’s loss of opportunity and asset protection. She offers have been subject to a claim by Mrs to use the farm as security to fund trust law consultancy to law firms Bethell under the PRA. her lifestyle; and barristers. Before beginning Nation J exercised his discretion • The likelihood of Mr Bethell practice as a barrister, Rhonda under s 182 to vest a sum of $300,000 administering the trust fund for was a senior lecturer in law at the from the assets of the Stumpy Trust his own benefit rather than for University of Canterbury.

55 ALTERNATIVE DISPUTE RESOLUTION March 2019 · LAWTALK 926

ALTERNATIVE DISPUTE RESOLUTION Dispute prevention: using mediation as a business tool Part 1

BY PAUL SILLS

“We are used to thinking about competitions in which there is only one winner… But the world is not really like that… The key to doing well lies not in overcoming others, but in eliciting their cooperation.” – Robert Axelrod

Commercial parties should be encouraged to identify disputes Mediation is often effective if the early and to identify issues that may potentially lead to a dispute, parties can engage in person and in a and then work together to de-escalate the issue or dispute. Both private but controlled environment. parties to the agreement need to keep their focus on commercial Facilitated direct conversation helps interests rather than the win/lose results of litigation. eliminate misunderstandings and failures in communication. Discussions have real Mediation framework context when face to face. Mediation provides a framework that strengthens the ability of Relationships typically become even business people to adjust relationships and resolve problems in a more important after a business deal straightforward, efficient and effective way without losing control has been completed. Once the contract of the outcome to a judge or arbitrator. However, after initial has been signed it goes in a file and the attempts to negotiate fail because the parties met with strong relationship between the parties becomes emotions and tough initial positions, and settlement momentum the most important thing. That relationship dissipates through frustration or lack of structure, the common is being negotiated all the time. reaction is to move ahead with litigation or arbitration. This is A significant aspect of ongoing relation- disappointing but not surprising, since litigation and arbitration ships is negotiating conflict. Inevitably, represent the established “default” framework for handling disputes problems arise during the life of the con- when party to party negotiations fail. tract. For example, a party might realise However, a growing number of business managers and in-house they neglected to stipulate a key term, counsel recognise that they need to consider new options besides leading to different perceptions of what unassisted negotiation on the one hand and third-party adjudica- is fair. Or one side may come to believe tion on the other. Mediation permits parties to engage in a carefully that the other is failing to live up to the managed discourse where the dispute or issue is viewed against agreement. the backdrop of business interests, practical considerations and Agreeing on a dispute prevention clause options for mutual gain. in advance, and then actively utilising that Mediation can provide distinct advantages over direct party to provision, can go a long way towards party negotiations. The mediator can listen, suggest, steer, facilitate, helping parties manage conflict proactively test realities, and explore options for mutual gain. By having a when – or even before – it arises. Learning facilitator take control of the negotiating experience, the parties how to discuss areas of conflict, rather than can focus on the outcome. simply sweeping them under the rug, can There are a number of benefits that support the increased use be just as important. of early intervention facilitation in commercial relationships:

56 Customisation of the process further obstacle to meaningful discussion of evidence that shows parties are more Mediation is extraordinarily flexible and resolution. Part of the role of a medi- likely to live up to the terms of a mediated when used properly. The range of options ator is to bring the parties together in an settlement agreement than a court judg- for business parties seeking third-party environment in which they can have their ment or an arbitration award. assistance to facilitate is limited only by say but at the same time establish new the willingness of the participants and the and more constructive ways of interacting. Continuing relationships creativity of the mediator. There are many maintained or enhanced ways in which mediation can be tailored to Commercial reality testing For me, this is the key issue when con- the needs of the parties and the particular Experienced mediators – especially those templating the broader use of mediation issues in question. Examples include: with business experience – may be par- other than as an adjunct to the litigation • Setting the basic format for interaction ticularly qualified to help parties examine process. This is of fundamental importance between the parties and the mediator; a conflict or an issue within the context of in ensuring that commercial relationships • Use of information to provide an objec- best and worst alternatives to a negotiated stay on track. Mediation has the ability to tive foundation for negotiations; settlement as well as larger business aims. restore broken or strained relationships, or • Use of technology (including online Mediators can routinely help parties con- even to create new business opportunities mediation); front the hard realities of their established for mutual gain: • A mediator can facilitate submissions positions, highlighting weaknesses and “Mediation can restore trust where (joint or several briefs) on legal or factual drawing attention to the compounding of business relationships have turned issues; risks and costs that accompany litigation sour. Parties used to be partners, used • Presentation of “best-case” pres- or arbitration. Without the confines of a to act together to fulfil their common entations for the benefit of business legal/factual focus (which is at the heart of interest, have lost confidence. The decision-makers; litigation or arbitration) mediators can also channel of communication is broken. • Engagement of one or more experts to help parties focus on underlying interests: Using mediation is a method to restore provide reports on key technical issues. strategic, economic and personal. dialogue and confidence.” Pierre Raoul Duval and Alexandra Munoz, Mediation Communications enhanced Creative and durable solutions in France. A significant value of mediation – and The flexibility that should be the hallmark In Part 2 we will look at examples of where it is often superior to unaided nego- of mediation extends also to the range of both early and continuing intervention tiations – is in creating an opportunity for possible mediated solutions. The final by mediators/facilitators in commercial parties to communicate effectively. As has result of a successful mediation may range relationships. ▪ been said, “Mediation can introduce light from the transfer of dollars to complex where before there was only heat.” In the exchanges of performance and/or prom- Paul Sills  [email protected] is an course of disputes, business managers and ises – these are all results well beyond the Auckland barrister and mediator special- their advisers become emotionally invested remedial limitations of a court proceeding ising in commercial and civil litigation. in the position which in itself creates a or arbitration. There is a significant body He is an AMINZ Mediation Panel member.

57 ALTERNATIVE DISPUTE RESOLUTION March 2019 · LAWTALK 926

ALTERNATIVE DISPUTE RESOLUTION Families at war (and not in the Family Court) What can be done to prevent escalation?

BY CAROLE SMITH

take this approach when there were no less than 25 As lawyers, we often receive instructions from services rendered (listed in the judgment from (a) to clients who are in dispute with family members. This (y)) provided by their sister to their deceased mother? could be about a variety of issues, from disputes over Services including having their mother live with her distribution of estates, to fallings out over joint business and her own family? enterprises. As the court commented, “Juliet’s care for her mother How do we, as lawyers, actually help such clients? enabled her brothers to lead their own separate lives Sure, we can provide legal advice and give clients the without them having to concern themselves about options available to them. But what about helping them Sidney’s care”. The brothers’ freedom cannot be quan- try and resolve the matter without resorting to full blown tified in monetary terms. Did they try and put themselves litigation? in their sister’s shoes, and think about whether they To my mind, three things are key. would have in fact traded places given the opportunity? Which brings me to my next point. What does the client actually want, and why? Try to see both sides In an estate dispute for example, Most things in life are rarely black and white. Disputes does it really matter if one sibling are no different. The ‘other side’ may not be as unrea- gets a greater share of the estate? Is sonable as your client is making out. Perhaps there have it worth years of hassle and stress, been misunderstandings in communication between and the depletion of the estate with family members. This is very common where emotions costs sometimes running into the run high. The position can be even worse where there hundreds of thousands? What might is no direct communication and our clients are relying be motivating such a client? Is there on what they’ve been told by other family members, for a residual bitterness in the family example, as to what the ‘other side’ is saying. dynamics which may indirectly be Then there are the old chestnuts of perceptions and driving the dispute? perspectives. A ‘perceived’ slight may not have been The Court of Appeal decision in Most things in intended as such. Mediators also often speak of ‘two Le Couteur v Norris [2018] NZCA 572 life are rarely truths’ when it comes to perspectives. Family members, released on 11 December 2018 is a black and white. who often behave differently around each other to the classic example of a sister and her Disputes are way they would behave around people outside of the brothers at each other’s throats, no different. family, may remember and/or interpret things differently but with the brothers taking their The ‘other side’ to each other. stance for no discernible reason. may not be as Lawyers’ letters back and forth usually don’t help in Despite ample evidence that their unreasonable this type of situation. It may be more productive to meet mother wanted their sister to have as your client with the other side and their legal representative to whichever home the mother resided is making out... hopefully get a much clearer picture of what the dispute in at the date of her death, the broth- The position can is actually about. ers opposed their sister’s claim to be even worse the home under the Law Reform where there Mediation (Testamentary Promises) Act 1949. is no direct It is staggering how many disputes involving families Why? What drove the brothers to communication reach the courts. By the time that has happened, the

58 LAWTALK 926 · March 2019 ALTERNATIVE DISPUTE RESOLUTION

chances of any kind of continuing relationship are very slim indeed. The recent High Court decision in Huljich v Huljich [2018] NZHC 3429 released on 20 December 2018 begins with Venning J stating “to describe this as an unfortunate case is an understatement”. In Huljich, 88-year-old Mum sued two of her three sons, and a grandson. The claim ballooned from one cause of action against one son in October 2014, to 14 causes of action against three defendants, involving nine amended statements of claim, with the pleadings themselves being the subject of separate litigation in the High Court and Court of Appeal. None of the causes of action, which included deceit and fraud, succeeded. In fact, most were time-barred, and the court commented at the end of the judgment that there was only one claim which could have been responsibly pursued. The court also commented that Mum’s perception that her sons and grandson had breached any obligations was misconceived. Thus, any “emotional and mental distress” she suffered and attempted to claim for was “self-inflicted”. In an ideal world, this case should never have gone anywhere near the client had sufficient funds. order to properly understand what courts. The eldest son had, prior to It strikes me whilst writing this is driving that opposition. proceedings being brought, offered that some thought needs to be given Mediation can help even the to meet with Mum or her lawyer, to the wording of certain client care most intransigent parties by, for and also suggested arbitration. Open and conduct rules. How was it in example, challenging perceptions offers were also made repeatedly the client’s best interests for this and shedding light on the numerous once proceedings were issued. All matter to proceed to court? Reading complexities involving the myriad of to no avail. between the lines, Mum may have relationships involved. In Le Couteur, Mum “changed advisers on been vehemently opposed to the the parties did not attempt medi- several occasions”. Thus despite concept of settling. Her instructions ation, as apparently they couldn’t the fairly onerous (and arguably in may well have been “we fight to the bear to look at each other, let alone some respects bizarre) restrictions death”. How can we help clients, talk to each other. Let’s see if we on lawyers stopping acting for cli- especially given our professional can push past that in these types of ents where such clients are insisting restrictions, who are not doing cases where far more than money on a course of action to which we themselves any favours, and are is at stake. ▪ are fundamentally opposed, it suffering as a result? appears several lawyers did manage I suggest we keep continuing Carole Smith is an Auckland based to extract themselves before the to promote mediation as a viable barrister, mediator and negotiator. matter reached court. But of course, option with our clients, regardless of See  www.carolesmith.co.nz given the ‘cab rank’ rule, it would how seemingly opposed our clients and  www.fortyeightshortland. inevitably reach court provided the are to it. We need to dig deeper in co.nz for further information.

59 FUTURE OF LAW March 2019 · LAWTALK 926

FUTURE OF LAW Beyond the hype AI and the law: an update

BY JOY LIDDICOAT, COLIN GAVAGHAN AND ALISTAIR KNOTT

use the outputs of these systems New guidance has emerged on To go by some media reports, one to order applicants by their likely how to take the tools into account might be forgiven for thinking that suitability for the job, to generate a in a recruitment process. For exam- the lawyer of the 21st century is shortlist for human recruiters. ple, when being interviewed by a destined for the same fate as the Some of these systems also virtual recruiter, some recruitment switchboard operator or the ‘knock- consult documents found online, firms recommend taking a different er-upper’ in the 20th – rendered including (perhaps worryingly for approach from being interviewed superfluous by the accelerating some) a search of the candidate’s by a human, such as using and march of automation. In particu- social media presence and can pro- repeating key words, referring to lar, artificial intelligence (AI) and cess pictures, using image classifica- particular skills that the assistant machine learning are suspected of tion techniques. There are also more will be processing and scoring, and taking over a large part of what is interactive systems, that engage in being more aware of body language. presently done by human lawyers. real-time dialogues with candidates, There have been calls for stronger Our research has suggested that and classify their contributions to ethics to guide development and the future may not be quite so bleak. this dialogue. Product developers deployment of these tools to avoid The practice of law will, however, claim these tools are much better discrimination in recruitment change and, as with other forms of than human recruiters at routine processes. In New Zealand, the technological change, that change tasks and can: search through hun- use of these tools has implications will not necessarily happen in an dreds of applications faster, identify for employers’ Human Rights Act orderly or linear fashion. In this more qualified candidates, allegedly and Privacy Act obligations. For article, we suggest some of the areas reduce hiring biases in screening example, if the results of an algo- where that change might be most interviews, and save time for routine rithmic tool which used personal pronounced. tasks and pre-employment tests. information was requested by an There are also tools that perform unsuccessful candidate, the results AI and recruitment other functions in HR: for instance, would need to be made available to The first major change for future creating job descriptions, or match- a candidate in a meaningful form. lawyers may occur before they even ing candidates to those descriptions. In Naidu v Australasian College of have their first job. Automatic tools However, there are significant Surgeons [2018] NZHRRT 234, Dr will assess job applications, and concerns about bias and discrimi- Naidu asked the College for access interviews may even be with virtual nation embedded in the data used to personal information held about recruiters. The technology is of vari- to train these tools. In one study, him in relation to an application for ous types. Some systems operate on search engine results for “unprofes- admission to a specialist medical a candidate’s application materials. sional hair for work” showed mainly training course. The request was not Text classification systems take a results of black women with natu- responded to within the statutory textual document (for instance, an ral hair styles, while searching for time period and, when finally com- application letter, a reference or a “professional hair for work” offered plied with, the information included candidate’s biography), and assign pictures of coiffed white women. a score sheet with codes allocated it to one of a number of preset Online platforms have also been to summaries of a referee’s views categories. Information extraction criticised for enabling employers about Dr Naidu’s application. These systems take a textual document, to discriminate on grounds of age scores were not in a form he consid- and attempt to fill in various and for excluding female job seek- ered meaningful (for example, what more specific fields (for instance, ers from recruitment campaigns the score was out of or whether it a candidate’s skills, years of work through targeted job advertisements was weighted). experience, highest educational which were forwarded to men The tribunal noted section 42(1) qualification). Ranking systems rather than to women. (c) and (d) of the Privacy Act require

60 LAWTALK 926 · March 2019 FUTURE OF LAW

information to be made available has developed a contract drafting tool connected to in a “form which can be compre- Google’s voice-activated internet search assistant, hended”. Considering the proper Alexa. SmarterDrafter works by using Alexa to ask a application of this section to the lawyer contract drafting questions (such as the names score results, the tribunal referred of the parties, type of agreement, the jurisdiction of to the the European Union’s General applicable law and so on). Based on the lawyer’s verbal Data Protection Regulation (GDPR) responses, Alexa searches, for example, company or which introduced a number of new address information and jurisdictional material, and measures designed to strengthen then automatically prepares a draft contract which is protection of personal informa- if the results of emailed to the lawyer for review. Depending on the tion in the context of automated an algorithmic nature or complexity of the contract, the draft agreement decision-making, including the tool which can be emailed in anything from a few seconds to several use of algorithmic processes. The used personal minutes. These systems use text classification techniques tribunal ordered the summary information (for understanding user’s answers to their questions), coding information be made avail- was requested combined with natural language generation techniques able to Dr Naidu in a “meaningful” by an (for creating a draft contract). way, namely, “in a manner that is unsuccessful transparent, intelligible and easily candidate, Document analytics accessible”. the results Document analytics is a growing area, particularly would need in contract and commercial law. Products such as Contract drafting to be made ThoughtRiver can analyse complex contracts and related Contract drafting is a rapidly devel- available to a documentation in order to create a digital contract oping field with a diverse range of candidate in summary, provide a narrative preliminary assessment legal products. The Australian com- a meaningful of legal issues, a summary of governance and risk pany SmarterDrafter, for example, form. issues, make recommendations for triage, work-flow

61 FUTURE OF LAW

and prioritisation as well as draft preliminary reports and suggest benchmarking for progress. They use a combination of text classification and information retrieval techniques, plus document sum- marisation techniques. These sorts of products can be used to provide summaries of a client’s exposure to legal risks and can also be useful in more complex document reviews. Regulators are using these tools to enable speedy analysis of large volumes of documents and to speed up investigation and pre-trial evi- dential processes. In 2014, Britain’s Serious Fraud Office used algorithms to work through more than 30 million pages of documents disclosed by Rolls Royce in a discovery process in order to determine those that might be subject to privilege. Rolls Royce cooperated with the SFO, under court oversight, giving the SFO access to a vast array of documents and consenting to use of algorithms. The SFO reported the algorithmic tools took about one- tenth of the time as the 30 human lawyers who would have been needed for the task.

Virtual legal assistants similar questions and answers simple questions and facilitating Virtual legal assistants based on (much like a real time ‘Frequently their interaction with a lawyer in natural language processing tech- Asked Questions’). Because these more complex cases or in prescribed nology are becoming more common. tools provide legal information, circumstances. For example, the Wellington rather than legal advice, they do Lawyers, too will soon be offered Community Law Centre initiative, not appear to be regulated services virtual assistance for some forms Citizen AI, has created RentBot within the meaning of the Lawyers of legal research. LexisNexis which uses natural language dia- and Conveyancers Act. Citizen AI announced it would be introducing logue systems to enable people has plans to launch an employment a virtual assistant for online legal to ask questions about tenancy tool, WorkBot, later this year. research, Lexis Legal Assistant, issues. Inadequate access to legal Virtual assistant tools allow a on its advanced platform in 2019. information is a significant barrier much wider range of people to The bot would respond to written to access to justice and service have access to legal information questions, save search results and providers are routinely asked the at a fraction of current costs, and be able to revisit previous research same legal questions. These new also enable legal skills to be focused quickly. LexisNexis is also experi- tools have significant potential to away from repetitive questions into menting with a voice-activated legal improve access to justice by directly more complex or nuanced areas. search tool. responding to routine legal ques- In the future, law firms might Technological developments are tions without the need for a lawyer also offer these services to their being closely watched by the courts, but with the quality of information clients, directing them to readily with judges in some jurisdictions based on thousands of previous available information to answer being called upon to adjudicate

62 FUTURE OF LAW

any time soon. Rather, AI will increasingly augment legal work and lawyers will increasingly be working with AI. The practice of law will change but, as with other forms of technological change, it is likely that this change will affect the law profession unevenly. Most New Zealand law firms are small and these firms do not have the same financial resources as large firms to invest and keep pace with technological change. The Law Society of England and Wales recently surveyed its members on issues of new technologies and found most lawyers are not ready for these changes and do not think that they will need advanced skills in this area, such as statistics or coding. In New Zealand, continuing professional development education is compulsory and self-directed. The Lawyers and Conveyancers Act and associated Continuing Professional Development Rules do not contain a technology specific duty of competence. However, a lawyer might identify a learning need, for example, in relation to computer assisted legal research or the use of AI tools to aid in litigation. Finally, concerns about the impact of new forms of technology on lawyers’ professional obligations, including client care, have prompted new or supplementary professional duties in some jurisdictions. For example, in 2012 the American Bar Association amended its Code of Conduct to introduce a ‘duty of technical competence’. Comment 8 on Model Rule 1.1 provides that to maintain “requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …” (emphasis added). At least 35 states have since for- mulated rules of professional conduct that adopt the related issues in both pre-trial processes and questions of comment and model rule in some form. costs. Two recent Canadian cases, for example, suggest that use of computer generated search results may be Conclusion ethically required when carrying out legal research Prophesising exactly how the next wave of automation (see Cass v 1410088 Ontario Inc 2018 ONSC 6959 and will affect the world of work is something of a fool’s Drummond v The Cadillac Fairview Corp Ltd 2018 ONSC errand, and evidence and argument can be found to 5350). support almost any imaginable outcome. Nonetheless, Whether or not use of computer assisted research our sense is that robots will not be replacing lawyers might be ethically required in some cases, it seems clear en masse any time soon. As Richard and Dan Susskind that where algorithmic tools are used, a lawyer cannot have said, though, it seems that the least likely future is rely solely on algorithmic results when giving advice one where nothing much will change. Lawyers need to to clients or in submissions to a court or tribunal. A begin to prepare for these changes, taking opportunities lawyer would still have an overriding duty of care to to use new products or to improve or learn new skills ensure that reliance was reasonable and did not breach through legal or other education. ▪ any of the other fundamental professional obligations of lawyers, for example, to facilitate the administration Joy Liddicoat  [email protected] is a of justice or as an officer of the court. human rights and technology lawyer and member of the Artificial Intelligence and Law Project, along with Implications Colin Gavaghan and Alistair Knott who are Associate We do not think that natural language processing and AI Professors at the University of Otago. The project is tools will result in the wholesale replacement of lawyers funded by the New Zealand Law Foundation.

63 PRACTISING WELL

PRACTISING WELL Talking about mental health A utopia of lawyer mental health

BY KATIE COWAN

Work should not injure you or make you sick, but sometimes it does.

There are types of work that need to be done that make you subject to higher risks. If you’re a forestry worker, you’re at risk of logging accidents. If you’re an electrician, you’re at risk of electric shock and electro- cution. The risks are not a reason not to have people do that job anymore, but they are reason to take care, to have systems of mitigation, and to have an industry-wide responsibility for the risks to individual workers. Lawyers have professional hazards too, but ours don’t get treated like professional hazards. Instead our anxiety, depression, addiction and suicide is considered a mostly individual matter, for individuals to manage. It’s deeply sad, of course, but we try and address it mostly via annual “wellness weeks” and perhaps the odd news alert with advice to eat broccoli. (Do eat broccoli though; will leave one sick, or burnt out, or sometimes even dead. it’s like Lorazepam in a bowl.) This reality is itself depressing, which is part of my For the most part I don’t blame people too much for point today. this. The hazard of poor mental health has crept up on us, partly because the science is relatively new and A utopia partly because poor mental health is mostly hidden What we need, in the face of such a complex, disheart- from others’ view. It doesn’t help that lawyers, and ening problem with interrelated causes, is not a glum industry leaders in particular, are busy. Taking stock recitation of the problem (though, call me if you want a of systemic, important-but-not-urgent problems takes fun lunch), but rather a utopia to face. Stay with me here. mental capacity most people don’t have spare. It is Bill Clinton is famously very excited about cli- possible that for many years nobody noticed. mate change, or at least he was in 2008. Speaking to But we know better now, and the time has come to speechwriter Jon Lovett he said climate change did not do better. represent cause for despair, but rather an enormous Our work is not dangerous like a person’s whose opportunity. He said that people tend to turn away from work requires contact with live wires or chainsaws is big problems that feel unsolveable, whether in their dangerous. It is dangerous in a needly, scientific way, in own lives or at the most global systemic level. The way a cumulative way; not because there is a risk of a single you get them to turn towards it is to get them excited deadly accident but rather because there is a certainty of about the opportunity instead. Climate change was an wearying degradation over time. It is dangerous because opportunity for extraordinary growth, interdisciplinary years spent doing it and not accounting for its danger innovation and transformation of life on earth.

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health looks quite different to those industries’ approaches. The analogy works in that we are discussing a risk that arises in a job-specific context. However, poor lawyer mental health is also not analogous because it is more subtle and complex with a slower onset, that shows up differently in different people and that has numerous interrelated causes that are not easily untangled. Therefore, it requires different mitigation. Let’s start at the beginning. In my utopia, people with law degrees have taken mandatory courses not only in ethics but also in mental health. They learned at law school about their stress response systems, how trauma shows up in a brain and body, how cognition relates to the limbic system (and the experience of both), what emotions are and how to regulate them, the risks of the kind of hypervigilance and intellectualisation that law demands, what chronic stress is and what it does to your HPA axis over time, the science of habit formation, and upward and downward mood spirals in the brain. In my utopia, law graduates are people with a degree of fluency not only in evidence and mooting, but also a bio-psycho-social model of mental health. And lawyers, as part of their ongoing CPD obligations, get updates and refreshers on the science every year throughout their My goals may be more modest, health that is exciting, and good, careers. but my principle is the same. The and sustainable. And then, in my utopia, poor problem of poor lawyer mental If a picture is worth a thousand mental health is a normal thing health is an enormous opportunity; words, I ask that I might present a that happens a lot. It is treated like we can get creative and even a little thousand words to make my pic- a professional hazard, seen and cheeky, and we can feel the power ture. Your thousand words might be understood, and leaders through- of contributing to a complex change different. Either way you can hang out the industry make room for it with other people who are also your picture in a nice frame on a every day. doing it. Doing work you’re proud wall at the back of your mind, which of with your talented friends is, you may glance at it occasionally Non-judgemental according to my queen Amy Poehler, and murmur “that looks nice”. acceptance the way to the good life. Reminding ourselves of utopias In my utopia, non-judgemental So let’s talk utopia. Not utopia brings them closer into view, so it acceptance of lawyer mental illness like some fantastical unreachable helps to keep them nearby. is just part of practice. It is ordi- thing on a cloud glowing with light nary. Crying and panic attacks are beyond the known colour spectrum. My utopia understood, are expected to happen Neither, too, a utopia as blueprint, I know I started this article with sometimes at work, and multiple all mapped out and specific. Rather, the analogy of forestry workers people know what to do when they let’s talk utopias like a direction to and electricians, but my utopia for see them. Burnout is detected early face: a version of lawyer mental mitigation of poor lawyer mental and everyone knows what it means.

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This happens partly to disincentivise chronic over-work, but also because it is understood both that it’s wrong to make people earn one’s profit for free, and it’s downright evil to make them do it by taking their rest and restore time from them without compensation (that time being the time that protects them from the effects of chronic stress). In my utopia, lawyers who work three or four day weeks are just as common as those who work five, regardless of whether they are also a parent. It is normal for people to go through periods where they work reduced hours, and stress leave is routine. In my utopia, lawyers have mandatory quarterly supervision meetings with an independent psychologist, with whom they reflect on their career and health, work on habit change, untangle work challenges, or anything else. Employers also heavily subsidise sessions with independent psychologists on an ongoing basis, and lawyers are free People are free to moderate their going down, you’ll inevitably push the mentally ill to take those sessions during work own work environment to reduce underground; instances of poor mental health will time. It’s normal, right? So it’s no stress or increase comfort; for exam- be signs of failure, and things that represent failure big deal. Partners model the culture ple working with your door closed get treated differently from things that just happen they want by walking through their doesn’t mean anything political. sometimes. Mental illness is the type of complex thing offices, chests thrust forward, enun- People talk openly about their where making room for it, allowing it, does more work ciating, “I’m off to see Dr Pratt! See own mental health and the health to heal the crunchy edges of it than trying to get rid of you at 2!”. of their firm, and the discussion it. (One reason for that is that recovery from mental covers the individual through to illness usually takes months or years and is non-linear. Management training the systemic. As a result there is no Pressure to recover usually slows or reverses recovery.) and monitoring need to hide your mental health or In my utopia, the Law Society does not ask if you have Poor mental health is exacerbated feel too much shame about it, since a mental disorder on your application for a practising and can even be brought on by you know that everyone around you certificate, since doing so encourages hiding and fear. mismanagement and bullying. In basically knows what’s happening. It is understood throughout the profession that having my utopia, people responsible for (Of course, the disorders themselves poor mental health for a period does not, on its own, managing staff receive management heap shame upon you without the say anything about your capacity to practise, and that training and monitoring, just like if need for anyone else’s input, but many if not most lawyers practise with excellence while they were learning a new specialty everyone gets that too.) in poor health at some point. (because they are). There are 360 Note here that my utopia is not degree review processes and other “no lawyer mental illness”. You Non-work hours are sacrosanct mechanisms to weed out bullies, could say that’s a utopia of sorts, At a practical level, in my utopia, people treat non- and a person who bullies or is sex- but it’s a pretty useless one. For one work hours as sacrosanct. You rarely work at night or ually inappropriate is not tolerated thing, it is the nature of demanding on weekends, even if you’re a QC. It is understood that within a partnership, no matter how professions like law that the risk of for a lawyer to be sustainably well and able to do their many fees they bring in. poor mental health rises naturally. job (let alone be a happy human being) it is necessary And hey, since we’re dreaming? But for another, trying to fix this that they have time to sleep, play sports, raise children, Let’s go a bit bigger. particular problem by eradicating see friends, think big thoughts, sing in choirs, write In my utopia, the leadership of it is usually counter-productive. If novels, and idly do very little of a Saturday afternoon. organisations that employ lawyers the measurement of success is the In my utopia, when people do have to work beyond are at least 50% female/non-binary, numbers of mentally ill lawyers their contracted hours, they are paid well for every hour. and are racially diverse. A sense of

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powerlessness or injustice contrib- utes to all kinds of health issues, not least mental health. Seeing proper representation in the leadership ranks is one of the surest signs that you, as someone other than a straight white man, will be treated fairly and have the same opportunities for advancement as anyone else. In my utopia this has done a lot to curb bullying, sexual harassment and unconscious bias, but the industry remains vigilant about those threats too, not least because they intersect with the underlying hazard of poor mental health in lawyers. ▴ Katie Cowan ▴ Sarah Taylor Of course, it goes without saying that there is no gender or racial pay gap, since employers are obliged to report salaries and bonuses, and the transparency does a lot of heavy lifting in this regard. All of this makes people feel safe be made uncomfortable by the very Learn Law Life platform, where she and able to trust their employers, which does wonders idea of the blueprint’.” is the resident advice columnist. for their health and their ability to do great work. It can be hard to take action on a problem, especially a big giant Sarah Taylor is the co-ordinator of Conclusion one that is beyond the grasp of the this series, a senior lawyer, and the There’s more to my utopia (call me for that lunch), but individual. The problem is a Bad director of business development you get the idea. The specifics all lead to a culture where Thing, and looking at it makes us feel at lexvoco, a law firm focused on poor mental health is treated like the professional hazard queasy, and feeling queasy makes the success and wellbeing of it is, and employers and leaders take responsibility for us think maybe we’d be better off lawyers. mitigating the risks and addressing it within people’s doing something else. By contrast, roles when it happens. Bregman’s version of utopia “throws If you’d like to contribute to an Some of these things cost money, but I think that’s ok. open the mind”. Having one’s mind article in this ongoing series, No-one likes the owner of an electrician company who thrown open tends to inspire one to please contact Sarah  sarah@ refuses to splurge on safety gear while raking in six or hop from foot to foot with excite- lexvoco.com seven figure profits. And lawyers earn more than elec- ment, and that kind of thing usually tricians; we can afford this stuff. But if it helps, working leads to action. somewhere where your mental health is understood, And this is why utopias are Some useful resources: respected and cared for drives loyalty and productivity important. They are exciting. I am • www.mentalhealth.org.nz like little else. Most people like to do work for people excited by a utopia of care for law- • www.depression.org.nz who respect them. yers’ mental health. It could be an • www.toughtalk.nz I can imagine any number of objections to my utopia. I adventure for us as a profession, a • www.wellbeingatthebar. have anxiety, depression and PTSD; my brain is basically real joy-ride of change and missteps org.uk an “I object to what you just said and also what you are and corrections and lessons and • www.wellplace.nz wearing today” machine. But if you have objections, I lightbulb moments and delicious, • www.ruok.org.au ask you not to focus on them for a second. Focus instead messy, imperfect progress by all • www.lawsociety.org.nz/ on what your utopia might look like, if it diverges from kinds of actors over time. practice-resources/ mine. And then ask what the person next to you what Who’s with me? ▪ practising-well their utopia might look like. And together, ask yourselves Need to talk? Free call or text what you might be able to do to face in the direction of Katie Cowan is a former litigation 1737 any time for support from your utopias now. lawyer who now works to improve a trained counsellor Rutger Bregman says it well: “If the blueprint is a how lawyers and law students Lifeline Aotearoa 0800 54 33 high-resolution photo, then this utopia is just a vague experience the law. She works 54 (0800 LIFELINE) or free text outline. It offers not solutions but guideposts. Instead of from Christchurch as a writer HELP (4357) forcing us into a straitjacket, it inspires us to change. And and speaker, and as a coach for Suicide Crisis Helpline 0508 82 it understands that, as Voltaire put it, the perfect is the lawyers at crossroads. You can 88 65 (0508 TAUTOKO) enemy of the good. As one American philosopher [George find more of her work via The New Samaritans 0800 726 666 Kateb] has remarked, ‘any serious utopian thinker will Lawyer Podcast or on LexisNexis’

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PRACTISING WELL Mindfulness for New Zealand lawyers Become a switched-on, focused, resilient and joyful lawyer

BY ASHIKA BALI

Imagine being able to fully concentrate at work focus, performance and productivity, without constant nagging thoughts. Imagine lawyers are facing mental health and being able to stay calm in stressful situations. wellness difficulties. When we speak about Imagine being productive at work the entire the mental health of lawyers, words such day. Imagine being a lawyer with a razor- as stress, anxiety, depression, substance sharp focus. Imagine being able to leave work abuse, and even suicide come to mind. at work when you go home. Imagine being I have been in the legal profession for about 11 years and I have fully awake in the present moment. Imagine been practising mindfulness meditation for about two decades. being joyful. I have keenly observed the New Zealand legal profession and its approach to mental health and wellness issues. I’ve noticed that mindfulness remains a foreign concept in the New Zealand Yes, all these are possible for lawyers legal profession. through mindfulness meditation. There are essentially three facets of the profession – the law, Neuroscience has confirmed that one of the business of law and the lawyer. the most effective tools for training the mind is mindfulness. The Law Mindfulness meditation has been scien- The legal profession by nature is confrontational, aggressive and tifically proven to reduce stress, anxiety and grim. Clients don’t engage lawyers because everything is going depression. It has also been scientifically well. They engage lawyers because things have gone wrong and proven to hone skills such as listening, they are frustrated, emotionally charged, stressed or unhappy. reacting, responding, developing decision Even in the most cordial matter, if there is one, a lawyer is engaged making, emotional intelligence and resil- primarily to assess the risks and worst-case scenario for their ience; and to enhance focus, performance client. Lawyers are trained and paid to think critically and act and productivity – for example, see Klatt, aggressively. M.D., Buckworth J., and Malarkey, W.B., (2009), Effects of low dose mindfulness based The Business of Law stress reduction (MBSR-ld) on working adults. Then there is the business of law. These involve timesheets, billable As lawyers, we are at the forefront of hours, succession, business development, developing lawyer skills, personal, moral and ethical battles. Our keeping up with technology, innovation, profitability, competition, work revolves around conflict and hostility. long term plans, marketing, etc. Most lawyers are very much This takes a toll on us, but we don’t hate it. involved in the business of law in addition to lawyering. In fact, we’d like to get better at it. However, I’ve observed that we’re The Lawyer actually moving in the opposite direction. The legal profession is now made up of lawyers from a broad Instead of developing skills to deal with sociocultural background. The face of the profession today is more challenging situations and enhancing diverse than it was 40 years ago. But interestingly, when it comes

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to personality, lawyers are more alike than perspective, some of the attributes that need to train and change your lifestyle to they are different. Research conducted by make lawyers so successful are also the recover from the adverse effects. Just like Larry Richard (published in the ABA Journal ones that prevent them from reaching their our bodies, our minds need training as well. in 1993) revealed that the psychological full performance potential. Perfectionism, Mindfulness meditation is a powerful tool profile of lawyers as a group is quite dif- for example, can create a hyper-diligent, that will help optimise the performance of ferent from the general population. Of the highly anxious individual with an inability the mind to keep up with the demands of 16 possible Myers-Briggs Type Indicator to switch off and unwind due to fear of the increasingly complex and challenging types, lawyers overwhelmingly cluster into failure. Competitiveness is another val- legal world. It will train the mind to be more only five of them. uable asset in a high performing lawyer. focused, clear and effective. One of these types reportedly occurs five However, when not controlled this can Mindfulness meditation has gained times more frequently in lawyers than in result in a status conscious, argumentative, immense popularity over the past decade the population at large. This type includes aggressive and insecure individual. in the United States, Australia, Canada introversion, intuition, thinking and judg- Considering all this, is it at all surpris- and Europe. It has been implemented in ing. Of relevance here is that the majority ing that lawyers suffer mental health and many different sectors, including schools, of lawyers are introverts. Introverts prefer wellness issues? No. It is simply a result of hospitals, corporations, and government. to focus their awareness and obtain their the regular and focused practice of conflict, Organisations such as Google, Apple, mental stimulation primarily from within hostility, aggression and constant pressure The Huffington Post, Oxford University, as opposed to extroverts who tend to be which is exacerbated by lawyers’ person- Harvard University and the US Marines more sociable and enjoy being the centre ality and the stigma surrounding mental have introduced mindfulness training. of attention. Even the extrovert lawyers health and wellness issues. There is a huge amount of research are unlikely to freely talk about any mental pointing to the effectiveness of mind- health and wellness issues that they are Mindfulness Meditation fulness meditation for both individuals facing. It is clear that lawyers have a pref- Mindfulness meditation is both a reactive and organisations to increase health and erence to manage themselves and are not and a proactive approach to dealing with wellbeing, help manage stress and enhance keen on speaking up. the challenges of the legal profession. interpersonal skills, leadership, perfor- Other traits that are common in lawyers Think of it as exercising. If you exercise mance and productivity. An eight-week also play a part in how they deal with regularly, your body and health will be in mindfulness-based stress reduction course their performance and mental health a good condition. If you don’t exercise and was developed in the 1970s by Jon Kabat- issues. Danielle Buckley, an Australian only put junk into your body, you’ll become Zinn at the University of Massachusetts psychologist, has said that, from a scientific unfit and develop health problems. You will Medical Centre. This led to the rise of

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PRACTISING WELL

CONTINUED FROM PAGE 69 interest in mindfulness meditation in the West. There has since been over 35 Eating healthy years of high-quality studies examining mindfulness meditation and providing reliable evidence confirming the benefits No one size fits all of mindfulness meditation.

Mindfulness for Lawyers BY RAEWYN New Zealand NG My experience and observation of the legal profession and how the practice of mindfulness can help one deal with stress and anxiety, inspired me to create Mindfulness Recent research out of Australia indicates that, in com- for Lawyers New Zealand. parison to other professionals and students in other disciplines, It’s designed for New Zealand lawyers by lawyers and law students may experience consistently higher levels a New Zealand lawyer. Its aim is to bridge of psychological distress. There is also a demonstrated positive the gap between the issue – mental health association between psychological distress, disordered eating, and wellness difficulties – and the desired weight and shape concerns and maladaptive eating habits. It’s outcome – a switched-on, focused, resilient clear that stress, anxiety and depression are linked to unhealthy and joyful lawyer. eating and taking control of your eating habits can lead to not only In addition to disclosing the tried and better health but also better mood and less stress on your body. tested benefits of mindfulness, the per- When it comes to being ‘healthy’, or, more specifically, ‘healthy sonal stories I share on the courses are eating’, there are so many options to choose from, it’s easy to get aimed at breaking the taboo about lawyers’ confused. How do we know if we should be intermittent fasting mental health and lawyers’ reservation to or eating six meals a day, if we should be paleo, plant-based or recognise and address their own difficulties ketogenic? and challenges. If we want to start eating healthy, where do we start? I believe lawyers’ mental health and Firstly, I think we can all agree that some simple common-sense wellness must be at the forefront of their guidelines are still relevant: professional development plan. After all, • Drink 8-10 glasses (2 litres) of water each day, filtered if possible. without a sound mind, a lawyer will not • Include all macronutrients (carbohydrate, fat, and protein – be able to effectively develop skills in law whether plant or animal based) in your diet. or any other area for that matter. • Focus on unprocessed wholefoods. Mindfulness for Lawyers New Zealand • Vary your fruit and vegetables from day to day and week to was officially launched in December 2018. week – try to eat according to the seasons. Lawyers of all experience levels and from • Avoid refined, highly processed foods, especially those that all over New Zealand have been quick to include additives like MSG, sugar, white flour, poor quality salt enrol. This is a promising sign that lawyers and vegetable oils. are receptive to the ancient techniques to These general strategies give us a great starting point. However, improve their skills and performance as a when we get into the detail of what’s going to work best for lawyer and deal with any mental health each of us, the answer may lie in our genes (genotype), or more and wellness difficulties. accurately, our epigenome and our phenotype. The benefits of mindfulness meditation lie The epigenome is a sheath of proteins and chemicals that sits in its simplicity. We cannot expect lawyers on top of our strands of DNA which can modify how that DNA to deal with difficulties they do not know is expressed. The epigenome can switch on and off genetic traits they have. The key to training the mind like a light switch according to our experiences, perceptions and is first knowing the mind. Mindfulness lifestyle choices. meditation does exactly that. It helps you The phenotype is the result of the complex interactions between know your mind and changes your life. ▪ our genotype, the environment we’re in, and our lifestyle choices, leading to the expression of those genes, or the person we are, Ashika Bali  mindfulnessforlawyers@ right now. abali.co.nz is the founder/author at As an analogy, if your genes are the music of ‘you’ as it’s written, Mindfulness for Lawyers New Zealand, your epigenome are the sound engineers, determining which bits and principal/solicitor at A Bali, Lawyer. are loud and which bits are soft, which bits get the spotlight and  www.mindfulnessforlawyers.co.nz which bits get ignored. Your phenotype is the symphony we hear.

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Since the human genome was mapped results. You may have assumed that one person may have tried in 2003, with the promise of solving major something else and kept it a secret or that the other person health issues, it’s been discovered that ‘cheated’. However, we all respond differently to different diets only around 20-40% of our health is down depending on our genes and how they are expressing. to our genes. 60-80% is reliant on gene For each of us there are specific foods that will benefit us more expression or our phenotype, that is, the than others, there are meal timings, frequencies and portion sizes multifaceted interplay of the environment that will encourage our best health more than others. Some people and our choices on our genes. For example, will do better focusing on mostly plant-based and fewer meals you may have a genetic predisposition while others will thrive on a higher protein intake and more for diabetes, but that doesn’t necessarily frequent meals. mean you will develop diabetes. Your This concept is fast becoming more mainstream. The Global lifestyle choices have a very real impact Wellness Institute released its 2019 Global Wellness Trends recently on which genes in your body ‘switch on’ and identified personalised nutrition as a top trend that will have and therefore on the quality of your health a meaningful impact on the $4.2 trillion wellness industry. and your life. David Bosshart, CEO of independent European think tank GDI Gottlieb Duttweiler Institute for Economic and Social Studies and All bodies are different keynote speaker at the 2018 Global Wellness Summit states “We One of the most important factors for your are confused about what we eat, where we eat, and when to eat gene expression is the food you eat. it. We define ourselves by what we’re eating, but, even more so, I’m sure you’ve all witnessed two people by what we don’t eat… we are overwhelmed by our choices.” The on the same diet with vastly different question needs to change from ‘what foods are right for us’ to

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‘what foods are right for me’. and more diverse gut bacteria than over- Enter epigenetics and phenotyping to give us an answer. weight people. A typical Western diet that’s What works best for each of us is based on many things from our high in fat and refined sugars but low in embryology through to our phenotype, the hormones that are dom- fibre commonly leads to less microbial inant in our system and the symptoms we may be experiencing. diversity. You can easily get your genes tested to see if you’re predisposed to certain conditions but what’s more important is whether those Habits to promote genes have been switched on or not and how to beneficially control beneficial microbes them. Preliminary studies are also showing that individuals are While your gut microbiome is to some more likely to stick with personalised nutrition advice based on extent affected by genetics, the following phenotyping. lifestyle and dietary habits can help to What works best is based on many things from our embryology promote more beneficial microbes over through to our phenotype, the hormones that are dominant in our harmful ones. system and the symptoms we may be experiencing. • Increase fibre intake to encourage healthy gut bacteria like bifidobacteria It’s not just diet which can help weight loss. Most high You can easily get your genes tested to see if you’re predisposed fibre foods, like fruit, vegetables and to certain conditions but what’s more important is whether those wholegrains, also contain prebiotics genes have been switched on or not and how to beneficially control which your gut bacteria breaks down for them. fuel to promote more beneficial bacteria. And it doesn’t just come down to diet; other things that affect • Focus on a variety of wholefoods for a gene expression come as no surprise: exercise, sleep, stress more diverse microbiome. management, medication/supplements, • Increase polyphenols like green tea, dark and sense of purpose and meaning in life. chocolate, olive oil and wholegrains. As well as your epigenome and pheno- Polyphenols are type of antioxidant that type, your microbiome also plays a signif- your microbiome breaks down to help icant role in your overall health and mood make more healthy gut bacteria. and is also affected by your food choices. • Eat fermented foods like yoghurt, sauer- The microbiome is the trillions of bac- kraut, kimchi, kombucha and kefir which teria and microbes that live in your gut. contain probiotics and healthy bacteria That’s around 1-2kg of bacterial cells with that promote and control the number various roles in the body and they far of disease-causing bacteria in the gut. outnumber the human cells in our body. • Reduce chronic ongoing stress as it slows There are up to 1,000 species of human gut function. Gentle exercise like Vinyasa gut bacteria and your personal microbial yoga, walking in nature, meditation, make-up is as unique as your fingerprint. breathing exercises or mindfulness A diverse range and high population of gut techniques can help. bacteria is vital for good health, affecting: While there are general guidelines for • Digestion and absorption of calories and healthy eating, there’s no one-diet-fits-all nutrients from food; prescription and the plethora of diets that • Digestion of dietary fibre which produces ‘work’ is testament to this. chemicals that benefit gut health and While there Find out what works best for you by affect weight loss; are general listening to your body and using your • Fat absorption and sensitivity to insulin, guidelines intuition to tune into your own hunger impacting on fat storage; for healthy and fullness signals, being mindful of the • The production of hormones leptin and eating, foods you eat, how you feel afterwards ghrelin, which control appetite and there’s no and making adjustments accordingly. Or motivation to eat. one-diet- alternatively, talk to me about epigenetic In addition to this, up to 90% of your happy fits-all profiling for a greater understanding of mood neurotransmitter serotonin and prescription how to eat, exercise, live and work in 50% of your feel-good neurotransmitter and the congruence with your body. ▪ dopamine reside in your gut, so a healthy plethora of gut and microbiome is essential for better diets that Raewyn Ng  [email protected] is a mood and ability to cope. ‘work’ is movement coach with an interest in Studies have shown that lean people testament to wellbeing and holistic health, managing generally have up to 70% more gut bacteria this. stress and living a balanced lifestyle.

72 Asking for help is a sign of strength

Law is a fulfilling profession, but it can be a stressful one. If you want ideas on improving your work-life balance, make a start by engaging with our Practising Well resources at lawsociety.org.nz/practising-well

Healthy Mind • Healthy Body • Healthy Practice PRACTICE

PRACTICE What does it take to be a partner or a director… And is it right for you?

BY EMILY MORROW

of successful leaders and Being a principal in a law firm (whether as a partner successful partners. or director) is, in my opinion, more of an art than a science Relationship Building: and definitely not for everyone. Working out if it’s for you Those lawyers who quickly can be stressful, but in my experience, there are some key and reliably establish high personal attributes that you’ll want to have if you’re going trust relationships with to give it a try and succeed. colleagues and clients An increasing number of law firms are becoming incor- are most likely to be suc- porated for a variety of reasons, so principals in those firms cessful. As part of this, it’s are, of course, directors rather than partners. However, important to be a good the common theme of moving from being an “employee” team player and a good to a “principal” is the same whether a firm operates as a sport. Certainly pursue the partnership or is incorporated. This article will focus on things that are important to you individually, but do so those common, underlying themes and for simplicity I will in a way that doesn’t burn bridges. be referring generically to “partnerships”, realising there Practicality: Because success in the practice of law is are some differences between the two legal structures. also about running a business, it’s helpful to be practical. Ultimately, it’s about judgement and some level of What makes a partner great? self-discipline. You need to gauge accurately what a client I know many smart, hard-working lawyers who were not needs and the amount of work you do so that the client is made partners or, if they were made partners, it didn’t work pleased and your bill is paid. Similarly, you should pursue out for them. Why is that? What is it that distinguishes the legal issues that are appropriate, while avoid going off those lawyers who “have what it takes” from the others? on interesting tangents. Further, it’s critical to have what Here’s what I’ve noticed makes partners great beyond I think of as a “customer service orientation”. brains and hard work: Humour and Objectivity: Those people who can Commericiality: Law is, indeed, a profession, but it approach themselves and their work with a certain amount is also a business. I don’t think being professional and of humour and objectivity will likely be appreciated within entrepreneurial is mutually exclusive and the best lawyers any law firm. Being able to see yourself and others with an combine both capabilities. They are self-starters, willing to appropriate degree of perspective, while not trivialising take calculated risks, do instinctive cost/benefit analyses things that matter, is a real skill. when making decisions, know when to hold and when to Creativity and innovation: Despite the focus on prec- fold and build flourishing practices. You don’t have to love edents and structure in the law, having a certain level of being an entrepreneur to be considered for partnership, creativity and innovation can be a critical differentiator but some entrepreneurial ability will help. Law firms rarely for potential partners. Those lawyers who are creative make partners of “grinders”, but they do look for “minders and innovative are also often remarkably resourceful. and finders”. Ultimately, clients expect partners to get results and Leadership: The reality is that lawyers who are capable thinking outside of the box, while being very professional, leaders are more likely to be offered partnership. People can be a winning combination. look up to them, they have influence, they instill confi- Communication skills: The best lawyers are excellent dence in others, they care about the people who report to oral and written communicators and also capable listeners. them and they unflinchingly make tough decisions and They may have strong egos, but they don’t let hubris get are accountable for the results. These are all attributes in the way of their ability to communicate well.

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Long-term success as a partner. Assuming you become a partner, there is likely to be some good news and some bad news. You will have, indeed, achieved considerable professional success and will have worked hard to do so. However, you will not have “arrived”, but rather will be embarking on yet another arduous but potentially fulfilling journey. It will not take long for this reality to set in. That said, I have noticed two factors that sustain partners and partnerships over the long haul. They are shared core values and collegiality. By “core values” I do not mean the “public” values a firm articulates on its website. Instead, I mean the way things actually happen, typically based on unspoken priorities. For example, if there is a choice between doing something that is profitable versus something that might conflict with the firm’s public core values, what does the firm do? How are nonprofes- sional staff treated within the firm and to what extent does this reflect a hierarchical Flexibility: Being rigid and having tunnel To what extent do I view change as structure versus a more egalitarian one? And vision can keep you focused, but long term problematic and stressful, rather than as so forth. Try to understand these core values it can be a problem for a potential partner. an opportunity? and make sure they resonate with you. Flexible people figure out what needs to How do I integrate being an excellent Although I don’t think it is essential to be done, consider various ways of accom- team player with being a well-defined like all of your partners, I do think it is plishing that and collaborate fluidly with individual? critical that you respect and trust them. others, while retaining their individuality. How do I deal with failure, especially in This is the collegiality that provides the glue situations where “the buck has stopped to hold a firm together. Internal politicking, Is it for you? with me”? scapegoating, indirect communication, If you are considering seeking partnership, How comfortable am I with having no grudges and the like can create a chron- ask yourself these questions: guarantees of financial success other than ically toxic environment. Lawyers will To what extent do I enjoy building a that which my partners and I create day to often leave a firm not because they dislike practice versus doing the legal work? day, billable hour by billable hour? the work or feel under-compensated, but How comfortable and adept am I at If I have to reinvent myself profession- because they don’t trust and respect their building and running a high functioning, ally due to changing circumstances, am partners. Pay attention to the culture of high morale team and delegating as much I resilient and creative enough to do so? the firm because it does matter long term. work to team members as I possibly can? Be honest with yourself when answer- Is becoming a partner finding the Holy What do I do when I don’t have enough ing these questions, as this will give you Grail, or will it be a cross to bear? It may work in my pipeline to keep myself and some inkling about your likely appetite for take some time to find out, but you’ll never others busy? partnership. Assess your own capabilities regret having given it some thought along How good am I at managing myself critically. If you have some professional the way. ▪ around other people when under stress, and/or personal developmental needs, so I consistently lead by example? consider working on them sooner rather Emily Morrow  www.emilymorrow.com How adept am I at being both competi- than later. It’s likely that merely becoming was a senior partner with a large firm tive and collaborative with my professional a partner will not alone address those defi- in the United States. She now resides colleagues, especially my potential future ciencies. Others may look at you somewhat in Auckland, is a member of the Law partners? differently when you don the mantle of Society’s Culture Change Taskforce and How do I address issues of profitability partnership, but that will only get you so provides tailored consulting services for versus consistent high quality legal work? far. the legal profession.

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PRACTICE Why co-operating with media is usually the best advice

BY PETE BURDON

out socialising. This led The advice lawyers give their clients to a massive social media around dealing with the news media backlash and negative during negative events often conflicts with news media attention. the views of public relations professionals While Quinovic did (PRs). issue a brief statement, The reason for this is obvious. Lawyers its refusal to front for are focused on the court of law and fear media interviews led to that talking to reporters could weaken their heavily one-sided stories clients’ case in any subsequent legal action. that would have severely On the other hand, PRs are more con- damaged the company’s cerned with the court of public opinion reputation. These occa- and how negative media attention can sions where business impact on the clients’ reputation and future owners fail to front often earning potential. lead to misinformation as well, and there’s no one What’s the answer? around to correct it. It also leads to complaints by the Clearly there are times when there’s good businesses involved about biased reporting. But if they reason not to say anything. For example, if refuse to appear, there’s no-one to blame but themselves. something is before the courts, you can’t comment. There are also times where the A great example of doing this properly mere admission of something could be Remember back to the Pike River disaster. When the mine seen as defamatory. But on most occasions, collapsed, the company responded perfectly. Forget what it’s best to cooperate as much as possible happened later; at the time they did everything right. with media. This will limit reputational Spokesperson Peter Whittall was always damage and sometimes even grow a com- available to media. In just about every story pany’s credibility. But this only applies to What people he was there representing the company. companies that are well prepared and have forget is that Can you remember what he said? well trained spokespeople who know how the media will He basically had two key points that he to keep out of trouble. write their stories kept referring back to. One was around As a former reporter and current media whether you empathy for the victims and their families, trainer and advisor, I see lots of occasions decide to be while the second was what the company where business leaders damage their in them or not. was doing to get the miners out and sup- brands heavily by shying away from media But if you’re at port their families. That was all he needed requests. Often this is on the advice of their the centre of to do and all anyone expected him to do. lawyer. For example, last year the property the issue, media What if he hadn’t appeared? You can management company Quinovic refused will come to you imagine the stories. What people forget requests for media interviews after a first. This gives is that the media will write their stories franchisee’s advertisements suggested you the power to whether you decide to be in them or not. that landlords weren’t charging enough control the flow But if you’re at the centre of the issue, if their tenants could still afford to go of information. media will come to you first. This gives you

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emergency management plan, but we will have one in place next week and we’ve always had weekly fire drills.” From this example, the reporter might choose to only use the first part of your answer: “We don’t have an emergency management plan.” That makes it look like you don’t care about the safety of staff. The best answer here would be to only say the second part of that answer: “We will have one in place next week and we’ve always had weekly fire drills.” You can see how the context is now completely different. In a nutshell, if you don’t want it quoted, don’t say it. Other media interview mistakes The biggest mistake people make with media interviews is treating them as Q&As. They are not. They are a conversation between you and a reporter or presenter. They pick the topic and you decide what you want to say about that topic, as long as it’s of interest to the audience. In the earlier Peter Whittall example, he kept referring back to those two points of empathy and what the company was the power to control the flow of informa- trainer, I can spot quickly going to do about the disaster. That’s how tion. But if you don’t, media will be forced whether someone knows it works. to look elsewhere and probably turn their what they are doing. If he was asked: “Who’s fault was the focus to negative reporting because they The big difference is explosion?” he wouldn’t have been able to have no alternative. that for all non-live inter- answer that, and probably wouldn’t want Forgetting what happened later, Peter views, reporters will only to anyway for any number of reasons. His Whittall became a bit of a celebrity and ever use snippets of the best way to deal with that would have was respected for showing up. While he conversation in their sub- been to address it briefly and then use a was there for media, they didn’t need to sequent story. That makes bridging statement to get back to one of the go elsewhere. I know there were a few it completely different messages he wanted the story to focus on. unethical things done by some media at from any other form of Here’s how it could have gone: “Who’s the time, but this was minimal and from communication. fault was the explosion?” Answer: It’s too memory, that was media from overseas. What this means is early to speculate on that. Our 100 percent that you have to make focus now is on trying to get the miners But what if media sure that everything you out.” misquote you? say can stand on its own It’s vital that any spokesperson has a Lots of lawyers I speak to are concerned without relying on other clear three-point message to return to about talking to media because they think parts of the interview to during any media interview. It’s not about they, or their clients, will get misquoted or make sense or fit the right avoiding questions, it’s about knowing quoted out of context. This is a justifiable context. how to get your points across and into concern and something that does happen. Here’s an example. the media stories. But it doesn’t have to. The key is to know Reporter: “Does your Remember the best plan is to help media how to talk to media. It’s a completely dif- company have an emer- as much as possible. It’s fairly simple to ferent conversation and any spokesperson gency management plan?” work out what they will ask. So, when needs to know the difference. As a media You: “We don’t have an you’ve decided how to answer those

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produce a story, ring the company at the centre of it for comment and immediately post the story on the news website and send it out through social media. If the company can’t respond within the first hour, all the story will say is that the spokesperson refused to comment. Most people see that as an admission of guilt. The best way to deal with this is to have a crisis management plan in place. This needs to have a number of holding statements (short media releases) that say things like: “We’ve just heard about the issue and we’re doing all we can to sort it out.” That’s far better than: “No comment.” These statements should all be seen by lawyers before they are needed. Then they can be sent out quickly, getting the company into the first story that goes out and giving everyone time to work out the more detailed response. If a company waits three or four hours to respond these days, it’s too late. The horse has bolted and people have already made up their mind whether the company is a victim or a villain. Summing up While this has all looked at the PR response briefly, you return to your on the UN delegates coming here would alone, the reputation of a business is just key points. be like Steve Hansen giving the England as important, and often more important, rugby team the All Blacks’ game plan for than legal threats. Even if there are legal One more step next Saturday’s test.” You can see how that threats, in most cases, public comment The last step after creating answered the question perfectly, gave the from a trained spokesperson won’t hinder your three-point message reporters a great sound bite and he could any potential legal action. In fact, it can is to dress those points up almost guarantee that the media would assist. in attractive ways. That use that in their story. But one thing is clear, just like the All means you can almost Hopefully this gives you some insight Blacks need a game plan before every test, guarantee their use by the into how a media interview can be an businesses need a crisis management plan media. John Key was an opportunity rather than a threat. But the and trained spokespeople if they want to expert at this. Here’s one key is to be ready before these skills are cement themselves against reputational example. He was asked a needed. It’s too late once the crisis erupts. damage. It’s too late to start thinking about few years ago how much The media skills are needed well in advance this when something erupts. ▪ taxpayers were spending in the same way someone takes out insur- on wining and dining the ance. You may not have a fire, but if you Pete Burdon  pete@mediatrainingnz. UN delegates when they do, you will survive financially. co.nz is founder and head trainer of Media came to New Zealand. We Training NZ. He’s a former daily news- wanted them to vote for us What recent media paper reporter and government press to get the vacant seat in the changes mean? secretary. Pete trains leaders to grow General Assembly. The introduction of the internet and social their profiles and professional status The point he wanted media has changed the way businesses through the news media. He primes to get across was that must deal with the media during a crisis spokespeople to control interviews he couldn’t give a figure or negative situation. We all know how with reporters and he trains experts, because that would give quickly news travels. That means that business owners and communication ammunition to the others the success of a crisis response is usually staff how to win free publicity in their who wanted the seat. So determined by the speed with which a target media. For more on Pete and his he responded this way. company acts. training visit  www.mediatrainingnz. “Me saying what we spent If something erupts, a reporter will co.nz or www.peteburdon.com

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PRACTICE Lawyers and social media

BY JONATHAN SUTTON

As stated by the High Court in Senior v In July 2013, an article in LawTalk 812 entitled “Social Police [2013] NZHC 357: media’s legal criteria”, quoted figures showing that about “The Court takes judicial notice that per- 2.3 million New Zealanders, or roughly 51% of the pop- sons who use Facebook are very aware that ulation, were on Facebook alone. By January 2018 this the contents of Facebook are often com- figure had grown significantly, with statistics company municated to persons beyond the ‘friends’ Statista estimating that 73% of the population, or roughly who use Facebook. What information is put 3.5 million Kiwis, had accounts with the social media giant. on a Facebook page, to which hundreds of Other social media platforms such as YouTube, people have access, the persons putting the Instagram, Pinterest, Twitter and Snapchat have also expe- information on the page know that that rienced rapid increases in New Zealanders subscribing to information will likely extend way beyond their services. In 2018 YouTube overtook Facebook as New the defined class of ‘friends’.” Zealand’s most popular social media platform of choice. While the comments of the High Court Whatever your views on the phenomenon, it is clear from in Senior v Police arose in the context of its growing popularity that social media is here to stay. an alleged criminal breach of a protection This proliferation of personal users has inevitably seen order, lawyers in many other fields will a related increase in the number of businesses using such recognise that social media is playing a platforms for marketing purposes. As demonstrated by larger role in proceedings before all courts. Donald Trump’s use of social media throughout his 2016 Comments from Chief District Court Judge presidential campaign and current presidency, profes- Jan-Marie Doogue, reported by Stuff on sional and personal social media identities can become 9 April 2018, indicate that social media so entwined and intermingled that differentiation is often evidence is particularly prevalent in the difficult and/or artificial. Accordingly, lawyers need to be Family Court as parties involved in dis- aware of the potential consequences of their use of both putes often use it to communicate back personal and professional social media accounts. What and forth. follows are some matters that lawyers should consider when publishing content on social media platforms: Professional responsibility and social media Protecting your personal information In August 2017, the United Kingdom’s One of the most important things to remember when Solicitors Regulation Authority (SRA) using social media is that once you have posted, uploaded issued a warning notice to British solicitors or commented on a social media platform you effectively concerning their professional and private lose control of how that content may be used and how far use of social media. That warning followed it may be disseminated. This is particularly true if your an increase in reports of offensive and social media account is public, ie, content is made available inappropriate posts and came just a week to the world at large. after the Solicitors Disciplinary Tribunal Public accounts are useful for businesses and profes- suspended for 12 months, with a £25,000 sionals as they are available to everybody; however, this fine, a solicitor for anti-semitic and anti-Zi- is not ideal for accounts containing personal information. onist comments he posted through his Restricting access to your personal accounts – often by personal Facebook account. The Tribunal changing your privacy settings to “private” – will provide a found that the solicitor’s comments had higher degree of privacy, but limiting access in this manner caused “offence to the public to the det- does not guarantee such material will remain with those riment of the collective reputation of the with immediate access. In other words, while you may profession” and that “being a solicitor was only intend that information goes to select individuals, or not a feature of one’s being that one could “friends”, there is not necessarily any reasonable expecta- switch on and off as one chose.” (SRA v tion that that information will not be disseminated further. Mahmood, Case 11625-2017, 15 August 2017).

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Back in New Zealand, the Lawyers the Solicitors Complaints Service and the Law Society Disciplinary Registry have also experienced an increase Tribunal in the number of matters before them suspended for concerning lawyers’ use of social media. 12 months, with Complaints about inappropriate use of a £25,000 social media fall into two main categories: fine, a solicitor inappropriate/misleading statements and for anti-semitic misuse of ‘private’ information. and anti-Zionist Complaints in the first category usually comments take the form of an allegation that a lawyer posted [...] has published something on a social media through his platform that the complainant considers personal improper or offensive. The most common Facebook examples of this kind of complaint include account. allegations that a comment by a lawyer is derogatory, offensive or deceptive. In most cases complaints in this category are not likely to progress beyond an initial referral to a standards committee. In contrast to the United Kingdom, the disciplinary process in New Zealand is scrutiny than a comment made on a lawyer’s personal Facebook account. more limited to the conduct of a lawyer Likewise, a comment from a lawyer concerning proceedings they are in their professional capacity. A lawyer is involved in will attract more scrutiny than an expression of opinion on entitled to the same freedoms of speech political matters unrelated to the lawyers’ practice. as any member of the public. The second, and less common, category of social media complaints relate to allegations that a lawyer has improperly used social media in Comments relating the course of their representation of a client. As these complaints concern to role as lawyer the representation of a client they are more likely to be connected with However, when a lawyer’s social media the provision of regulated services. comment(s) relates to their role as a Most commonly these complaints concern the alleged improper lawyer, a complaint can prompt further procurement and/or disclosure of social media evidence. Generally disciplinary response. As alluded to speaking, obtaining evidence available to a client through their own above, the disciplinary regime is primar- social media account(s) is unobjectionable. However, issues may arise ily concerned with a lawyer’s conduct in where a lawyer uses their own social media account to progress the the course of carrying out the work of a interests of a client. Such instances are likely to be rare and it is not lawyer – or in other words, conduct at a immediately clear whether such an approach would raise issues of time when providing regulated services. professional responsibility, however some guidance may be found in When determining whether the posting of rules 6, 7, 7.3 and 13 of the Lawyers and Conveyancers Act (Conduct and a comment on a social media platform is Client Care) Rules 2008. made at a time when providing regulated services, standards committees consider all 6 In acting for a client, a lawyer must, within the bounds of the law the circumstances in which the comment and these rules, protect and promote the interests of the client to the was made. Factors that are commonly key exclusion of the interests of third parties. to any such consideration are: the nature [...] and purpose of the comment, the nature 7 A lawyer must promptly disclose to a client all information that the of the platform on which the comment lawyer has or acquires that is relevant to the matter in respect of is made, and whether the commenter’s which the lawyer is engaged by the client. profile identifies/relies on their status as [...] a lawyer. 7.3 A lawyer is not required to disclose information to the client if – For example, it is not unreasonable to (a) the client has given informed consent to the non-disclosure of expect that a lawyer’s LinkedIn account particular information; or will be more likely to fall under disciplinary (b) the disclosure would be likely to place at risk the health (including

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mental health) or safety of the practising certificate as a barrister or as a barrister and client or any other person; or solicitor. (c) disclosure would be in breach of • A barrister who, having recently joined the bar, forgets law or in breach of an order of the or omits to update their LinkedIn account and still court; or advertises themselves as a barrister and solicitor. (d) the information relates to a pro- More serious issues that the Registry deals with are when posed retainer that the lawyer has an applicant’s use of their social media account has raised declined. issues as to whether they are a fit and proper person to [...] practise law. For example, in Lincoln v New Zealand Law 13 The overriding duty of a lawyer acting Society [2018] NZHC 3050 the High Court found that the in litigation is to the court concerned. use of a Facebook post to threaten and intimidate was Subject to this, the lawyer has a duty reprehensible and inconsistent with the requirement that to act in the best interests of his or her the applicant be a fit and proper person to practise law. client without regard for the personal Mr Lincoln has subsequently appealed the High Court interests of the lawyer. decision. Registry social media issues Be careful but don’t be paranoid Social media issues dealt with by the In brief, lawyers should take care before uploading Law Society’s Registry typically take information on to any social media platform. the form of individuals who have mis- Unlike verbal or more traditional forms of written classified themselves on a social media correspondence, social media content has much greater platform in potential breach of ss 21(b)(i) potential to reach unintended audiences, including the or 22 of the Lawyers and Conveyancers Lawyers Complaints Service. Act 2006. Examples of this kind of Although complaints concerning social media are still breach include: rare, and disciplinary findings rarer, as a general rule, prac- • A new graduate who, having recently titioners should treat social media in the same way as any completed their professionals course other form of written publication to the world at large – if and having been admitted to the High you wouldn’t want information to be disseminated that Court, identifies themselves as a lawyer far you may wish to reconsider posting it. ▪ on LinkedIn. Such a person would not be a lawyer as defined bys 6 of the Act, Jonathan Sutton is a Legal Standards Officer with the not being a person who holds a current New Zealand Law Society

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PRACTICE Focus on Oamaru How gold and grog made Oamaru a thriving criminal capital

BY JOCK ANDERSON ▴ Bill Dean

a hotel carpark. In the mid-1800s, when Oamaru Until Bill Dean, one of Oamaru’s was the gateway to the Otago gold- senior practitioners, a partner in Dean fields and bigger than Dunedin, more & Associates, and husband of National’s than 13% of the town’s population Waitaki MP Jacqui Dean, decided enough appeared in court. was enough. The port town was called a Government engineers reckoned drunken metropolis “full of inebri- it would cost between $4 million and ated sailors and prostitutes” and with $6 million to make the courthouse fit the highest crime rates in Otago. for use – a figure Bill Dean and others After the gold mining days regarded as insane. Oamaru’s growth slowed and stag- He employed a civil engineer who nated for several decades as devel- costed the work at $350,000. opment by-passed the coastal town. “I got resistance from Justice to even ▴ Katherine Henry This wasn’t helped in the mid- get the keys into the building,” Bill says. 1980s, according to local lawyer “Fortunately, I had Jacqui on my side and Michael de Buyzer, by Rogernomics my good mate Chester Borrows was Courts and retrenchment which saw a lot Minister.” of departments of state leave town. Eventually, the local council stepped he is in the process of retiring to go “There were challenges for many up in 2016, did a deal to acquire the land back to his former profession as a people in ensuring the district was and building for a nominal amount, and truck driver. “It’s an isolated job and adequately serviced by central gov- spent $900,000 bringing the buildings up I don’t have to worry about other ernment,” Michael says. to the highest modern standard on the people’s problems.” Today, Oamaru is proud of the basis that the Ministry of Justice would “After a while you get embedded good bits that grew from those turbu- rent it back as a hearing centre. in Oamaru,” he says. “For a young lent times – mainly a fine collection “It took several years for the paper- couple maybe starting a family of Victorian heritage buildings that work to be accepted and remedial work it’s one of the safest places in the arguably make the North Otago town to be completed. The courthouse needed country. The schools are fantastic. New Zealand’s heritage centre. to be saved for the community’s sake,” The place is humming. Tourism has But one of those fine buildings – Bill says. gone through the roof with the pres- the courthouse – was nearly lost. The modernised courthouse was ervation and use of old Victorian opened late in 2018 and is back in busi- buildings. “Port-a-court” ness for court and other legal hearings, “The Victorian quarter has filled When earthquakes forced the clo- serviced from Timaru. up with commercial businesses, sure of Oamaru’s grand Forrester retail, cafes, a brewery. A whole lot and Lemon designed 135-year old “You get embedded of businesses sprang up on the back courthouse in 2011 it looked as if in Oamaru” of the Victoria precinct.” justice would forever be meted out Having moved from the North Island for But like many small provincial in a succession of temporary loca- a couple of years’ experience, Bill is still towns it is not easy to attract law- tions – including a “port-a-court” in there 35 years later – although he reckons yers to Oamaru.

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Facts

❶ Of the Waitaki district’s popu- means Oamaru’s Victorian Janet Frame, Owen Marshall, Greg McGee and lation of 22,300, nearly 14,000 precinct in the southern part Fiona Farrell Poole, broadcaster Jim Mora, former (63%) live in Oamaru. 91% of of the town’s main commercial Australian Prime Minister Chris Watson, fellow pol- the population are European, district ranks as one of New iticians Arnold Nordmeyer and William Steward, compared with 74% for the Zealand’s most impressive and All Blacks Richie McCaw and Fred Allen. whole of New Zealand. streetscapes. ❼ A strong community of living artists work in and ❷ Every year more than 75,000 ❺ Oamaru made it into the around Oamaru and there are several dealer gal- people visit Oamaru’s biggest Guinness Book of World leries in the historic quarter. tourist attraction – the little Records in 2016 for the larg- ❽ The world first learned of the death of explorer blue penguin colony. est gathering of steampunks in Captain Robert Falcon Scott and members of his ❸ In 2014 Lonely Planet named the world – a term coined in team on their return from the ill-fated expedition Oamaru New Zealand’s cool- the 1980s based on imagining to the South Pole when Scott’s ship Terra Nova est town, partly because of inventions the Victorians might arrived in Oamaru on 10 February 1913, and the its historic Victorian precinct, have created for the modern news spread worldwide. Victorian Heritage Week, pen- world and is something that has ❾ The median house value in Oamaru is just under guins and its Steampunk HQ . to be seen to be understood. $282,000. ❹ The many 19th century build- ❻ Among famous folk born in ings constructed in distinctive or around Oamaru, or who Sources: Statistics New Zealand and “Oamaru stone” limestone stayed for a while, are writers Waitaki District Council

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▴ Ben Coleman ▴ Michael de Buyzer

It’s where we live was dealing with a lot more mum Barrister sole Katherine Henry and dad clients. I also worked for the operates her part-time criminal Crown in Invercargill. In a smaller practice from a two-acre block at place I was working for smaller Totara, south of Oamaru, where clients in smaller disputes which she helps her husband till the land meant I could take a lead role.” to grow vegetables and create a With three children, Katherine is self-sufficient food forest. a home educating parent, balanc- Katherine previously worked at ing home and work and says the Chapman Tripp in Wellington, and family’s lifestyle is their relaxation. for Invercargill firms Southern Law, Katherine and husband Steven are Hewat Galt Lawyers and Preston building a straw bale house with Russell Law – where she was a heavy timber frames, which she Crown prosecutor. says suits the environment. “We moved here in 2014 to live “We are always planting trees and here and I practise here because we always outside with our children – ▴ The Oamaru courthouse. live here,” Katherine says. “It’s in and we go camping. My husband the wider area where our extended works on the land. families live.” “For me as a sole practitioner not It is easy to get a graduate who “For me it works well because I having a library is a challenge. I can’t wants to get a couple of years’ work from home part-time and as afford to have everything and have a experience before heading off a barrister in the courts I probably basic reference package. Sometimes to the bright lights or overseas, wouldn’t be able to work part-time I use the law library kiosks when I go but attracting and retaining as I do if I was in a bigger centre.” to Timaru or Dunedin but it can be experienced practitioners is a The Timaru District Court Judge more of a challenge just finding time. different story. Joanna Maze sits on Oamaru’s crim- “Most of my work is legal aid so “Those who stay, do so for a inal list once a fortnight. There are I have to be careful about what I reason, usually family. We have no High Court sittings. subscribe to.” had a fair share of graduates, in for Katherine says smaller towns a couple of years, then off, unless allow junior lawyers to have a Quirky call back they become a parent – which we broad range of practice areas and home for local boy encourage. get involved in cases. “I worked for A novel tongue-in-cheek advertise- “In my first two years in Oamaru Chapman Tripp in Wellington doing ment placed by legal “character” I did six jury trials and won five of civil litigation and was a small cog Dick Crush attracted local-born them, as well as urban and rural in a big machine. It was great but Michael de Buyzer back to Oamaru conveyancing, and commercial clients tended to be in-house law- from a Christchurch firm. work. You become an able general yers or directors. “My parents still lived here. I practitioner.” “When I moved to Invercargill I replied to Dick’s ad and got the job. I

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◂ The Lagonda Tearooms in Oamaru is a great spot for a cup of tea and a cheese roll. In years past it was a popular destination for Oamaru’s teenagers, who would regularly visit the tearooms after school for milkshakes.

Zealand in sales and compliance, a job came up in Oamaru. “My mother has family in this area, so it was a natural choice and I have been with this firm ever since. “I don’t think I would have foreseen staying when I first joined but it’s a fantastic town and the town and region have a strong growth up-curve and a good robust economy.” Married with three children he says that increasingly, people, businesses and institutions in the region are becoming moved to see what it was like and 32 years Every year more industrious, ambitious and diligent. later I’m still here,” says Michael. more than “There is a progressive attitude whilst Michael is a partner in Berry & Co, 75,000 people the charm and quirky niche of being which also has offices in Queenstown and visit Oamaru’s a Victorian town with beautiful turn of Invercargill. The firm has been a member of biggest tourist the century architecture is retained. It’s independent legal network NZ LAW Ltd for attraction – exciting to be intrinsically involved in this some time and was the first South Island the little growth by way of advising clients who are firm to join. “It provides certain collegiality blue penguin leading it. and idea sharing with lawyers in a myriad colony. “Some of my friends from Melbourne of different-sized firms.” have visited and rate the historic precinct “This is a good, safe, friendly community with its captivating and unique shops with good schooling and opportunities to better than predictable high streets in get into sporting and cultural clubs. Oamaru has been very kind cities. to our family. “It’s a nice town to raise children in “Technical developments such as cell phone and electronic mail because it’s safe, the schools are good, settlements at a distance tend to make life easier. There was a people genuinely care and there are excel- major challenge with the courthouse but that has been resolved. lent facilities like the bike park. It’s not far “As lawyers we tend to get on well with one another. We respect away from the mountains or the beaches each other and also stand up vigorously for our clients when and we usually get to go home for lunch. required. But it never becomes acrimonious or personal. “There is definitely a real sense of com- “We get together from time to time socially and there is good munity spirit and concern in Waitaki. collegiality between Oamaru and Timaru.” “The quality of the legal work is high and is expanding into a broader spectrum. Progressive attitude amid Victorian charm Clients have high expectations and can be Dean & Associates partner Ben Coleman says Oamaru – where 19 demanding; our office is very busy and I’m lawyers practise – is experiencing a resurgence of growth. not usually home in the evenings until 7 “Oamaru and the Waitaki economy is being revitalised. It is or 8pm. no longer a one trick pony supported by the primary industry “There are plenty of opportunities for sector. lawyers to make a positive impact in the “There is substantial growth and diversification into the ser- community with volunteer work too – for vices, tourism, retail, hospitality, manufacturing, commercial example my partner Bill Dean’s involve- and property spaces. Some of New Zealand’s leading production ment in rugby, mine as a director of the companies who export all over the world base themselves here.” Highlanders and cricket and our associate Ben returned to New Zealand in 2002 after working for a major Emma’s contribution to Waitaki Girls’ High international law firm in London. After a year at the Bank of New School.” ▪

86 LAWTALK 926 · March 2019 PRACTICE

PRACTICE An innovative approach to school property investment How the Ministry of Education is managing its forward construction programme

BY REBECCA ROBERTSHAWE

the current market, have embarked on a The Ministry of Education’s Infrastructure Service (EIS) number of initiatives to engage with the is responsible for managing the Crown’s investment in school industry and streamline our procurement property, school transport, ICT infrastructure and the schools’ processes and construction contract docu- payroll system. Our $28.7 million property portfolio includes more mentation. We have tried to be innovative than 15,000 school buildings across more than 8,000 hectares. As at in this, aiming to: December 2018, we had $1.5 billion in active design or construction • Establish long-term, mutually benefi- projects. We execute around $350 million of new major works cial relationships with the construction construction contracts every year. sector; The ministry is one of New Zealand’s largest asset managers • Increase the transparency of our future and buyers of construction services. We balance our obligations construction work programme; to taxpayers and the Crown by providing safe, well-designed, fit • Make it easier to do business with us; and for purpose learning environments to house the 790,000 children • Ensure dealing with us is a high quality and 70,000 teachers who use them every day. We have to make and consistent experience for construc- investment decisions that will be long lasting for future generations tion contractors, our consultant partners of children. and schools. While we need to get good value for taxpayers’ money and manage risks appropriately on behalf of school communities and Construction Directory taxpayers, the ministry is also committed to engaging fairly with In 2018 the ministry launched a the construction industry. Construction Directory of preferred sup- We are an active participant in the sector and in response to pliers and a Construction Pipeline of the

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high-value projects we are planning. implementing immediate changes to the The Construction Directory is a panel of over 100 pre-qualified standard ministry ‘major works’ contract, construction suppliers for major infrastructure projects. We aim including reducing payment times. We are to make the tender process easier for suppliers using the direc- currently reviewing the warranties for tory. They supply company information just once, during their workmanship and materials to ensure our appointment to the Construction Directory, instead of having contract requirements better align with the to repeat the same information in each tender response. It will current market. also substantially reduce the time ministry staff spend assessing We are also gaining efficiencies in our contractors’ tenders, while giving us the confidence of having contracting process by looking outside the a pool of high performing suppliers. We expect to procure an box for solutions. Internally, we recently estimated $250 million of construction through the directory on introduced Contract Express, a new auto- an annual basis. mated construction contract software The Construction Pipeline describes the future capital works system designed for more efficient and projects above $500,000 the ministry is planning. It allows sup- consistent documentation processes. As pliers to identify early their preferred tender opportunities and a result our procurement and legal teams helps them plan their future resourcing. spend significantly less time drafting, We are committed to open and trans- reviewing and approving construction parent engagement with the industry. All contracts, while ensuring consistent terms ministry standard construction contracts across the projects. and explanatory guidance notes are pub- With automation the ministry is able to lically available on our website. Suppliers release better quality requests for tender. This can familiarise themselves with terms enables suppliers to submit more precise in advance of submitting a tender, with assessments of the required resources and concerns addressed at the earliest stage the risks involved with a particular project. of the procurement process. We are also focusing on design, engi- neering and consultancy projects. The Annual contract review ministry chairs the Crown Construction The ministry reviews construction con- Clients Group (CCCG) which is made tracts annually in consultation with up of the ministry and six other of the construction suppliers. Briefings are held Given the size largest government construction clients: nationally enabling suppliers to discuss of the ministry’s the Ministry of Business, Innovation and issues directly with our staff. property Employment, Housing New Zealand, New Our Infrastructure Services’ procurement portfolio and Zealand Defence Force, NZ Transport team also meets regularly with construc- future project Agency, Ministry of Health and Auckland tion industry groups for open discussion pipeline, it’s Council. The CCCG works in collaboration and reciprocal feedback. These groups in our interest with NZIA, ACENZ and other industry include the New Zealand Institute of to support a bodies to standardise conditions of con- Architects (NZIA) and the Association of thriving and tracts for consultancy services. We intend Chartered Engineers NZ (ACENZ). Senior sustainable for both the Crown and suppliers to benefit ministry officials also met with executives construction from reducing the time spent negotiating from Registered Master Builders to discuss sector which standard terms and providing a signif- industry concerns and possible solutions. can build and icantly more consistent experience for Feedback received during the development maintain our consultants working with Crown agencies. of the Construction Directory led to us properties. Given the size of the ministry’s property portfolio and future project pipeline, it’s in our interest to support a thriving and sustainable construction sector which can build and maintain our properties. For Times are changing. more information on the Construction Directory, Construction Pipeline and Are you? • Practice health checks I offer board-level support to • Partner retreat facilitation upcoming engagement opportunities visit forward-thinking law firms and legal • Strategy and planning www.education.govt.nz/suppliers and www. departments looking to stay ahead • Leadership development gets.govt.nz ▪ of the curve. • Business growth ideas Put my ideas to work! For an initial • Motivational speaking Rebecca Robertshawe eis.legal@ no-obligation discussion, contact me: • 25 years experience education.govt.nz is the Legal Director of simontupman.com 027 214 8405 [email protected] the Ministry of Education’s Infrastructure Service.

88 LAWTALK 926 · March 2019 PRACTICE

PRACTICE He aha ngā mea nui o te ao nei? Ngā awa, ngā roto me te kotahitanga What’s important in this world? The rivers, the lakes and collaborative frameworks

BY DONNA LLEWELL

an imperative place for Māori in the management of may be publicly or privately owned; The field of “co-governance” of natural resources. the entity may have a contract for some of Aotearoa New Zealand’s service delivery; management key natural and physical resources Co-governance context and planning more localised and has for many years been thought In the world of co-governance one size does not fit all. There informal to be reserved for specialist Treaty will be something different in each entity from its crea- So where is the nexus and lawyers - but that is evolving and tion, its membership, the purpose and functions, to scope authority for co-governance? requiring new skills and diversifica- and interface with environmental laws, the natural and Predominately entities have come tion for public and private lawyers physical resource being governed (and its state of health into being as part of cultural redress in some regions of the country. This and well-being and associated management challenges). packages for settlement of historical article provides some context about There are ongoing debates seeking to delineate Treaty grievances of iwi claimants. co-governance arrangements, and between ‘co-governance’ and ‘co-management’. From Key examples include co-govern- - from an implementation perspec- the author’s perspective, that is semantics best left to ance structures for national and/ tive - discusses challenges that an academics. It is all about collaborative processes and or regionally significant rivers, advising solicitor may encounter. opportunity with an entity and its membership working lakes and their catchments (ie, Te Co-governance entities have towards a collective goal of sustainable management Arawa Lakes Strategy Group (2006), developed uniquely in New Zealand and enhancement of the environment. Waikato River Authority (2010), (compared with other countries Another critical matter to appreciate is that a co-gov- Rangitāiki River Forum (2012), Te with indigenous populations) as ernance entity is complementary to and not substitution Maru o Kaituna River Authority collaborative frameworks for signif- for the participatory and consultative rights of tāngata (2014), and Te Pou Tupua (for the icant waterways and waterbodies, whenua/iwi, hapū, whānau in our resource management Whanganui River (2017)). Another including freshwater, estuarine processes. significant example of co-govern- and harbours. These frameworks For those who like to appreciate distinctions ... the ance is Te Urewera Board (2014) provide new and important avenues key characteristics of co-entities may include: which is unique in terms of its gov- for environmental management and Co-governance = high level governance; strategic ernance with separate legal status bringing the collective wisdom, directions; defining values; setting common aspira- and identity for land and resources relationships and resources of tān- tions, vision, objectives, action priorities and planning which, prior to the Treaty settlement gata whenua of any given locality to achieve those; development of a public statutory with Ngāi Tūhoe, were managed as together with that of central and/ document which interfaces with localised regulatory a national park. All of these co-gov- or local government representa- and planning frameworks; influencing decision-making ernance arrangements are founded tives. Some co-governance enti- (including funding, use and allocation of the natural in Deeds of Settlements and then ties include community or other resource, and the means to achieve the mutual co-gov- empowered discretely through stakeholder representation. They ernance goals) Treaty settlement legislation. all result in the blending of public Co-management = medium to lower level governance; There are other legislative foun- and private interests and values operational decision-making; directing or conducting dations by which collaborative whilst at the same time recognising physical day-to-day management; natural resource frameworks might be established.

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Under the Local Government Act knowledge, capacity, participation 2002 and the Resource Management and responsibility. Local government Act 1991 (RMA) in particular there agencies are assigned the secretariat are avenues (which to date have not role and administrative responsibility widely utilised) to establish joint for the co-governance entity, but over management committees or the time and with maturity there would delegation of statutory functions be no barrier to an entity looking to to certain bodies. use other external services. The RMA reforms of 2018 her- It may be challenging at times alded the introduction of a new for council officials in a technical instrument Te Mana Whakahono advisory role to a co-governance a Rohe which focuses on building entity because the blend of repre- constructive relationships, process sentatives and interests at the table and practices between iwi and agen- may mean debate, consideration cies in the RMA space. The intent of and/or decision-making does not this instrument is to enhance Māori reflect an official’s experience participation in the RMA resource with their usual council commit- management and decision-making tee. Co-governance does not take processes but co-governance is not so kindly to recommendations of within scope. an official or necessarily endorse Lastly, there is wide diversity of an official’s viewpoint. Effective voluntary-based agreements, pro- co-governance with robust leader- tocols, memoranda of understand- ship promotes open engagement to ings and relationship documents arrive at a collective full consensus throughout the country between decision which might not be the Māori, central or local govern- usual route that local government Integration ment and/or other stakeholders. officials experience. Co-governance entities are deemed to be a permanent Generally these will be localised or Legal advisors need to be mindful “joint committee” of representative councils in terms project based and none will have of the principles and parameters of the Local Government Act 2002 (LGA). However, the same statutory power and of conflict of interests. The co-gov- the empowering legislation also makes a number of integrity of legislated co-governance ernance empowering legislation modifications, disallows and/or transplants a number arrangements. stipulates that an iwi member’s of sections and clauses of the LGA and its schedules to association to his or her tribal con- support co-governance processes. Capacity nections does not detract from their As well, an entity must adopt standing orders which The most fundamental matter for full participation in the business of cannot contravene the LGA, the Local Government the success and durability of co-gov- the co-governance entity; and to Official Information and Meetings Act 1987 or any ernance is for representative parties avoid doubt, such membership does other legislation; and which must also respect tikanga and their appointees to get to know not mean he or she are members of a Māori protocols and practices. An entity has discrete each other and build their relation- local authority. It is also imperative power to appoint sub-committees in advancement ships and trust. In many cases, prior for local government appointees of its purpose. history and negative experiences for to appreciate the boundaries. For These integrations are to balance and recognise the Māori often means this can take example, he or she may be partici- accountability and transparency obligations for a co-gov- time. More often than not both pating in a co-governance decision ernance entity because they carry out a public role with tribal appointees and local govern- which then subsequently will come the application of public funds (but not exclusively as ment representatives may not nec- before a committee or full council there could be private or other funding arrangements). essarily have been involved during meeting for final determination as However, such integration respects and recognises that Treaty settlement negotiations. That a councillor. the co-governance entity has firm avenues to incorporate requires the advising solicitor to go A member council’s legal advisor traditional and cultural norms, including Mātauranga back to basics of statutory interpre- might also be asked to provide advice Māori knowledge in relation to the natural resource and tation for educating co-governance to the co-governance entity and co-governance goals. members (and to keep repeating that that must always be premised with Another significant example of integration is where a exercise as members transition on clarification that such advice is given principal output from a co-governance entity is a stat- to the entity). on behalf of the respective council; utory document which from its inception, policy and The capacity of parties to the and that other local government or development, public submission and hearing process, co-governance arrangement is also iwi members or the co-governance decisions and final approval of such document brings important for creating, over time, entity in its own right is entitled and into play the vision and objectives of the entity for the a level playing field such that each may need to seek independent legal natural resource. This document has different interplays side of the equation is building shared advice. with the RMA and LGA. For example, RMA consenting

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that by their nature and constitution appreciation of the rightful position will change over time. Experience and benefit that Māori can con- is also showing that the issues tribute towards the future of our confronting our environment and significant natural and physical natural resources are also evolving resources. and this is placing pressure and desire on the part of co-governance Conclusion entities to expand their brief or In terms of the Treaty settlement scope of business. A clear example process, the September 2018 quar- is responding and adapting to the terly report of the Office of Treaty challenges of climate change for our Settlements outlined that approxi- ecosystems. mately 70% (ie, 77 out of 114 poten- Changes and rotations of rep- tial Treaty claimant settlements) resentative membership of both have been concluded in Aotearoa iwi and local government mean New Zealand. This will inevita- relationship building is a constant bly result in more co-governance exercise. There has been some work arrangements coming into being to adjust sitting terms and cycles to and interface with the regional and have more cohesion and continuity local environments. The devolution for membership and/or alignment and economic position for Māori is with local government election likely to enhance their own capacity periods so that an entity may not and resourcing to instigate wider be faced every three years with a utility of collaborative frameworks completely new set of members outside Treaty settlements. and loss of institutional knowledge. Some of the challenges of co-gov- processes must have regard to the document. All rele- Adapting the co-governance ernance outlined in this article may vant local authorities must also recognise and provide structure, membership, purpose and leave the reader with concern as for the vision, objectives and desired outcomes of the functions or any other key element to the complexity of such arrange- co-governance document when preparing or amending a of its being may be problematic in ments. That said, anything new regional policy statement, regional plan, or district plan that empowering settlement legis- and unique takes time to come to under the RMA. In line with RMA planning timeframes, lation would need to be amended. fruition. We must look towards the co-governance document will be reviewed every That requires engagement and is at the positive opportunities that 10 years (with differing procedure depending on the the mercy of Parliament which, after co-governance brings – not only materiality of the review). 10 years of operation of a co-gov- for the environment but also for A co-governance entity has legal personality and its ernance entity, may be reluctant relationships and cementing for own statutory platform, purpose, powers, functions and to meddle with Treaty settlement the longer term the proper and administrative processes. In practical terms, as capacity legislation. Thereby, some non-leg- rightful place of Māori authority in of its membership increases and fulfilment of a key islative aspects may be adapted by governance of significant waterways function (ie, developing the co-governance statutory full agreement of representative and other resources of this country. document) it becomes even more important for all members. Every co-governance member has persons to appreciate that such an entity is not simply There appears to be a growing an eye towards the future genera- another local council committee. It is a discrete statutory presence of non-members of the tions whether they be an iwi or local body which has its own role to play in the sustainable co-governance entity at proceedings authority appointment. ▪ management of a designated natural resource. An entity which may demonstrate a height- might also create its own mana/authority with a public ened interest and awareness from Donna Llewell donna.llewell@ interface quite different to that of regional and local community and environmental boprc.govt.nz is a committee government bodies. interest groups, stakeholders with member of ILANZ and In-House Most co-governance structures operate a form of rights or interests associated with Legal Counsel for the Bay of Plenty duality in that meetings will be rotated between a the natural resource and the local Regional Council / Toi Moana. formal council chamber setting to a local marae or public generally. Donna’s legal practice is predom- community-based venue. Te Reo Māori is freely used If the work of co-governance inately in public environmental at times without the formality of notice or accredited engenders more open and mutual sectors, and she has worked on translation. Such practices and environments might be dialogue between all facets of our a number of key Treaty of Waitangi completely new to non-Māori members and advisors communities, then is that a benefit historical claims negotiations, set- requiring openness of mind and hearts. not necessarily contemplated by tlements and her practice includes the establishment of co-governance advising on implementation of Adaptation arrangements? Perhaps it also settlement redress within a local Co-governance entities are vibrant living structures shows a maturing and developing government context.

91 COMPLAINTS DECISION SUMMARIES March 2019 · LAWTALK 926

Complaints decision summaries

Lawyer took committee considered that the steps taken A lawyers standards committee con- by Noggs on receipt of Ms Wemmick’s com- ducted a hearing to determine whether ‘satisfactory plaint were ‘both prompt and satisfactory’. Stiggins had breached rule 2.7 of the In light of the steps already taken, the Lawyers and Conveyancers Act (Lawyers: steps’ after error committee decided to take no further Conduct and Client Care) Rules 2008 when action as it was satisfied that in the circum- he threatened to refer the agents to the [Names used in this summary are fictitious] stances further action was not necessary REAA unless $50,000 was paid to his or appropriate. clients. A lawyers standards committee has Rule 2.7 provides that: “A lawyer must resolved not to impose a disciplinary not threaten, expressly or by implication, finding against a lawyer who breached to make any accusation against a person her professional obligations when she Made threat for or to disclose something about any person disclosed information she shouldn’t have. for any improper purpose”. The lawyer, Noggs, was contacted by improper purpose In his submission to the committee, Ms Wemmick in relation to her sepa- Stiggins denied any improper conduct. ration from her husband, Mr Hexam. [Names used in this summary are fictitious] He said his letter did not threaten to Unbeknown to Ms Wemmick, Noggs had make an accusation against either agent been instructed by Mr Hexam two days Informing two real estate agents that his or to disclose the agents’ actions for an earlier. At no time during their conversa- clients would complain about them to improper purpose. His letter merely set out tion did Noggs advise Ms Wemmick of her the Real Estate Agents Authority (REAA) his clients’ enquiry of the agents, which retainer with Mr Hexam. unless they paid $50,000 compensation was whether the agents would be open to Noggs subsequently disclosed to Mr was unsatisfactory conduct by a lawyer, settling their concerns without the need Hexam the details of what Ms Wemmick a lawyers standards committee has found. to make a complaint to the REAA. had sought advice on and also referred to The real estate agents acted for the these in a letter she sent to Ms Wemmick, vendor of an apartment which was experi- Unsatisfactory conduct on behalf of Mr Hexam, on the same day encing issues with noise from a neighbour. The committee found that Stiggins had Ms Wemmick contacted her. The purchasers considered that the real breached rule 2.7 and that was unsatis- Ms Wemmick complained that Noggs estate agents were aware of these issues factory conduct. had breached her professional obligations and failed to disclose them prior to the “While it is a legitimate course for law- when she disclosed to Mr Hexam what she sale. As such, the purchasers consulted yers involved in contentious matters to had sought advice on from Noggs. their lawyer, who referred them to Stiggins. threaten civil litigation unless a financial On receipt of Ms Wemmick’s complaint, Stiggins wrote to the agents, setting out settlement is reached, it is not appropriate Noggs: his clients’ concerns about the noise and for a lawyer to use a threat to refer another • took advice from a senior family lawyer alleged that the agents were aware, at the party to a professional standards authority and the complaints advisory panel; time the sale was negotiated, that there as a lever to extract a benefit on behalf of • acknowledged her error and provided were issues in relation to unacceptable a client,” the committee said. a written apology to Ms Wemmick (via noise levels. “In doing so [Stiggins] acted with an her current lawyer); One paragraph of Stiggins’ letter stated improper purpose.” • implemented new procedures to ensure that his clients had grounds to file a com- As a lawyer, Stiggins had an obligation that conflicts are identified earlier; and plaint with the REAA but as they were to uphold the rule of law and facilitate the • terminated Mr Hexam’s retainer. conscious of the time involved for both administration of justice. If he had reached The committee agreed that Noggs had parties, they were prepared to refrain from the view that the agents had breached their breached her professional obligations complaining in return for a payment of statutory obligations under the Real Estate when she disclosed to Mr Hexam what $50,000. Agents Act 2008, he should have referred Ms Wemmick had sought advice on and On receiving Stiggins’ letter, the agents his concern to the REAA. referred to that information in the letter took advice and subsequently made a com- “It was not for him to co-opt that public she sent to Ms Wemmick. However, the plaint to the Lawyers Complaints Service. body’s own processes to advance his

92 LAWTALK 926 · March 2019 COMPLAINTS DECISION SUMMARIES

clients’ interests. However, the LCRO did consider that the the retainer. However, Tiffey and Tisher “That [Stiggins] was acting on the $5,000 fine was excessive, and replaced it considered it was necessary for Tisher to instructions of his clients is immaterial, with a $2,000 fine, plus $1,200 costs. attend the directions conference, on the when following a client’s instruction would basis that they had not yet been served a lead to a breach of a lawyer’s professional copy of the change of representation notice obligations, he or she should decline to act (this was subsequently received later that rather than carry out that instruction,” the Fined for afternoon). committee said. Ms Quilp complained to the Lawyers As well as determining unsatisfactory overcharging Complaints Service about the quantum of conduct, the committee ordered Stiggins fees charged, saying she was particularly to pay a $5,000 fine and $1,000 costs. [Names used in this summary are fictitious] concerned that Tiffey and Tisher sought to invoice her for attendances made after On review Two lawyers who overcharged a client the termination of the retainer. Stiggins applied to the Legal Complaints have been fined $2,000 and ordered to That committee said that if Tisher Review Officer (LCRO), saying he consid- reduce their fees by a lawyers standards insisted on attending court to file the ered the committee erred in its decision. committee. notice of representation in fulfillment of Even if it had not erred, he considered the The client, Ms Quilp, had separated his professional obligations as an officer fine to be excessive. from her former partner. When her former of the court, then that “should have been In LCRO 283/2014, the LCRO upheld the partner learned that Ms Quilp had booked at no cost to Ms [Quilp]”. committee’s determination of unsatisfac- overseas travel for her and their children, The committee concluded that “from the tory conduct by Stiggins. he successfully applied to the Family Court time they terminated the retainer with Ms “I agree with [Stiggins] that lawyers fre- for an order preventing the removal of the [Quilp], the practitioners were quite simply quently make demands for compensation children from New Zealand. not entitled to incur any more fees on Ms on behalf of their clients, accompanied Ms Quilp instructed a law firm, firm C, [Quilp]’s behalf, whether that be for dis- by threat to commence proceedings if to make a without notice application to charging their own professional obligations the compensation sought is not paid. discharge the order and was assisted by or for any other matter.” He described this as a conventional and two lawyers, Tiffey and Tisher. In seeking to charge Ms Quilp for entirely appropriate approach, and I accept Ms Quilp hoped that, by filing the appli- attendances which took place after the that to be the case,” the LCRO said. cation, she would be able to proceed with termination of the retainer, Tiffey and However, Stiggins’ argument “pays insuf- her travel plans. However, the Family Court Tisher had breached their obligation under ficient regard to the fact that the threat declined to grant the application without rule 9 of the Lawyers and Conveyances Act made to the agents was a threat to subject notice and directed it should be heard on (Lawyers: Conduct and Client Care) Rules them to a professional disciplinary inquiry. notice. 2008 to charge only a fee that was fair and In advancing the threat, he was attempting Tiffey and Tisher subsequently ter- reasonable. to assert leverage over the agents by, as the minated the retainer with Ms Quilp. For That amounted to unsatisfactory con- committee described it, co-opting a public reasons that were not clear to the commit- duct, the committee concluded. body’s processes to advance his clients’ tee, Tiffey and Tisher formed the view that In terms of the reasonableness of the interests.” Ms Quilp’s instructions placed them in a final statement of account, the committee “The impropriety of the demand flows position of conflict with their obligations said it reached the conclusion that the fees from the attempt to achieve financial to the court. charged were excessive and that this also compensation by threat of utilising a The same day Tiffey and Tisher termi- amounted to unsatisfactory conduct. A fair professional regulatory body as leverage nated the retainer, Ms Quilp instructed new and reasonable fee for the work undertaken to achieve the financial outcome sought. counsel Mr Cheeryble, who advised Tiffey up to and including the termination of the “It is not, in my view, analogous to and Tisher that he now acted for Ms Quilp. retainer would have been $5,000 exclusive equate the threat of making professional A directions conference relating to Ms of GST and disbursements. complaint, to that of threat to file proceed- Quilp’s application was set down for three The committee ordered Tiffey and Tisher ings in a court,” the LCRO said. days after Tiffey and Tisher terminated to pay a total fine of $2,000, to reduce their

93 COMPLAINTS DECISION SUMMARIES March 2019 · LAWTALK 926

final statement to $5,000 (excluding GST The lawyer, Omer, acted for Ms Wegg point Omer sought to rely on excused and disbursements), to refund Ms Quilp in an action against her employer. During her from her obligations under rule 9.5 any money received from her above the the course of the case, payment of the law because: $5,000 (excluding GST and disbursements), firm’s fees became an issue and Ms Wegg • Ms Wegg was young; and to pay $1,000 costs to the New Zealand also became unemployed. • she was employed in an industry which Law Society. Rule 9.5 of the Lawyers and Conveyancers is traditionally not highly paid; Act (Lawyers: Conduct and Client Care) • her future employment was uncertain, Rules 2008 reads: “Where a client may be being subject of the case in hand; and eligible for legal aid, a lawyer must inform • a family member’s undertaking to pay the client of this and whether or not the her legal fees indicated that Ms Wegg Client should have lawyer is prepared to work on legally aided may have had financial difficulties. matters.” The committee determined that those been told about The standards committee raised an own factors should have alerted Omer to the motion investigation into Omer’s compli- possibility that Ms Wegg may have been legal aid eligibility ance with rule 9.5. eligible for legal aid. In her response to the committee, Omer Notwithstanding the above, the com- [Names used in this summary are fictitious] said that a family member of Ms Wegg had mittee determined that a finding of unsat- undertaken to pay the fees and as at the isfactory conduct was sufficient penalty Failure to alert a client that she may have time Ms Wegg was employed, she did not without the imposition of any orders, as been eligible for legal aid constituted consider that her client would be eligible there was insufficient evidence before the unsatisfactory conduct by a lawyer, a for legal aid. committee that Ms Wegg would actually lawyers standards committee has found. The committee considered that neither have been eligible for legal aid.

Evidence preparation Risk management Systems, staﬀ & training Applications Sign up to the Advisory services Hearings support New Zealand Law Society’s Gender Equality Charter

Be part of a community leading change in the legal profession. Demonstrate your commitment to gender equality to your sta and clients.

▸ Lead from the top ▸ Make a plan and take action ▸ Measure progress

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94 LAWTALK 926 · March 2019 CLASSIFIEDS · WILL NOTICES

Barrett, Mervyn Desmond Male, Kevyn George Will Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, late of Wellington, Retired, who died named, late of Auckland, aged 75 years, born on 16 January 2019, please contact Bev Roche, on 1 April 1943, who died on 4 December 2018, Tripe Matthews Feist: please contact Anishka Prasad, Prudentia Law: Notices  [email protected]  [email protected]  04 494 1590  09 912 1985  PO Box 5003, Wellington  PO Box 340 Shortland Street, Auckland 1140 PAGE 95 Blok, Ruben Gisert Barrett, Mervyn Desmond Would any lawyer holding a will for the above- Matia, Arran Chamberlain Tuhito Blok, Ruben Gisert named, late of Wellington, aged 39 years, who Would any lawyer holding a will for the Callaghan, Nellie Aurere died on 3 October 2018, please contact Vanya above-named, late of 233 Marsden Point Road, Jones, Legal Executive, Churton Hart & Divers: Dunman, Gladys Ruakaka 0116 and 37 Browns Road, Manurewa,  [email protected] Auckland, born on 28 October 1993, who died Heather-Mankelow, Andrea Tuataata  09 533 9476 or fax 09 533 9482 on 27 December 2018, please contact David (otherwise known as Andrea Tuataata  Kino Toi Toi Heather-Mankelow) PO Box 82-040, Highland Park, Auckland Rice, David Rice & Associates: 2143  Lavin, Asya Ivanova [email protected]  09 295 1067 Male, Kevyn George  Callaghan, Nellie Aurere PO Box 72-266, Papakura 2244 or DX Matia, Arran Chamberlain Tuhito EP76505 McLuckie, Patricia Ann Would any lawyer holding a will for the above- Rogers, Te Heikahurangi named, late of 21 Stanley Street, Matamata, born on 28 October 1929, who died on 23 Scott, Donald Alexander McLuckie, Patricia Ann December 2018, please contact Don Howden, Would any lawyer holding a will for the above- Sila, Foafoa Jones Howden: named, late of Sunset Rest Home, 117-123  PAGE 96 [email protected] Boundary Road, Blockhouse Bay, Auckland,  07 888 7072 Staudenmann-Hughes, Nico Alan Retired, aged 74 years, born on 7 October 1944, who died on 25 December 2018, please contact Tekii, Nooroa Asta Gold, Gold Legal Ltd: Trott, Dawn Lynette Dunman, Gladys  [email protected] Would any lawyer holding a will for the above- Tupuola, Silafaga Liaina  09 235 0440 Turahui, Peter John Robert named, late of Matai Crescent, Putaruru, Home Executive, born on 23 June 1935, who died on 13 August 2018, please contact NL Lawyers: Rogers, Te Heikahurangi  [email protected]  07 886 7540 Would any lawyer holding a will for the  PO Box 518, Tokoroa above-named, late of 24 Taheke Road Kaikohe, Linesman, please contact Manu Rogers , Rogers Barristers & Solicitors: Heather-Mankelow, Andrea  [email protected] Tuataata (otherwise known as  09 405 8330 Andrea Tuataata Kino Toi Toi Heather-Mankelow) Scott, Donald Alexander Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, Chef, born on 23 January 1970, who died named, late of 17 West Harbour Drive, West on 18 January 2019, please contact Melissa Harbour, Auckland, who died at Auckland Bourke, Innes Dean Tararua Law: on 1 January 2019, please contact Alexander  [email protected] McDonald, Price Baker Berridge:  06 952 3266  [email protected]  PO Box 43, Palmerston North 4440 or DX  09 836 9437 or fax 09 837 2667 PP82510  PO Box 21463, Henderson, Auckland 0650

Lavin, Asya Ivanova Would any lawyer holding a will for the above- Sila, Foafoa named, late of Auckland, aged 43 years, born Would any lawyer holding a will for the above- on 28 July 1975, who died on 25 January 2019, named, Builder, aged 35 years, who died at please contact Anishka Prasad, Prudentia Law: Tuakau on 20 October 2018, please contact Jo  [email protected] Lovett, Franklin Law:  09 912 1985  [email protected]  PO Box 340 Shortland Street, Auckland  09 237 0066 or fax 09 238 7141 1140  PO Box 43, Pukekohe 2340 or DX EP77020

95 LEGAL JOBS · CLASSIFIEDS March 2019 · LAWTALK 926

Lambton Chambers welcomes maritime law, and in disciplinary WILL NOTICES CONTINUED Debra Angus as a member of proceedings. We appear in the Chambers. Debra has a wealth of District Court, High Court, Court experience in public and of Appeal, Supreme Court and Staudenmann-Hughes, Nico Alan parliamentary law and frequently tribunals, and in arbitrations and Would any lawyer holding a will for the above- advises on parliamentary mediations. Members of named, late of Tawa, Engineer, born on 28 strengthening and rule of law Chambers accept appointments December 1993, who died on 12 July 2018, please issues for international as arbitrators and as mediators. contact Grace Collett, Family Law Specialists: development projects. A spacious and well-appointed  [email protected] We also invite expressions of room is available to a suitable  04 237 4063 interest in joining Chambers. candidate. A one year term is  PO Box 50513, Porirua 5240 available initially, with the Lambton Chambers is located in prospect of renewal for a longer Tekii, Nooroa central Wellington, close to the term. Courts. We provide a range of Would any lawyer holding a will for the above- expertise in civil, commercial, Further information is available named, late of 167 Balmoral Drive, Tokoroa, insurance, criminal, and on request. Enquiries will be House Executive, born on 30 April 1958, who regulatory law and in specialist treated with the strictest died on 29 October 2018, please contact David areas of family, tax, aviation and conﬁdentiality. Mayall, Niemand Peebles Hoult:  [email protected] Contact: Barristers:  07 959 1818  Joy Patchett, Oﬃce Manager Debra Angus Kim Murray PO Box 1028 Hamilton, 3204 T: 04 472 7950 Andrew Beck Gaeline Phipps E: [email protected] Pam Davidson Terry Sissons W: lambtonchambers.co.nz Toby Gee Trott, Dawn Lynette Barbara Hunt Would any lawyer holding a will for the above- Level 3 Legal House, Paul Michalik named, late of 54 Devon Crescent, Bulls, who 101 Lambton Quay David Milliken Wellington, 6011 John Morrison died on 28 January 2019, please contact Mark Richardson, Lawyer:  [email protected]  06 327 8606  PO Box 216, Marton

Tupuola, Silafaga Liaina Would any lawyer holding a will for the above- named, late of Lower Hutt, who died on 31 July 2018, please contact Main Street Legal Limited:  [email protected] Sainsbury Logan & Williams is a leading  04 527 9727 or fax 04 527 9723  PO Box 40 457, Upper Hutt or DX RP44011 Hawke’s Bay law firm with an emphasis on Commercial/Corporate work and Litigation. Turahui, Peter John Robert This is a great opportunity to join the litigation Would any lawyer holding a will for the above- named, late of 703C Sandringham Road, team. You will work with two partners and be Sandringham, born on 23 December 1963, who ‘hands on’ in doing civil and commercial litigation died in Auckland on 14 January 2019, please which is high-end, diverse, interesting and contact Alex Sheehan, Pidgeon Law: challenging, in an environment where we offer  [email protected] excellent mentoring and a supportive and  09 337 0826 or fax 09 337 0827 engaging team environment.  PO Box 6535, Wellesley Street, Auckland 1141 We will consider applicants with 6 – 10 years’ litigation experience. The ideal candidate will be ambitious, have an excellent academic record, and be able to work independently and engage confidently with clients and other practitioners.

If Hawke’s Bay sounds like your destination, there is partnership potential for the right candidate.

To apply, please contact Howard Bott, Practice Manager at [email protected]

96 LAWTALK 926 · March 2019 CLASSIFIEDS · LEGAL JOBS

LAWYER Mergers and Acquisitions

• Quality, varied work • Strong international and national client base • The autonomy and responsibility to manage your own deals

Online summary Be empowered with the autonomy and responsibility to manage Kayes Fletcher Walker, the office of the Manukau Crown your own deals whilst being a part of a collegial and genuinely Solicitor, has vacancies for junior prosecutors beginning supportive team. in late January 2020. About the firm The positions are suitable for recent graduates through Quigg Partners is a boutique law firm specialising in corporate to solicitors with 3 years PQE (but not necessarily with mergers & acquisitions and employment. It provides specialist legal advice of the highest quality that best addresses clients’ prosecution experience). objectives and needs. Its client base is made up of corporate Successful applicants will be joining a dynamic medium- organisations including government and quasi-government sized law firm committed to providing great training and organisations, multi-national companies, leading New Zealand companies (both public and private) and many trans-Tasman and career development, with unrivalled opportunities to international businesses covering a broad range of industries. appear regularly in court. About the role To obtain an application form please visit our website Quigg Partners currently has an opportunity an Intermediate www.kfw.co.nz. Lawyer to join the Corporate M&A team. The majority of your Applications close Wednesday 20 March 2019, and can be role will be corporate mergers and acquisitions and commercial law, but you will also have the opportunity to work in other areas sent to [email protected] depending on your area of interest and client needs. As part of the Corporate M&A team you will be involved in: • Buying and selling businesses (large and small) • Carrying out due diligence • Reviewing contracts • Negotiating sale and purchase agreements • Advising on the structure of deals • Completing deals Quigg Partners advise on large, small, cross-border and domestic deals, so this opportunity offers plenty of variety within the M&A corporate space.

Skills & experience • Anywhere from 3-6 years post qualification experience • Experience in any of the following areas: Junior and Intermediate • Banking and Finance • Commercial Property Litigation Lawyers • Conveyancing • Competition and Consumer Law Gilbert Walker is a specialist advisory and dispute • Tax resolution practice based in Auckland. We practise across • Commercial law a broad range of civil disputes, including commercial, • Corporate M&A construction, insurance, property, trusts and regulatory • Commercial disputes matters. We are acting on a wide range of interesting and challenging matters for high proﬁle clients. • Excellent work ethic

We are recruiting junior and intermediate associates to We work a lot with competition law, the Takeovers Code and join us now. the Overseas Investment Office so if you have experience in this area it would be relevant also. There may also be opportunities We maintain a low ratio of senior to junior lawyers. If you to work on commercial property matters and some disputes / join us, you can expect to work with each of our three partners in small, focused teams. All of our lawyers litigation work. engage directly with our clients and appear regularly in court and other dispute resolution forums. We work in an The Culture open and collegial environment that rewards those with Quigg Partners offer a culture where you work hard when initiative and high standards of excellence. required but is relaxed and friendly. The Lawyers are independent If you have an outstanding record of academic and and autonomous, but support is there if you need it. We are professional achievement we would like to hear from you. outcomes focused, offer flexibility with work hours and provide We pay our lawyers at the top of the market to attract the the technology to be able work from home if you need to. Quigg best candidates. Partners also encourage Lawyers to get involved with areas of Applications should be sent to: Martin Smith at legal practice they are particularly interested in. [email protected]

For further information about our ﬁrm, please To apply please submit your cover letter contact any of our partners or sta, or visit our and resume to Nicola van Heerden on website: www.gilbertwalker.com [email protected] or call on 029 770 7936

97 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT

HEALTH AND SAFETY – Greg Cain Death and illness caused by long term health issues are Webinar 13 Mar RECENT DEVELOPMENTS Michael Hargreaves extremely costly to society. Accordingly, WorkSafe is very focused on health-related risks, and interacts with Persons 1.5 CPD hours Conducting a Business or Undertaking (PCBUs) in a range of areas from asbestos to bullying and sexual harassment. This webinar will cover PCBUs’ obligations in the health area and examine recent and forthcoming cases on health issues from New Zealand and Australia. It also outlines WorkSafe’s strategic approach for dealing with these issues.

EMPLOYMENT – Emma Butcher Independent investigations in the workplace have taken Webinar 20 Mar INVESTIGATIONS IN THE Andrew Scott-Howman on a new importance in the global #metoo age, with a #METOO ERA sudden increase in the number and complexity of bullying and harassment allegations. Following on from a session 1.5 CPD hours at the Employment Law Conference in October 2018, this webinar will suggest both practical and technical tips and provide advice aimed at assisting you whether supporting an employer investigating a complaint or advising a complainant or a respondent.

INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Dunedin 13-14 May LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 1 27-28 May litigation in an intense small-group workshop. You will learn Nikki Pender Wellington 21-22 Oct 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, Auckland 2 4-5 Nov 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 15 April. COMPANY, COMMERCIAL AND TAX

INTRODUCTION Local Presenters A practical two-day transaction-based workshop that will Christchurch 11-12 Mar TO COMPANY LAW equip you with the knowledge and understanding to deal with Wellington 18-19 Mar PRACTICE the purchase, establishment, operation and sale of a business. A popular, regular in the CLE calendar. Auckland 25-26 Mar 13 CPD hours

CRIMINAL

DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Feb-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

PAROLE BOARD Judith Fyfe There are approximately 8,000 parole hearings every year, Webinar 14 Mar HEARINGS – THE Sir Ronald Young but lawyers appear at only a small percentage of them. There LAWYER’S ROLE are significant opportunities for practitioners to play a greater role in this process. This webinar will provide practical insights 1.5 CPD hours on the Parole Board hearing process and the role of the parole lawyer.

INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Wellington 6-7 May* CRIMINAL LAW PRACTICE being an effective criminal lawyer. This workshop will benefit Auckland 2-3 Sept** all practitioners wanting to be appointed to level one of the 13 CPD hours criminal legal aid list, and those recently appointed to level one. Note: Douglas Wilson Scholarship applications close 3 April* & 31 July**.

ADVANCED LITIGATION Director: Aimed at practitioners with at least 6-10 years’ litigation Wellington 23-27 Jun SKILLS PROGRAMME – Judith Ablett-Kerr experience (either criminal or civil) this five-day non- FOR CRIMINAL AND CIVIL residential programme follows the same methods that have ONZM QC LITIGATORS proved so successful in the basic level NZLS CLE Litigation Deputy Director: Skills Programme. 32 CPD hours Paul David QC Note: Course applications and Douglas Wilson Scholarship applications close 8 May.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT FAMILY

HEALTH AND SAFETY – Greg Cain Death and illness caused by long term health issues are Webinar 13 Mar LAWYER FOR CHILD Hana Ellis This workshop has been designed to ensure participants Wellington 20-22 Mar RECENT DEVELOPMENTS Michael Hargreaves extremely costly to society. Accordingly, WorkSafe is very Wendy Kelly have the opportunity to develop the full range of skills, focused on health-related risks, and interacts with Persons knowledge and attitudes required to carry out the role of 18.5 CPD hours April Trenberth 1.5 CPD hours Conducting a Business or Undertaking (PCBUs) in a range Lawyer for Child effectively. of areas from asbestos to bullying and sexual harassment. Jason Wren This webinar will cover PCBUs’ obligations in the health area and examine recent and forthcoming cases on health issues PRA – KEY RECENT Sharon Chandra The landscape of relationship property is ever-changing as Webinar 21 Mar from New Zealand and Australia. It also outlines WorkSafe’s DEVELOPMENTS Antonia Fisher QC relationships and property structures become increasingly strategic approach for dealing with these issues. complex. It is important for practitioners to be aware of 1.5 CPD hours these developments. This webinar will focus on the key EMPLOYMENT – Emma Butcher Independent investigations in the workplace have taken Webinar 20 Mar issues in this area and provide an update of recent cases. INVESTIGATIONS IN THE Andrew Scott-Howman on a new importance in the global #metoo age, with a #METOO ERA sudden increase in the number and complexity of bullying PROPERTY AND TRUSTS and harassment allegations. Following on from a session WARRANTIES – POST Marika Eastwick-Field This seminar will discuss representations, warranties and Auckland 12 Mar at the Employment Law Conference in October 2018, this 1.5 CPD hours CLOSING CLAIMS ON covenants in Sale and Purchase Agreements that are webinar will suggest both practical and technical tips and David Raudkivi Live Web Stream 12 Mar SALE & PURCHASE frequently the subject of post completion claims, how provide advice aimed at assisting you whether supporting AGREEMENTS different liability regimes under the Sale and Purchase an employer investigating a complaint or advising a Agreement can impact on claims, the availability of statutory complainant or a respondent. 2 CPD hours claims, and the use of warranty and indemnity insurance. INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Dunedin 13-14 May The discussion will then move to procedural and substantive issues involved in pursuing and defending such claims, LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 1 27-28 May litigation in an intense small-group workshop. You will learn including the implications of warranty and indemnity Nikki Pender Wellington 21-22 Oct insurance. 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, Auckland 2 4-5 Nov VALUATION AND EXPERT Tony Davis Increasingly family lawyers need a sound degree of financial Auckland 26 Mar develop the practical skills you need to handle this and a FINANCIAL EVIDENCE IN knowledge when they are dealing with relationship break- range of other litigation files, competently and confidently. Robyn von Keisenberg Live Web Stream 26 Mar PRA CASES ups when there is a property in dispute. This seminar will Note: Douglas Wilson Scholarship applications close 15 April. provide you with the background to better understand 2 CPD hours valuation theory and how it is applied in practice with a COMPANY, COMMERCIAL AND TAX focus on practical issues for family lawyers which will assist INTRODUCTION Local Presenters A practical two-day transaction-based workshop that will Christchurch 11-12 Mar in quantifying relationship property, better managing your experts and critiquing opposing expert evidence. TO COMPANY LAW equip you with the knowledge and understanding to deal with Wellington 18-19 Mar PRACTICE the purchase, establishment, operation and sale of a business. ESTATE CHALLENGES Kimberly Lawrence Despite a will-maker’s best intentions, estate litigation Webinar 18 Mar A popular, regular in the CLE calendar. Auckland 25-26 Mar David Tyree is increasingly common. Practitioners need to be aware 13 CPD hours of appropriate options for each client’s circumstances, 1.5 CPD hours including when to challenge the validity of the will itself and CRIMINAL when to challenge the provisions contained in a will, and they need to be aware of common mistakes made in estate DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Feb-Oct litigation. 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 TRUSTS CONFERENCE Chair: Greg Kelly Trust lawyers and trustees face unprecedented changes: Wellington 17-18 June 2019 the Justice Committee of Parliament has recommended 11* CPD hours made up of several parts. Live Web Stream 17-18 June that a new Trusts Bill be passed; the Law Commission has *CPD hours may vary, see website Auckland 24-25 June 13 CPD hours proposed significant changes to the current “trust busting” PAROLE BOARD Judith Fyfe There are approximately 8,000 parole hearings every year, Webinar 14 Mar provisions in family law; the drafting of trust documents and changes to existing trusts will come under scrutiny; the HEARINGS – THE Sir Ronald Young but lawyers appear at only a small percentage of them. There LAWYER’S ROLE are significant opportunities for practitioners to play a greater Family Court will have greater jurisdiction over trusts. If you role in this process. This webinar will provide practical insights work in the areas of trusts, estates, property and relationship property, you will need to understand these changes. 1.5 CPD hours on the Parole Board hearing process and the role of the parole lawyer. PUBLIC INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Wellington 6-7 May* HUMAN RIGHTS LAW – Chair: A comprehensive round-up of recent cases and Wellington 7 May CRIMINAL LAW PRACTICE being an effective criminal lawyer. This workshop will benefit Auckland 2-3 Sept** NEW FRONTIERS developments with an eye to the future – what lies ahead in all practitioners wanting to be appointed to level one of the Paul Rishworth QC Live Web Stream 7 May human rights law? 13 CPD hours criminal legal aid list, and those recently appointed to level Auckland 8 May one. 6.5 CPD hours

Note: Douglas Wilson Scholarship applications close 3 April* & 31 July**. OTHER PRACTICE AREAS

ADVANCED LITIGATION Director: Aimed at practitioners with at least 6-10 years’ litigation Wellington 23-27 Jun EDUCATION LAW 2019 Chair: New Zealand’s premier Education Law Conference will once Wellington 6 May SKILLS PROGRAMME – experience (either criminal or civil) this five-day non- Judith Ablett-Kerr Gretchen Stone again focus on the key issues facing educationalists, as well Live Web Stream 6 May FOR CRIMINAL AND CIVIL residential programme follows the same methods that have ONZM QC 6.5 CPD hours as practitioners who advise boards of trustees, principals, or LITIGATORS proved so successful in the basic level NZLS CLE Litigation parents. Auckland 7 May Deputy Director: Skills Programme. 32 CPD hours Paul David QC Note: Course applications and Douglas Wilson Scholarship ELDER LAW 2019 Chair: Lawyers who practice in the Elder Law area are today faced Wellington 29 May applications close 8 May. Mary Joy Simpson with legal requirements and complexities which were not Live Web Stream 29 May 6 CPD hours evident a generation ago. This intensive will provide up-to- date practical advice on current issues and challenges. Auckland 30 May

To contact us | Visit: www.lawyerseducation.co.nz For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 LIFESTYLE OnlineOnline registration registration and and payment payment can can be be made made at: at: www.lawyerseducation.co.nzwww.lawyerseducation.co.nz

PROGRAMMEPROGRAMME PRESENTERSPRESENTERS CONTENTCONTENT WHEREWHERE WHENWHEN PRACTICEPRACTICE AND AND PROFESSIONAL PROFESSIONAL SKILLS SKILLS

TRUSTTRUST ACCOUNT ACCOUNT PhilipPhilip Strang Strang HowHow do do you you keep keep a trust a trust account account in goodin good order? order? This This practical practical Various Various Mar-SepMar-Sep ADMINISTRATORSADMINISTRATORS trainingtraining is foris for new new trust trust accounting accounting staff, staff, legal legal executives, executives, legallegal secretaries secretaries and and office office managers. managers. 4 CPD4 CPD hours hours

TRUSTTRUST ACCOUNT ACCOUNT PhilipPhilip Strang Strang UnderUnder the the Financial Financial Assurance Assurance Scheme Scheme all allpractices practices operating operating AucklandAuckland 1 1 16 16Apr Apr SUPERVISORSUPERVISOR TRAINING TRAINING a trusta trust account account must must appoint appoint a qualified a qualified trust trust account account HamiltonHamilton 18 18Jul Jul PROGRAMMEPROGRAMME supervisor.supervisor. A candidateA candidate must must be be a lawyer a lawyer and and must must pass pass thethe NZLS NZLS trust trust account account supervisor supervisor assessments, assessments, which which take take WellingtonWellington 2424 Sept Sept AucklandAuckland 2 2 5 Nov5 Nov 7.57.5 CPD CPD hours hours placeplace during during a full a full day day programme. programme. The The training training consists consists of of self-studyself-study learning learning material material (approx. (approx. 40-50 40-50 hours) hours) to tohelp help you you ChristchurchChristchurch 12 12Nov Nov prepareprepare for for the the assessments. assessments.

EFFECTINGEFFECTING CULTURE CULTURE RabiaRabia Siddique Siddique CultureCulture is everything.is everything. It goesIt goes far far beyond beyond the the company company values values WellingtonWellington 2929 Apr Apr CHANGECHANGE andand mission mission we we espouse espouse on on our our websites, websites, letterheads letterheads and and to to AucklandAuckland 3030 Apr Apr ourour clients. clients. It isIt whatis what we we say say and and do do when when we we think think others others 6 CPD6 CPD hours hours areare not not watching watching or orlistening. listening. Essentially Essentially it isit aboutis about how how we we treattreat each each other, other, how how we we communicate communicate with with each each other other and and ourour clients. clients. This This workshop workshop has has limited limited numbers numbers and and will will fill fill upup fast. fast.

MEDIATIONMEDIATION PRINCIPLES PRINCIPLES VirginiaVirginia Goldblatt Goldblatt A practicalA practical two-day two-day workshop workshop focused focused on on the the professionals professionals AucklandAuckland 3-43-4 May* May* ANDAND PRACTICE PRACTICE GeoffGeoff Sharp Sharp in thein the mediation mediation process, process, whether whether that that is asis asadvocates advocates or or WellingtonWellington 26-2726-27 Jul** Jul** mediators.mediators. You You will will learn learn new new skills skills and and also also enhance enhance and and DavidDavid Patten Patten 13 13CPD CPD hours hours adaptadapt skills skills you you currently currently possess possess so sothat that you you can can improve improve AdamAdam Lewis Lewis youryour representation representation of ofparties parties at atmediation mediation and and your your knowledgeknowledge of ofthe the role role of ofa mediator. a mediator. It canIt can lead, lead, if youif you wish, wish, to to a seconda second workshop workshop focused focused on on training training to tobe be a mediator. a mediator. Note:Note: Douglas Douglas Wilson Wilson Scholarship Scholarship applications applications close close on on 3 3 April*April* and and 26 26 June**. June**.

STEPPINGSTEPPING UP UP – – Director:Director: AllAll lawyers lawyers wishing wishing to topractise practise on on their their own own account account whether whether ChristchurchChristchurch 9-119-11 May May FOUNDATIONFOUNDATION FOR FOR WarwickWarwick Deuchrass Deuchrass alone,alone, in partnership,in partnership, in anin anincorporated incorporated practice practice or oras asa a AucklandAuckland 2 2 25-2725-27 Jul Jul PRACTISINGPRACTISING ON ON OWN OWN barrister,barrister, will will be be required required to tocomplete complete this this course. course. (Note: (Note: WellingtonWellington 12-1412-14 Sep Sep ACCOUNTACCOUNT 2019 2019 FromFrom 1 October 1 October 2012 2012 all alllawyers lawyers applying applying to tobe be barristers barristers sole sole areare required required to tocomplete complete Stepping Stepping Up.) Up.) Developed Developed with with the the AucklandAuckland 3 3 21-2321-23 Nov Nov 18.518.5 CPD CPD hours hours supportsupport of ofthe the New New Zealand Zealand Law Law Foundation. Foundation.

CPDCPD –– AA FewFew HoursHours Short?Short? CheckCheck out out our our Online Online CPD CPD 24/724/7 Access Access from from your your Device Device www.lawyerseducation.co.nzwww.lawyerseducation.co.nz

ToTo contact contact us us | Visit:| Visit: www.lawyerseducation.co.nz www.lawyerseducation.co.nz Email: Email: [email protected] [email protected] | Phone:| Phone: CLE CLE information information on on 0800 0800 333 333 111 111 OnlineOnline registration registration and and payment payment can can be be made made at: at: LAWTALK 926 · March 2019 LIFESTYLE www.lawyerseducation.co.nzwww.lawyerseducation.co.nz

LIFESTYLE PROGRAMMEPROGRAMME PRESENTERSPRESENTERS CONTENTCONTENT WHEREWHERE WHENWHEN PRACTICEPRACTICE AND AND PROFESSIONAL PROFESSIONAL SKILLS SKILLS

A WINDOWA WINDOW INTO INTO ChiefChief District District Court Court AnAn invitation invitation from from the the Chief Chief District District Court Court Judge Judge and and the the AucklandAuckland 1 (Full) 1 (Full) 11 Mar11 Mar BECOMINGBECOMING A DISTRICTA DISTRICT JudgeJudge Doogue Doogue PrincipalPrincipal Family Family Court Court Judge Judge to tohear hear what what it takesit takes to tobe be a a HamiltonHamilton (Full) (Full) 12 12Mar Mar COURTCOURT AND/OR AND/OR FAMILY FAMILY modernmodern judge. judge. This This seminar seminar will will help help you you determine determine whether whether PrincipalPrincipal Family Family Court Court AucklandAuckland 2 2 15 15Apr Apr COURTCOURT JUDGE JUDGE thisthis role role might might be be for for you, you, and and whether whether your your current current career career 1 2 3 4 5 6 7 8 JudgeJudge Moran Moran settingssettings are are right right should should you you wish wish to toprogress progress on on to tothe the DunedinDunedin 17 17Apr Apr A New 1.251.25 CPD CPD hours hours Bench.Bench. SeeSee full full invitation invitation to toattend attend at: at: www.lawyerseducation.co.nz www.lawyerseducation.co.nz 9 10 TRUSTTRUST ACCOUNT ACCOUNT PhilipPhilip Strang Strang HowHow do do you you keep keep a trust a trust account account in goodin good order? order? This This practical practical Various Various Mar-SepMar-Sep Zealand 11 ADMINISTRATORSADMINISTRATORS trainingtraining is foris for new new trust trust accounting accounting staff, staff, legal legal executives, executives, legallegal secretaries secretaries and and office office managers. managers. 12 13 4 CPD4 CPD hours hours Legal 14 TRUSTTRUST ACCOUNT ACCOUNT PhilipPhilip Strang Strang UnderUnder the the Financial Financial Assurance Assurance Scheme Scheme all allpractices practices operating operating AucklandAuckland 1 1 16 16Apr Apr 15 16 SUPERVISORSUPERVISOR TRAINING TRAINING a trusta trust account account must must appoint appoint a qualified a qualified trust trust account account HamiltonHamilton 18 18Jul Jul PROGRAMMEPROGRAMME supervisor.supervisor. A candidateA candidate must must be be a lawyer a lawyer and and must must pass pass Crossword thethe NZLS NZLS trust trust account account supervisor supervisor assessments, assessments, which which take take WellingtonWellington 2424 Sept Sept 17 18 AucklandAuckland 2 2 5 Nov5 Nov 7.57.5 CPD CPD hours hours placeplace during during a full a full day day programme. programme. The The training training consists consists of of self-studyself-study learning learning material material (approx. (approx. 40-50 40-50 hours) hours) to tohelp help you you ChristchurchChristchurch 12 12Nov Nov 19 prepareprepare for for the the assessments. assessments. SET BY MĀYĀ 20 21 EFFECTINGEFFECTING CULTURE CULTURE RabiaRabia Siddique Siddique CultureCulture is everything.is everything. It goesIt goes far far beyond beyond the the company company values values WellingtonWellington 2929 Apr Apr CHANGECHANGE andand mission mission we we espouse espouse on on our our websites, websites, letterheads letterheads and and to to AucklandAuckland 3030 Apr Apr 22 23 24 ourour clients. clients. It isIt whatis what we we say say and and do do when when we we think think others others 6 CPD6 CPD hours hours areare not not watching watching or orlistening. listening. Essentially Essentially it isit aboutis about how how we we 25 treattreat each each other, other, how how we we communicate communicate with with each each other other and and ourour clients. clients. This This workshop workshop has has limited limited numbers numbers and and will will fill fill 26 27 upup fast. fast.

MEDIATIONMEDIATION PRINCIPLES PRINCIPLES VirginiaVirginia Goldblatt Goldblatt A practicalA practical two-day two-day workshop workshop focused focused on on the the professionals professionals AucklandAuckland 3-43-4 May* May* in thein the mediation mediation process, process, whether whether that that is asis asadvocates advocates or or ANDAND PRACTICE PRACTICE GeoffGeoff Sharp Sharp WellingtonWellington 26-2726-27 Jul** Jul** 28 29 mediators.mediators. You You will will learn learn new new skills skills and and also also enhance enhance and and DavidDavid Patten Patten 13 13CPD CPD hours hours adaptadapt skills skills you you currently currently possess possess so sothat that you you can can improve improve AdamAdam Lewis Lewis youryour representation representation of ofparties parties at atmediation mediation and and your your E N A M E L A B A C U S E S knowledgeknowledge of ofthe the role role of ofa mediator. a mediator. It canIt can lead, lead, if youif you wish, wish, to to X R R U R E T a seconda second workshop workshop focused focused on on training training to tobe be a mediator. a mediator. A B R U S H S T R A I N E R M O E D C S I A Across answers contain a baby name rejected in 2018. This is ignored in Note:Note: Douglas Douglas Wilson Wilson Scholarship Scholarship applications applications close close on on 3 3 I A G O W I T H T H E L A W the wordplay, e.g. “Judgement” might be clued “Men to model wisdom”. April*April* and and 26 26 June**. June**. N A W R E L E S E X T R A C T O R F A N STEPPINGSTEPPING UP UP – – Director:Director: AllAll lawyers lawyers wishing wishing to topractise practise on on their their own own account account whether whether ChristchurchChristchurch 9-119-11 May May S E G Y S N D C alone,alone, in partnership,in partnership, in anin anincorporated incorporated practice practice or oras asa a FOUNDATIONFOUNDATION FOR FOR WarwickWarwick Deuchrass Deuchrass AucklandAuckland 2 2 25-2725-27 Jul Jul K N O W T H E D R I L L Across Down PRACTISINGPRACTISING ON ON OWN OWN barrister,barrister, will will be be required required to tocomplete complete this this course. course. (Note: (Note: D S E E O S V A WellingtonWellington 12-1412-14 Sep Sep 1 David Bowie’s creation goes to 1 Tiramisu served by those hiding ACCOUNTACCOUNT 2019 2019 FromFrom 1 October 1 October 2012 2012 all alllawyers lawyers applying applying to tobe be barristers barristers sole sole E N L A R G E S O N Y O U R areare required required to tocomplete complete Stepping Stepping Up.) Up.) Developed Developed with with the the AucklandAuckland 3 3 21-2321-23 Nov Nov N E I K K B R I my head (5,3) wrongful employment (6) supportsupport of ofthe the New New Zealand Zealand Law Law Foundation. Foundation. 18.518.5 CPD CPD hours hours T E E N A G E R B R A C E S 5 State of a fruit in front (6) 2 Score deciders? No, normally 3/5 (6) A P N N E E S L A Y A S I D E B R I D G E 9 Storms out of Coco’s place (8) 3 Formulaic type of transport? (6,3) 10 We’re alone! (6) 4 Wind instrument so alumnus can go 12 Poles may be alluring (6) on working holiday? (4) Solution to February 13 They come to save “Snakehead” 6 Beside one’s objections (5) 2019 crossword (8) 7 Alkaliser used against a branch of Across 15 Woo nice stranger with cheap the police? (8) 1. Enamel, 4. Abacuses, sherry (11) 8 Demanded untidiness? (8) CPDCPD –– AA FewFew HoursHours Short?Short? 9. A Brush, 10. Strainer, 12. Iago, 19 Not the one Bonnie Tyler’s 11 Jaguars on iron railways? (7) 13. With The Law, 15. Extractor Fan, holding out for - oh, absent and 14 Wooed Wimbledon, for example? (7) 18. Know The Drill, 21. Enlargeson, on the fiddle, they say(11) 16 Ludicrous “Gore Quest” fantasy (9) CheckCheck out out our our Online Online CPD CPD 22. Your, 24. Teenager, 25. Braces, 22 Constant bearing for dugouts (8) 17 Renewable energy for the Navy? 26. Lay Aside, 27. Bridge. 24 Not doing a good job about... (6) (3,5) 26 ...person in charge of whiskey (6) 18 Agent said to improve by going 24/724/7 Access Access from from your your Device Device Down 27 Ignored part of answer’s round and round (8) 1. Examines, 2. Arrogate, guitarist to head parade? (8) 20 Roman consul and supreme 3. Erse, 5. Butchers Hook, 28 Stags’ tail? (6) commander prior to 19’s www.lawyerseducation.co.nzwww.lawyerseducation.co.nz 6. Crash Lands, 7. Senile, 8. Straws, 29 Lands (David Bowie’s, in one beheading (6) 11. Dirty Weekend, 14. Wagnerians, incarnation) party girl (8) 21 Exploitative Acts perform in 16. Divorced, 17. Clarisse, 19. Denial, America (6) 20. Sleepy, 23. Brer. 23 Cup a girl discovered? (5)

101 ToTo contact contact us us | Visit:| Visit: www.lawyerseducation.co.nz www.lawyerseducation.co.nz Email: Email: [email protected] [email protected] | Phone:| Phone: CLE CLE information information on on 0800 0800 333 333 111 111 LIFESTYLE

LIFESTYLE Berlin The sexy city that’s full of quirks and contrasts

BY JOHN BISHOP

Berlin never reached the heights of other imperial capitals in the age of empires. Even today it compares poorly both with other capital cities in Europe and with other German cities like Munich, Frankfurt, Hamburg and Cologne. As a united country, Germany is young. It only became one country in 1871, after Bismarck’s forces crushed Napoleon III’s armies in the Franco-Prussian War, leading Bavaria, the last remaining independent kingdom to throw its lot in with a Prussian-controlled German Empire. Berlin, the capital of Prussia, then became the capital of a united German nation. That regime ended in 1918, less than 50 years compared with the many centuries that other leader Mikhail Gorbachev, “Open this gate! Mr imperial cities had to build their presence and personality. Gorbachev, tear down this wall!” followed by The conservative and cautious north German Protestants the smashing down of the wall in November had neither the time nor the inclination to imitate the 1989, and in November 2002 Michael Jackson opulence of Versailles or the decadence of the Schönbrunn dangling his nine-month-old son out of a Palace in Vienna, or even the style of Buckingham Palace, window of the top floor of the Adlon Hotel which was considered a poor outhouse of a place in the to the horror of the crowd below. 19th century by snobby European royalty. The second reason is geographical. Berlin is built on a Museums at night swamp – the name Berlin means ‘little lake’ or ‘swamp’ in Wellington barrister Chris Chapman is a Swabian, the language of Slavonic migrants who settled big fan of the city, and visits regularly. He there in the 12th century. agrees Berlin does not have the concen- At every building site in the city large pumps are oper- trated architectural grandeur of some other ating constantly to remove water for solid foundations to European cities. be put in. There are depth, height and weight restrictions “One exception to this is the Museuminsel for buildings. and adjacent area in the former East Berlin. The tour guides tell gullible tourists that the pipes going There, in addition to the impressive buildings into almost every building are for beer, or for piping in the that are the home to five of Berlin’s leading custard for the sweet cakes and squares Berliners love to eat. museums, is the Berliner Dom, the Opera, the The hydrology means that there are few skyscrapers Neue Wache containing the Käthe Kollwitz and no really eye-catching architecture, like the Eiffel The tour statue Mutter mit Totem Sohn, the Humboldt Tower in Paris, the Gherkin and the Shard in London or guides tell University and the soon to be completed the Donauturm, the Millennium or Donau City Towers gullible rebuilt Berliner Schloss,” says Chris. in Vienna. tourists “Every capital city has museums to awe Berlin has seen a lot of action: Napoleon’s triumphant that the their visitors offering displays of art and arrival after defeating the Prussians at the battle of Jena; pipes going antiquities and Berlin has this sort of museum the Spartacist uprising led by Communist Rosa Luxembourg into almost in abundance. And once a year there is the in 1919; the Nazis book burning in 1933; John Kennedy every very popular Lange Nacht der Museen. declaring on 26 June 1963 “Ich bin ein Berliner”; Ronald building are “On that day – 31 August this year – from Reagan standing at the Brandenburg Gate imploring Soviet for beer 6pm until the small hours a single €18 ticket

102 ▴ The view down Oranienburge Straße towards the Fernsehturm, the tallest structure in Germany and an icon of East Berlin.

▸ Currywurst – Bratwurst with curry sauce, served with fries – is a specialty of Berlin (and very delicious). will get you into as many museums as you can visit plus the transport in between.” I am not into such cultural pursuits; instead my highlights were the Spy Museum, the Hitler Bunker and Checkpoint Charlie. The Spy Museum regards the first instance of spies as the scouts used by the Egyptian Pharaohs in the 15th century BC to detect and report on enemy troop movements. There is more than a nod in the direction of the cinematic and romantic version of spies, with a display on James Bond, and a collation of spy movies. Berlin was centrepiece in many spy novels and films from the 1950s onwards, including most recently Bridge of Spies. In spy apparatus my personal favourite is a recording device the CIA developed to attach to a cat which was then to wander around a room full of diplomats recording

103 their conversations. Getting the cat ready, and blocking the cross street. trained and set up cost $15 million, but To pose with the “guards” for a photo “Berliners are alas, the cat was accidentally killed by a costs €3; a visitor can choose which officers today resigned taxi on its first mission. hat to wear: Russian, American, British, to the fact that At Checkpoint Charlie, the famous French, but they do salute authentically. their city is largely crossing point between the American and dysfunctional. Soviet sectors, I was unsurprised to learn The wall It is bankrupt. that the uniformed guards are not real Around the area are some excellent photo- But it is sexy, German soldiers (one of them is Italian). graphic accounts of the wall going up and international, The guard house is a replica, and in real coming down. Built from 1961 onwards and cosmopolitan and life it was several metres further forward constantly strengthened until its demise somehow cool.”

104 LAWTALK 926 · March 2019

◂ Inside the cupola atop the Reichstag, the German parliament building. Designed by architect Norman Foster, the glass dome was added to the building City of contradictions as part of repairs to WWII damage, prior to In Berlin, tourism is the number one parliament returning to Berlin in 1999. industry, with the arts coming in second. Construction is third, and government is fourth. The long delays and massive cost from 1989, the Berlin Wall was 96km long and went around overruns in building the city’s new airport the city as well as across it dividing East from West, thus belie the country’s reputation for efficiency. locking West Berlin into East Germany. Almost all of it This is a city of quirks and contradictions. is now gone. Under Communism, East Berlin pio- All up, 136 people were killed trying to cross it. But there neered the use of symbols of people were 5,075 successful crossings, mostly in the first two walking or waiting inside green and red years, and about 500 of those were East German border traffic lights. The man in the green symbol guards. resembled Erich Honneker, the long-time The souvenir shops have pieces of broken concrete “from head of the Communist Party in East the Wall” nicely mounted on wooden plinths for display Germany, a person of stocky peasant origin. as a reminder. When unification occurred, Berliners In the former East German side of the city there are overturned a plan to get rid of the East murals depicting happy peasants and workers led by German lights and replace them with the the intelligentsia all toiling for socialism. One example Western German variant. The East German of “socialist realism” erected in 1952 was negated by the version is still used throughout the now 1953 uprising against Communist rule which was brutally united city. crushed. And only in Berlin will you find rabid The Hitler Bunker is long gone, but the tour guides fans of a late-night pick me up after drink- all know where it was, and you can stand on the site ing, called currywurst. It’s a grilled sausage in a small carpark outside a rather ordinary apartment (usually beef or veal mixed with pork), in a block to hear the story of what happened at the end of tomato-based onion and curry sauce, onto the Third Reich in April/May 1945. which curry powder is shaken to taste. Oliver Hartwich, the head of the Wellington-based think Try it at your own risk, but don’t scorn tank the New Zealand Initiative, is German but not from it: locals love it. There’s even a museum Berlin. He says Berlin is the least German of all German devoted to currywurst. cities and is different in other ways too. The city’s Holocaust Memorial is also “The thing that makes Berlin different from, say, Hamburg memorable. Built in 2003-05 to a design or Munich is its size, which, in turn, enables the formation of by American architect Peter Eisenman, scenes and sub-scenes that no other German city managed who has yet to explain its rationale, the to develop.” That’s certainly true in the high and low culture memorial consists of 2,711 rectangular of the arts and the creative industries, leading one critic to blocks of concrete, each of a different comment that Berlin was a retirement home for the creatives size from knee height to above one’s head, in their mid-30s. arranged on a 19,000 sq m block south of “The other factor about Berlin was that after World the Brandenburg Gate. War II, it got used to subsidies and transfers,” says Oliver. Each block was sprayed with anti-graffiti “The East German government wanted to make it its shop paint, made by a company called Degesch, window, whereas for the West it was case of showing a subsidiary of the much larger Degussa solidarity with the city,” says Oliver. company. “In both cases, Berlin got used to receiving money for In World War II Degussa made Zyklon B, being, well, Berlin. And after unification, that mindset the gas used in the death camps. didn’t change. The Berlin authorities knew all this at “Klaus Wowereit, mayor of Berlin in the early 2000s, the time the contract was awarded, and coined a wonderful phrase when he described Berlin’s when it was revealed, a fierce public row self-image as “poor but sexy”. What other mayor of a global erupted. One outcome was that Degussa city would say that? now cleans and refreshes the paint each “So, Berliners are today resigned to the fact that their year for free. ▪ city is largely dysfunctional. It is bankrupt. But it is sexy, international, cosmopolitan and somehow cool. I certainly John Bishop [email protected] is love it, though I would never want to live there.” a travel writer and business mentor.

105 TAIL END March 2019 · LAWTALK 926

TAIL END

Some more characters in the law

BY DON RENNIE

Following David Sparks’ memories of characters in the law in LawTalk 925 (February 2019, page 102) (but see page 13), Don Rennie has cast his mind back in time. Don has had a long career in the law and is the convenor of the Law Society’s Accident Compensation Committee.

very little court experience. I had taken the day’s list of cases I was interested to read about some of the characters referred with the relevant documents up to his chambers and discussed to in David Sparks’ item. I knew Len Leary and had met Mick what would take place in hearing the cases. He was extremely Robinson during the time I worked in the Magistrates’ Court nervous and I gave him what encouragement I could. We office in Auckland in the early 1950s. proceeded downstairs to the No. 1 Courtroom and I went Working as a clerk in the Magistrates’ Court in Wellington in ahead of His Worship and stood at the clerk’s bench. The Court 1954 brought me into contact with a number of “characters” Orderly called “silence all rise” and there was a deathly hush amongst the lawyers and magistrates. I met many lawyers but no magistrate appeared. I looked back and His Worship in some cases over the counter when filing documents and was frozen to the spot with stage fright. I rapidly called “Court answering questions about their cases and hearings, and in adjourned” and went back and took His Worship back to his other cases when I sat in front of a range of magistrates hearing chambers where I got him a cup of tea and calmed him down. lawyers pleading their cases. When he was ready we reconvened the court and the second Among the magistrates I worked with were Jim Hannah, Ben time he entered the court and stepped onto the bench and Scully, Brice Thompson, Bill Carson and several new magistrates things went smoothly. That magistrate later became one of who, when they were first appointed, cut their teeth in the the best, fairest and most efficient I had experienced while downstairs No. 1 Courtroom in the Wellington Magistrates’ Court. working in the courts. I remember one new magistrate (I won’t name) who had Magistrate Ben Scully was a different case. He was a forthright been appointed from a respectable legal practice but with ex-West Coaster with firm ideas on how things should be done

❝ It is little wonder that so many women (and men) are Notable Quotes turning away from the criminal Bar; the environment is increasingly hostile. The hours are punishing and unpredictable, often late into and sometimes through the night, the personal sacrifices are huge, fees are derisory, ❝ What educational purpose do these rules serve? Conformity not remotely stacking up for the necessary childcare or is not a blank cheque for discipline. ❞ breaks, and the treatment from all directions too often is — Victoria University Associate Professor of Law Dean Knight very unpleasant. ❞ after Auckland Boys’ Grammar School required a 13-year-old — Chris Henley QC, Chair of the Criminal Bar Association of boy to cut his long hair. England and Wales.

❝ Every year, bereaved New Zealand families are paying ❝ Act as judges, not as saviours of the nation. ❞ lawyers between $4.25 and $8.5 million more than they — A request for judicial impartiality from Jordi Pina, defence need to, for basic paperwork after a loved one dies. ❞ lawyer for three of 12 pro-independence Catalan politicians — Canterbury lawyer Cheryl Simes, who has researched the facing charges of rebellion, disobedience and misuse of costs of preparing probate documents. public funds.

106 LAWTALK 926 · March 2019 TAIL END

and how defendants, counsel and witnesses should be treated. I was in court with him the day the “Mongrel Mob” was founded. A young offender was in the dock being reprimanded by His Worship and as he was stood down from the dock his Worship said “you’re nothing but a mongrel”. This was picked up by the press (I think it was the Truth news- paper) which published the headline “Court calls Defendant Mongrel”. Before long a number of “prospects” had formed a gang and adopted the name “Mongrel Mob” which still exists today. ▴ Harry Arndt Among the lawyers appearing in the Welling- ton Magistrates’ Court no one was more early experience sometimes by watching experienced lawyers memorable than Roy Stacey. I had seen like Les Rose, George Kent, Harry Arndt, Frank O’Flynn, Roy Roy’s uncle Bill Stacey appearing before Stacey, George Barton, Des Dalgety and many others who also magistrates and I felt Roy learned some practised in the Supreme Court jurisdiction. In the Supreme of his tricks of presentation from Bill, Court (now the High Court) judges were addressed as “Your but Roy was something special. He Honour” but in the Magistrates’ Court the magistrate was was a former naval officer during the addressed as “Your Worship”. I am reminded of the story of war and was colourful, always polite and the young lawyer who had experience in the Magistrates’ had a way with handling witnesses and Court but in appearing nervously for the first time before a addressing the court. He had a wonderful judge in the Supreme Court mistakenly addressed the judge as flow of language and could always find “Your Worship”. The judge replied “Mr…… in this court you may the right expression or word to fit the Honour me but you must not Worship me”. An embarrassing circumstances. He was gregarious and lesson which I am sure he never forgot. often invited court staff to his chambers There seems to be an absence of real “characters” in the or home for parties and celebrations. He law these days but perhaps things have changed. There are was memorable and a real character. numerous other characters I can recall in my time in practice The Magistrates’ Court was the place but I think I have said enough to encourage the recollections where many new lawyers gained their of those who practised in years gone by. ▪

❝ We need people with a desire to make the law a better ❝ Through the years I worked hard, I cried and I prayed place. That’s the sort of people I work with here, that’s because I wanted to make my family proud. I laid it in my incredibly exciting for me. ❞ heart that I was going to graduate and become a lawyer — New Gallaway Cook Allan partner Jenna Riddle. one day. ❞ — Adi Lina Garnett Valenitabua, 26, one of 42 new lawyers ❝ There’s an underclass that doesn’t get access to safety nets admitted in Fiji on 1 February. like every other Australian does, and it disproportionately affects New Zealanders of colour. ❞ ❝ The law in New Zealand about class actions is based on a — Melbourne community legal centre WestJustice lawyer very general rule in the High Court rules that dates back to Sarouche Razi comments on the problems faced by 1873. It’s not really designed for modern class actions. ❞ people from New Zealand who live in Australia on a Special — Wellington barrister Jason McHerron, convenor of the Law Category Visa. Society’s Public and Administrative Law Committee.

107 STEP MINI- CONFERENCE 2019

Being a Trustee in Today’s Climate: The Tax, The Risks, The Dangers

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